iPRKStDENT White LlBRii^RY, CQfiN B LI. UN 1 VE RS ITY. Cornell University Library BX51S0 .M23 1895 olin 3 1924 029 446 584 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924029446584 THE CONSTITUTIONAL HISTORY AND CONSTITUTION OF THE CHURCH OF ENGLAND THE CONSTITUTIONAL HISTORY AND CONSTITUTION OF THE Church of England TRANSLATED FROM THE GERMAN OF FELIX ^JAKOWER Barrister in Berlin Non debet did tendere in praejudicium ecclesiasticae liiertatis quod pro Rege et re publica necesmrium invenitur. — 9 Ed. list, i (131SI6) AriicuU Cleri c 8 %antsan SWAN SONNENSCHEIN & CO, Lim. NEW YORK: MACMILLAN & CO 3.895 Butler & Tanner, Tbe Selwood Printing Worfci, Frome, and London. NOTE. FoK the various editions of books which have been used the reader should consult appendix XIV. — The Lehrbudi des Kirclienrechts by Aemilius Ludwig Richter is cited according to the eighth edition, Leipzig, 1886. Anglo-Saxon laws are given according to Schmid, Gesetze der Angelsachsen, 2nd Ed. English laws down to the death of Anne (1714) are cited from Statutes of the Realm (Record Commission; see append. XIV, I,, 2). Rer. Brit. olige he ceg&res, ge hades ge edrdes and wraecnige swd wide swd papa Mm scrtfe, and deed-bite georne (^ If a mass-priest becometh a manslayer or otherwise doeth too grave a misdeed, then let him lose all, class and country, and go into exile so far as the pope prescribeth for him, and let him willingly atone for the deed''). So Knut II c 41 (compare here leg. Hen. I [Schmid, appendix XXI] c 73 § 6). For the history of Peter pence see Paul Fabre, Becherches sur le denier de Saint Pierre en Angleterre au moyen dge in Melanges d'arcMolOgie et d'histoire published by Vicole franqaise de Rome, supplement to Vol. XII. 1892 pp. 159 ff. ' So especially Dtinstan (969-86). * Cf. § 59, notes 3 and 4. = Cf. § 59, note 9. §2) RELATION OF STATE AND CHURCH 9 in the folk-moot flowed into the coffers of the church. On the other hand, in inflicting ecclesiastical penances the clergy endeavoured to secure the payment by evil-doers of the compensation which the secular law prescribed.^ It is laid down to be the duty alike of the bishop and of the king and his officer, when clerk or stranger is injured, to fill the place of kinsmen and to call the offender to account.'' Again, the independence of the bishops was utilized on behalf of the state by entrusting to them the collection of fines incurred by secular officers for misdemeanour in their offices.^ This connexion of the prelates with lay officials had a natural result : the former kept constant watch on the conduct of the latter and served as a counterpoise to their influence. The principal representatives of the independence of the church at this period came to be the monasteries. But their striving for independence was directed even against the bishops. Probably there were instances, though rare ones, as early as Anglo-Saxon times, in which larger monasteries were freed wholly from episcopal interference." How bishops and abbots were appointed in the last centuries of the Anglo-Saxon era, is a difficult matter to ascertain.^" Two rights were in conflict with each other : the right, traced back to heathen days, of free election by the clergy, and the right, at least to co-operate, of those who had endowed the several bishoprics and abbeys. Particularly in the monasteries, the right of free choice of an abbot (subject to episcopal confirmation) seems to have been in great measure maintained.^^ In numerous cases, however, we find ° Cf. § 59, note 19. ' Edward and Guthrum, o 12, buton he elles 6&erne (kinsmen) haebbe. Be ledd-geMne&um and lage (Of people's ranks and law), Sclimid, appendix V c 8. Instituta Cnuti (Schmid, appendix XX; a law-book, probably dating from shortly after 1110) III c 63. — The right of representing kinsmen in such a case is ascribed to the king — but not in such a way as to exclude the possibility of the bishop's right side by side with the king's — in Aethelred VIII c 33, Knut II c 40, leg. Henrici I (a law-book, probably dating from 1110-18. Schmid, appendix XXI) c 10 § 3, c 75 § 7. « Aethelstan (924 [926]-940) II c 26 § 1 : And se biscop dmanige pa ofer- hyfmesse aet J>dm gerifan, pe hit on hisfolgotse sy (' And let the bishop collect the penalty for disobedience [i.e. for the non-execution of a law promulgated at the same time] from the gerefa, who is in his diocese '). Eadgar (959-75) III c 3 : And se d&ma pe ddrum wQh di.me, gesylle pam cynge hund-twelftig scill. t6 bote, . ■ . . and dmanige pcere scire bisceop pd bdte t6 pats cynges handa (" Let him who judgeth unjustly pay the king 120 shillings as a penalty, . . . and let the bishop of the shire gather it into the king's hands"). " Further details in Stubbs, Introduction to Epistolae Cantuarienses {Rer. Brit. Scr. No. 38 Vol. II) pp xxvii S. " Cf. Gneist, Vfgsgesch. § 2, note 6 ; also Stubbs, Const. Hist. 1, 149 c 6 § 57. " Poenitentiale Theodori (probably dating from the end of the seventh cen- tury. Haddan and Stubbs, Counc. Ill, 173 ff.) lib. II c 6 § 3 ; Privilege granted by king Wihtred of Kent at a Witenagemot at Baccanceld, relating to the election of an abbot in eight monasteries of Kent (date — ^between 696 and 716 ; printed in Haddan and Stubbs III, 238 ; genuineness not beyond dispute) ; Dialogus Egberti (regarded as genuine; between 732 and' 766; printed in Haddan and Stubbs III, 403) c 11 ; Synods of Pincahala and Celchyth, 787 (Haddan and Stubbs III, 447) c 5 ; Council of Celchyth, 816 (Haddan and Stubbs III, 579) c 4. 10 TO THE NORMAN CONQUEST [I, lA appointments to abbacies made by other persons, above all by the king. When in the course of the tenth and eleventh centuries, in perhaps a third of all the bishoprics, secular canons were ousted and monastic chapters substituted for them,^^ the rights which existed in regard to the election of abbots of monasteries exerted in not a few dioceses a direct influence upon the mode of appointing bishops. Nor had the principle of appointment to bishoprics by free election ever been wholly lost.^^ Yet perhaps in a preponderating number of cases their nomination was by the king, often in the national council. The pretensions of the church to immunity from secular burdens and to independence as against secular magistrates, were still con- fined in all directions within moderate limits. In the department of legislation the co-operation of the laity was not only tolerated, but actually sought. In the judicial sphere there were as yet only the germs of an attempt to withdraw from laymen all jurisdiction over the clergy ; ^* sole and exclusive competence to determine even matters connected with church administration was not claimed by the church ; although, in practice, there were many such matters in which the state did not intervene.^^ The clergy were not exempt from military service ; they did not, indeed, as a rule take part in war personally, but they furnished men from their holdings. In isolated donations of land to churches and monasteries, or on other special occasions, varying degrees of freedom from services to the state were granted ; but in almost all oases there remained at least the trinoda necessitas, as it was called, the obligations of military service, the repair of bridges and the maintenance of fortifications.^^ When the Anglo-Saxon kings, to keep the Northmen away, saw them- selves compelled to pay them tribute — the well-known Danegeld — they raised the necessary sums by the imposition of a land-tax. But church lands did not contribute thereto, and they continued to have this immunity whenever afterwards, in Anglo-Saxon times, this tax was levied for other purposes.^^ §3. c. Development of the church constitution internally." I. Archbishops. After some initial uncertainty the Anglo- Saxon church, from the beginning of the ninth century onward, was permanently divided into two archiepiscopal provinces, over '^ Compare § 37, note 6. '" Letters of Alcuin upon occasion of a vacancy in the archbishopric of York , 796 (printed, Haddan and Stubbs, Counc. Ill, 4.99, 500). Compare also the examples adduced in Stubbs, Const. Hist, 1, 149 f. c 6 § 57. " Compare § 59, notes 13, 14. " Compare § 69, subfinem. ^^ According to Aethelstak (924 [925] -940) I pr., tithes payable to the church are to be collected even from the bishops' own property. '' For the taxing of church lands under William II see § 4, note 21. » Gneist, Sngl, Verfassungsneechichte § 5 I, II. — Stubbs, Const. Hist, o 8. §3] INTERNAL DEVELOPMENT II which the archbishops of Canterbury and York presided.^ But the development of the northern province was not vigorous ; there were always but few bishops there and, in consequence of this, provincial church councils were of rare occurrence. II. Bishops. In the first decades of the conversion each of the petty kingdoms, with the exception of Kent, received only one bishop. Subsequently (from 673) archbishop Theodore succeeded in increasing the number of bishoprics by dividing them.^ The bishops, who had originally been themselves active in travelling and spreading the faith by preaching and baptism, confined them- selves more and more, as the number of the clergy increased, to the work of superintendence. But even at a later time they had to journey over their dioceses once a year, and were enjoined to hold, apparently also once a year, a diocesan synod.-'' In the business of superintendence the bishop was from the beginning of the ninth century aided, afterwards to a gradually increasing extent repre- sented, by his one archdeacon.* Whether as early as these Anglo- Saxon days rural deans were instituted as resident overseers in small districts of the bishopric, is a doubtful matter.^ The companions of the bishop, who remained behind at the episcopal seat, formed themselves into a corporation. Suph a corporation was, in the oldest period, frequently monastic or at least composed of monks and secular priests. In the second half of the eighth century a sharper division was drawn between these two classes.^ At the same time a decline of monasticism began. In the following century the cor- porations at the episcopal seats were transformed, everywhere or almost everywhere, into chapters of secular clergy. When then in the tenth century monasticism was rejuvenated, a struggle broke 1 Compare § 33. » Compare § 33. ^ Compare § 57, notes 1 and 3. * Compare § 42. * Compare § 43, note 2. 6 Council of Clovesho, 747 (Haddan and Stubbs, Counc. HI, 362 ff.) : c 4 . . . Ut episcopi in suis parochiis abbates atque abbatissas moneant, quatenus seipsos prima ponant exemplum bene vivendi, deinde subjectos sibi ut regulariter conversantur, diligenti cura exerceant . . . ;c6 . . . Ut episcopi inonasteria, si tamen ea fas est ita nominare, quae utique quamvis temporibus istis propter vim tyrannicae quandam, avaritiae, ad religionis Christianae statum, nullatenus immutari possint, id est, quae a saecularibus, nbn Divinae scilicet legis ordinatione, sed humanae adinventionis praesurnp- tione, uteunque tenentur ; tamen pro salute animarum, in eisdem com,m,orantium, adire debeant, sit necesse : et ut inter caetera exTiortamenta praevideant, ne sine sacerdotis ministerio aliquod illorum deinceps debilitatum periclitetur, juvantibus ad hoc eorum possessoribus ; c 19 . . . Ut m,onachi seu nunnones . . . quietam ac regularem vitam agant, . . . ; c 28 . . . et ut inter alias regularis vitae observantias, vestibus consuetis juxta formam videlicet priorum,, sive clerici, sive monachi deinceps utantur . . . ; o 29 . . . quod post hanc synodum non liceat clericos, vel monachos vel sancti- m,oniales, ulterius apud laicos habitare in domibus saecularium, sed repetant monasteria ubi primitus habitum sanctae professionis sumpserant ; . . . . Legatine synods of Pincahala and CelcJiyth 787 (Haddan and Stubbs, Counc. Ill, 447 ff.) o 4: . . . Ut Episcopi diligenti cura provideant, quo omnes canonici sui canonice vivant, et monachi seu monachae regulariter conver- sentur, tarn in cibis quam in vestibus, ut discretio sit inter canonicum et monachum vel secularem ; . . . 12 TO THE REFORMATION [I, 1b out between the monks and the regular clergy, the former seeking to oust the secular element from the chapters of the bishops. The monks became possessed of a number of cathedral churches ; in some places, however, they had to surrender again the position they had won. These contentions were prolonged into Norman times.'' At the head of the secular chapters was a dean; this dates, at the latest;' from towards the end of the Anglo-Saxon period.^ III. Parish priests. It was only by degrees that the episcopal dioceses resolved themselves into smaller districts, in which single clergymen remained to fulfil their office. Gradually the boundaries between these districts were determined. About the end of the eighth century we find the whole of the Anglo-Saxon kingdoms already divided up into parishes.^ In each parish an independent body of church property was formed, in the first instance by dona- tions from the lord of the soil and by irregular gifts upon occasion of divine service, afterwards by tithes and a whole series of other taxes,*" voluntary at the outset, but soon transmuted by ecclesiastical or civil ordinances into enforceable services. B. FROM THE NORMA.N CONQUEST TO THE REFORMATION. §4. a. Relation of state and church to one another." The conquest of England by the Normans brought with it a tightening of the central state control. This strengthening of the civil power came at a time when the papacy, represented by Gregory VII (pope from 1073), began to express with greater boldness than before the ultimate conclusions to which its principles led, and to demand not merely the exemption of the church from secular inter- ference, but even the subjection of all the various civil forces to the power of the papal see. ,The existence of these two opposite and progressive tendencies rendered a peaceful co-operation, based on mutual regard, such as had hitherto in general prevailed between church and state, for the future impossible. In its stead caine first a sharper accentuation of the opposing principles and a more pre- cise definition of the rights and duties of each power toward the other, then a struggle between the two for mastery in the state. ' Compare § 37. * Compare § 37, note 6. 9 Compare § 44, notes 3-5. 1" Church-scot, candle-scot, soul-scot, plough-alms. ■ Gneist, Mng. Verfassungsgeschichte § 14. — Stubbe, Const. Hist, c 9 § 101 (William I), 10 § 106 (William II), § 112 (Henry I), c 12 §§ 139, 140 (Henry II), § 153 (John), e 19 and elsewhere. For the time of Henry III : H. E. Luard, On the relation between Englamd and Borne dwing the earlier portion of the reign of Henry III, Cambridge 1877 (deals with the years 1216-35). — Weber, Heinrich, Uher das Verhallmis Engla/nds xu Bom wahrend der Zeit der Legation des Kardinals Otho in den Jahren 1237-41, Berlin 1883. Cf. also appendix XIV, II, 3 a. §4] RELATION OF STATE AND CHURCH 13 During the first stage of that struggle, from William I to the death of Henry III (1066-1272) we see a steady retreat of the civil power before the superior might of the church, a retreat simply retarded by the best kings, not permanently checked. In the ensuing period from Edward I to the end of the reign of Eichard II (1272-1399),' the state turns to the resolute assertion of its rights, and endeavours by strict regulations to restrain the church within limits consistent with the welfare of the body politic. The proceedings of Edward III (1327-77) were partly determined by the circumstance that the popes .then living at Avignon (1309-76) were under French in- fluence and necessarily regarded by him, in his wars with France, as foreign foes of England. From Henry IV to the Reformation (1399-1529) follows a third stage, a time of comparative peace. Both parties maintained their irreconcilable views. But the atten- tion of the kings was fully occupied by the continuance of the great struggle with France and by the civil wars of red and white rose ; the clergy, on their side, needed the protection of the civil power against the newly arisen party of reform.^ Thus, in this period again, small skirmishes between church and state occurred; but neither of the two parties staked its whole forces on the issue, and both preferred, as each difficulty sprang up, to bridge the gulf be- tween their principles by conventional dispensations and compro- mises. The constitution of the English state under the first Norman kings was that of an absolute monarchy, the -will of the sovereign being, however, influenced by frequent discussion with his nobles.^ It was only by degrees that, following isolated precedents, decisive resolutions of the magnates of the land, and consultations with representatives of the knights of the shire and the towns became customary, the former from the time of Henry III, the latter from that of Edward I. In spite of the fact that the influence of the parliament thus originated, gradually increased, the power of the kings remained for long so preponderating, that their personal character almost determined the whole administration of the government. Accordingly, the relation of state to church varied with each suc- ceeding reign, especially during the acute period of the struggle. "William I based his claim to the crown of England mainly on an alleged hereditary right of succession.* But he at the same time in invading England appealed to the sanction of pope Alexander II, who had sent him the banner of the church.* When, however. ^ The first attacks of Wycliffe upon the doctrines of the church were circ. 1363. Shirley, Introduction pp. xv ff. to Fasciculi Zizaniorum (Ser. Brit. Scr. No. 5). ^ Compare § 21, note 6. 3 Stubbs, Const. Hist. I, 280, note 1 c 9 § 9B.— Of. however the view of the jurists in the thirteenth century, Bracton (Rer. Brit. Scr. No. 70) VI, 74 : Non enim tenetur (the king) warrantizare donationem, et feoff amenta regum qui regnaverant ante conquestum, ipse enim rex non est eorum haeres . . . * The pope approved the attack on England, partly because archbishop Sti- gand of Canterbury had obtained the pallium from an antipope. 14 TO THE REFORMATION [I, 1b upon the completion of the conquest, pope Gregory VII demanded to be recognized by the king as suzerain (1077-1079), he was met with a refusal.6 Nevertheless, the mere fact that William had partly relied on the papal approval of his undertaking, compelled him from the outset to exhibit a certain consideration to the claims of Rome. This explains the circumstance — though other reasons may also have prevailed ^ — that in an ordinance issued probably about 1070 he went far towards gratifying the wishes of the church. By this ordinance he withdrew from the secular courts all jurisdiction in cases ' which pertain to the guidance of souls,' referred such cases to the exclusive adjudication of the ecclesiastical authorities (at whose disposal he placed the coercive powers of the state), and in so far admitted the validity of ecclesiastical law.'' Thus, for the first time expressly, the state recognized, though in a limited sphere, an independent, ecclesiastical power ; this recognition formed a firm basis for the church in all future contentions with the state. But William, on the other hand, also laid a foundation for the permanent incorporation of the higher clergy into the body politic of England as peers of . the other magnates. This was effected by extending to the higher clergy that feudal relation which, even as regards secular magnates, was first perfected under William I.^ This inno- vation was essentially effected by the condition imposed by William, probably about 1072, that the several bishoprics and greater abbeys should furnish a definite number of knights ; various administrative measures in the same spirit gradually put the lands of the higher ^ Letter of William I to pope Gregory (printed in Migne, Patrologiae Cursus Completus Vol. 148 p. 748, among the letters to pope Gregory, No: 11) : Huber- tus legatus tuus, religiose Pater, ad me veniens ex tua parte, me admonuit qiMtenus tibi et successoribus tuis fidelitatem facerem, et de pecunia, quam. antecessores mei ad Bomanam Ecclesiam m.ittere solebant, melius cogitarem : unum adm.isi, alterum non admisi. Fidelitatem facere nolui, quia nee ego promisi, nee antecessores oneos antecessoribus tuis idfecissecomperio. Pecunia tribus fere annis, in Galliis me agente, negligenter collecta est ; nunc vero divina inisericordia me in regnum meum reverso, quod collectum est per praefatum legatum m,ittitur ; et quod reliquum est, per legatos Lanfranci archiepiscopi fidelis nostri, cum, opportunum fuerit, transmittetur. . . The date of the letter as given in the text is inferred from lotters No. 5027, 5074, 5135 in Jaffe. Dunzelmann in Forschungen zur deutsclien GeschicMe, XV, 633 would lead us to adopt 1078-9. According to Freeman, History of Conquest IV, 433, note 1, it was not hefore 1076; according to Stubbs, Const Hist. I, 309, note 1, c 9 § 101, about 1076. ^ Alleged reasons are :— (i) that the intention was to weaken the Anglo-Saxon folk-moot in favour of the Norman bishops ; (ii) Spelman's conjecture (cf. app. I, note a) that the ordinance dates from 1085 being adopted, it is contended that the ordinance was the price paid the church for renouncing opposition to the then projected, afterwards (at the Council of Salisbury in 1086) executed plan, that all capable of bearing arms, including the sub-tenants of the clergy and laity, should take solemn oath of fealty to the king. ' The ordinance is printed in appendix I, where note a discusses the date. For further particulars as to its scope see § 60, note 8. ^ For a similar relation between thegns and king in Anglo-Saxon times see Gneist, Verfassungsgesch. § 1, note 1. §4] RELATION OF STATE AND CHURCH 15 clergy on the same footing in other respects as those of the secular vassals.^ The view took form that the possessions of all the sees (Rochester excepted), of the larger abbeys and some parishes were baronies, that is fiefs held immediately under the king as feudal lord.i" Important was it that this view was also adopted by the church, and that here again the two contending powers had a common basis.'^ In course of time manifold inferences, which, how- ever, could not always be followed out to their full extent, were drawn from the feudal character of the possessions of the higher clergy. Many of these alleged ' inferences ' are due to the fact that previously existing rights and duties were brought within the pur- view of the feudal principle and interpreted by its light. The means by which William sought to keep the church in check are collected byEadmer, a contemporary writer, as follows : — " Some of the things which he ordered to be newly observed throughout England I will set forth. . . . He would not endure that any- one in all his realm should, save at his bidding, admit the chosen pontiff of the Koman city as pope, nor that any should at all receive letter from the pope unless it had first been shown to him. Nor did he suffer that the primate of his realm, to wit, the archbishop of Canterbury . . . presiding over a general council of the bishops, should enact or forbid ought, save such things as were according to his royal will and* had been first ordained of him. Nor yet did he grant that it should be permitted to any of his bishops to appeal, excommunicate or visit with other ecclesiastic pains any of his barons or servants, accused by public clamour of incest, of adultery, or of some capital offence." ^^ It is. hard to say now whether these principles were really so new as Eadmer assumes. At all events, we have to do here not with general orders issued by William, but 8 Compare § 27, note 13. '" Compare ? 21, note 4. " Only in Anselm's struggle with Henry I was the king's position as suzerain of the prelates for a time challenged. In chapter 11 of the constitutions of Clarendon, which was not rejected by the pope, the statement is quite clear : Archiepiscopi, episcopi, et universae personae regni, qui de rege tenent in capite, et habent possessiones suas de domino rege sicut baro- niam,et inde respondent justitiis et ministris regis, et sequuntur et faciunt omnes rectitudines regias et consuetudines. " Eadmer (born probably about 1060, died about 1124, or according to Rule 1144), Hist. Nov. (Ber. Brit. Scr. No. 81) p. 9 : Cuncta ergo divina simul et humana ejus nutum expectabant. Quae cuncta ut paucis animadvertantur, quaedam de its quae nova per Angliam servari constituit ponam. . . . Non ergo pati volebat quemquam in omni dominatione sua constitutum Romanae urbis pontificem pro apostolico nisi se jubente recipere, aut ejus litteras si pri- mitus sibi ostensae nonfuissent ullo pacta suscipere. Primatem quoque regni sui, archiepiscopum dico Cantuariensem . . . si coacto generali episco- porum concilio praesideret, non sinebat quicquam statuere aut prohibere, nisi quae suae voluntati accommoda et a se prima essent ordinata. Nulli nihilo- minus episcoporum suarum cancessum iri permittebat, ut aliquem de baroni- bus suis seu ministris, sive incestu, sive adulteria, sive aliquo capitali crimine denotatum publice nisi ejus praecepto implacitaret aut excommunicaret, aut ulla ecclesiastici rigoris poena constringeret. 1 6 TO THE REFORMATION [I, 1b with isolated instances from wliieli Eadmer has, on his. own respon- sibility, inferred a general rule.^^ William II felt the danger of an independent organization of the clergy under their own heads, the archbishop of Canterbury as primate of England ^* and the council of the national church. Ac- cordingly he attempted to prevent these heads as long as possible from attaining to well-ordered efficiency. The death of Lanfranc in 1089 left his archbishopric vacant ; the king refused to fill it, declaring that he would be his own archbishop.^^ For several years he withstood the pressure of the nobility and the clergy. However, during a severe illness, which was skilfully utilized by the church party, he yielded so far as to appoint a new archbishop (1093) . Even then he still declined to give permission for the holding of a council of the national church. ^^ Under his rule the rights which the crown had hitherto enjoyed, were maintained.^'' Financial claims " Stubbs, Const. Hist. I, 309 c 9 § 101, inclines to the view that an agree- ment of effect as quoted was entered into between the king and the English church. There is however no statement of the chroniclers that such was the case, and Eadmer's language points to a one-sided exercise of power, not to any sort of contract. " The subordination of the archbishop of York to the archbishop of Canter- bury had been recognized during the reign of William I. It had, it is true, been effected in concert with the king, a,nd at a later date Henry I sought to maintain, in opposition to the pope, the agreement which had been reached. Cf. § 34. Though the kings may have had their reasons for regarding the subordination as advantageous to the state ; yet, on the other hand, the govern- ment of the church party was thus unified and strengthened. '* Eadmer, Hist. Nov. (Her. Brit. Scr. No. 81) p. 30, year 1093 : ... nee ipse (Anselm) hoc tempore, nee alius quis archiepiscopus erit, me excepto. " Eadmer, iKsi.iVoD. {Ber. Brit. Scr. No. 81) p. 48, year 1094. Archb. Anselm says to Will. II : lube, si placet, concilia ex antiquo usu renovari. Generate nempe concilium, episcoporum ex quo rex f actus fuisti nan fuit in Anglia celebratum,, nee retroactis pluribus annis. The king replies : — cum mihi visum fuerit de his agam,, non ad tuam, sed ad m,eam, voluntatem. — See also letter of Anselm in note 17. — As to the council at Eochingeham, 1095, cf . § 54, note 16. " Chronicle of abbot Hugo of Elavigny (the chronicle was written by de- grees circ. 1085-1102 ; the author was in England in 1096 or 1096 as an attendant of the papal legate ; printed in Monumenta Germaniae ; Scriptores VIII p. 474), year 1096: Tunc temporis pro componenda inter fratres Willelmi regis filios concordia, Willelmum, videlicet regem. Anglorum, et Robertum, comi- tem Normannorum, abbas Divionensis ex praecepto papae mare transierat, et ut praescriptum regem ammoneret de m,ultis quae illicite fiebant ab eo, de episcopatibus videlicet et abbatiis quas sibi retinebat, nee eis pastores provide- bat, et reditus proventusque omnium sibi assumebai, de symonia, de fomica- tione clericorum ; et quia conventionem fecerat cum eo Albanensis episcopus, quern primum illo miserat papa (cardinal the bishop of Albano, legate in Eng- land in 1095), ne legatus Romanus ad Angliam mitteretur nisi quern rex prae- ciperet, et quia adeo auctoritas Romana apud Anglos avaritia et cupiditate legatorum, viluerat, ut eodem, Albanense praesente et consentiente nee contra- dicente, immo praecipiente, Cantuariensis archiepiscopus fidelitatem beato Petro et papae iuraverat salva fidelitate domini sui regis. Quae res infantum, adoleverat, ut nullus ex parte papae veniens honore debito exciperetur, nullus esset in Anglia archiepiscopus, episcopus, abbas, nedum monachus aut clerieus, qui litteras apostolicas suscipere auderet, nedum obedire, nisi rex iuberet. Letter of Anselm (end of 1099 or beginning of 1100) to Paschal II (Migne, §4] RELATION OF STATE AND CHURCH 17 were also more strictly enforced against the clergy. This was partly done by drawing new inferences from the analogy of lay fiefs. An ecclesiastical crown fief, vacated by the death of the occupant, was regarded as a knight's fee, which in default of an heir reverted to the crown.'^ The king, accordingly, first attached the usufruct in the interval between two occupations.^^ Not con- tent with that, but applying the analogy of reversion completely, he reduced the substance : for during a vacancy he sold or let out church lands on farm for a long term, a large fine being paid down at once, which passed into his own coffers.^" "When in any particular case the levying of a land tax was requisite, in breach of the usage in connexion with the earlier Danegeld he extended the liability to the possessions of the church.^^ Henry I had, at his accession, to give a formal assurance that he would abstain from selling church land or letting it out on farm.^^ A vacant ecclesiastical crown fief was now treated not as Patrologiae Cursus, vol. 159 p. 74 ; among Anselm's Letters, Book III, No. 40) : . . . Exigebat enim a me rex ut voluntatibus suis, quae contra legem et voluntatem Dei erant, sub nomine rectitudinis assensum praeberem. Nam sine sua jussione apostolicum nolebat recipi, aut appellari in Anglia ; nee ut epistolam ei mitterem, aut ab eo m,issam, reeiperem,, vel deeretis ejus obedirem. Concilium, non permisit celebrari in regno sua ex quo rex /actus jam, per tredecim, annos. Terras Ecclesiae hom,inibus suis dabat ; . . . Haee et multa alia . . , videns, petii licerdiam, ab eo sedem adeundi apostolicam, ut inde consilium de anim,a mea et de officio m,ihi injuncto acciperem. Be- spondit rex me in se peccasse pro sola postulatione hujus licentiae, et proposuit mihi ut aut de hac re, sicut de culpa, satisfacerem, et securum ilium, redderem, ne amplius peterem, hanc licentiam, nee aliquando apostolicum appellarem, aut de terra ejus cito exirem. . . . " Anglo-Saxon Chronicle, under year 1100. {Rer. Brit. Scr. No. 23) I, 364 : . . . Godes cyrcean he ny&erade, and J>a bisceoprices and abbotrices, }>e j^a eal- dras on his dagan feollan, ealle he hi oS'd'e witS feo gesealde, o&&e on his agenre hand heold, and to gajle gesette,for&an }>e he aelces mannes, gehadodes and laewedes, yrfenuma beonwolde, . . . (G-od's church he brought low, and the bishoprics and abbacies whose elders [heads] in his days fell, them all he either sold for money or kept them in his own hand and farmed them out for rent, for that he would be the heir of every man, of clerk and of layman). " Tor the fact that this right was first exercised by William II see Stubbs, Const. Hist. I, 325, note 2 c 10 § 106 and Freeman, The Reign of William Rufus II, 564 ff. appendix W. "> See note 22. Compare further Florentius Wigorniensis, Chron. year 1093 (ed. Thorpe II, 30) : Qui cum se putaret cito moriturum, ut ei sui barones suggesserunt, vitam suam corrigere, ecclesias non amplius vendere, nee ad censum ponere . . . prom,isit. '' Leg. Edw. Conf. c 11 De Denegeldo, § 1 : From the Danegeld, originally a tax of 12 denarii on each hide of land to enable the king to enlist soldiers against the attacks of the Danes, is to be freed omnis terra quae de ecclesiis propria et dominica erat, . . . quia majorem fiduciam in orationibus sanctae ecclesiae habebant quam in de/ensionibus armorum. Et hanc liber- tatem habuit sancta ecclesia usque adtempus Willielmi junioris, qui de baronibus totius patriae auxilium petiit ad Normanniam retinendam de fratre suo Roberto eunte Jerusalem. Ipsi autem concesserunt ei IV sol. de unaquaque Mda, sanctam ecclesiam non excipientes ; quorum dum fleret collectio, clamabat ecclesia, libertatem suam reposcens, sed nichil sibi profuit. '^ Carta Henrici I (printed in Statutes of the Realm 1, 1 and by Liebermann H. C. C l8 TO THE REFORMATION [I. !» an escheated knight's fee, but— after some vacillation— as a fief which, owing to the minority of the vassal, was subject to the liege lord's administration and usufruct. To the reign of Henry I belongs the first great struggle in Eng- land between state and church. The dispute turned upon the rela- tion of the bishops to the king. Anselm, archbishop of Canterbury, was the leader of the church party. He had repeatedly had differ- ences with William If, especially as touching money, had conse- quently retired in dudgeon from England, and remained, during the latter years of that king's reign, in Italy and France. Abroad he came in contact with Hugo of Lyon ; with Urban II then, and with Pascal afterwards, pope, who alike pursued the quarrel about in- vestitures against the German emperors, Henry IV (1056-1106) and Henry V (1106-25). Eeturning to England at the invitation of Henry I, he refused to do him the accustomed homage. He also refused in future to consecrate the bishops whom the king, accord- ing to the custom hitherto prevailing, had invested with the pastoral staff and ring. In long negotiations with the pope and the arch- bishop the king endeavoured to uphold his rights. At last at a gemot held in London in 1107 a settlement was reached, the exact terms of which are not ascertainable with complete certainty from the extant evidence. We know, however, that the king surrendered his right of investing with staff and ring ; on the other hand he does not seem to have admitted in favour of the chapters any limitations whatever of his own right to fill vacant sees.^^ Anselm, in Transactions of the Royal Historical Society 1894 p. 40) : . . . Et quia regnum oppressum erat iniustis exactionibus, ego respectu Dei et amore quern erga vos omnes habeo, sanctam Dei aecclesiaTn imprimis liberam facio : it a quod nee vendam nee ad flrmam ponam nee, mortuo archiepiscopo sive episeopo sive dbbate, aliquid accipiam de dominio aecclesiae vel de hominibus eius, donee successor in earn ingrediatur. . . . ^^ Eadmer, Historia Novorum (Rer. Brit. Scr. No. 81) p. 186 : ■ _ • • De- hinc praesente Anselmo, astante multitudine, annuit rex et statuit ut_ ab eo tempore in reliquum nunquam, per dationem baeuli pastoralis vel anuli quisquam episcopatu aut abbatia per regem vel quamlibet laieam manum, in Anglia investiretur, concedente quoque Anselmo ut null us in praelationem electus pro hominio quod regifaceret consecratione suscepti honoris privaretur. Rule, Introduction to fi?(ime»', i.e. pp. xlii ff. assumes that Eadmer had no accurate knowledge o^ the final settlement, but that he bases his account, especially in so far as it relates to homage, on Paschal's letter to Anselm during the course of the negotiations (letter mentioned by Eadmer, l.c. 178 under the year 1106). The account is taken directly or indirectly from Eadmer, Hist. Nov. by Florentius "Wigorniensis, Chronicon (ed. Thorpe) II, 56, by Had. de Diceto, Abbreviationes Chronicorum {Rer. Brit. Scr. No. 68) I, 236, by Hoveden, Chronica (Rer. Brit. Scr. No. 51) 1, 164, by Matthaeus Parisiensis, Chronica Majora {Rer. Brit. Scr. No. 57) II, 134, and by others, as also in Flores Historiarum (the so-called Matthaeus Westmonasteriensis. Rer. Brit. Scr. No. 95) II, 40. William of Malmesbury, Gesta Regum {Rer. Brit. Scr. No. 90) II, 493, before whom Eadmer's account lay {I.e. II, 489) : Investiturum annuli et baeuli indulsit in perpetuum; retento tamen electionis et regalium privilegio. Anglo-Saxon Chronicle (iZer. Brit. Scr. No. 23) I, 368 : se cyng . , . to Augustes aginne on Westmynstre woes, and Jioer Jia biscopricen and abbodricen geaf and sette, }>e on Englelande o&tSe on Nor- mnndige buton ealdre and hyrde (The king was at the beginning of August §4] RELATION OF STATE AND CHURCH 19 on. his part, withdrew his opposition to the doing of homage by the bishops in respect of their temporal possessions.^* In the future as in the past they were in this regard subject to feudal law. The success obtained only emboldened the church party to urge new demands.^* But Henry was bent on maintaining to the full in "Westminster and there bestowed the hishopries and abbacies which in Eng- land or in Normandy were without head or shepherd). Hugo Cantor (written before 1128 ; Tlie Historians of the Church of York (Rer. Brit. Scr. No. 71) II, 110 : Propter interdietum et anathema Romanae ecelesiae rex tandem investi- turas dimisit, dimissione quidem qua nihil aut parum amisit, parum quidem regiae dignitatis, nihil prorsus potestatis quern, vellet intro- nizandi . . . Sed si fas est diet, adhuc habet ecclesia decimantes mentam et anethum, et colantes cuUcem, et deglutientes eamelum, de manuali investitura tumultuantes, de electione et consecrationis libertate nihil mu- tientes. . . . Eadmer, Vita Anselmi (Rer. Brit. Scr. No. 81 p. 414) goes much further: Rex . . . antecessorum suorum usu relicto,nec personas quae in regi- men eeclesiarum sumebantur per se elegit, nee eas per dationem virgae pastoralis ecclesiis quibus praeficiebantur investivit. Similarly MS. codex abb. Croiland sub Joiffrido abbate p. 140, quoted by Spelman, Concilia II, 28 (this codex is not identical with the Chronicle of the Pseudoingulph of Croy- land) : rex . . . concilio (the clergy and barons) . . . constituto . . . investituras amodo Eeclesiarum, per annulum et baculum remisit; electiones Praelatorum omnibus ecclesiis libere concessit ; Episcopatuum et Abbatiarum vacationes successoribus restituendas integre promisit, ac omnia alia, quae sancta mater Ecclesia diu antea suspiraverat, regali munificentia contulit, suis taritum juribus regalibus sepositis et exceptis._ An- selm in a letter to the pope (printed in Eadmer, Hist. Nov. [Rer. Brit. Scr. No. 81] p. 191, under the year 1108 ; according to Rule, Introduction to Eadmer, I.e. pp. xlii ff. to be assigned to 1105) declares : . . . Rex . _. . oboedienter suscipiens vestram jussionem, investituram eeclesiarum, renitentibus multis, omnino deseruit. . . . Rex ipse in personis eligendis nullatenus propria utitur voluntate, sed religiosorum se penitus eommittit consilio. . . . ^* Paschal II in a letter to Anselm (in Eadmer, Hist. Nov. [Rer. Brit. Scr. No. 81] p. 178 under the year 1106) had, without surrendering the principle, allowed the latter to withdraw his opposition to the doing of homage by the bishops : Quod Anglici regis cor ad apostolicae sedis oboedientiam omnipo- tentis Dei dignatio inclinavit, eidem miserationum Domino gratias agimus, . . Quod autem et regi . . . adeo condescendimus, eo affectu et com- passione factum noveris, ut eos qui jaeebant erigere valeamus. Qui enim stans jacenti ad sublevandum manum porrigit nunquam jacentem eriget, nisi et ipse curvetur. Caeterum, quamvis casui propinquare inclinatio yideatur, statum tamen rectitudinis (with doable meaning) non amittit. Te autem, . . . ab ilia prohibitione . . . absolvimus, quam ab antecessore nostro sanctae memoriae Urbano papa adversus investituras aut hominia factam intelligis. Tu vero eos qui investituras acceperunt, aut investitos benedtx- erunt, aut hominia fecerunt, . . . suscipito, et eos . . . absolvito. . . . Rule, Introduction to Eadmer I.e. pp. xlii ff., assumes that Eadmer's statement, Hist. Nov. (cf . note 23), according to which a permanent settlement as to the bishops' homage was reached in the council of 1107, is arbitrary and only drawn from the above mentioned letter. He infers from a statement in Eadmer, flesi. Nov. 237 (the inference is not a necessary one) that as early as 1116 the differ- ence between the homagium of lay vassals and the fidelitas of the bishops (cf. Stubbs, Const. Hist. I, .386 c 11 g 123 ; 111,302, 304 c 19 §§ 377, 378; III, 532 c 21 § 462 ; Friedberg, De fin. p. 173) was known, and that it is a reasonable sur- mise that the establishment of this difference was a consequence of the events of 1107. ^ , ,, '^ The growing character of the papal claims is well shown by a letter written 20 TO THE REFORMATION [I, !» the prerogatives inherited from Ms forefathers. "When, for example, in 1116 the pope sent a legate, Anselm, abbot of St. Saba, to England to take Tip his abode there and to thwart the native archbishops, the king forbade the legate to enter the country .^^ Moreover mention is made of cases in his reign in which the resolutions of church councils were framed with the consent or confirmation of the king or the secular magnates.^'' What legal effect attached, in the opinion of contemporaries, to such a confirmation, can no longer be ascertained. In spite of Henry's vigorous exercise of the royal power, a second considerable advance of the papacy falls within his reign. A dispute between the archbishops of Canterbury and York as to official position and precedence ended in the former's accepting the position of papal legate (1126).^^ He thus became an official of the papacy, which the archbishops of Canterbury had not hitherto been. His example was followed by later archbishops.^^ For the future then the right of the pope to intervene in the archbishop's adminis- tration could not well be challenged. It is especially to the fact that the liighest authority in the English church was, as a rule, a permanent papal legate that we must trace the notable increase of appeals to the pope which presently showed itself, particularly during the next reign. Stephen's reign was characterized by pliability to ecclesiastical claims. That was the form in which the king paid the clergy for their support of his usurpation. In his second charter (1136)^'' express mention is made of the confirmation of the king by pope Innocent II. Among several concessions to the church which are contained in this charter,^^ the following may be emphasized as in 1115 by Paschal II to the king and the English bishops (printed in Eadmer, Hist. Nov. [Rer. Brit. Scr. No. 81] p. 232). Tour demands are therein formu- lated : 1. Confirmation by the pope upon the election or translation of bishops ; 2. Reservation to the pope of final decision in all judicial proceedings against bishops ; 3. Freedom of appeals to the pope ; 4. Councils to be held only with the pope's knowledge. It is alleged that in all these respects the pope's right was contravened in England. "^ Compsyre § 24, note 4. "'' Compare § 54, notes 25 and 26. 2^ Compare § 84, note 12. =' Compare § 34, note 15. '" Printed in appendix II. " According to Henry of Huntingdon (Rer. Brit. Scr. No. 74) Bk. VHI § 3 p. 258 the king had already made some concessions, for the most part contained in the charter of 1186 (among them two of those mentioned above) at Christmas 1135. Stubbs, Const. Hist. I, 347, note 2 c 10 § 113, however, supposes that there is a confusion here with the later charter. The passage runs : Indeper- rexit rex Stephanus apvd Oxeneford, ubi recordatus est et confirmavit pacta, quaeDeo etpopuloetsanctaeecclesiaeconcesserat in die coronationis suae (26th Deo. 1135)._ Quae sunt haec: Prima vovit, quod defunctis episcopis nunquam retineret ecclesias in manu sua, sed statim electioni canonicae consentiens episcopis eas investiret. Secundo vovit, quod nulUus clerici vellaici silvas in tnanu sua retineret, sicut Henricus rexfecerat, qui singulis annis implacitaverat eos, si vel venationem cepissent in silvis propriis, vel si eas ad necessitates suas extirparent vel diminuerent. . . . Tertio vovit, quod Denegeldum, id est, duos solidos ad hidam,quos antecessores sui accipere solebcmt singulis annis, in aetemum condanaret. Haec principa- liter Deo vovit, et alia, sed nihil horum tenuit. §4] RELATION OF STATE AND CHURCH 21 peculiarly important : in suits against the clergy and in suits as to the private property of church officials and of the church ^^ the ecclesiastical courts are recognized as exclusively competent ; the king promises to entrust to the chapters during episcopal vacancies the management of the possessions belonging to the bishopric ; the testamentary dispositions of the clergy are to be observed ; in case any die intestate, their property shall be distributed according to the judgment of the church pro salute animae {i.e. to ecclesiastical foun- dations and to the next of kin);^^ lastly, the charter contains an allusion to the way in which the appointment of bishops is to take place : it is to be ' in canonical form ' {i.e. by election of the chapter).^* In certain other respects too the want of a strong government led to marked progress in the realization of the pretensions of the church, if only as a matter of fact and without general and express concession. Henry II had fought in conjunction with his mother Matilda (daughter of Henry I) against Stephen for the possession of the throne. By a compromise (1153) Stephen was recognized as king and Henry designated as his successor. Thus Henry II had no need to purchase his tenure of the crown from parties in the state. In the charter '^ issued at his accession he confirmed not the concessions of Stephen but the engagements entered into by his grandfather Henry I. During the reign of Henry II the second great struggle between state and church ensued. The leader of the church party was Thomas Becket. Already as royal chancellor a high^^ officer in the administration, he was, at the king's instance, elected archbishop of Canterbury (1162). The object at which Henry aimed was per- haps to unite the control of church and state in a single office. But Becket defeated the project by resigning the chancellorship.^'' Minor differences followed.^^ The struggle about principles began at the '^ So perhaps the expression distributionem bonorum ecclesiasticorum is to be understood. But perhaps only distributio after the death of the holder is meant, as to which the charter contains further on a more precise regulation. 3' For the connexion of this provision with other legislation as to intestacy compare § 60, notes 118 ff. '* Donee pastor c an o nice substituatur. ^^ Printed in appendix III. ^' The chancellorship in these times graduallygained in importance. Prohably in Becket's day the post of justiciar was regarded as ' the higher (cf. Stubhs, Const. Hist. I, 647, note 2 c 13 § 163) ; nevertheless Becket's personal influence during his chancellorship gave him. the greater weight. ^' The date of Becket's resignation is uncertain. Stubhs, Const. Hist. I, 499 c 12 § 139. According to the same authority {Const. Hist. I, 381 c 11 § 121), it had previously been the custom for royal chancellors to resign_ office as soon as they were promoted to bishoprics. But meanwhile the position of the chan- cellor had become of greater consequence. _ , '« Becket demanded the restitution of lands which had been taken, m his opinion unjustly, from the archbishopric of Canterbury. At Woodstock, July, 1163, he opposed the king's design of a change in the mode of levying a certain land tax (apparently the old Danegeld ; Stubbs, Const. Hist. 1, 499 oJ2 § 139). 22 TO THE REFORMATION [I, iB synod of "Westminster in October, 1163. The immediate occasion was supplied by the king's proposals to limit the right of the clergy to be tried by ecclesiastical tribunals. As the reign of Henry 11 is one of the most important for radical improvements in the adminis- tration of secular law, it is probable that these proposals touching the spiritual courts were only parts of a more extensive scheme of reform.^s Becket resisted. The king thereupon returned to the position he had held when issuing his first charter : he required the bishops to abide by the legal usage in the days of his grandfather, Henry I.*" But an unconditional agreement of this sort the bishops were not prepared to make ; inserting in their answer the reserva- tion salvo ordiTie, they sought to leave the door still open for a future claim to more extensive rights, especially those accorded them by Stephen. No settlement being reached at Westminster, the dispute was continued at the national council of Clarendon, January, 1164. By the king's command what he wished to be recognized as valid law upon the chief debatable points — because ' it had been practised of Henry I and other ancestors ' — was put into writing.*^ The docu- ment so drawn up is known as ' the Constitutions of Clarendon.' The constitutions were accepted by the barons and by the bishops, who were partly intimidated by the king's threats. Becket hesitated to the last ; but seeing himself deserted by his brethren he ended by expressing acquiescence.^^ The constitutions *^ thus accepted contain, as the circumstances of their production would lead us to expect, many provisions in limi- tation of ecclesiastical as against temporal jurisdiction. But, in addition, there is a whole series of regulations upon other matters : the permission of the king is required before land belonging to the king's feud can be given in perpetuity to the church, as also his 3' Stubbs, Const. Hist. I, 503 c 12 § 140. ■*° The state of the law under Henry I was also appealed to in the struggles which preceded the issue of Magna Carta (1215), principally, indeed, not with reference to church law but to feudal law. Roger de Wendover, Flares Histo- riarum (Ber. Brit. Scr. No. 84) 11, 84, 111, 113. Radulphus de Coggeshale, Chronicmi {Ber. Brit. Scr. No. 66) 170. ■" Const. Clarendon (in appendix IV) . . . facta est recordatio et Yecogni- tio cujusdam partis consuetudinum, et libertatum, et dignitatum antecessorum suorum, videlicet regis Henrici avi sui et aliorum, quae observari et teneri debent in regno. (Join Henrici et aliorum [sc. antecessorum] ; quae refers to consuetudines, libertates et dignitates. In Stubbs, Select Charters a comma is placed after sm?, whilst that after aliorum is omitted.) — Anselm, too, had in 1095 promised to observe the consuetudines ; it was not till later that he endeavoured to modify his undertaking. Eadmer, Hist. Nov. {Ber. Brit. Scr. No. 81) 84 ; of. Anselm's report, above, note 17. ^ "Whether after initial refusal he at last even appended his seal, is doubtful. Of. Perry, Hist, of Engl. Ch. I, 240 c 15 § 10. Keiele, Konziliengesch. § 625; 2nd Edit. V, 628 ff. According to Stubbs {Const. Hist. I, 504 c 12 § 140) the absence of consistent testimony prevents us from tracing the details of Becket's gradual surrender, the impression of his contemporaries being that he was temporizing or acting deceitfully. From the side hostile to Becket see especiaEy the account in the letter of Gilbert Foliot, bishop of London (written 1166) in Materialsfor Hist, of Becket [Ber. Brit. Scr. No. 67) V, 527 ff. ■" Text in appendix IV. H] RELATION OF STATE AND CHURCH 23 licence is needed for prelates to go abroad and for appeals to be made to the pope ; the king must be approached before a tenant-in-chief of his or a royal servant can be excommunicated or his lands put under interdict ; the holdings of the prelates are expressly declared to be feudal, and the administration and usufruct thereof during vacancy are assigned to the king ; episcopal and abbatial elections a re to be held by-^the mo re prominent members of the vacant church (fotiores ver fionap. erdpZap^ in the king's chapel ; and must have the assent of the king with the counsel of the magnates of the realm {personae regni **) by him summoned for this purpose. Henry sent the constitutions to the pope with the request that he too would signify his concurrence therein. The pope declined. The king repeated his request supporting it by letters from Roger, arch- bishop of York and apparently also from Becket.*^ But the pope remained firm. Becket was now desirous of recalling his promise.*^ A new disagreement arose. One of the temporal magnates brought a complaint before the king's court, alleging that the archiepiscopal court had refused to do him right. When, in consequence, a sum- mons issued against the archbishop, the latter did not obey the call. For this disobedience the king cited him to appear before the council of Northampton (October, 1164). The archbishop was condemned to pay a fine and in so far submitted that he gave security for its payment. The king then, to complete his humiliation, demanded that he should produce accounts of his administration of the chan- cellorship. Becket now declined to accept the verdict of a royal court and appealed to the pope. For this repudiation of the royal ' court the archbishop was sentenced to imprisonment.'"' He, how- ever, succeeded in staying the publication of the sentence and fled for refuge to France. Henry's ambassadors and Becket himself repaired to the pope at Sens, where the latter disallowed ten out of the sixteen chapters of the constitutions of Clarendon as being in contradiction of the canons.*^ Six years of struggle ensued. Becket conducted his share therein from France, being vigorously supported by the French king, Louis " For the meaning of personae regni see appendix IV, note 10. ^ Hefele, Konziliengeschichte § 625 ; 2ncl Edit. V, 629, notes 2 and 3. Letter of Alexander III to Becket 27th Feb. 1164 (Materials for the History of Becket [Ber. Brit. Scr. No. 67] V, 86) : . . . rex . . . , ut suo desiderio faciliorem animwm praebere'nms,fratemitatis tuae et praedicti archiepiscopi (of York) ad nos litteras impetravit. (For fratemitatis tuae one MS. reads fratrum nostrorum, which, in another, is interlined as alternative. I.e. note 8.) « The pope had so advised him even before he had cognizance of the negotia- tions at Clarendon : . . .Si autem jam dicta regi .super hujusmodi vos in aliquo astrictos cognoscitis, quod promisistis nullatenus observetis, sed hoc potius revocare curetis, et de promissione illicita Deo studeatis et ecdesiae recmiciliari. Mat. for Hist. Becket {Ber. Brit. Scr. No. 67) V, 84. It is doubtful whether Becket received this letter before the council or just after it. I.e. note a. *7 By a letter of June, 1165 (Mat. for Hist. Becket [Ber. Brit. Scr. No. 67] V, 178) Alexander III declared this sentence void on the ground of its injustice. « Constitutions 1, 3, 4, 5, 7, 8, 9, 10. 12, 15. Mat. for Hist. Becket (Ber. Brit. Scr. No. 67) V, 71 ff. Hefele, Konziliengeschichte § 626 ; 2nd Edit. V, 638. 24 TO THE REFORMATION [I, iB VII. But the pope was loth to assent to the employment of harsher measures. "When, at last, an interdict was clearly impending, Henry became reconciled to Becket (1170) and allowed his return, although Becket, on his part, did not promise to recall his measures against bishops and clerks who had remained faithful to the king. No arrangement was made concerning the constitutions.*' The archbishop went back to England, and celebrating his triumph by numerous excommunications, provoked the king to utter a wish that someone would deliver him from the truculent priest. The result was the murder of the archbishop in the cathedral of Canterbury (1170). Becket now appeared in the light of a martyr. The king's enemies charged him with having instigated the murder. His political opponent, the king of France, urged the pope to severity. In Rome the issue of an interdict could with difficulty be prevented. All this constrained Henry to change his line of action, and after some preliminary negotiations he concluded at Avranches in Sep- tember, 1172, a formal contract with the pope's legate. Therein he promised — apart from certain points of only temporary importance — first, that in ecclesiastical cases he would permit free appeal to Rome and the execution of the papal decisions, reserving, however, to himself the right of requiring security that the appellants did not seek the harm of the realm or his own ; secondly, that he would abolish the customs which had been introduced in his time to the prejudice of the church. He also released the bishops from the oath which, they had taken to observe the constitutions of Clarendon. But no general renunciation of the matter of those constitutions was expressed.^" ■" As to the stipulations between the king and Becket see the report of the latter to Alexander III, Materials I.e. VII, 326 £f. and Henry's act of reconcilia- tion and restoration, I.e. VII, 843. *" A document (printed in Hoveden [Rer. Brit. Scr. No. 51] II, 36 ; also in Materials I.e. VII, 516) expressing the reconciliation of 1172, was drawn up by the legates Albertus and Theodinus on one side and the king on the other. The following conditions of absolution were imposed on the king, and he, as also his son, promised and swore to observe them : He was to pay the money needed to equip. 200 knights for one year, the men to be employed in the defence of Jeru- salem ; he was himself to undertake a crusade within three years ; the posses- sions confiscated during the quarrel with Becket from clergy and laity \yere to be restored. Apellationes nee impedietis, nee permittetis impediri, quin libere fiant in eeelesiastieis eausis ad Romanum pontificem, bona fide, absque fraude et malo ingenio, ut per Romanum pontificem, causae tractentur, et suum eonsequantur effeetum : sie tamen, ut si vobis suspecti fuerint aliqui, securita- tem faeiant, quod m,alum, vestrum, vel regni vestri nonquaerunt. Oonsue- tudines quae induetae sunt contra ecelesias terrae vestrae in tempore vestro, penitus dimittetis . . . et jurastis ambo, quod a domino papa Alexandra et catholieis successoribus ejus, quamdiu v'os sieut anteeessores vestros et catholieos reges habuerint, m.inime reeedetis. (The last condition is to be understood as a promise not to give his adherence to the antipope. For a subsequent interpolation in this last clause by which it was made to appear as if Henry had intended to acknowledge the suzerainty of the pope see Hefele, Konziliengesch. 2nd Ed. V, 685. Cf. below § 4, note 64.)— Report of the legates to the archbishop of Eaveiina §4] RELATION OF STATE AND CHURCH 25 From the construction of the agreement it is evident that it was only m the question of appeals that the pope had obtained a material concession of permanent significance ; as regards the other provisions of the constitutions of Clarendon his only success had been in pre- venting the church's recognition of their binding force, so that in this respect the rule of law on several points remained, as before, a matter of dispute between king and clergy.^' Such a solemn determination of the law as had been made in the constitutions was not without its effect upon the practice of a future time. The royal tribunals applied their provisions, in so far as these had not afterwards been expressly renounced, as being of legal validity, and these provisions lie at the root of later constitutional enactments. Thus the later statutes of provisors and mortmain are only elaborations of the two first chapters of the constitutions of Clarendon. After the reconciliation at Avranches Henry, who had to contend at home with rebellions of his sons, assumed a friendly attitude towards the pope.^^ In 1173 he gave an assurance that he would allow greater freedom at the elections of bishops.^^ In 1176 he con- cluded an agreement with the papal legate Hugo, by which on one side the king, in contrast to the provision of the constitutions of Clarendon, conceded the principle that it should not be permissible in penal cases to bring the person of a clerk before a royal court ; as to the conclusion of the reconciliation (Hoveden, I.e. II, 37) : . . . Relaxavit (the king) praeterea episcopos de promissione quam ei fecerant de consuetudinibus conservandis, etpromisit quod non exiget infuturum. °' It remained disputed, in regard to appeals, what were to be regarded as ecclesiastical affairs. In regard to the other matters dealt with in the constitu- tions, it remained disputed whether the provisions were newly introduced by ' Henry II or had been, as was contended in the constitutions themselves, the law under Henry I and his predecessors. The non-exercise of some rights by Stephen did not invalidate them. The reconciliation of Avranches likewise contains nothing to that effect. — Thus the suggestion in Stubbs, Const. Hist. I, 513 c 12 § 143 that the king renounced the constitutions seems to go too far. *^ Nevertheless he by no means submitted unconditionally and occasionally enforced the old rights of the crown. Thus in 1176 the legate Vivian, who entered England without permission on the way to Scotland, was sharply reminded of the necessity of such permission. Compare § 24, note 8. °* Letter of Henry II to Alexander III {^Materials I.e. VII, 558) : Novit ecclesia Romana ex longo temporis traetu quantam Ubertatem antecessores Twstri eirea institutiones eeclesiarum habuerint ; quam nos, intuitu Dei et precum vestrarum interventu, secundum adm.onitiones venerabilium, virorum, Alberti et Theodwini legatorum, vestrae sanetitatis, ad aequitatem, canonicae moderationis tem,peravim.us. Irnpraeseniiarum, itaque liberam, electionem ecclesiae Anglicanae annuiTnus, . . . This seems to express an allowance of free election for some time to come, not a permission to elect once to sees then vacant. The election to six bishoprics then vacant took place (Rad. de Diceto [Ber. Brit. Scr. No. 68] I, 367) : . . . conveniente clero, sub paw- corum interstitio dierum, . . . apud Westmonasterium,praesentejusticiario regis et assensum, praebente. — The concession which Henry made, perhaps consisted in his promising to allow the electors greater freedom in the choice of the person. Cf. letter of Alexander III to Henry II dated 9th October, 1169 {Materials I.e. VI, 505) : . . . Nee velis eis qui electionem facturi sunt personam de qua electionem facere debeant nominare. 26 TO THE REFORMATION [I, 1b on tlie other side, the legate recognized some exceptions to this rule.s* The pope smoothed the way for the king to the complete subjuga- tion of Ireland.^^ The same influence moreover enabled Henry once or twice in the latter years of his reign- to levy a new tax, personal property being now for the first time brought under con- tribution, and the clergy no less than the laity rendered liable for its payment.^^ From this time dates the policy, often revived in *■' Henry confirmed the terms of tlie reconciliation in a letter to the pope printed in Eadulf de Diceto, Ymagines Historiarum {Rer. Brit. Scr. No. 68) I, 410 ; excerpts given in Eoger de "Wendover, Flores Historiarum {Rer. Brit. Scr. No. 84) I, 105 : Domino papae rex Anglorum. Propter reverentiam sanctae Romanae ecdesiae, atque devotionem quam erga earn et paternitatem ac dilectionem vestram et fratrum vestrorum habemus et semper hciniimus, licet plurimum resisterent et reclamarent regni nostri majores et magis discreti, ad instantiam viri disereti et sapientis Hugonis Petrileonis, sanctae Romanae ecdesiae cardincdis, apostolicae sedis legati, amid et cognati nos- tri, capitula quae svbscripta sunt in regno nostra tenenda concessimus. (7) Videlicet quod clericus de caetero nan trahatur ante judicem secularem, in persona sua de aliquo criminali, neque de aliquo forisfacto, excepto forisfacto forestae m,eae, et excepto laico feodo [Eog. de Wendover I.e. abbreviates pro aliquo crimine vet transgressione, nisi pro foresta et laico feodo] unde michi vel alii domino seculari laicum, debetur servitium. {II) Concedo etiam quod archiepiscopatus, episcopatus, et abbatiae non teneantur in manu mea ultra annum, nisi urgente necessitate et evidenti de causa quae propter hoc non fuerit inventa ut diutius teneantur. {Ill) Concedo etiam quod interfectores clericorum,, qui eos scienter vel praemeditati interfecerint, convicti vel confessi coram justitiario meo, praesente episcopo vel ejus offlciali, praeter consuetam laicorum vindietam, suam- et suorum de haereditate quae eos contingit per- petuam sustineant exhaeredationem. {IV) Concedo etiam quod clerici non cogantur facere duellum. *» Compare § 11, note 10. '^ It is doubtful wbetber a tax of this kind (contribution to crusade) had been already levied 1184 (1185). A document relevant here is printed in Wilkins, Cone. I, 490 : Dispositio ad subveniendum terrae Jerusalem a domino Philippo, rege Franciae, et Henrico rege Angliae, comm,uni concilio episcoporum et comitum- et baronum terrarum suarum, approbata. Art. I. Quod unusquisque tarn, clericorum quam laicorum, qui plus quam 100 solidos non habuit, de unaquaque domo, quam habuerit, si singulis diebus ignis consuetudinarie accendetur,2d. singulis annis usque ad tres annos persolvet. Art. II. Si vera in mobilibus plus quam 100 solidos habuerit, de unaquaque libra . . . in Anglia unus sterlingus persolvetur usque ad praedictum. terminum. Art. in. Qui vero 100 libras in terris vel in reditibus habuerit, vel eo am,plius, de 100 lib. 20 s. annuatim dabit. Art. IV. Qui vero in reditibus minus quam 100 libras habuerit, de 20 lib. dabit 4 solid, et de 40 lib. 8 solid, et ita deinceps, ad rationem praedictum,. . . . Art. VI. Decima debetur ad defensionem terrae Jerusalem, a nativitate S. Johannis Baptistae anno . . . 1184 in decern annos, salvo jure domin- orum et ecclesiarum. But the genuineness of the document is disputable (Stubbs, Const. Hist.l, 622, note 4 cl3 § 161). After the taking of Jerusalem by Saladin (1187) a Saladin tithe was granted for the crusade (1) from the continental possessions of Henry II at the assembly of spiritual and temporal magnates at Mans ; (2) from England at the national council of Geddington (Feb. 1188). Hoveden {Rer. Brit. Scr. No. 51) II, 336 ; §4] RELATION OF STATE AND CHURCH 27 later reigns, of keeping the national church in check by the mediation of the pope and his legates." For papal assistance of this kind Henry and other kings after him had to pay the price by suffering the pope to introduce, in various forms, taxes upon the clergy for papal objects.^s ^he growing demands of Eome for money led naturally to the exhibition in following centuries of occasional opposition by the English clergy to the pope, but of opposition which was never so strong that a determined resistance was permanently offered to papal pretensions. The short reign of Eichard I furnishes little of interest for the ^history of the constitution of the church. The king came but twice to England. He was first at the crusade, then in confinement, lastly at war upon the continent, leaving his ministers to rule in his absence. For several years in succession Hubert Walter, archbishop of Canterbury, filled the office of chief justiciar, with the effect that any considerable friction between ecclesiastical and civil administra- tion was excluded. In 1198 he resigned the civil office at the desire of pope Innocent III.^^ In the same year the king had ordained the collection of a land tax. Of ecclesiastical possessions only the free land (libera feoda) of parish churches was to be exempted.^" The monks demurred to the payment of the tax. By way of answer the king proclaimed that Benedict {I.e. No. 49) II, 31. In March, 1188, a corresponding grant was made at Paris for France. Hef ele, Konziliengesch. 2nd Ed. V, 738. These first grants of the new tax were, indeed, for ecclesiastical objects, but soon the same tax was raised for temporal purposes. »' Perry, Hist, of Engl. Ch. I, 268 cl6 § 11. *^ For a first attempt on the part of the pope to levy a i:egular tax in England see Benedict {Rer. Brit. Scr. No. 49) I, 311 : Interim (1184) papa Lucius misit nuncios sues ad regem Angliae, postulans ab eo, et ab clericatu Angliae, auxi- lium ad defensionem patrimonii beati Petri contra Romanos. Rex vero in Angliam nnisit nuncium suum ad episcopos Angliae, ut per eorum consilium providentius responderet nunciis domini papae. llli vero congregati Lun- doniis coram Ranulfo de Glanvil, justitiario regis, de communi eorum. consilio mandaverunt domino regi, quod in consuetudinem verti posset ad detrimentum regni, si permitteret nuncios domini papae in Angliam, venire ad collectam faciendam. Et ideode eorum consilio erat, ut dominus rex secundum, volunta- tem suam et honorem,, auxilium faceret domino papae. Dicebant enim, quod^ tolerabilius esset, et plus eis placeret, quod dom,inus rex de eis acciperet, si vellet, recompensationem, auxilii quod ipse faceret domino papae. Quorum consilio dom,inus rex adquievit. — Voluntary contributions had been collected from the English clergy some years before. Ealf de Diceto, Ymagines Historiarum, year 1178 {Rer. Brit. Scr. No. 68) I, 378 : Nicholaus Romanae ecclesiae subdiaconus, a domino papa transmissus, ab archiepiscopis, episcopis, dtibatibus, abbatissis, prioribus, archimandritis, plurimam collegit pecuniam in usus ecclesiae laborantis in scismate convertendam. 5' Hoveden (Rer. Brit. Scr. No. 51) IV, 48 : . . . dominus papa paterna exhortatione diligenter monuit dmninum Ricardum regem Angliae, ut pro^ salute animae suae non permitteret praefatum archiepiscopum diutius fungi administratione saeculari, neque de caetero ipsum, vel alium episcopum sive sacerdotem, in administratione saeculari admitteret ; praecepit etiam in virtute obedientiae universis ecclesiarum praelatis, ne ipsi ausu temerario saeculares administrationes susciperent. <"> Hoveden {Rer. Brit. Scr. No. 51) IV, 47 : libera feoda ecclesiarum parochialium de hoc tallagio excipiebantur. 28 TO THE REFORMATION [f, iB thenceforth no man who had done an injury to clerk or regular should be obhged to give satisfaction to the injured. This was enough to extract payment from the monks.®^ The same procedure on the part of kings in dealing with refusals of the clergy to contri- bute to taxes often recurs in later times. At the accession of king John, archbishop Hubert Walter again took high office, being appointed chancellor. Upon the arch- bishop's death (1205) disputes arose as to the choice of his successor.®^ In the course of the struggle pope Innocent III caused those monks of Canterbury who werejmgsent in Rome to hold an election there and consecrated (1207) Stephen Langton, the object of their choice, as archbishop of Canterbury, in spite of John's refusal of the royal assent. Thus began the third great struggle between state and church in England. The king declined to receive Langton in his country. King and pope proceeded in quick succession to the most violent measures. In 1208 England was placed under an interdict, in 1209 the king was excommunicated, in 1212 the pope absolved John's subjects from their allegiance, declared him deposed and offered the English crown to the king of France.^' Up to this point John had stoutly maintained his authority at home and sternly punished the clergy who opposed him. But now, dreading the invasion of a French army and dubious of the loyalty of his English barons, whom con- stant oppressions had alienated from his. cause, he suddenly sur- rendered to the pope far more than the original ground of dispute. On the 15th of May he declared in the presence of the, legate Pan- dulf that he delivered up his realms of England and Ireland to the pope and his successors, held them thenceforward only as the pope's liegeman and was willing to pay him a yearly tribute of a thousand marks sterling. Swearing fealty to the pope,^* he bound himself to "' Hoveden {Rer. Brit. /Scr..No. 51) IV, 66: Eodem anno (1198), quia viri religiosi noluernnt dare regi quinque solidos de wanagio carucae, sieut caeteri homines regni faciebant, exiit edictum a rege, ut quicunque in regno sua forisfecisset clerico, aut alii viro religioso, non cogeretur satisfacere illi ; sed si clericus aut alius vir religiosus forisfecisset alicui laico, statim compellere- tur ad satisfaciendum illi: unde factum est, quod viri religiosi ad redemp- tionem coacti sunt. °* Particulars are to be found in Roger de Wendover, Flores Historiarum (Rer. Brit. Scr. No. 84) II, 10 ff. Compare Stubbs, Preface pp. xlix ff. to Vol. II of Walter de Coventria (Rer. Brit. Scr. No. 68). "' Roger de Wendover, Flores Historiarum, year 1212 {Rer. Brit. Scr. No. 84) II, 63 : Tunc papa . . . de consilio cardinalium, episcoporum et aliorum virorum prudentium, sententialiter definivit, ut rex Anglorum Johannes a solio regni deponeretur, et alius, papa procurante, succederet qui dignior haberetur. Ad hujus quoqus sententiae executionem scripsit dominus papa potentissimo regi Francorum, Philippo, quatenus in remissionem omnium suorum peccaminum hunc laborem assum,eret, et, rege Anglorum a solio regni expulso, ipse et successores sui regnum Angliae jure perpetuo possiderent ; . . . '* The text of John's declaration and of the oath of fealty is given in appen- dix V. On Oct. 3rd, 1213, John did homage for his kingdom to the legate Nicolaus. This may serve to reconcile the somewhat conflicting accounts. Compare especially Walter de Coventria {Rer. Brit, Scr. No. 68) II, 210, §4] RELATION OF STATE AND CHURCH 29 recognize Langfcon as archbishop and to replace the property with- drawn from the church during the course of the struggle. These concessions served to stay the blow from abroad, but did not pacify the discontent at home. To detach the heads of the church from the party of the temporal barons, he issued on the 21st of November, 1214, a charter relating to the election of bishops and other prelates.^^ By this charter is granted to chapters and monas- tic convents the right of freely electing their prelates, with reservation, however, of the king's right to administer the property during vacancy ; before an election the royal permission to elect (licentia eligendi) is to be obtained, but should such permission be delayed or refused, the election is to be held nevertheless ; election made, the king's assent is required, but can only be withheld if reasonable cause, based on demonstrable facts, be adduced. The provisions of this charter held good in law up to the reformation, even if, in actual practice, they were not seldom evaded. They underlie the legislation of the reformation and through it exercise an influence on the law at the present day. The aim which the king had in view in issuing the charter miscarried. The barons' rebellion broke out nevertheless, and the English bishops did not enter the lists against them. In 121& John, confronted with the demands of the barons, found himself compelled to execute the Magna Carta. Most of the clauses of this document deal with the removal of abuses in the exercise of feudal rights and prerogatives. Incidentally, the relations of spiritual feudatories to the king and to their sub-tenants are frequently touched upon ; thus the prelates appear as members of the national council to grant taxes, and other single provisions affect slightly the sphere of the church. To the church as a whole the rights it has hitherto enjoyed are confirmed with the customary general formula. More important provisions as to the relation of state and church are not contained in the Magna Carta ; it was the product of a struggle between the king and the defenders of the civil constitution, not between the king and the church.^^ 214 ; Eoger de Wendover, Flores Historiarum (Rer. Brit. Scr. No. 84) II, 74, 81, 95, In the declaration of May, appendix V, 1 we read : . . . fidelitatem . . . foLcimus et juramus, et homagium . . . faciemus . . . Upon the question whether Henry II had already in 1172 or 1173 conceded to the pope suzerainty over England see Stubbs, Const. Hist. I, 602, note 2 c 13 § 158. Hefele, KonziUengesch. 1st Ed. V, 612 ff., 2nd Ed. V, 685, 687. °^ Printed in appendix VI. A new execution of the same charter on 15th .Jan. 1215 (printed in Rymer, Foedera, 4th Ed. I, 126 and in Matthaeus Parisiensis, Chronica Majora [Rer. Brit. Scr. No. 57] II, 608) was confirmed by Innocent III in a bull of 30th March, 1215 (printed in Eymer I.e. I, 127; Matth. Paris. l.c. II, 607). (Matth. Par. I.e. V, 541, year 1256 reverts to the two documents, with the introduction: Nota utilem cartam regis Johannis, si observaretur, de libertate electionum et conflrmationem Papae Innocentii III.) The charter is expressly maintained in the Magna Carta of 1215 c 1 (cf. appendix VII). In later confirmations of Magna Carta the words in question are omitted (as superfluous). °* For provisions of the Magna Carta of 1215 and later alterations of it which have reference to church relations see appendix VII. 30 TO THE REFORMATION [I, 1b Under king Henry III the successive h'eads of the administration seldom ventured to oppose the pope, but sought rather to manage the business of the country in concert with him and his legates. The pope now several times appointed to the see of Canterbury and arrogated a corresponding right in individual cases (the first in 1262) as regards ordinary bishoprics.^'' Rapidly the sums demanded of the English clergy by Rome rose. But at the same time there was introduced a state taxation of purely ecclesiastical income, at first in the form of contributions from smaller church circles, such as the clergy of the several archdeaconries, the chapters or the diocesan synods. All such developments were gradual and resulted from the use in particular cases ; there was no enunciation of new legal theories upon the subject. Edward I was the first to offer once more a successful opposition to ecclesiastical encroachments. The old provisions, which had in practice become obsolete, requiring the consent of the feudal lord to the transference of land in mortuam manum (i.e. to spiritual persons or bodies), were now revived (7 Ed. I [1279] Stat, de Religiosis).^^ The pope's claim to dominium in Scotland, a claim which he sought to substantiate against similar pretensions on the part of the English kings, was repudiated in a letter of the barons assembled in parliament at Lincoln (1301). This letter ^^ again ^' A detailed account of the progress of papal claims in regard to the filling of archbishoprics and bishoprics in England from the twelfth to the fifteenth century, will be found in Stubbs, Const. Hist. Ill, 310 ff., c 19 §§ 881-387. "* The older provisions are to he found in Const. Clarendon cc 2, 9 (appendix IV) ; Magna Carta of 1217 c 43 (appendix VII, note 27) ; 43 flew. Ill (1259) c 18.— Compare also Bracton {Rer. Brit. Scr. No. 70) I, 218, 360 f. «' Printed in Eymer, Foedera, 4th Ed. I, 926 :— Sanctissimo in Christo patri, domino B. divina providentia, sanctae Romanae ecdesiae summo Pontifici, sui devoti filii, (here follow the names of 7 comites, 94 domini, 1 castellanus, 1 bare, and one without designation) devota pedum oscula beatorum. Sancta Romana mater ecclesia, per cujus ministerium fides Catholica gubernatur, in suis actibus cum ea, sicut firm,iter credimus et tenemus, maturitate procedit, quod nulli praejudicare, sed singulorum jura, non minus in aliis, quam in seipsa, tanquam mater alma, conservari valet illaesa. Sane, convocato per serenissimum dominum nostrum Edwardum, Dei gratia, Regem Angliae illustrem, parliamento apud Lincolniam, generali ; idem dominus noster quasdam, literas apostolicas, qvMS super certis negotiis, con- ditionem et statum regni Scotiae tangentibus, ex parte vestra receperat, in medio exhiberi, et seriose fecit nobis exponi. Quibus auditis, et diligenter intellectis, tam nostris sensibus admiranda, quam hactenus inaudita, in eisdem audivimus contineri. Scimus enim, pater sanctissime, et notorium est in partibus Angliae, et nonnulUs aliis non ignotum; quod, a prima institutione regni Angliae, Reges ejusdem regni, tam temporibus Britonum, quam, Anglorum, superius et directum^ dominium regni Scotiae habuerunt, et in possessions vel quasi superioritatis et directi dominii ipsius regni Scotiae successivis temporibus extiterunt ; Nee ullis temporibus ipsum, in temporalibuSi pertinuit, vel pertinet quovis jure ad ecdesiam supradictam ; Quinimo idem regnum Scotiae progenitoribus praedicti domini nostri Regibus Angliae, atque sibifeodale extitit ab antiquo. §4] RELATION OF STATE AND CHURCH 3 1 clearly asserts the independence of English kings as against the pope, in all temporal matters.. Nor was this enough ; even after the papal prohibition Edward intervened in the Scottish disorders, .basing his right on his suzerainty. In the last years of his reign, the king, supported by the parliament, addressed himself to check the arbitrary taxation of monasteries by superiors abroad and the transmission of money from the realm by monks or their agents.''" JVec etiam Beges Scotorum, et regnum aliis, quatn Regibus Angliae, sub- fuerunt, vel subjici consueverunt. Neque Beges Angliae, super juribus suis, in regno praedicto, aut aliis suis ternporalibus coram aliquo judice ecclesiastico, vel seculari, ex libera praeheminentia status suae regiae dignitatis et consue- tudinis, cunctis temporibus irrefragabiliter observatae,responderunt, aut respondere debebant. Unde, habito tractatu, et deliberatione diligenti, super contentis, in vestris litteris memoratis, communis, concors et unanim,is omnium, et singulorum consensus fuit, est, et ecrit inconcusse, Deo propitio, infuturum: Q,uod praefatus dominus noster Rex super juribus regni sui Scotiae, aut aliis suis ternporalibus, nullatenus judicialiter re- spondeat coram, vobis, nee judicium, subeat quoquomodo : Aut jura sua praedicta in dubium quaestionis deducat : Nee ad praesentiam vestram procuratores aut nuncios ad hoc mittat ; praecipus cum praem,issa cederent manifeste in exhaeredationem, juris coronae regni Angliae et regiae dignitatis, ac subversionem status ejusdem regni notoriam: necnon in praejudicium libertatum, consuetudinum,, et legum paternarum; ad quarum observationem et defensionem, ex debito praestiti juram,enti, astringimur ; et quae manutenebimus toto posse, totisque viribus, cum, Dei auxilio defendemus. Nee etiam permittimus, aut aliquatenus permittemus, sicut neepossumus, nee debemus,praemissa tarn insolita, indebita,praejudieialia,- et alias inaudita, praelibatum dominum nostrum Reg em, etiam si vellet, facere, seu quomodolibet attemptare. Quocirea sanctitati vestrae reverenter et humiliter supplicamus, quatenus eundem dominum nostrum Regem {qui inter alios principes orbis terras, catholieum se exhibet, et ecclesiae Bomanae devotum) jura sua, libertates, eonsuetudines, et leges, absque diminutions et inquietudine, pacifiee possidere : et ea illibata percipere benignius permittatis. In cujus rei testimonium sigillis nostris, tam pro nobis, quam pro tota communitate praedicti regni Angliae,praesentibus suntappensa. Datae apud Lineolniam, XII. die Februarii, anno Domini MCCCI. '° 3B Ed. I (1306/7) Statj Karlioli (=of Carlisle; called also in older collec- tions Statutum de asportatis religiosorum, in LiT)er Custumarum [Rer. Brit. Scr. No. 12] II, 488 Stat, de Beligiosis Alienigenis). Mention is made in tte preamble of a resolution to the same purpose having been carried in 33 Ed. I (The petition of the secular magnates and of the communitas in 33 Ed. I is printed in Ber. Brit. Scr. No. 98, p. 313), the publication of which was stayed; it is now, after fresh discussion, issued as a law. The essential provisions are :— c 2. Ne quis Abbas, Prior, Magister, Gustos seu quivis alius religiosus . . . censum aliquem per superiores suos, Abbates, Priores, Magistros, Custodes religiosarum domorum vel locorum impositum, vel inter se ipsos aliqualiter ordinatum, extra regnum . . . deferat vel transmittal. . . . Et si quis contra praesens statutum venire presumpserit, considerata qualitate delicti et regie prohibicionis pensato contemptu graviter puniatur. c 3. Inhihition of alien heads of houses : ne decetero tallagia, census, imposi- ciones, apporta seu alia quecunque onera . . . imponant vel faciant aliqua- c 4. Abbots alien may visit their houses in England. , , , ,, , . At the parliament of Carlisle (1307) there was also presented to the king a 32 TO THE REFORM A TION [I, iB It was probably during tbis reign tbat tbe issue of the Circum- specte agatis""^ brought about a more accurate delimitation of the competence of secular and ecclesiastical courts in several doubtful cases. petition against a series of encroachments by the clergy at home and by the pope. On these proceedings and measures taken in consequence see Stubbs, Const. Hist. Ill, 339, c 19 § 392 ; more fully in his Introduction to Chron. of the Reigns of Ed. land Ed. U (Eer. Brit. Scr. No. 76) I, pp. cix ff. " Archbishop Peckham of Canterbury had ordered at the council of Beading (1279) that the clergy should read every Sunday a number of ' ipso facto excommunications.' Among them (Wilkins, Concilia II, 33 ; for variae lectiones see Reg. Epist. Peckham [Rer. Brit. Scr. No. 77] III, p. cxxiii) : — Prima, excomm,unicentur auctoritate concilii Oxon. a . . . Stephana Cantuariensi archiepiscopo celebrati, omnes qui malitiose ecclesias jure sua privare praesumunt, aut per malitiam, aut contra justitiam libertates earum infringere vel pertubare intendunt. Ex quo intelligimus vinculo excommuni- cationis subjacere omnes illos, qui literas impetrant, a quacunque curia laicali, ad impediendum. processum ecclesiasticorum judicum, in causis, quae per sacros canones ad forum, ecclesiasticum pertinere noscuntur. Septimo, excomm,unicantur om,nes illi, qui malitiose contemnunt exequi mandatum dom,ini regis de excom,municatis capiendis, . . . No n o, excom/municantur . . . quicunque de domibus, maneriis, vel grangiis, vel locis aliis archiepiscoporum vel episcoporum, vel aliarum, personarum ecclesiasticarum, contra ipsorum voluntatem . . . aliquid auferunt, vel consumunt, vel injuriose contrectant ; . . . The archbishop was compelled by the king in the same year to recall the objectionable instructions (Wilkins, Concilia n, 4D) : — Memorandum quod venerabilis pater J. Cantuar. archiepiscopus venit coram rege et consilio suo in parliamento regis S. Michaelis, anno regni regis septimo apud Westm. et confttebatur et concessit, qu^d de statutis, provisionibus et declarationibus eorundem, quae per ipsum promulgatae fuerunt apud Reding, mente Augusti anno codem,, inter quasdam sententias excommunica- tionis, quas idem, archiepiscopus ibidem promulgavit. Primo, deleatur, et pro non pronunciata habeatur ilia clausula in prima sententia excommunicationis, quae facit mentionem de impetrantibus literas regias ad impediendum processum in causis, quae per sacros canones, etc. Secundo, quod non excommunicentur ministri regis, licet ipsi non pareant mandato regis, in non capiendo excomTnunicatos. Tertio, de illis, qui invadunt m.aneria clericorum, ut ibi sufflciat poena per regem posita ........ In spite of this revocation and of the fact that Edward I, in two prohibitions of September 28th, 1281 (printed in Wilkins, Concilia II, 50) warned the prelates not to do aught against the king's rights at the approaching council, Peckham, at the provincial council of Lambeth, which met October 7th, 1281, directed the clergy to read four times a year certain excommunications the text of which agreed almost exactly with those published at Beading (Wilkins, Concilia II, 51; var. lect. Peckham, as above, p. cxxxi). Forms 7 and 9 of the council of Beading are unchanged. Form 1 now ends : in quo excommunicari intelligi- mus qui Uteris aut juribus curiae laicalis ecclesiasticarum, causarum pro- cessum impediunt, quae ita ad ecclesiam pertinere noscuntur, quod nullatenus possunt, nee consueverunt, per seculare judicium terminari. Ethujus- modi sententia insuper de caetero denunciari praecipimus, excommunicatos omnes illos, qui falsae exceptionis titulo archiepiscopalem aut episcopalem processum impediunt, aut subterfugiunt disciplinam. The constitutions are dated 10th October. In a letter of the 2nd November, 1281 (Regisi. Peckham I, 239, also Wilkins, Concilia II, 64)_ Peckham endeavoured to justify himself to the king by urging that ecclesiastical were superior to secular laws. [The chronicle of Osney {Rer. Brit. Sc7'. No. 36, Annates Monastici) IV, 285 §4] RELATION OF STATE AND CHURCH 33 All this was efifected without any considerable struggle. But an attempt by Edward to bring the ecclesiastical property of the clergy within the scope of taxation in a more systematic way than hitherto, encountered greater opposition. In principle, the kings claimed the right to impose taxes upon their own absolute authority. In regard to the baronage and the town of London it had been laid down in the Magna Carta of 1215 that for the levying of land taxes in ordinary cases previous consent by the national council was requisite.''^ But this provision was omitted in the very next edition of the charter (1216), and not restored in later confirma- tions. Nevertheless, as a matter of fact, both for some time before Magna Carta and afterwards, such impositions of taxes took place, with few exceptions, only when consent had previously been given by the national council. With sections of the people not there represented negotiations were specially conducted by royal com- missioners to the several counties, towns, etc. A similar procedure had come to be in vogue in regard to the church, when purely church income had been subjected to taxation.^^ According to the reports under the year 1280 : Non. Octobris, septirao videlicet die ejusdem mensis, dominus Johannes Cantuariensis' archiepiscopus, . . . apud Lamheye sollemne concilium celebravit ; . . . Caeterum in eodem concilio proposuerat quasdam libertates ad coronam domini regis spectantes et a multis retroactis temporibus usitatas annullare, videlicet cognitionem juris patrohatus, pro- hibitiones regias in placitis de catallis et hujusmodi quae spiritualitatem mere contingere videbantur ; cui rex per quosdam de suis in eodem concilio publice se opposuit, et intentando m,inas inhibuit, ne quid statuere praesum,eret in praejudicium seu depressionem regiae libertatis. .Unde factum, est ut territus archiepiscopus a sua praesumptione penitus resiliret. (Similarly but some- what more shortly the chronicle of Wykes, printed in the same No.) The account is probably a confusion of the events of 1279 and 1281.] In 1285 the convocation of the southern province petitioned the king for a limitation of the prohibitions. The chancellor answered ; the synod made rejoinder (for the documents see Wilkins, Cone. II, 115 fE.). Probably it was in this connexion that the king's instruction Circumspecte agatis, which passed into later collections of laws, was issued to his judges. It is not dated. Prynne placed it in the reign of Edward II (Stubbs, Const. Hist. II, 124 c 14 § 179). In Statutes of the Realm it appears among the enactments of 13 Ed. I (1285) ; see, however, note there. '^ c 12 : Nullum, scutagium, vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum, redimendum, et pri- mogenitum, filium nostrum militem, faciendum, et ad filiam, nostram primo- genitam semel maritandam, et ad haec non fiat nisi rationabile auxilium : simili modo fiat de auxiliis de civitate Londoniarum. These taxes, though connected with the possession of fiefs, were, however, regarded at the time not as land taxes, but as personal: — Bracton {Rer. Brit. Scr. No. 70) I, 288: Et sunt hujusmodi auxilia personalia et non praedialia, personas enim respi- ciunt et nonfeoda, . . . ■ " For an— unsuccessful — attempt to tax the clergy in 1207 compare : Annales de Waverley (Annales Monastici ; Rer. Brit. Scr. No. 36 ; II, 258) : Rex lohannes . . . convocatis episcopis, abbatibus et prioribus, comitibus et baronibus, et magnatibus regni, celebravit concilium Londoniis in octavis Cir- eumcisionis ; ibique cpnvenit episcopos et abbates, ut permitterent personas et beneficiatos ecclesiarum dare regi eertam summam reddituum suorum. In quod cum non consentirent praelati ecclesiarum, data est dilatio u,sque ad sequens concilium celebrandum Oxoniae in octavis purificationis beatae Mariae ; ibique congregata infinita multitudine praelatorumecclesiae et magnatum regni H. C. D 34 TO THE REFORMATION [f, 1b then prevailing view prelates satin the national council simply ag feudatories ; as such they were taxed there like the rest ; in re- spect of the church income alike of the prelates and the rest of the clergy negotiation with the several bodies concerned had become customary.''* From the reign of John it sometimes occurred that representa- tives of the counties or towns were, for various purposes and in changing forms, summoned to attend- the national council.'^ In like manner, from the days of Henry III, representatives of the chapters and, by degrees, representatives of the parish clergy appeared at the church provincial synods J^ If the representatives of the lower ranks of the laity were present at the national council or of the clergy at the provincial synods, there was then an opportunity of discussing grants of taxation at these central meetings, and so saving subse- quent local negotiations; The summoning of representatives of the lower ranks alike to the national councils and to the provincial synods began to be more regular in the early years of Edward I's reign. From the year 1283 the admission of chosen representatives of the parish clergy to the provincial synods became the established rule." The admission of representatives of the counties and the towns to the civil national council grew, indeed,. more and more fre- quent ; but their power to co-operate in the making of laws remained, even in the following reigns, an inconstant quantity. Grants-^of money to be raised from counties and towns were made, from 1295 onwards, only exceptionally otherwise than by resolution of their representatives in the national council.''* Edward I now endeavoured, following the line of previous develop- ment, to simplify still further the negotiations with the tax-granting bodies. Accordingly he invited the clergy to decide in the general national council as to the taxation of their spirituals as well as their temporals, and bade them, to this end, send to it representatives of the inferior clergy. Such representatives were, after certain transi- tional measures, summoned (1295). They presented themselves and a tax upon spiritualities was granted at the council. In 1296 the lower clergy again appeared.'''^ But meanwhile pope Boniface VIII exegit ab episcopis et abbatibus quod prius exegerat ab eis. Sed consilio inito, omnes tarn Cantuarienses quam Eboracenses metropolitani unanimiter respond- erunt, Anglicanam ecclesiam nullo modo sustinere posse, quod ab omnibus saeculis prius fuit inauditum. Bex ergo saniori usus consilio, exactionem illam penitus relaxavit. Postea generaliter statuitper universum regnum, ut omnis homo (under this designation the clergy were included. E,oger de "Wendover, Flores Historiarum ; Eer. Brit. Scr. No. 84 ; II, 36) de cujuscun- quefeudOjjuraretpretium catellorum suorum de immdbili et mdbili, et de his daret decimam tertiam partem regi ... " Negotiations took place with diocesan synods, cathedral chapters, arch- deaconries, monastic orders, etc. Some examples in Stuhhs, Const. Hist. II, 205 c IB § 199. In isolated cases during the reigns of Henry III and Edward I grants were made by the provincial assembly even before 1295. " Compare § 21, near notes II ff. '^ Compare § 54, notes 31 ff. " Compare § 54, notes 88 ff. '« gtubbs. Const. Hist. II, 256, c 15 §§ 232,233. ™ Compare § 21, note 20. §4] RELATION OF STATE AND CHURCH 35 had, on the 25th of February, 1296, published his bull Clericis laicos^ in which, without having England specially in view, he forbade in general, under pain of excommunication, the payment of civil taxes upon the property of churches or of the clergy, as also the collection of such taxes, without papal authority previously obtained.^" Having regard to this bull, the clergy in the national council of 1296 de- murred to the granting of a tax.«^ To enable a definitive settlement to be reached, both provincial councils were summoned, through the archbishops, to meet at London in January, 1297."^^ But the clergy persisted in thfeir refusal.^^ Upon this the king declared that such a refusal involved a breach of homage.^' On the 26th of January he convened the temporal magnates of the realm, but not the spiritual, to a colloquium to be held on the 24th of February.^" On January the 30th he put the clergy outside the protection of the laws and announced his intention of confiscating their fief s.*^ Arch- bishop Winchelsey replied on the 10th of February by excommuni- cating all who transgressed the papal prohibition.*^ On February ^ . . , quod quicunque praetati eeclesiasticaeque persoiiae, rdigiosae vel seculares, quorumcunque ordinum, eonditionis, seu statuum, collectas vel tallias, decimam, vicesimam, seu centesimam suorum et ecclesiarum proven- tuum vel bonorum laicis[ solverint, vel promiserint, vel se soluturos consenser- int, aut quamvis aliam quantitatem, portionem, aut quotam ipsorum proven- tuum, vel bonorum aestimationis, vel valoris ipsorum, sub adjutorii, mutui, subventionis, siibsidii, vel doni nomine, seu quovis alio titulo, modo, vel quaesito colore, absque auctoritate sedis apostolicae ; necnon imperatores, reges, . . . et quivis alius , , . qui talia imposuerint, exegerint, vel receperint . . . eo ipso sententiam excommunicationis incurrant. Universitates quoque, quae in his culpabileS fuerini, ecclesiastico supponimus interdicto, , . . (Welkins. Concilia II, 221). This bull is in close connexion with previous prohibitioits. In the general council of the Lateran III (1179), printed as o 4, Decretals Greg. IX (Lib. Extra) III, 49, the bishops and clergy had been still allowed to con- tribute voluntarily to a tax when the property of the laity was insufficient. The general council of the Lateran IV (1215), printed as c 7, Decret. Greg. IX (Liber Extra) 111,49, had amended: Propter imprudentiam tamen quoruii- idam Bomanus pontifex consulatur. Impositions of taxes without this con- sultation of the pope were to be void and punished with excommunication. *' For this and the events connected therewith see the full accounts in Stubbs, Const. Hist. 11, 135 ff. c 14 § 180 and Hefele, Konziliengesehichte 2nd Ed. VI, 289 ff. *" Winchelsey's summons to the council of the southern province is to be found in Wilkins II, 219. *' Bartholomaeus de Cotton, De Bege Edwardo I{Ber.Brit. Scr. No. 16) 318. ^^ Earth, de Cotton, I.e. 318 : Ex quo homagium et juramentum pro baroniis vestris mihi praestitum non tenetis, nee ego teneor vobis in aliquo. *' Summons in Valgt&velBecotd Com,mission), Parliamentary Writs I, 51. '° Annates de Wigornia {Ber. Brit. Scr. No. 36; Annates Monastici) TN , 530: Et in aula regis lohannes de Mettingham publice proclawMvit, ne quis causas in curia regis religiosorum defenderet vel clericorum, sed laicorum causae procederent sicutprius ; et quod religiosi et clerici fuerunt extra pacem et defensionem regiam, prpnuriciavit ; et quod nullum breve trans gressionis de cancellariaexiet pro religioso vel clerico qualicunque,qitoc'Unque modo gravati fuerint contra pacem. Tertio Kal. Februarii tale fuit regis consilium, quod praeciperet praescriptam duritiam fieri contra clerum. Of. Earth, de Cotton, Zc. 818,319. " Earth, de Cotton, I.e. 320. 36 TO THE REFORMATION [I, !» the 12tli the king ordered the confiscation of all fiefs in the hands of the clergy.88 Individual bishops, abbots and some of the lower clergy now submitted and redeemed their confiscated lands by the pay- ment of the amount of the tax which fell to their share ; upon which the king again took them under his protection.^^ The clergy of the northern province had already yielded, and received on the 6th of February the assurance of royal grace.'" Urged by Winchelsey, the king on the 7th of March authorized the provisional suspension of the measures directed against the clergy of the southern province. In the same month the synod of that province again assembled for deliberation, and again the grant of the tax was refused. The arch- bishop, however, declared that he left it open for each individual to come to a separate arrangement with the king.'^ On July the 14th '" Edwardus, Dei gratia etc., vicecomiti Wygomiae salutem. Propter aliquas certas causas tibi praecipimus, quod omnia laicafeoda totius cleri in bailiva tua tarn archiepiscoporum, episcoporum, etreligiosorum quam aliorum clericoi'um quorumcunque, cujuscunque status existant, una cum bonis et catel- lis in eisdem, inventis, sine dilatione capiatis in inanum, vestram,, et ea salvo custodire faciatis ; ita quod nee ipsi nee aliquis per ipsos ad ea manum, ivipo- nant, donee aliquid inde praeceperimus ; et hoe nullo modo omittatis. Teste meipso apud Ely, XII. die Februarii. (Printed in Annates de Wigornia ; Rer. Brit. Scr. No. 36 ; Ann. Monastiei IV, 530, where, besides the proclamation of the 30th January mentioned in note 86, the following edict is adduced with- out specification of date : Omnia mobilia sua perdent, nisi regis voluntatem, fecerunt citra Fascha ; etfeoda annexa ecclesiis vel haereditate contingenda per annum, in suis manibus rex tenebit ; post hoc per breve esehaetae capitales domini feodum, reeuperabunt. Extunc tales nee ement nee vendent; neeprae-^ sumat aliquis talibus deservire, seu alias comynunicet quoquomodo. Et si resistant spoliatoribus, ineareerentur. According to Barth. de Cotton, I.e. 321, the last cited edict appears to have been issued at the colloquium of Feb. 24th.) ^^ The king's letter of protection and a list of the persons to whom it was given is in Brady, Hist, of Ehigland, London 1685 ff., II, appendix No. 20 ; cf. also Nos. 21, 22. '" Edwardus etc. Capitaneo Marinariorum, et eisdem Marinariis ac omni- bus Ballivis etfldelibus suis ad quos praesentes literae pervenerint, salutem. Cum Fraelati et Clerus Ebor. et Karliolen. Civitatum et Dioeesium prudenter intuentes inevitabiles necessitatis angustias quibus Ecclesiae suae et totum regnum Angliae occuldtafide exponuntur, et subjacent his diebus, usque ad quintam partem, Beneficiorum et bonorum suorum istius anni juxta taxa- tionem nuperfactam de Benefieiis Ecclesiasticis de quibus deeima, ultima in subsidium, Terrae Sanctae concessa, data fuit, ordinaverint et constituerint se ponere ad defensionem, suam, et Ecclesiarum suarum, et ad resisiendum, machi- nationibus et invasionibus hostium, . . . Nos ipsorumcircum^pectamprovi- derdiam commmdantes, suscepimus in proteetionem et defensionem hostram speeialem,praedictos Praelatos et Clerum, et singulos eoi'undem homines, terras, res, redditus, et omnes possessiones suas. . . . (Printed in Brady, I.e. II, appendix No. 19). According to "Walter of Hemingburgh, Chronieon (ed. Hamil- ton) II, 118, the bishop of Durham, the third of the northern province, also submitted. The clergy evaded the papal prohibition by depositing their con- tributions in a church and leaving the king to remove them. "' Floras Historiarum (the so-called Matth. "Westmonast. ; Rer. Brit. Scr. No. 95) III, 101 : . . . Recesserunt itaque singvli cmeratis suis conscientiis per archiepiscopum sic dieentem, ' UnusquiSque suam, animam salvet.' Ann. de Wigornia {Rer. Brit. Scr. No. 36 ; Ann. Mcmast.) IV, 531 : Universos et singulos proprtis conscientiis vos dimitto. Sed mea conscientia pro regis protectione vel alio colore dare pecuniam non permittit. §4] RELATION OF STATE AND CHURCH 37 Edward and the archbishop -were reconciled, and on the 31st the former re-admitted the clergy to his protection.'? The king's pliancy- was caused by the war which had broken out with France and by the apprehension of troubles among the barons at home. As he was about to cross over to the continent in order to conduct the war in person, a part of the barons, ill-disposed for foreign service and seek- ing to profit by the quarrel with the church, had refused to accom- pany the army or to pay the taxes which the king in his need was levying without consent. But in spite of the prudence dictated by the difficulties of his position, Edward was not minded to surrender permanently the taxation of spiritualities. Upon his reconciliation with Winchelsey he immediately made a fresh demand for supplies. Winchelsey called the provincial synod for the 10th of August ; '^ but on meeting the synod declared that the clergy, in consequence of the papal prohibition, could make no grant ; they would, however, upon agreement with the king ask the pope's permission to accord one."* The king replied that, if they could make him no grant, he would take what was needful without it ; and that he would give no assent to the seeking of papal allowance.'^ Accordingly, on the 20th of August, he issued an order for the collection of forced taxes upon the property of the clergy, excluding, however, the em- ployment of compulsion in regard to income from purely ecclesiasti- cal sources.*'^ Two days later he embarked for the continent, leaving behind as regent his son, prince Edward, who, in October, found himself obliged, by the discontent exhibited in parliament, to con- "^ Protection printed in Brady, I.e. II, appendix No. 30. *3 Summons in Wilkins, Concilia II, 226. ^* . . . fee il ne purreient rien graunter des Mens de seinte eglise, pour les chartres renorieler sans conge le pape, . . . ; mes il espeyrent ke par bones resonnes, ke serreyent monstrez a le pape legerement, averunt le conge ; et prient, . . . voillet soeffrier ke il puissent hastivement enveer par com- m,un counseil de vous, e de lour, ou tut par eus, pour les choses avauntdites (Wilkins, Concilia II, 226). °' Bartholomaeus de Cotton, De Rege Edwardo I (Rer. Brit. Scr. No. 16) 335. ^' Palgrave {Record Commission), Parliamentary Writs I, 396 : Come li Roys par lordenaunce de Dieu eit resceu le governernent del reaume par quoi il est tenuz au defens de mesme le reaume et de toutz ses souzmis clers et lais . . . For le commun profit et defens devant ditz ad ordene qe pur ceo qe clercs par fet darmes ne se doivent deffendre, la tierce partie des biens temporeux de Ian qe ore est des prelatz e des clerks et de totes per- sones de seinte eglise rdigieuses et autres seit levee pur la dite necessaire em- prise (the war with France) /ere et meintenir. Einsi qe rien ne soil levepar cele acheison des dimes meimes, ne grantz oblacions obvencions mortuaires, ne des biens assignez a la lumineire ou as ornem^ntz de la eglise ou dautre biens purement esperitieux. Ne ren ne soit leve des clerks quy benefices ne valentplus de V. mxirs en totes chouses selonc la dreine taxacion. E entent le Roy qe les biens des clerks en leur lais fiez qui ne sount pas aportenauntz as eglises ne seient pas en ceste taxacion, mes courient en la taxacion des lays. E ausi entent ly Roys qe ceux qui voudront doner la quinte partie de toutz leur biens temporeux e espiriteux aportenauntz a leur benefices soientau quint. E de ceste prise qe ly Roisfera enteni il si tost come il porra en bone manerefere le gre de ceux de quil averapris selonc ceo quit devrafere en tele manere qil sen devront tenir apaez. 38 TO THE REFORMATION [I, 1b cede redress of the principal grievances. Tlie regent confirmed afresh the Magna Carta and approved some new articles, containing especially the proviso that thenceforth the more important taxes should not be levied on either clergy or laity without the common consent of all orders. These concessions of the regent were, on the 5th of November, ratified by king Edward.'' Meanwhile the pope had addressed conciliatory letters on the 7th of February to the king of France,'^ on the 28th of February to the French clergy,^' on the 31st of March to king Wenzeslaus,'"" and in a communication to the king of France dated the 22nd of July, 1297, had abandoned the necessity of previous papal approval in cases of urgency .^"^ It '■'' 'PxintBA. in Statutes of the Realm, Statutes 1,123. The relevant parts of the deed of confirmation are : — I. Edward par la grace de Dieu, roy Dengleterre . . . Sachiez nous . . . aver grante pur nous et pur nos heirs, qe la grande chartre des franchises et la chartre de la forest les queles furentfaites par commwn assent de tut le roiawme en tens le rey Henry notrepere, seient tenuz en toutz leur pointz, sans nul blemishment . . . VI. Et aiisi avons grante pur nous e pur nos heirs as ercevesques, eves- ques, abbes e priurs, e as autres gentz de seinte eglise, et as contes et barons et a tote la communaute de la terre, qe mes pur nule busoigne tieu manere des aides, mises ne prises, de notre roiaume ne prendromSjfors qe par commun assent de tut le roiaume, et a com.mun profit de meism,e le roiaume, sauve les dncienes aides et prises dues et custumees. The chronicler Walter of Hemingburgh gives, under the title Articuli inserti in Magna Carta, a Latin text, which contains not a few deviations from the French deed of confirmation. This Latin text is known under the name (S^a^Miww de tallagio non concedendo and is, in the preamble of the Petition of Bight, 3 Car. I (1627) c 1 s 1 and in a decision of the judges (1637), erroneously de.signated an act. It certainly did not obtain the force of law. Whether the Latin text is a draft of the law or an inaccurate reproduction of it, is uncertain. As to the relations of the two texts see Stubbs, Sel. Chart. 492 ff. and Const. Hist. II, 147 ff. c 14 § 180. ^ Letter of Boniface VIII to king Philip (Feb. 7th) in Baronius, Annates, year 1297, § 49 Ed. 1864^83, XXIII, 218 : Voluntary gifts by the clergy are allow- able, as also those depending on feudal obligation and the rights of the crown. Should there be danger in delay the assent of the pope need not be obtained. ^ Letter of Boniface VIII to the clergy of France (Ann. de Wigornia ; Rer. Brit. Scr. No. 36 ; Annates Monastici IV, B31 without date. The same fuller and with date 28 Feb., Baronius, Annates year 1297, §§ 43-45, Ed. cited XXIII, 216 and in Hi.^t. Papers from North. Beg. [Ber. Brit. Scr. No. 61] p. 127) : Licet enim Constitutionem illam ediderimus pro ecclesiastica libertate, non tamenfuit nostrae mentis intentio ipsi regi aliisve principibus saecidaribus in tarn arete necessitatis articulo (praecipue ubi ab extrinsecis injusta timetur invasio, et ab intrinsecis ejusdem regni subversio formidatur, ac etiam praelatorum, ecclesiarum et personarum ecclesiasticarum evidens periculum imminet), viam subventionis excludi, quominus ipsi praelati ecclesiae et ecclesiasticae personae libera arbitrio ac spontede nostra licentia pro communi defensionis auxi- lio, in quo proprium interesse cujuslibet conspicitw, principibus ac sibi ipsis provideant juxta suarum modulumfacultatum. In this bull the pope returns to the position of Lateran council] IV. (above, note 80). He requires in par- ticular, as before, papal approval even in urgent cases. ""> Baronius, I.e. year 1297, § 51, XXIII, 219 : sponte liberoque arbitrio de licentia nosti'a. 101 Printed in Prynne, Records III, 725 and in Pithou, Libertis de VEglise Gallicane Ed. 1639 II, 1089: "in case danger threatens the realm, inconsulto etiam Romano Pontiflce." §4] RELATION OF STATE AND CHURCH 39 ■was probably with a knowledge of these papal decisions that both convocations in November, 1297, granted taxes upon spiritualities without any renewed demand from the king.'' ^ But the dispute did not end here. In principle the pope, and with him the English clergy, adhered to the view that papal consent was requisite for every tax upon church property. Once more, at the parliament of Lincoln (1301), the clergy sought to procure legal recognition of their theory. The temporal magnates supported the contention; the king repudiated it.i«* From this time the quarrel whether spiritualities were or were not taxable gradually ceased. In point of fact, grants of church taxes were made uninterruptedly. Frequently the pope's allowance was requested, in other cases it was dispensed with. The opposition of. the clergy to the granting of taxes in general softened down to an opposition to the granting of church taxes in the national council. With that limitati&n, the dispute went on for a considerable time. It was not . before the middle of the fourteenth century that the principle defended by the clergy, that competence to grant taxes upon church property resided solely in the provincial synods, not in parliament, was put beyond question.^"* By the establishment of this view the clergy had gained a material increase of power for their provincial synods, but only at the cost of the permanent exclusion of the lower clergy from the national council.^"* Edward II failed to govern with the same vigour as his prede- cessor had shown. Instances of the filling of English church offices, including bishoprics, by the pope were multiplied, the right so claimed being known as that of provision. In accord- ance with the resolutions of the general council of Vienne (1311) the templars were suppressed in England as elsewhere, and their possessions transferred by legal enactment to the order of saint John.i"® Of legislation which was to exercise lasting influence upon the relation of church to state there is none to be mentioned belonging to this time except the so-called Statutum Articuli cleri}"' It contains a demarcation of the competence of secular '"2 Stubbs, Const. Hist. II, 147 o 14 § 180. Boniface VIII, by bull of 12th March, 1301 (Hist. Papers from Northern Registers, Ber. Brit. Scr. No. 61 ; p. 147) declared that he left to the king what the latter had collected through impositiones et exactiones illicitas from the clergy and freed him from all ex- communications incurred in consequence of such exactions. "" Petition of prelates and temporal magnates and king's answer (Palgrave, Parliament. Writs 1, 105) : — Epar ceste chases sttzdites ne pount ne osent pas les Prelatz de Seinte Eglise assentir Ke contribucion seit fete de lur Mens ne de Mens de la clergie en contre le defens le Apostoille. Non placuit Regi set com,munitas procerum apprdbavit. ^"^ Compare Stubbs, Const. Hist. Ill, 349 c 19 § 396. "5 Compare § 21. "^ 17 Ed. II St. 2 (1323/4) De Terris Templariorum. It is observed therein that their possessions would, without the statute, have fallen by escheat to the several lords of the fees. ""9 Ed. list. 1 (1315/6). This" is a royal patent (24th Nov. 1316,10 Ed. II) issued with consent of the consilium,, containing the various petitions of the clergy and the king's answer to each petition. (Printed in Statutes of the 40 TO THE REFORMATION 1, is and ecclesiastical courts, couched almost in the terms of tlie Cir- ciimspecie agatis, which is, as we have seen, probably assignable to Edward I; 1"^ besides this, it redresses a number of insignificant church grievances, without, however, sacrificing essential preroga- tives of the state. Edward III in like manner remained, for the most part, at peace with the national church, whose assistance he needed to enable him to carry on his wars with the king of France.'"^ In the early Bealm I, 171 and in Hist. Papers from the Northern Registers ; Eer. Brit. Scr. No. 61, pp. 253 fE The answers contained therein had already been read at the parliament of Lincoln, 9- Ed. H). co 1-6 relate to the jurisdiction of the ecclesiastical courts re causes ; c 7 to excommunications ; c 8 to competence re clerks employed in the exchequer; c 9 to the levying of distress on church property (the answer to the 12th art. of articles of 1279-85 is almost identical in language, Hist. Papers from North. Registers, p. 75^ ; c 10 to the right of asylum ; c 11 to corodies, resort and the like ; c 12 to excommunication of the king's tenants; c 13 to the examination of persons presented by the king to a benefice; c 14 to free election to church dignities; cc 15 and 16 to the amenability of clerks to the courts. The relation of the statute to previous similar answers to ecclesiastical complaints is mentioned in the introduction to the patent : Rex omnibus, ad quos etc. Salutem. Sciatis quod cum dudum temporibus progenitorum nostrorum, qiwndam Regum Anglie, in diversis parliamentis suis, et similiter postquam regni nostri gubernacula suscepimus in parliamentis nostris, per prelatos et clerum regni nostri, plures artictdi continentes gravamina aZiqua ecclesie Anglicane et ipsis prelatis et clero illata, ut in eisdem. asserebatur, porreetifuisserd, et cum, instancia supplicatum, ut inde apponeretur remedium, opportunum: Ac nuper in parliam^ento nostra apud Lincoln, anno regni nostri nono, articulos subscriptos, et quasdam respon- siones ad aliquos eorumpriusfaetas, coram consilio nostra recitari, ac quasdam responsiones corrigi, et ceteris (North. Eeg. : certis) articulis subscriptis per nas et dictum consiliuTn nostrum fecerimus responderi ; quorum quidem articulorum et responsionum tenores subsequuntur in hunc modum,, '"^ Compare above, note 71. _ !<» With the object of redressing minor grievances of the clergy and further limiting the rights as against each other of temporal and ecclesiastical author- ities in the land the following laws were enacted under Edward III : — 1 Ed. in (1826/7) St. 2. c 2 concerns abuses connected with the king's taking into his hands the temporalities of prelates ; c 10, pensions, corodies, etc. ; c 11, prohibition of certain suits for defamation in spiritual courts (cf. § 60, note 76). 14 Ed. 7// (1340) St. 4. c 1 lays down that no spiritual person's goods shall be purveyed for the king without the owner's consent ; o 2 restricts the king from presenting to benefices already occupied ; c 3 ordains that prelates' tem- poralities are not to be taken in hand by the king without good cause or judgment given ; cc 4, 5 relate to the administration of the temporalities of bishops during vacancy. 18 Ed. HI (1344) st. 3. c 1 relates to impeachment of archbishops or bishops before the king's justices ; c 2 lays down that bigamy shall be tried by the ordinary (cf. § 60, n. 33) ; o 3 relieves clergy who purchase land in mortmain ; o 4 concerns purveyances, c 5, prohibitions ; c 6 forbids enquiries of temporal justices into the proceedings of spiritual judges ; c 7 relates to procedure in questions of tithe. 25 Ed. in (1351/2) st. 6. Ordinatio pro Clero. cc 1-3 relate to the king's encroachments upon others' rights of presentation ; cc 4, 5 to the amenability of clerks in cases of treason or felony ; c 6 orders that prelates' temporalities are not to be seized for contempt,, but a fine paid ; c 7 concerns advowson ; c 8 relates to the jurisdiction of ecclesiastical courts re causes ; c 9 requires in- dictments of ordinaries or their officers for extortion or oppression to be definite. §4] RELATION OF STATE AND CHURCH 4I part of the reign friction was avoided owing to the fact that i'rom 1330 to 1340 John Stratford, who became archbishop of Canterbury in 1333, and his brother Eobert held the great seal alternately with only two short interruptions. Afterwards disputes of a slight and temporary character occurred, and towards the end of the reign the court party under John of Gaunt sought touch with Wycliffe and the reformers as against the party of the prelates. In the lower house of parliament, whose rights reached their full development under Edward III, a power had arisen which neces- sarily regarded every privilege of the clergy as a limitation of its own influence and which accordingly kept jealous watch to hinder the extension of such privileges. According to legal usage as hitherto prevailing, petitions of the clergy assembled in their con- vocations could be turned into universally binding laws by the mere fact of their receiving the king's assent. Against this the commons protested. Upon their petition Edward III in 1377 approved that the lower house should be bound by no law and by no ordinance made without its consent and with the concurrence of the clergy only.i^" The recognition of this principle hampered the clergy henceforth considerably in compelling an alteration in par- liamentary laws by simply exercising pressure on the government. As a rule all that they could now obtain in this way was a mitiga- tion for a time of the severity with which laws were administered. In relation to the pope, the strengthened position of the house of commons likewise stood the civil power in good stead. Even at the beginning of the reign the statute of Carlisle, made under Edward I, was repeatedly confirmed.^" Later, proceedings against papal encroachments in the matter of appointing to benefices and against the financial claims of the pope, were rendered more easy by the circumstance that new wars with France broke out and that, con- sequently, every service done to the pope at Avignon, who was naturally under French influence, was inevitably regarded as in aid of the enemy. After certain preparatory measures,"^ in 1351 was passed the first law (Statutum de provisorHms) that in unmistakable terms and with strict penalties for breach opposes the usurpa- tions of Eome in regard to ecclesiastical appointments.^*'* In every single case where the conditions under which king John had con- ceded free election by the chapters are violated, the king is to have free presentation; as also if the pope encroaches on other of the king's rights of presentation. If the pope infringes the rights of "» Compare § 14, note 8. "' 4 Ed. Ill (1330) c 6 : Item est acorde qe lestatut nadgairsfait et afferme a Kardoil, cest assaver, qe les Beligiouses ne facent apport outre meer, soit meyntenu garde, et tenu, en touts pointz. — B Ed. Ill (1331) c 3 : Ensement est acorde et establi qe un estatut fait a Kardoil, en temps meisme le Roi lad [= Va:ieul], en quel est contenuz qe gentz de Religion ne facent apport hors du roialme, soit tenuz, gardez, et m,aintenuz en touz pointz. Of. above, note 70. "* The impetus was given by a petition of the lower house of parliament in 1843. The several measures which followed up to 1351 are brought together in Stubbs, Const. Hist. II, 418 c 16 § 259 ; III, 889 o 19 § 892. "' 25 Ed. Ill (1350/1) St. 4, printed in appendix VIII. 42 TO THE REFORMATION [Ij 1b presentation wliioh lie in ecclesiastical persons or bodies, then may these nevertheless present, if they venture to do so. If they do not present or if their presentee does not obtain possession, the king shall present for that turn. If the pope disturbs lay patrons in their rights, his disposal of the benefice is likewise to be ignored. Should the lay patron not present within six months, the presenta- tion passes to the bishop, and should the bishop not present in a further month, to the king. - In the year 1353 another important law was passed. It is directed against appeal to the pope in cases cognizable by the king's court or in which the king's court has given judgment. Here again, offenders are threatened with the severest penalties."* "^ . The higher clergy had taken no part in procuring the enactment of these two laws.^^^ In a third important step against the papal see they co-operated with the laity. When in 1366 the pope, basing his claim on John's submission, demanded the feudal tribute — it had been last paid in 1333 — parliament declared that that submis- sion, owing to want of assent on the part of the barons, was void, and it refused payment.^^'' From that time forth the popes ceased 114 27 jPd. Ill (1353) St. 1 c 1, Statutum contra adnullatores Judiciorum Curiae Regis. The statute is often designated ' the first praemun ire-act.' The writ praemunire facias^ is not mentioned by name in it. The essential pro- vision of the law is printed in § 23, note 11. "^ Both laws were confirmed and supplemented by 38 Ed. Ill (1363/4) st. 2. "" Compare § 21, note 31. '" Batuli Pari. II, 290 : Lour disoit (the chancellor to the parliament), Coment le Eoi avoit entendu qe le Pape, par force d'unfait quel il dit qe le Roi Johanfesoit au Pape, de luifaire Homage pur le Eoialme d' Engleterre et la Terre d'Irlande, et qe par cause du dit Homage qHl deveroit paier chescun an perpeiuelment Mill' Marcs, est en volunte de /aire Proees devers le Roi et son Roialme pur le dit Service et Cens recoverir. De qoi le Roi pria as ditz Pre- latz, Dues, Countes et Barons lour avys et bon conseil, et ce qHl en ferroit en cas qe le Pape vorroit proceder devers lui ou son dit Roialme pur celle cause. Et les Prelatz requeroient au Roi qHls se purroient sur ce par eux soul aviser, et respondre lendemain. Queux Prelatz le dit lendemain adeprim,es par eux mesmes, et puis les autres Dues, Countes, Barons, et Grantz respondirent, et disoient, Qe le dit Roi Johan ne nul autre purra m£ttre lui ne son Roialme ne son Poeple en tiele subjection, saunz Assent et accorde de eux. Et les Com,- munes sur ce demandez et avisez, respondirent en mesme la manere. Sur qoi feust ordeine et assentu par commune Assent en manere q^ensuit: Queux Prelatz, Dues, Countes, Barons et Communes, eu sur ce plein deliberation, responderent et disoient d'une accorde. Que le dit Roi Johan ne nul autre purra mettre lui ne son Roialme ne son Poeple en tiele subjection saunz Assent de eux, et come piert par plusours Evidences qe si ce feust fait ce feust fait saunz lour Assent, et encontre son .sermsnt en sa Coronation. Et outre ce, les Dues, Countes, Barons, Grantz et Communes aecorderent et granterent, qe en cas qe le Pape se afforeeroit ou rien attempteroit par Proees ou en autre manere de fait, de constreindre le Roi ou ses Subgitz de perfaire ce qe est dit q'il voet clamer celle partie, q^ils resistront et contre-: esterront ove toute leur peussance. — According to the deed John's submission had been made communi consilio baronum, nostrorum. That the transfer of the kingdom to the pope by John was void owing to alleged defective assent of the barons, had already been urged by Philip of France to the legate Gualo, Apr. 1216 (Stubbs, Cmst. Hist.. II, 13 c 14 § 169). §4] RELATION OF STATE AND CHURCH 43 to claim the tribute. That England was, in temporal matters, independent of Eome, was never afterwards seriously questioned."^ In the last years of his reign Edward III, after negotiations which had been carried on in 1374-75 at Bruges, received assur- ances from the pope "^ as to the removal of the principal grievances complained of. But the promises made were not long observed,'^" Richard IE (1377-99) was a minor when he became king. In the year 1381 rebellions broke out in many parts of England. The movement for the reform of the church played a certain part in many of these risings. It is probably in connexion therewith that there was issued in 1382 the first secular law against loUard heretics. The house of commons, however, maintained the invalid- ity of that law, because it had been promulgated without their assent.^^i Soon after the king had taken the government into his own hands (1389), Edward Ill's legislation against the pope was renewed and in some respects supplemented. (Thus we have a statute of provisors, 13 Ric. II [1389/90] st. 2 cc 2, 3, and the statute of praemunire, par excellence so called, 16 Ric. II [1392/3] c 5.) ^^^ The independence of the English crown was once more solemnly affirmed, in that at the king's deposition one of the offences charged against him was, that he had sought the confirmation of the pope for the statutes enacted in his last parliament. ^^^ ''' Eeference to the feudal relation betwesn them was made by the pope to Elizabeth. "' Bulls of the pope, 1st Sept, 1376, in Eymer, Foedera 4th Ed. Ill, 1037 : (1) Those who are in possession in virtue of royal presentations and collations shall remain in possession. (2) The same holds good in the case of certain specially named persons who rely on the king's grant and against whom other claimants have suits pending at the papal court. (3) Urban V had directed the drawing iip of a register of the value of the various benefices and their cir- cumstances in regard to taxation ; anyone who did not deliver the particulars required for the register was to be removed from his benefice, which was reserved for the pope to refill. This general reservation, as well as all other special reservations ordered by Urban and other popes, in so far as the popes had not yet made use of the same, were annulled. Present holders of such-like benefices were confirmed in possession. (4) The occupants of benefices, con- firmed in possession under 1-3, are allowed to keep the income for the interval ; the pope renounces his claim to annates which might have been payable in respect of these benefices. (5) Owing to difiiculty of access to Rome on account of the war between England and France, the admissibility of citing Englishmen to Eome is temporarily restricted. (6) The English archbishops are commissioned to require cardinals who have benefices in England to repair the buildings thereof,— See Stubbs, Const. Hist. II, 447, note 3 c 16 § 261. '2" Compare the numerous complaints of the ' good parliament,' 1376, against papal abuses, Botuli Farliammtorwm II, 337 ff. ; for example, c 98 : Item fait a penser qe Dieux ad commys ses ouweles a nostre Seint Pier le Pape, a pasturer et nonpas a tounder. 1" Cf. § 19, notes 5 and 7. '22 The most important provisions of these laws are to be found in § 23, note H. '23 Printed § 28, note 1. 44 TO THE REFORMATION [I, 1b It is not of importance for the history of the constitution of the church that we should trace the relations of church and state during the reigns between Richard II and the reformation. As early as the days of Edward III a resting place had been reached in the struggle between the state and the national church. If afterwards dissensions occur, the occasion of them is generally to be found in personal hostilities between the spiritual and the temporal rulers for the time being. The house of commons held the church in check. The latter had, in practice, to acquiesce in the principle that the law of parliament must, in the last resort, decide upon the competence of spiritual as well as of temporal authorities. The mortmain legislation was kept permanently in force. The personal exemption of the clergy from secular jurisdic- tion continued within the limits in which it had hitherto been confined. It was only under Henry YII (1485-1609) that this privilege began to be curtailed. The prosecution of heretics was regulated by state enactment. In 1382 the commons, as we have seen, had protested against the validity of the loUard law then issued. The first generally recognized law against heretics dates from 1401 (2 Hen. IV c IB), its passing being rendered possible by the political changes in connexion with the deposition of Richard II. Another and harsher law against heretics was made in the reign of Henry V after the suppression of a loUards' rising. In these laws far-reaching powers were conferred upon the bishops, and it was made the duty of the royal officials to give effect, without further enquiry, to the judgments of the church. Nevertheless the clergy became in this way accustomed to regard secular forms of law as regulating procedure against heretics. No prosecution for heresy took place from this time in other than legal form. Moreover, in respect of relations with the pope, the statutes of provisors and praemunire of Edward III and Richard II had estab- lished a sure basis in English legislation. The popes, it is true, paid no regard to these statutes and constantly acted in breach of them ; papal influence was so strong that actual and continuous execution of their articles was impossible. Not only did the kings by dispensations and licences meet the wishes of the pope in indi- vidual oases and even beg provisions of him in favour of their own candidates, but parliament also several times sanctioned the tem- porary suspension of the laws.^^* But suspension was not final repeal; and the statutes remained in force, nay, were gradually elaborated by new enactments. Thus, in particular, the king's right to grant licences or pardons was somewhat restricted. ^^^ The "' Compare, for example, Stubbs. Const. Hist. II, 612 o 17 § 291 ; Iir, 34, 260 f his contrivance negotiations were opened for the marriage of Mary to his son, Philip II of Spain. But parliament petitioned the queen to marry an Englishman. The queen declared this to be an encroach- ment upon her prerogative and dissolved parliament. The new house approved the articles of marriage with Philip.*^ Nevertheless, the proposals made by Mary's authority to abolish her title as supreme head of the church and to revive the laws against heretics were rejected. The pope had immediately after her accession appointed Reginald Pole as his legate in England. Pole had been raised to the cardinalate for his resistance to the legislation of Henry VHI, but in England had been attainted of high treason. As the act of attainder had remained in force, the legate, at the suggestion of Mary and of Charles V, had not entered England, but had taken up his abode in the Netherlands. Having regard to the attitude of the English parliament, the pope was now induced to empower his legate to renounce all claim to the restitution of church lands, that renunciation being the price paid for the re- establishment of the papal supremacy in England. Upon this, at the end of 1554, the attainder of Pole was reversed. A few days afterwards he appeared in England, gave absolution to parliament and convocation at their request, and made a declaration by which ** 1 Mar. St 1 (1553) c 1 An Acte repealing certayne Treasons Felonies and Premunire. si:. . . enacted . . . that from hensforthe none Acte Dede or Offence, being by Acte of Parly ament or Statute made Treasone petite Treasone or Misprision of Treason . . . shallbe taken . . . to be Highe Treason petite Treason or Misprision of Treason, but onely suche as bee declared and expressed to bee Treason etc. by ... 25 Ed. HI St. 5 . . . s3: . . . that all Offences made Felony e, or limited or appointed to be loithin the cace of Premunire, by any Acte . . . made sithens 1 Hen. VIII, not being Felony before, nor within the case of Premunire . . . shall from hensforthe bee repealed . . . *= 1 Mar. St. 2 (1553) o 2 An Acte for the Repeale of certayne Statutes made in the time of the Eaigne of Kinge Edwarde the Syxthe. s 1. Repealed were: 1 Ed. F/c 1; c 2; 2 &, % Ed. Vic 1 ; c 21; 8 & 4 &?. 7/ c 10; c 12; 5 &6 S(Z. FIc 1; c 3; c 12. s 2 : . . .all suxih Divine Service and Administration of Sacranientes as were most commonly used in the Realms, of Englande, in the last yere of the reigne of . . . Henrie theight, shall bee from 20 dec. 1553 used and frequented through the hole Realm of Englande and all other the Quenes Majesties Dominions ; and , . . no other . , . ^^ 1 Mar. St. 3 (1554) c 2. §6] THE REFORMATION 63 dispensation was granted for the acquisition of cliurcli lands and for certain official proceedings since the reformation. It was only- after this had been done that 1 & 2 Phil. & Mar. (1554 and 1554/5) o 8 was passed, repealing all enactments directed against the papal supremacy since the twentieth year of Henry VIII, that is since the 22nd of April, 1528. The statute also confirmed the matter of the legate's dispensation, with the express addition that that dispensation removed all trouble and difficulty which might have proceeded from ecclesiastical authorities, but that the title of all lands was based on the laws of the realm. In like manner all powers and privileges of the crown were vindicated, as they had existed before the twentieth year of Henry's reign. The efforts of the legate and of king Philip to cause the restoration of papal supremacy and the confirmation in the possession of church lands to be expressed in separate enactments had proved futile.*'^ In the ^' 1 & 2 Phil. & Mar. (1554 and, 1554/5) c 8 An Acte repealing all Statutes Articles and Provisions made against the See Apostolick of Rome since 20 Hen. VIII and also for thestablishment of all Spyrytuall ami Ecclesiasticall Pos- sessions and Hereditatnentes conveyed to the Layetye. s 1 contains the text of the petition of parliament which through the queen was to reach cardinal Pole. In the petition regret for the schism was expressed, as also the willingness to repeal all laws against the supremacy of Rome since 20 Hen. Vni. Absolution had been granted through Pole. The undertaking to repeal the acts in question must now be made good. s 2 repeals those provisions of 21 Hen.VHI c 13 which declare the procuring of bulls for pluralities or non-residence to be a penal offence. s 3 repeals entirely: 23 Hen. VIH 00 9, 20 ; 24 Hen, VUI c 12 ; 25 Hen. VUl CO 19, 20, 21. s 4 repeals entirely : 26 Hen. VUI ex. 1, 14; 27 Hen. VUI c 15 ; 28 Hen. VIII cc 10,. 16 ; 31 Hen. VIII c 9 ; 32.Hen. Villa 38 ; 35 Hen. VIII c 3 ; also that part of 28 Hen. VIII o 7 which prohibits marriage within certain degrees. ' s 5 repeals that part of 35 Hen. VIIIc 1 which prescribes the taking of an oath of supremacy, and also voids all oaths taken in consequence of that statute. s 6 repeals 37 Hen. VIIIc 17. s 7 repeals that part of 1 Ed. VI c 12 which threatens penalties for denying the king's or maintaining the pope's supremacy. s 8 : . . . that all clauses sentences and articles of every other Statute .■ . . made sithence 20 Hen. VIII againste the supreme aucthoritie of the Popes Holines or Sea Apostolike of Rome, or conteining matter of the same effect onely, that is repealed in any of the Statutes aforesaid, shall be also by aucthoritee hereof from hensforthe utterly voide . . . s 9. There has, furthermore, been handed to the queen another petition (quoted verbatim), praying that the pope might for the removal of all contentions grant through his legate dispensations touching: — 1. New foundations of bishoprics, cathedral churches etc. 2. Marriages within the prohibited degrees (in so far as the pope has been accustomed to grant dispensations). 3. Appointments to church offices, and dispensations. 4. Processes before ordinaries or delegates. 5. The acquisition of the lands of bishoprics, monasteries etc. s 10. There has been a corresponding petition (quoted verbatim) of the con- vocation of Canterbury to the crown, wherein it is prayed that for the sake of peace Pole may be moved to grant dispensation, for alienated church lands and that all things may be restored quae ad jurisdictionem nostrum et libertatem Ecclesiasticam pertinent. s 11. Pole's answer to Philip and Mary is quoted verbatim. _ In it all the re- quirements of parliament in s 9 are granted; but the division of bishoprics 64 TO THE PRESENT DAY [I, Ic same parliament a measure was adopted for the revival of the old laws against heretics/^ Such of the confiscated church lands as were still in the hands of the crown were by 2 & 3 Phil, & Mar. (1555) 4 released for ecclesiastical purposes.*" Whilst parliament in this way had yielded, reluctantly and not without reservation, to the endeavour to undo the reformation, con- vocation had from the outset offered no resistance to the government. The bishops who belonged to the reform party were under various pretexts removed from their offices.^" Among the lower clergy there and the erection of cathedral churches need to be confirmed by the pope. Of the movables of churches at least the sacred vessels should be given up, and provision should be made for parsons and vicars. s 12 confirms by law the matter of this dispensation. s 13. The dispensation has with regard to lands or goods which have passed into other hands taken away all matter of empeachment trouble and danger^ whiche by occasion of any generall Councell Canon or Decree Ecclesiasticall might touche and disquiet the Possession . . . yet for that the title of all Landes Possessions and Hereditamentes in this your Majesties Realme and Dominions, ys groionded in the Lawes Statutes and Customes of the sam^, and bye your highe Jurisdiction Aucthoritie Boiall and Croione Imperiall and in your Courtes onely to be empleaded ordred tryed and judged and none otherwise, acquisi- tions, it is expressly stated, made in accordance with the laws of the realm, are to hold good. s 16. Whosoever by means of the process of an ecclesiastical court molests any on account of the possession of church lands, incurs the penalty of prae- munire according to 16 Ric. II o 5. s 18. Although the title of supreme head of the church cannot rightly be used by an English king, yet writs, letters patent etc. in which it has been used shall be valid. s 19. The queen since her accession has not used this title. As it depended on her free choice whether she should use it or not, grants, letters patent etc. in which it is omitted are valid. s 20. AH bulls made void by 28 Hen. VIII c 16 shall become effectual in so far as not conteyning matter contrary e to or prejudiciall to aucthoritie dignitie or preheminence Boiall or Imperiall of the Realme, or to the Lawes of this Realms now being in force and not in this Parliament repealed. s 21. By grants of Henry VIII and Edwaid VI the jurisdiction over certain • parish churches and chapels which were before exempt from the bishop and subject to a monastery, has been transferred to laymen. These grants are made void. s 23. For the next twenty years, with certain limitations land may be given in mortmain. s 24 Nothing in this act shall diminish the privileges etc. of the crown as they were up to the 20th year of Henry VIII's reign. The pope shall be re- stored to the authority he then exercised or might legally exercise. In like manner the jurisdiction of the bishops is restored. [As to the extent to which this act was repealed by 1 Eliz. c 1 see below, note 63.] ** 1 & 2 Phil. & Mar. (1564 and 1654/6) o, Q An Acte for the renueing of three Estatutes made for the punishment of Heresies. Revived are : 6 Ric. II St. 2 c 5; 2 Hen. IV c 16; 2 Hen. Vat. 1 o 7. [This act and the three acts mentioned therein were repealed by 1 Elie. c 1 s 6.] *° An Acte for thextinguishemeni of the Fyrst Fruites etc. and of Rectories and Parsonages impropriate remayning in the Queries handes. The act also contains the royal renunciation of the first-fruits and tithes conferred by 26 Hen. 7/1/ c 3.— Cf. 1 Miz. c 4. , *° See Perry, Hist, of ISng. Church II, 228 c 18 s 16, with note. Such removals were partly in imitation of analogous proceedings under Henry VIII and Edward VI. § 6] THE REFORM A TION 65 were still to be found many adherents of the old faith, and the in- fluence of the crown had sufficed to reduce the voting power of the party of reform to small dimensions. Under the now revived laws against heresy, Cranmer and other prominent persons were burned. Pole was consecrated archbishop in Cranmer's place, remaining at the same time in the post of first minister. Owing to the influence of Philip, England became in- volved in the Spanish war with France. The new pope, Paul IV, sided with the French, and it was accordingly important to him to cause embarrassment to the English government. He withdrew ■ from archbishop .Pole, who belonged to the moderate section of the papal party, the legatine commission, and took steps to call him to account for deviation from the teaching of the church. The queen interposed, and ultimately Paul seems to have given way and allowed the archbishop to resume his functions as legate, at least provisionally.^^ The measures adopted under Mary shook the reform party, but by no means annihilated it. Two attempted risings were suppressed, several conspiracies discovered. The capture of Calais by the French intensified the discontent in the country. Under the pressure of religious persecution there was an increase in the number of those who desired to go beyond the principles of the early English refor- ^' On the legatine commission of Pole compare Brady, Tlie Episcopal Suc- cession I, 5 and 33. Pole was despatched on the 5th Aug. 1553 as legatus a latere (bull in Wilkins, Concilia IV, 87). According to Brady I.e. full legatine authority was conferred upon him by bulls of the 8th March, 1554 ; he received additional powers on the 6th July, 1554 (Brady II, 293) and in the year 155B. At the consistory of the 11th Dec. 1555 the pope appointed him administrator of the archbishopric of Canterbury. His designation in the appointment is (Brady II, 321) Sedis Apostolicae in Regno Angliae de Latere Legatus ad ejus vitam. In 1557 he was removed from office as legate. At the consistory of 14th June, 1557, the pope announced that he had received letters from queen Mary and the prelates, according to which all England was in excitement at Pole's recall. At the same consistory Peto (the papal claimant to the see of Salisbury, recognized apparently as little by Henry VIII as by Mary) was appointed legate and was granted all rights which Pole had enjoyed (Brady II, 321). Peto died in Ma rch, 1558. — Compare further Matthew Parker, De Antiqui- tate Britannicae Ecclesiae et Privilegiis Ecclesiae Cantuariensis etc. Lambeth, 1572 p. 421 : Id quod pontiflcem in Polum vehementius irritavit, quod suis contra Caesarem et Hispanos pro regno Neapolitano vindictaeque cupiditate inceptis obstaret, seque officii munerisque sui in ea causa in qua redargui a quocunque nollet, admoneret. Itaque papa abrogata Poll legatione eum Romam revocavit, eiusque loco Gulielmum Petrum Pranciscani ordinis virum Car- dinalem atque Legatum creavit. . . . Haec omnia Mariae Reginae prius- quam Polo nunciabantur, quae eo inscio iussii ne hi qui in Angliam a papa mitterentur, Anglorum ope traiicerent aut ad portus appellerent, turn si quae literae perferantur, ut interceptae non Polo sed sibi traderentur; . . . Papa . . . respondit, Polum probdbilibus argumentis atque coniecturis in haeresis suspicionem, sibi Romandeque curiae venisse, ideoque a se Romam accersiri . . . Hoc etsi Regina caelare Polum voluit, tamen is ab aliis nunciis accepit, atque prorsus qb argentea cruce gestanda, omnique legatina adminis- tratione munereque cessavit, misitque . . . ad papam ...;... Papa . . . permisit Polo Legationem gerere, donee Caraffam Cardinalem fratris suifllium pacem inter Philippum et Galium initurum mitteret. . . . Cf . § 34, note 13. H. C. F 66 TO THE PRESENT DAY [I, lo mation and who in doctrine and as to church government took for their models the Reformirten of the continent. Mary's reign was cut short by her decease on the 17th of November, 1558. Pole died next day ; and thirteen other bishops passed away shortly before or after him. Thus at a critical moment the papists were robbed of a considerable number of their leaders. Elizabeth, the daughter of Anne Boleyn, next ascended the throne. She was reputed a protestant, but had under Mary accommodated herself to the changes introduced. Receiving an offer of marriage from Philip of Spain, she at first replied evasively, then ultimately refused it. At the commencement of her reign it seemed as if some agreement with Rome might be reached. She notified her acces- sion to the pope, who, however, made reconciliation impossible, disputing that she, as the offspring of an illegitimate union, had any right to succeed, and even reminding her of the feudal rela- tion of England to the papal see. His action was a natural conse- quence of the papal declaration that the marriage of Henry VIII with Catherine was valid ; but he had in view at the same time the advantage of his ally France, where the heir to the throne had wedded Mary, queen of Scotland, a claimant to the English crown.^^ For the second time papal diplomacy had the effect of binding an English ruler to the party of reform by the tie of per- sonal interest. After certain temporary measures legislation of a decisive cha- racter ensued. By 1 Eliz. (1558/9) c 1 royal supremacy was restored in the extent to which it had been claimed by Henry VIII ; the taking of an oath of supremacy and allegiance was enjoined under penalty of loss of ecclesiastical and secular ofi&ces ; to the sovereign - was assigned the title of ' supreme governor as well in spiritual as in temporal things,' the earlier designation ' supreme head of the church ' being avoided ; the most important acts of Henry VIII touching church constitution and the act of Edward VI as to the receiving of the eucharist in both kinds were revived, and the laws against heretics abolished.^^ The act 1 Eliz. (1558/9) c 2,. which in 52 The marriage was on 29th April, 1558. Mary Stuart's husband ascended the Trench throne as Francis II on 10th July, 1559. He died on 5th December in the following year. ?' 1 Eliz. cl An Acte restoring to the Crowne thauncyent Jurisdiction over the State Ecclesiasticall and Spiritually and abolyshing all Forreine Power re- pugnaunt to the same. s 1. 1 & 2 Phil. & Mar. o 8 is repealed so far as the contrary is not afterwards declared (cf. ss 4, 16). s2. Be vived and to be applied in regard to Elizabeth and her heirs are: 23 Hen. VIII cc 9, 20; 24 Hen. VHI c 12; 25 Hen. VHI ca 19. 20, 21 ; 26 Hen. VHI cli; 28 Hen. VIII cie. . . > s 3. Eevived in so far as not altered under Edward VI are : 32 Hen. VHI c38; ST Hen. VIII ell. s 4. The acts repealed by 1 & 2 Phil. & Mar. c 8 remain repealed in so far as they are not specially mentioned and revived by the present act. s 5. 1 Ed. F/c 1 is revived. s 6. Eepealed are 1 & 2 Phil. & Mar. o 6 and the heresy laws therein men- tioned. § 6] THE REFORM A TION 67 the upper house was passed by a narrow majority, again prescribed the use of the second prayer-book, somewhat altered, of Edward VI.^* 1 Eliz. c 24 transferred to the crown the property of all monasteries restored or newly founded since Edward's death.^^ s7; . . . enacted . . . that noforreine Frynce Ferson Frelate State or Potentate Spirituall or Temporall shall at any tyme after the last Daye of this Session of Farliament, use enjoy or exercise any manner of Fower Juris- diccion Superioritee Aucthorite Freheminence or Privilege Spirituall or Ec- clesiasticail within this Eealme or within any other your Majesties Dominions or Countreis that now be or hereafter shalbee, but fromthensforthe the same shalbee clerely abolished out of this Realme and al other your Highnes Do- minions for ever. s 8 contains the positive grant to the crown of rights of church government (text § 28, note 9) and empowers it to appoint commissioners to exercise these rights (text § 30, note 3). s 9. The following oath of supremacy is to be taken by all church officials, clergy and temporal officials, and by all who ' have the king's fee or wages ' : — I . . . doo utterly testifie and declare in my Conscience, that the Queues Highnes is thonelye supreme Governour of this Eealme and of all other her Highnes Dominions and Countreis, aswell in all Spirituall or Ecclesiasticall Thinges or Causes as Temporall, and that no for- reine Frince Ferson Frelate State or Fotentate hathe or oughte to have any Jurisdiccion Fower Superioritee Frehem,inence or Aucthoritee Ecclesiasficall or Spirituall within this Realm.e, and therfore I doo utterly renounce and forsake all forraine Jurisdiccions Foivers Superiorities and Aucthorities, and doo proviise that fromhensforthe I shall beare Faithe and true Alle- giance to the Quenes Highnes her Heires and lawfull Successoures, and to my power shall assist and defende all Jurisdiccions Freheminences Frivileges and Aucthorities granted or belonging to the Quenes Highnes her Heires and Successoures, or united or annexed to Thimperiall Crowne of this Fealme : So helpe me Gfod and by the Contentes of this Booke. s 10. Whoever does not take the oath, loses the office he now holds. ■ In case of future appointments the oath must be taken before the office is entered on. s 12. The oath is also to be taken by persons Temporall suing Lyverie or Oustre le maine out of thandes of the king, by persons who are received into the king's service and by those who take orders, or degrees at the universities. s 14. Penalties for upholding foreign ecclesiastical jurisdiction by writing, preaching etc. In case of relapse, praemunire according to 16 Bic. /J c 5 ; of repeated relapse, the punishment for high treason. s 16. This act does not revoke any provision contained in 1 & 2 Phil. S Mar. 8 touching any case of praemunire. s 18. In any process under this act against peers for praemunire or high treason, proceedings shall be before peers. s 19 : . . . That no maner of Order A cte or Determinacion for annye Mat- ter of Religion or Cause Ecclesiasticall had or made by thaucthoritie of this present Parliament, shalbe accepted demed interpretated or adjudged at any time hereafter to be any Errour Heresie Scism,e or Scismaticall Opinion; . . . s 20. Limitation of heresy (text § 19, note 30). s 22. Penalties for aiding and abetting offences against this act. ^* An Actefor the Uniformitie of Common Prayoure and Dyvyne Service in the Churche, and the Administration of the Sacramentes. Cf . § 15*. — In the upper house the bill was passed by a majority of only three votes. All the spiritual lords voted a'gainst it. — Against Roman forms of divine service Eliza- beth proceeded with great caution, and retained, in part, Roman ceremonies in her own chapel. ^ " An Acte to annexe to the Crowne certayne Religious Howses and Monasteries and to refourm,e certayne Abuses in Chantreis. The act also conveys to the crown foundations since the death of Edward VI for the saying of masses, burn- 68 TO THE PRESENT DAY [I, Ic By this legislation the constitution of the church as it had been under Henry VIII and, with some modifications, religious belief as it had obtained under Edward VI again received the sanction of law. All the bishops with one exception refused to take the oath of supremacy and were declared to have forfeited their offices.^^ In like manner a number of the inferior clergy had to surrender their- positions. It was only by degrees that the vacancies thus created could be filled. The execution of the acts was entrusted to royal commissions which in a short time developed under the name of the ' high commission court ' into a permanent civil board for the government of the church.^^ From the beginning of the reign of Elizabeth the existence of the party which demanded a further advance in the direction of reform than the English church had taken, made itself still more percep- tible than hitherto. Its tendencies were opposed by the govern- ment. Thus government and church came to be so situated that they had to fight with double front — against the papists on the one side, against puritans and sectaries on the other. It is on this contest that the ecclesiastical and, in great measure, the civil history of England turns for the next few centuries. § 7. b. The struggle against papists and protestant sects at the end of the sixteenth and in the seventeenth century.' Even in the earliest years after the final victory of the reforma- tion under Elizabeth the protestant episcopal church of England drew lines of demarcation, between itself and the papists on one hand, and, on the other, between itself and more advanced protes- tants. In 1563 the formulary of belief known as the thirty-nine articles was agreed in convocation and set forth with the authority of the queen. The document, which is to be connected with the forty-two articles of 1553, lays down an independent system of dogma, with express repudiation of a great number of Eomish doctrines and usages, but also in opposition to the views of the more advanced protestants. As touching the constitution of the church, the thirty-nine articles reject explicitly the authority of the pope ; ^ but on the other hand it is implied that the episcopal constitution is mg of lamps etc. Compare also 1 KHz. c 4 An Acte for the Bestitution of the First Frmtes, and Tenthes and Rentes reserved Nomine Decime, and of Parson- ages Impropriate, to Thimperiall Crowne of this Realme. ^^ 39 Eliz. (1597/8) c 8 declared retrospectively all deprivations and appoint- ments from the beginning of the reign to 10th Nov. 4 Eliz. (i.e. 1562) to be incontestable at law. " Cf. § 30. ^ Art. 37. ■> Perry, Hist, of English Chunh II, 286 fF. co 17 ff.— Eanke, Enjl. QescUcMe, Bk. Ill ff.— Cf. also appendix XIV, II, 3 a, c. § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 69 not necessary but allowable.^ The clergy were required by their ecclesiastical superiors to subscribe ; but there was no statutory enforcement of subscription until 1571.^ As, moreover, there was a legal compulsion to take the oath of supremacy and to use the prayer-book, a possibility existed of gradually driving from the ministry of the church all who were recalcitrant. The exercise of such compulsory powers had its natural effect : the members of the advanced section now parted company with the state church and formed themselves into separate church communities. Thus in 1566 a number of the deprived clergy combined to practise their own form of worship, and so laid the foundation of the sect of puritans. This sect, which soon grew to great importance, attacked the state church in several quarters : in regard to constitution, the puritans were the champions of presbyterianism ; in doctrine, they followed mainly the Reformirten of the continent ; in the matter of forms and ceremonies, they demanded the abolition of many usages which the English church had retained from prereformation times.* The mainstay of the puritans was in the neighbouring country of Scot- land, in which the presbyterian model prevailed. Whilst the puritans could be kept down by a slight exercise of ecclesiastical or civil pressure, to resist successfully the renewed attacks of the papal party at home and abroad, Elizabeth was com- pelled to put forth the whole power of the state. In 1668 Mary, queen of Scots, had fled to England. Elizabeth endeavoured to bring about a reconciliation between her and her Scottish nobles ; but the attempt miscarried. Mary was now detained in England to prevent her from uniting with Prance or Spain against England. As the head of the papists in Great Britain, and as being, according to the pope's judgment, the rightful queen of England, or at least, by general consent, entitled to succeed to its crown, she remained, meanwhile, a constant danger to the life and rule of Elizabeth. With the co-operation and partly at the instigation now of the pope and his agents, papist priests and Jesuits, now of the ambassadors of Spain and Prance, sometimes too with Mary's cognizance, many risings and attempts to assassinate the queen took place in England. At last Mary, there being no other means of securing internal tran- quilHty, was tried, condemned ^ and, on the discovery of a new con- spiracy, put to death (1587). By excommunicating Elizabeth and forbidding obedience to her under penalty of excommunication (1570),^ Pius V had made the quarrel desperate. At Douay (after- '^ Arts. 36, 34. Compare below, § 18. ' For a further account of the thirty-nine articles see § 16^ ; they are printed in appendix XI. * The chief points at issue are brought together in Neal, Hist, of Puritans Ed. 1822 I, 191 ff. ^ Under 27 Eliz. (1584/5) d An Act for Provision to be made for the Suertie of the Queenes Majesties most Royall Person, and the continuance of the Realme in Peace. ^ The countermeasure was IB Eliz. (1671) c 2 An Act agaynste the bringing in and putting in Execution of Bulls and other Instrtiments from the Sea of 70 TO THE PRESENT DAY [I, lo ■wards at Eheims), at Rome and at other places on the continent seminaries were erected to train priests under Jesuit control for service in England/ The year 1680 saw the first seminarists de- spatched to these shores. The object of'those who came was to detach, outwardly as well as in inner feeling, the papists of England from the national church and to organize them as a separate eccle- siastical community. By 27 Eliz. (1584/5) o 2 the Jesuits and all Romish priests were banished from England.^ Even before the execution of Mary, war had broken out with Spain. Elizabeth had secretly assisted alike the French protestants and the insurgents in the Netherlands. With the latter at the point of succumbing and the Spaniards planning a descent upon England, she in 1585 declared open war. The course of this war, in origin mainly religious, was fortunate, and the victories of England laid the foundation of its naval power. In Ireland only did the power of Elizabeth encounter resistance until her death.^ In legislation the endeavour was, as before, to compel all the inhabitants of the country into the established church and to induce them to take part in its services. Conspicuous enactments in this direction are 23 Eliz. (1580/1) c 1 and ^b.Eliz. (1592/3) cc 1, and 2.10 Upon the death of Elizabeth (24th March, 1603) the crowns of England and Scotland were united in James I, who, though the son of Mary Stuart, had been brought up a protestant. James had in 1586 concluded with Elizabeth the offensive and defensive alliance of Berwick," upon the promise that his claim to succeed to the English throne should not be questioned. During the struggle with Spain which ensued he had suppressed a rising in Scotland of the popish nobles, although to their religion generally he extended a wide toleration. Papists were even found among the teachers of his children. Upon his accession to the English throne he either did not execute the laws against them at all or only in a modified form, and sought to mitigate the zeal of parliament against Jesuits, Borne. — To leave the papists in outward conformity to the law, but still in an ambiguous position, the bull of excommunication was interpreted some years afterwards : cathoUcos turn demum obliget, quando pttblica ejusdem bullae txeeutio fieri poterit. It was renewed by Sixtus V (158B-90). ' Neal, Hist of Puritans Ed. 1822 I, 272, gives the following seminaries : Douay 1569, Eome 1579, Valladolid 1689, Seville 1593, St. Omer 1596, Madrid 1606, Louvain 1606, Liege 1616, Gent 1624. * An Act against Jesuites Semynarie Priestes and such other like disobedient Persons. Of. § 11, nr. note 21. '" 23 Eliz. (1580/1) o 1 An Acte to reteine the Queenes Majesties Subjectes in their due Obedience. 35 Eliz. (1592/3) c 1 An Acte to retayne the Quenes Subjectes in Obedyeiice, is especially directed against protestant sectaries (s 9). The enact- ment was for a fixed time which was several times prolonged — 48 Eliz. (1601) c 9 s 1, 1 Jac. I (1603/4) c 25 s 1, 21 Jac. I (1623/4) c 28 s 1, 3 Car. I (1627) c 5 s 3. To meet doubts it was declared by 16 Car. 11 (1664) c 4 s 1 to be still in force. 35 Eliz. (1592/3) c2An Acte against Popish Eecusantes, confirmed by 3 Jac. I (1605/6) c 5 s 4. " Compare § 10, note 26, § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 71 seminary priests and refusers of the oath, of supremaoy.^^ The puri- tans lost no time in forwarding him a petition in favour of certain changes in the prayer-book and certain reforms in the adminis- tration of the ohurch.1^ In consideration of these desires the king arranged the Hampton court conference (1604) between puritans and representatives of the state church. As the isstie of this conference some immaterial changes in the prayer-book were made. Moreover, the king went some way towards meeting the wishes of the puritans for a stricter observance of the Sabbath. But greater individual liberty in regard to doctrine and worship was not conceded to the clergy. The convocation of the southern province in 1604 approved, and the king set forth, for the northern as well as the southern province, a long series of canons which determined the principles of internal church government, and aimed at strengthening the influ- ence of the ecclesiastical authorities upon the lay authorities of the parish-community. These canons are — apart from certain changes made by resolution of convocation or parliamentary enactment — still binding on the clergy at the present day ; they are among the fundamental laws of the English state church.'* James persistently favoured the high church (hierarchical) tendency in England ; similarly in Scotland, both before and after his attainment of the English throne, he was concerned to transform slowly the presby- terian into an episcopal constitution. The mildness shown to the papists, joined to severity towards the advanced protestant movement, caused opposition to the government to spring up in parliament. The quarrel was soon extended to the department of finance. With more or less violence it continued to rage during the whole of James's reign, the opposition being led for long by chief justice sir Edward Coke. The great jurist was in 1616 deprived by James. of his offices; his legal works, in which the rights of the state as against the church are frequently discussed, " Against the puritans, however, were passed the strict laws 1 Jac. I (1603/4) c 4 An Actefor the due Execution of the Statutes againste Jesuits Seminar ie Preistes Recusants etc. ; 3 Jac. / c 4 An Acte for the better discovering and repressing of Popish Recusantes, and c 5 An Acte to prevent and avoid dangers which may grow by Popish Recusantes, both the latter upon occasion of the gun- powder plot (1605); 7 Jac. 7(1609/10) cQ An Acte for administringe the Oath of Allegiance and Reformacion of married Women Recusantes. — Against royal dispensations from obeying the laws is directed 21 Jac. I (1623/4) c 3 .491 Act concerning .Monopolies and Dispensations with penall. Lawes and the Forfeyture thereof. '' The millenary petition is printed in Perry, Hist, of Engl. Church II, 872 c 22, notes and illustrations, and in Collier, Eccles. Hist.'KA. 1852 VII, 273. " The more important provisions of the canons of 1604 which refer to the constitution of the church are extracted in appendix XII. — After the canons had been by royal ordinance introduced into the province of York as well as that of . Canterbury, the . king by letters patent of 18th Feb. 1606 licensed the iiorthern convocation to make canons subject to his approval (licence in Wilkins IV, 426). On 19th March, 1606 (Wilkins IV, 428; according to Trevor, The Convocations of the two Provinces p. 101, on 10th March, 1606) the northern convocation accepted the canons of 1604 passed by the southern convocation and ratified by the king, and desired the royal approval. 72 TO THE PRESENT DAY [I, lo have exercised an influence on tlie practice of the courts which is still appreciable. Dissensions at home availed to cheek the display of England's power externally. Shortly after his accession the king had made peace with Spain. In the years which followed he gave constant support to the protestants of the continent, especially of Germany. Upon the outbreak of the thirty years' war, however, despite the expressed wish of parliament, he refused armed intervention and confined his efforts on behalf of his son-in-law, Frederick, the elector-palatine, to peaceful negotiations. Herein he was governed by his resolve to avoid enterprises of magnitude, because the expenditure involved by them would make him dependent on parliamentary grants ; more- over, the fact that he was in treaty with Spain for several years to •bring about an union between his heir and a Spanish princess, caused him to abstain from more active interference.'* But these negotiations were broken off, and before the king's death England entered into political relations with France in opposition to Spain. On the 11th of May, 1624, the king issued a commission to treat with France for perpetual amity and a marriage between the successor to the English crown and a French princess.'^ In the course of the proceedings James pledged himself to give, in addition to the con- cessions in the marriage contract proper, a secret assurance whereby the papists in England should be allowed the free exercise of their religion. This assurance was to be laid before the pope as an induce- ment to him to grant the French princess a dispensation for the marriage. On the 12th of December, 1624, the marriage contract was signed by James I, the secret assurance by him and his successor.!'' The French afterwards put forward new demands.^^ '° In course of the negotiations the king swore to observe the articles of marriage and four secret articles, both containing the conditions laid down by the pope as to be fulfilled, before he would grant a dispensation for the mar- riage (printed in Dumont, Corps universel diplomatique, Amsterdam and the Hague, 1726-31, vol. V pt. 2 p. 440. Compare also Eushworth, Historical Collections, London, 1659-1701, pt. 1 vol. I p. 86). The articles of marriage concede : free exercise of religion for the infanta, her family and her suite ; twenty-four Roman catholic priests and one Roman catholic bishop to be included in that suite ; the right to educate her children at least to their tenth (according to the oath of prince Charles, to their twelfth) year of age ; the laws against papists not to be applicable to the children, even in case of succession to the throne. The secret articles embodied the king's pledge not to execute any lawsagainst papists or repugnant to the Romish religion, to endeavour to effect their repeal by parliament, not to set forth any such new laws, and to allow the private exercise of the Roman catholic worship. Similar oaths were taken by the heir to the throne and the members of the privy council. 1" The commissions are printed in Eymer, Foedera 3rd Ed. VII, pt. IV p. 139. ^'' Letter of secretary Conway to the English ambassadors in France, 23rd December, 1624 (in Hardwicke, Miscellaneous State Papers, London, 1778, 1, 547). The concession of the English ambassadors, Paris, 18th Nov. 1624, as to the secret assurance to be given runs : — Le Boy de la Grande Bretaigne donnera au Roy un escrit particulier signe de luy, du Serenissime Prince sonfils, et d'un Secretaire d'Estat; par lequel il promettra, enfoy et parole de Boy, Qu'en contemplation de son tres cherfils, et de Madame Soeur du Boy tres 'Chrestien, quHl permettra d tous ses subjects § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 73 Charles I, immediately after his accession (27th March, 1625) renewed the commission to his plenipotentiaries (30th March).^' The marriage contract was subscribed by the king of France on the 8th of May, among its clauses being one which admitted the princess and her suite to the free exercise of their religion.^" Besides this CathoUques Romains dejouir deplus de liberie et franchise, en ce qui regarde leur religion, qu'ils n'eussent fait en vertu d' articles quelconques accordis par le traiti de mariage fait avec VEspagne : ne voidant, pour cet effect, que ses subjects CathoUques puissent estre inquietds en, leurs personnes et biens pour faire profession de la dite religion et vivre en CathoUques, pourveu toutesfois qu'ils en usent modestement, et rendent Vobeisance que de bons et vrays subjects doivent a leur Boy, qui par sa bonti ne les restreindra pas a aucun serment contraire a leur religion. '* Letter of lord Carlisle (one of the English ambassadors in France) to the duke of Buckingham, 16th Feb. 1625 (printed in Hardwicke, I.e. I, 651). " Commission printed in Eymer, Foedera 3rd Ed. VII, pt. IV p. 191. '0 Printed in Eymer, Foedera 3rd Ed. VII, pt. IV p. 189 :— . . . seront Fiances selon la forme usitee en VEglise CathoUcque, Aposto- Ucque et Romayne. . . . le Mariage indissoluble se celebrera en France, . . . . . . ma dite Dam^, estant arrivee en Angleterre, . . . le dit Contract (the present contract of marriage) sera de nouveau Ratiffie par Sa dite Majeste de la Grande Bretaigne, . . . en la quelle (action) n'iiiterviendra aucune Ceremonie Fkclesiastique. Le libre exercice de la Religion CathoUcque, Apostolicque et Romaine est accorde a Madame, comm,e aussy a ioute sa Suitte et aux Enfans qui naistront de ses Officiers ; pour cet effect nia dite Dame aura une Chapelle dans toutes les Maisons Royalles, et en quelque lieu des Estats du Roy de la Grande Bretaigne, qu'elle se trouve et dem.eure; que les dits Chapelles seront Ornees comme il appartient et besoing, et la Garde en seront Com^inse a tel quit plaira a ma dite Dams ordonner, la Predication de la Parolle de Dieu, et Administration de Sacremens, la Messe, et tous Offices divins pourront librement et solemnellement estre faits en icelles selon Vusage Rom,ain, mesmes toutes Judulgences et Jubillez, que ma dite Dam,e obtiendra du Pape, y pourront estre gaingnes ; sera aussy donne un Cimetiere en la Ville de Londres, au quel ceux de la Suitte de m.a dite Dame qui viendront a deceder, seront inhumez selon Vusaige de VEglise Romaine, ce qui sefera modestement ; le quel CiTnetiere sera ferme en sorte quil ne puisse estre veu : ma dite Dame aura un Evesque pour son grand Aumosnier, qui aura toute Jurisdiction et Auctorite, necessaire pour les Causes qui regardent la Religion, le quel pourra proceder contre les Ecclesiasticques, qui seront soubz sa Charge, selon les Constitutions Canonicques ; et en cos que la Cour secuUere se saisist de quelque un des dits Ecclesiasticques, pour quelque Crim,e qui concernast V Est at, et quelle eustfaict Informer contre luy, elle renvoyera au dit Evesque le dit Ecclesiasticque avec les Charges et Infor- mations faictes contre luy, a fin quHl congnoisse du Delict, le quel estant previllegie, il le remettra entre les mains de la dite Cour seculliere, apris Vavoir Degrade, et pour toute aultre faulte seront renvoyez les dits Ecclesias- ticques au sus dit Evesque, pour proceder contre eidx selon les Constitutions Canonicques ; et en cas d'absence ou Maladie dudit Evesque, celluy, quil commettra pour son Grand Vicaire, aura le m,esme pouvoir. Ma dite Dame aura vingt huict Prestres ou Ecclesiasticques sur VEstat de sa Maison, en ce compris ses Aumosniers et Chappellains pour deservir les susdites Chappelles, selon quil leur sera ordonne ; et si aucun d'entre eulx est Regullier, il pourra retenir son habit. Le Roy de la Grande Bretaigne est oblige par serment de ne tascher, par qudque voye que ce puisse estre, de faire renouncer Madame a la Religion CathoUcque, Appostolicqm et Romaine, ni la porter a chose quelconque qui y soit contraire. 74 TO THE PRESENT DAY [I, lo contract the old private pledge, given by Charles when still heir apparent, remained in force. ^' The marriage thixs conditioned was not long delayed.^^ With the French princess many Romish priests entered the conntry. When parliament pressed for the execution of the laws against papists, the king did indeed issue ordinances in the sense required ; '^^ as, how- ever, the government was Iqpund by the secret assurance, ejfforts to enforce the anti-papal legislation were transient, and the king dis- tributed indulgences and pardons on a liberal scale. But when the Roman catholic priests became too presumptuous, they were sent back to France,^* and few were allowed to return. The effect of this friction was that France, to whom moreover Spain had yielded regarding the affairs of Italy, joined in the Spanish war with . . . Tous les Domesticques que Madame menera en Angleterre seront Catholicques et Francois choisiz par Sa Majeste Treschrestienne, et ou Us viendroient a mourir, ou que ma dite Dam,e en voulust changer quelques ungs, elle en prendra en leur Place d'aultres Catholicques et Francois, ou Angloys, moyennant que Sa Majeste de la Grande Bretaigne y conserde. . . . Les Enfants qui naistront du dit Mariage, seront nourriz et eslevez jusques a la Age de treise ans, aupres de ma dite Dame Royne des leur Naissance . . . ^' Cf. a complaint made by the French ambassador on 3rd Nov. 1625, and based on the terms of the secret assurance ; also the answer of Charles I (both in Eymer, Foedera 3rd Ed. VIII, pt. I p. 159). The latter runs : — . . . Que pour ce qui louche les Catholiques Romaines Subjets de sa Majeste, on n'a oublie aucun point ni aucune Circum,stance, qui ait este promise en leur faveur : Et qu'elle n'a autre desir ni Intention que de Trailer ses dits Subjets Catholiques Romains en toute Equite ; Et, en Consideration et pour V Amour de son bon Frere et de sa Treschere Espouse, leur f aire toute la Grace et Faveur qu'on se pourroit promettre et esperer, tant aux Considera- tions susdites, que pour les Promesses faites et Articulees auparavant son Mariage. Mais quHl plaise aussi au Roy Treschrestien, et a ses Ministres, de se ressouvenir que les plus obligeans et exacts termes et mots, compris es dides Articles, fur ent proposez de la part du Roy Treschrestien, seulement aux fins de donner au Pape telle Satisfaction, que la Dispensation s'en puist ensuivre ; Et que, du coste de sa Majeste, on s''est tousjours reserve, que le premier et principal soing seroit la Conservation de son Estat, et la Paix et Seurete de ses Royaumes ... James I and Charles I might well believe that they were entitled to enter into such engagements as were contained in the contract and, to a much greater extent, in the secret assurance, seeing that they — not without earlier precedent but with the violent opposition of parliament— claimed a general right to dispense from obedience to parliamentary enactments. This claim plays an important part in the controversies of the later Stuarts with the parliament. — Cf. the act 21 Jac. I (1623/4) c 3, referred to in note 12. ^^ The solemn confirmation of the marriage contract provided for in it and to ensue after the queen's arrival in England took place 21st June, 1625. Deed of confirmation in Eymer, Foedera 3rd Ed. VII, pt. IV p. 191. ^^ In the king's letter of 16th Dec. 1625, to the archbishop of Canterbury touch- ing recusants (Card well, Doc. Ann. II, 166) he exhorts the clergy to discover and apprehend Jesuits, seminary priests, ' popish recusants and delinquents of that sort,' as well as those who ' do keep more close and secret their ill and dangerous affection that way.' By way of supplement to previous legislation 3 Car. I (1627) c 3 was passed — An Act to restraine the Passing or Serving of any to be popishly bred beyond the Seas. ^' Cf. Collier, Eccles. Hist. Ed. 1852 VIII, 25. §7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 75 England. In the course of the struggle the English several times essayed in vain to relieve La Rochelle, the last stronghold of the French protestants, invested by Richelieu's orders. At home the quarrel between king and parliament grew fiercer year by year. A long series of constitutional questions came, by degrees, to be at issue. But amid constitutional questions reli- gious antagonism was an unceasing influence. As early as the last years of James I's reign Arminian^^ teaching had found many adherents among the clergy of the established church. Arminianism was the antithesis to Calvinism, and an approximation, in many points, to Romish views. James's last parliament had already attacked one of his chaplains who maintained the doctrines of Arminius. Charles took up the quarrel with the parliament in this as in other matters. In spite of continued censure of his attitude, it was preferentially from the Arminian school that he took the men with whom he filled the highest posts in the administration of the church. Thus, in particular, to this school belonged Laud, promoted in 1633 to the archbishopric of Canterbury, who from the beginning of the reign had exerted a decisive influence on the king's ecclesias- tical policy. The high church party, in return, supported the king against the constitutional demands of parliament and began to develop the theory that unconditional obedience was dtie to the king in so far as was not contrary to the divine laws. After several dissolutions and prorogations the king, from the year 1629, endeavoured to govern without a parliament. In the same year he made peace with France ;^^ in the following, with Spain.^'' France, in the treaty of peace, did not insist on the exact observance of the marriage contract. And while France silently renounced a formal assurance in regard to the English catholics, England made a similar abstention in respect of the French protestants. Under the guidance of Laud the Arminian school made further progress ; the representatives of the more advanced sections were "kept down by the severe punishments inflicted by the high com- mission, and many of the persecuted sought refuge in America. In Ireland the lord deputy, sir Thomas Wentworth, carried in 1634 the acceptance of the English thirty-nine articles by the Irish church.^^ For Scotland Charles, exceeding his powers, issued in 1635 a book of ^^ Arminius, the founder of the school (born 1560, died 1609) was from 1603 professor at Leyden. ^^ April, 1629 (ratified by Charles, 11th June) ; printed in Eymer, Foedera 3rd Ed. VIII, pt. Ill p. 52 :— c 3 : Quant a ce qui regarde les Articles et Contracts de Mariage de la Beine de la Grande Bretagne, ils.seront confirmes de bonne fog, et sur ce qui concerne la Maison de la Regne, sHl y a quelques choses a adjouster ou diminuer, sefera de part et d' autre, et de gr& a gre, ainsi qWil sera jug&plus a propos pour le Service de ladite Reine. The treaty contains provisions neither as to the English catholics, nor as to the French huguenots. " 5th Nov. 1630 (ratified by Philip, 17th Dec.) ; treaty printed in Eymer, Foedera 3rd Ed. VIII, pt. Ill p. 141. "* Compare § 11, nr. note 26. 76 TO THE PRESENT DAY [I, Ic canons, by which, in particular, the royal supremacy in church affairs was to be recognized in Scotland ; and moreover, in 1636, a new liturgy based on the English book of common prayer. The result of these innovations in Scotland was a popular outbreak and ultimately open war against the king. A decisive encounter was, it is true, for the moment avoided through the pacification of Berwick ; but the resolution of the next Scottish general assembly led to new embroilments, and both sides again armed. To obtain a grant of money the king summoned the English parliament, 13th April, 1640 ; as, however, the commons insisted that the national griev- ances should first be discussed, the ' short parliament ' was dissolved on May, the 5th of the same year. The convocations of the southern and the northern province had, in accordance with custom, been summoned simultaneously with parliament ; contrary to custom, ^^ upon the strength of a new royal authorization, the legality of which was doubtful, they continued their session after parliament was dissolved.^" They proceeded to vote a series of canons, in which the divine right of kings was recognized, armed resistance to the king under all circumstances condemned, and an oath imposed on the clergy by which they were to bind themselves never to consent ' to alter the government of this church by archbishops, bishops, deans and archdeacons et cetera, as it stands now established.'^^ The validity of these canons was at once contested by many, as well owing to the form in which- they had originated, as because their matter was repugnant to the laws and customs of the land.^^ Especially against the oath was there such strong opposition that the king instructed the archbishop for the present not to compel the taking of it.^^ ^ But a similar case had occurred in 1585. Collier, Eccles. Hist. Ed. 1852 VII, 44. Soiae of the judges and jurists gave in 1640 an opinion (Cardwell, Synodalia II, 613) to the effect that convocation could sit after the dissolution of parliament. ^» Details will be found in Perry, Hist, of Engl. Church II, 434 fF. o 27 §§ 11 ff. ; the proceedings of the convocation of Canterbury in Cardwell, Synodalia 593. ^' The canons of 1640 and the royal letters patent publishing them are printed in Cardwell, Synodalia 380. In the letters patent the king repeats the assur- ance already made to parliament that he had no intention of introducing the Koman catholic religion, at the same time threatening everyone who shall in future maintain so with prosecution before the high commission. The rubrics of the canons run: I Concerning the regal power; II For the better keeping of the day of his majesty'' s most happy inauguration; III For the .suppressing the groicth of Popery; lY Against Socinianism; Y Against Sectaries ; \1 An oath enjoined for the preventing of all innovations in doctrine and government (cf. § 18, note 9) ; VII A declaration concerning some rites and ceremonies ; VIII Of preaching for conformity ; IX One book of articles of inquiry to be used at all parochial visitations; X Concerning the conversation of the clergy; Xl Chancellors' patents (cf. § 36, note 9) ; XII Chancellors alone, not to censure any of the clergy in sundry cases ; XIII Excomnnunication and absolution not to be pro- nounced but by a priest ; XIV Concerning commutations, and the disposing of them; XV Touching concurrent jurisdiction; XVI Concerning licenses to marry ; XVII Against vexatious citations. — For the money grants of the con- vocations of 1640 see § 54, note 68. ^'' The various arguments against the validity of the canons are collected in § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 77 In August the Scots acting in concert with a part of the English opposition marched into England. The king had indeed collected an army to oppose them, but the militia raised showed itself not absolutely to be depended on, and it was impossible to procure the necessary funds. Thus Charles was obliged again to summon par- liament, which met on the 3rd of November, 1640, and at once began the attack upon the measures of the government and upon the machinery on which and the persons oh whom the government had mainly relied. Up to the beginning of 1642 the king yielded Step by step to the opposition. On the 11th of November, 1640, the commons impeached Strafford, the chief minister of the crown, of high treason ; on the 18th of December they proceeded in the same way against archbishop Laud, The persons of both were seized. Strafford was condemned by bill of attainder,^* the impeachment in progress before the lords being abandoned. On the 10th of May, 1641, the king gave his assent to the bill and two days later Strafford was executed. Laud remained in prison. . It was ordained by statute '^ that the parliament then assembled should not be dissolved, prorogued or adjourned by the king alone, but by act' of parliament to be passed for that purpose. The high commission court was abolished and its restoration forbidden, the act which dissolved it depriving all ecclesiastical tribunals of authority to inflict fines, imprisonment or corporal punishment for any offence belonging to spiritual cognizance.^^ Proposals to destroy the epis- Neal, Hist, of Puritans Ed. 1822 II, 323. The commons, by resolutions of 15th and 16th Deo. 1640 (printed, from Eushworth, Hist. Coll. pt. II p. 1365, in Collier, Eccles. Hist. Ed. 1852 VIII, 189), pronounced the canons not binding. On 3rd June, 1641, a bill was brought in by which the canons were declared void and their authors punishable. This bill, however, was not proceeded with (Cardwell, ' Synodalia 386, note) ; but, in substitution, an impeachment of thirteen bishops for taking part in making and executing the canons was delivered at the bar in the lords' house (Collier, I.e. VIII, 216, from Eush- worth, pt. , III p. 359) ; but after the preliminary steps had been taken the impeachment was allowed to drop (Fuller, Ch. Hist. Ed. 1845 VI, 211). — After the restoration the act 13 Car. J7(1661) st. 1 o 12 s 5 (printed in note 69) left the question whether the canons were valid or not undetermined. ^' The instruction, dated 30th Sept. 1640, is printed in Nalson, Collection of Affairs of State I, 399 and after him in Neal, Hist, of Puritans Ed. 182211,307. '* 16 sq. Car. I (1640 ff.) c 38 An Act for the Attainder of Thomas, Earle of Strafford of High Treason. '5 16 sq. Car. Z c 7 (May, 1641). ■^ 16 sq. Car. J c 11 (5th July, 1641) An Act for repeal of a hranch of a Statute primo Elizabethe concerning Comissioners for causes Ecclesiasticall. s 1 revokes the statutory authority for establishing a high commission court; s 4 forbids the future establishment of such a court. s 2 : . . . that no Archbishop Bishop no Vicar Generall nor any Chancellour Official nor Commissary of any Archbishop Bishop or Vicar Generall nor any Ordinary whatsoever nor any other Spirituall or Ecclesiasticall Judge Officer or Minister of Justice nor any other person or persons whatsoever exercising Spirituall or Ecclesiasticall power authoritie or jurisdiction Jyy any Grant Licence or Commission of the Kings Majestic his Heires or Successors or by any power or authoritie derived from the King his Heires or Successors or otherwise shall . . . award impose or inflict any paine penalty fine 78 TO THE PRESENT DAY [I, Ic copal form, of government were, at first, not accepted even in the lower house. A bill sent up to disqualify bishops, from sitting as members of parliament was thrown out by the house of lords. With the Scots peace was concluded on the 7th of August, 1641. But the demands they put forward in the course of the negotiations, that only persons of the reformed religion should hold office about the king and the heir apparent, and that the constitution of the church should be the same in both countries, were not conceded ; freedom of action was left in respect of the first demand to the king, of the second to the English parliament.^'' The commons, however, renewed the claim that the bishops should be stripped of their temporal powers, and the bishops, the objects of an outbreak of mob violence, amercement im,prisonm,ent or other corporall punishm,ent upon any of the Kings Subjects for any contempt misdemeanor crime offence m,atter or thing whatsoever belonging to Spirituall or Ecclesiasticall cognizance or Jurisdic- tion ; whosoever administers an oath to any churchwarden, sydem,an or other pei'son, whereby he or she shall be obliged to make presentment of any offence or to accuse himself or herself so as to incur punishment, shall forfeit to the aggrieved treble damages together with £100 to him who shall first demand and sue for the same. s 3. Convicted offenders against this act may not have office in any cotirt of justice upon the strength of a royal commission. ^' 16 sq. Car. I c 17 An Act for the Pacification between England and Scotland. In it are set forth the articles of the treaty of "Westminster, 7th Aug. 1641, concerning peace between the king and the Scottish people and between the two kingdoms. The following are the most important in an ecclesiastical sense : — Art, I. The king will publish the "acts of the last and the next session of the Scottish parliament, commanding that they shall have the force of law. (Agreed 3rd Dec. 1640.) Art. II. Scotchmen shall not be constrained to take oaths in England or Ireland which are against their covenant. Scotchmen who have land in England or Ireland, or Englishmen and Irishmen who have land in Scotland or settled trades there, shall be subject to the laws of the land where their ordinary and constant residence is. (Agreed 8th Dec.) Art. "V'lII : To their (the Scottish negotiators') desire concerning unity in religion and uniformity of Church Governm,ent as a speciall meanefor con- serving of Peace betwixt the two Kingdom,es upon the grounds and reasons conteyned in the paper of the tenth of March given in to the Treaty and Parliament of England. It is answered (by the negotiators on the part of the king) upon the eleventh of June that his Mdjestie with advice of both Houses of Parliam,ent doth approve of the affection of his subjects of Scotland in theire desire of having a conformity of Church Government between the two Nations And as the Parliament hath already taken into consideration the reformation of Church Government so they will proceed therein in due time as shall best conduce to the glory of God and Peace of the Church and of both Kingdomes. To theire desire that none may have place about his Majestie and the Prince but such as are of the reformed religion . . . It is answered That his Majestie doth conceive that his subjets of Scotland have no intention by this proposition (especially by way of demand) to limit or prescribe unto him the choice of his servants but rather to shew theire zeale to religion wherein his owne piety will m,ake him, doe therein that which may give just satisfaction to his people. (9th June, 1641.) This demand, with limitation to the person of the heir apparent, was again repeated, but rejected, reference being made to the former answer. In the approaching Scottish parliament an act of pacification and oblivion is to be passed, but its benefits are not to extend to any of the Scottish prelates. § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 79 quitted the chamber on the 27th of December, 1641. On the 29th the archbishop of York and eleven bishops drew up a protest, declaring that all resolutions which the upper house had already- passed or might thereafter pass during their enforced absence, were void and of no effect.^* As a consequence of this action they were impeached by the commons of high treason, on the ground that their protest involved an attempt to put themselves forward as a separate estate of parliament. Their arrest was immediate (30th December, 1641). The lords now accepted a bill (5th February, 1642) by which all the temporal power of the clergy, especially the right of the bishops to vote in the upper house, was abolished. To this also the king finally gave his assent.^^ In the beginning of January, 1642, Charles had endeavoured without success to secure the apprehension of the leaders of the parliamentary opposition. From that time parliament and king began to arm for the coming struggle. The open breach is marked by the resolution of parliament on the 2nd of March to put the country in a posture of defence and by the declaration of the king on the 15th March, forbidding obedience to any ordinance of parlia- ment issued without his assent. Soon afterwards the civil war began. At first the contest raged with varying fortunes ; then the English parliament turned for help to the Scottish, in which the advanced party had gained the upper hand. The two assemblies formed a compact, binding themselves to establish in the three kingdoms unity of religion after the pattern of the best reformed churches. The Scots marched into England. In the course of the years 1644 and 1645 the king's troops were several times defeated and at last only held their ground in a few places. Charles, seeing that he could not much longer escape capture, betook himself to the Scottish camp. From this moment he was virtually a prisoner. In the London parliament, from which the king's adherents gradually withdrew,*" the advanced party had by the end of 1642 obtained undisputed mastery. Even the member.? who did not desire ecclesiastical innovations were compelled to acquiesce in them, for it was only upon condition of such changes that the Scots would afibrd their assistance. Accordingly, parliament now pronounced in ^ The protest is printed in Rushworth, Hist. Collections pt. Ill vol. I p. 466. ^^ 16 sq. Car. I c 21 An Act for disindbling all persons in Holy Orders to exercise any temporall jurisdiction or authoritie. si: . . . that no Archbishop or Bishop or other person that now is or.- hereafter shall be in Holy Orders shall at any time after the Ibth . . Febr. . 1641 have any Seat or place suffrage or Voice or use or execute any power or authority in the Parliament of this Realm nor shall be of the Privy Councell of his Majestie his heires or successours or Justice of the Peace of Oyer and Terminer or Goal Delivery or execute any temporall authoritie by vertue of any Commission but shall be ivholly disabled and be uncapable to have receive use or execute any of the said Offices Places Powers Authorities and things aforesaid. *" In December, 1643, the king summoned the members -who were loyal to him to Oxford, to form a parliament there. Eushworth, Hist. Collect, pt. III vol. II p. 559, gives the summons. 8o TO THE PRESENT DAY [I, Ic favour of an alteration of the constitution and doctrine of the English church in the sense of a closer approximation to the doctrine and constitution of the church of Scotland ^and other reformed churches. For the preliminary discussion of the details a parlia- mentary ordinance of June the 12th, 1643, called an assembly of clergy and members of both houses.*^ This assembly met at "West- minster on the 1st of July, 1643. In September the English parliament adopted the covenant.*^ Beginning at the end of 1644 it appointed commissions of presbyters with power to ordain instead of bishops.*^ An ordinance of the 3rd of January, 1646, forbade the use of the existing prayer-book and introduced a liturgy pre- pared by the Westminster assembly, the ' directory for the public worship of Grod,' which was soon afterwards adopted in Scotland.^* Against Laud, who had remained in prison,*^ the proceedings in impeachment laefore the house of lords began in the early part of 1644. But ultimately his condemnation was by bill of attainder, which, however, did not receive the royal assent. He was executed on the 10th of January, 1645. In the early part of 1646 and later in the year ordinances were issued for the carrying out in England of the presbyterian scheme of government.^^ The episcopal con- ^' Ordinance of 12th June, 1643 (in Scobell, A Collection of Acts and Ordinances etc.). For the calling of an Assembly of Learned and Godly Divines, to he consulted with by the Parliament, for the setting of the Government of the Church. . . . and whereas it hath been Declared and Resolved by the Lords and Commons assembled in Parliament, That the present Church Government by Archbishops, Bishops, their Chancellors, Commissaries, Deans, Deans and Chapters, Archdeacons, aiid other Ecclesiastical Officers depending upon the Hierarchy, is evil, and justly offensive and burthensome to the Eingdome, a great impediment to Reform,ation and growth of Beligion, and very preju- dicial to the State and Government of this Kingdome, and that therefore they are Resolved that the same shall be taken away, and that such a Government shall be setled in the Church, as may be most agreeable to Gods Holy Word, and most apt to procure and preserve the Peace of the Church at home, and nearer Agreement with the Church of Scotland, and other Reformed Churches abroad; . . . Definite persons are summoned for 1st July, 1643 . . . to confer and treat amongst themselves, of such matters and things touching and concei-ning the Liturgy, Discipline and Government of the Church of England, or the vindi- cating and clearing of the Doctrine of the same from all false aspersions and misconstructions as shall be proposed unto them by both or either of the said HoiLies of Parliament . , . '^ Upon the covenant see § 10, note 41. *' Compare § 15, note 12. ■'■' Compare § 15, note 14. ^' By a parliamentary ordinance of 10th June, 1643 (in Scobell, I.e.) Laud, until his trial for high treason should be settled, was suspended, because he had not, according to an ordinance of 17th May, 1643, collated upon a per.son nominated to him by the parliament a certain rectory in his patronage ; besides the suspension, all his temporalities were sequestered. ^^ Eesolution of 19th August, 1645, ordinances of 20th February, 14th March, 1646 (these ordinances are printed in Eush worth, Hist. Coll. pt. IV vol. I p. 224. According to Neal, Hist, of Puritans Ed. 1822 III, 249 the ordinance carried in the house of commons on the 14th March was passed in the house of lords only on the 6th June. Compare also the apparently identical ordinance, mentioned by Scobell under the 5th June with the title For the present setting without § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 8l stitution of the churcti, as it existed in England and Wales, was declared on the 9tli of October, 1646, to be abolished, the property of the bishoprics being confiscated in favour of the state.*^ At the end of 1646 the Westminster assembly formulated a new confession of faith.** The ordinances of the 29th of January and the 29th of August,. 1648, set forth definitive regulations for establishing the presbyterian scheme in the English church.*^ further dday, of the Presbyterial Government in the Church of England) ; ordinance of 28th August, 1646 For Ordination of Ministers by the Classical Presbyters within their respective bounds, for the several Congregations within the Kingdom of England (statement of contents in Scobell, I.e.). " Ordinance of 9th Oct. 1646 (in Scobell, I.e.) For the abolishing of Arch- bishops and Bishops within the Kingdom of England, and Dominion of Wales, and for setting of their Lands and Possessions upon Trustees, for the use of the Commonwealth : , . . it is Ordained by the Lords and Commons in Parliament assembled, and by the authority of the same ; That the Name, Title, Stile, and Dignity of Archbishop of Canterbury, Archbishop of York, Bishop of Winchester, Bishop of Duresme, and of all other Bishops of any Bishopricks within the Kingdom of England and Dominion of Wales, be from, and after the fifth day of September . . . IQ^Q wholly abolished and taken away, and are hereby abolished and taken away. All lands, rights to tithes, rights of patronage etc. were transferred to trustees, to be administered and disposed of as parliament should direct. — In the following years numerous ordinances were issued to regulate more closely the administration and sale of the confiscated property. ^^ Compare § 16, note 21. *^ Ordinance of 29th Jan. 1648 (in Scohell, l.c.) For the speedy dividing and setting the several Counties of this Kingdom into distinct Classical Presby- teries and Congregational Mderships. The counties are to be divided, subject to the approval of the ' committee of lords and commons for judging of scandal,' into presbyteries and the clergy severally assigned to the proper presbytery. The classical presbyteries are to constitute in their several districts congrega- tional elderships. The above named committee shall have powers to fix the boundaries for provincial assemblies and to increase at will the number of delegates sent to any provincial assembly. Ordinance of 29th August (in Scobell, l.c.) The Form of Church Government to be used in the Church of England and Ireland, agreed upon by the Lords and Commons assembled in Parliament, after Advice had with the Assembly of Divines: "Be it Ordered . . . That all Parishes and places whatsoever within the Kingdom of England and Dominion of Wales (as well priviledged places an^ exempt Jurisdictions as others) be brought under the Government of Congregational, Classical, Provincial, and National Assemblies ; Provided that the Chappels or places in the Houses of the King and his Children, and the Chappels or places in the Houses of the Peers of this Realm, shall continue free for .the exercise of Divine duties to be performed according to the Directory and not otherwise." Elders shall be forthwith chosen in all congre- gations. The province of London is divided into twelve classical elderships. The counties too are to be divided into classical presbyteries. The latter can constitute congregational elderships, ' where a competent number of persons . . . qualified for elders' shall be found. Where seven congregational elderships are founded within a dassis, the delegated elders (two to four for each congregational eldership) and the minister shall meet together and thence- forth execute all power belonging to a classis. Every classis_ chooses from among the ministers of the Word a moderator, who continues in office until the next meeting. The provincial assemblies are to consist of delegates (at least two ministers and four ruling elders from each) sent from every dassis in the province. The national assembly consists of members sent by the pro- vincial assemblies, each of which supplies two ministers and four ruling H.C. 82 TO THE PRESENT DAY [I, Ic "With the king, who was in the Scotch camp, the parliament had in the year 1646 again opened negotiations. But he declined to give his assent to a permanent abolition of episcopacy, and refused, moreover, his approval to other demands of parliament. Upon this the latter made a contract with the Scots, who, on receipt of the arrears of their subsidy, quitted the country and delivered the king up to the English parliament. Dissensions now arose in England between parliament and the army. "With regard to church matters the majority of the house were of presbyterian convictions; the army, on the other hand, with Cromwell, ranged itself on the side of the independents, a protestant sect descended from the Brownists or Barrowists ^9 of Elizabeth's day, who had been called into existence by ecclesiastical repression of progressive tendencies. The essential principle of the indepen- dents was that they repudiated every form of central church government, presbyterian no less than episcopal, as leading to tyranny, and ascribed to ' every particular congregation ' the right of making its own laws independently of every other. The only foundation of belief they recognized was the Bible. The struggle between parliament and army induced a second civil war. The soldiery, by a coup de main (3rd June, 1647) pos- sessed themselves of the king's person, and general Fairfax occupied London. The attempt of the officers, including Cromwell, to make peace with Charles on moderate terms, w'as rendered nugatory by the more radical section of the army ; whereupon Cromwell and other officers joined common cause with the advanced party, which also gained temporary ascendency in parliament. The _ former partisans of the king and the presbyterians now combined in England to oppose the army, whilst the Soots also took the field to support the league. But the army proved strong enough to suppress every rising ; the Scots were defeated by Cromwell, who, aided by a revolt of the advanced party in Scotland, subjugated the whole country. Meanwhile the English parliament, in which the moderates had again obtained preponderating influence, had opened negotiations with the king for peace. "When, however, the commons, in opposition to the demands of the army, resolved on the 5th of December, 1648, that Charles's concessions ^^ were calculated to serve as a basis for the restoration of peace, the leaders of the army, elders, while each university sends ' five learned and godly persons.' The rights of the several assemblies are defined. All may call witnesses and summon offenders before them and inflict ecclesiastical pvmishments. The classical assemblies have, among their functions, to ordain ministers for the several congregations. Then follow the various rules for ordination issued at the suggestion of the "Westminster assembly. Amongst other conditions, the candidate must bring with him a testimonial that he has taken the covenant. Ordination is by the laying on of hands. '" So called from their founder Robert Browne, or one of their leaders Henry Barrow or Barrowe. ^' He had agreed, amongst other things, to the provisional sale of church lands, to the suspension of episcopacy, and the introduction of presby terianism for three years. § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 83 on the 6th and 7th of December, caused forty-seven members to be arrested and excluded ninety-six others from participation in the sittings of the house. The remaining members, some eighty in number, belonging to the advanced party, continued the delibera- tions, and formed what was known as the 'rump parliament.' Those who were left of the lower house decided on the 1st of January, 1649, that the king should be put on his trial for high treason. The upper house, however, unanimously rejected the pro- posal to proceed against him. The answer of the commons was to declare that they, as chosen representatives of the people, did not need the concurrence of the peers. The king was brought before a tribunal specially constituted by the lower house, found guilty and, on the 30th of January, 1649, executed. Further resolutions pro- nounced monarchy and the house of lords abolished,^^ and England a free state ' to be governed as a commonwealth by the supreme authority of this nation, the representatives of the people in parlia- ment.' ^^ For the next ten years political power remained in the hands of the independents. After the expulsion of the rump (20th April, 1653) the ' commonwealth ' passed into a military dictatorship under Cromwell. Repeated attempts to restore representative government were made, but all failed because those in power were only sup- ported by a minority in the country, and yet refused to surrender the direction of the state.^* ^^ Compare especially tte following ordinances (in Scobell, I.e.) : — SOtli Jan. 1649. Inhibition against proclairaing Charles Stuart, commonly called the prince of Wales, as king of England, Ireland or any of the dominions belonging to them, without the consent of the people in parliament first had. 9th Feb. 1649. Oaths of allegiance, obedience and supremacy abolished. 17th March, 1649. Abolition of the kingly office for England, Ireland and the dominions belonging to them. 19th March, 1649. House of peers done away with. 5' Ordinance of 19th May, 1649 (in Scobell, I.e.). ^^ In connexion with constitutional forms from 1649-60 the following dates may be noted : — 1. Eump parliament, 6th Dec. 1648 to 20th April, 1653. 2. Dictatorship of Cromwell, in which, however, the civil and the military power remained essentially distinct. He summoned an assembly (members from the several counties, those of Scotland and Ireland included, named by the council of officers) ; this assembly, the ' Barebone parliament,' regarded itself as a parliament. In accordance with its resolutions, by ordinance of 24th August, 1653 (Scobell, I.e.) civil marriage was introduced as the obligatory form. The assembly, moreover, voted the abolition of church patronage and of tithes not yet vested in private owners ; ordinances to this effect were not issued ; Cromwell opposed the resolutions ; induced by him a part of the members on 12th Dec. 1653 decided not to continue their sittings ; the few remaining were expelled by the soldiery. 3. Cromwell took the title of lord protector, 16th Dec. 1653 ; in accordance with the ' instrument of the army ' the civil and the military power were com- bined. Down to 2nd Sept. 1654 the protector issued ordinances without the assent of parliament. For Sept. 3rd he summoned an elected parliament, but dissolved it owing to its attitude of opposition, 22nd Jan. 1655. He called a second parliament for 17th Sept. 1656, but dissolved it, for the same reason as the last, on 4th Feb. 1658. The parliaments of 1654 and 1656 did not acknow- 84 TO THE PRESENT DAY [I, lo A presbyterian constitution of the cliurcli, wliicli from 1642 the long parliament had laboured to introduce, had, owing to the re- sistance of the episcopalians on the one hand, of the independents on the other, only been realized in certain parts of the country. With the supremacy of the independents, so much of the structure as had been raised fell gradually to ruin. The demolition of epis- copacy was completed by an ordinance of the rump parliament on the 30th of April, 1649, which abolished chapters and all offices in connexion with chapters, as also the office of archdeacon, and placed at the disposal of the state all property which had pertained 'to the offices and corporations so abolished.^® No other form of church government was for the time being established. Not until Cromwell's ordinance of the 20th of March, 1654, was a central state commission organized to approve and admit the nominees of patrons as ministers of the several congregations.^^ ledge the Barebone parliament as a parliament. But by act of the pari, of 16B6 c 10 all tbe more important ordinances between 20tb April, 1653 and 3rd Sept. 1654 were confirmed, in some cases with, alterations. Cromwell died on 3rd Sept. 1658. He was succeeded by his son. 4. Richard Cromwell summoned a parliament ; but dissolved it (22nd April, 1659) under pressure from the army, and himself abdicated. 5. The rump parliament back, 7th May— 13th Oct. 1669. On Oct. 11th it declared all acts and ordinances since its dissolution null and void. 6. The army holds the mastery. 7. The rump. 26th Dec. 1659— 21st Feb. 1660. At Monk's suggestion the ejected members resumed their places. 8. Long parliament again sitting, from 21st Teb. 1660. 9. Convention parliament, which met 25th April, 1660, recognized Charles II as king. By 12 Car. JJ (1660) c 1 this parliament was declared a regular one, although not summoned by the king. The parliament was, after many provi- sional enactments, dissolved by the king. 10. By act of the new parliament (opened 8th May, 1661) 13 Car. 77(1661) st. 1 c 7, all acts from 25th April, 1660, were confirmed. Single enactments were expressly confirmed by the act just mentioned and by c 11. The ordinances issTJed without royal assent were pronounced void by 13 Car. II (1661) st. 1 c 1 (cf. below, note 67). ^^ Compare § 87, note 25. The confiscation of livings was proposed in the Barebone parliament, but rejected by a narrow majority. Perry, Hist, of Engl. Ch. II, 477, note 1 c 31 § 2. ^ Ordinance of 20th March, 1654 (in Scobell, I.e.) Commissioners appointed for Approbation of Publiqtie Preachers. Whereas for some time past weak, scandalous, popish and ill-affected persons have intruded themselves, for the future only those are to have a benefice with care of souls or a lecture with a constant stipend annexed who, after presentation, nomination, choice etc. by the patron, are approved and admitted by commissioners thereto appointed. Persons appointed to benefices or lectures since 1st April, 1652, also require approbation and admittance from the commissioners. Admittance is not a sacred setting apart for the ministry. The lord protector, by advice of his council or of parliament if sitting, shall nominate others to fill the places of commissioners removed by death etc. If a patron does not present in six months, the presentation devolves by lapse on the lord protector. In case of vacancy the commissioners may sequester the income, to pay therefrom a preacher. The commissioners are to demand a testimonial, signed by three persons, one a preacher of the gospel, ' touching the godly and unblameahle conversation ' of the presented. The penalties fixed by 13 Mis: {1511} c 12 for not subscribing or reading the thirty-nine articles or for not producing the §7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 85 The independents were not strong enough to introduce, without immediate danger to their political position, that full religious tolera- tion which was in keeping with their principles. Nevertheless, a large part of the earlier penal legislation was made objectless by the abolition of oaths of allegiance^ obedience and supremacy (ordinance of 9th February, 1649) ; a further part was cancelled by the repeal of statutory enforcements of attendance at church (ordi- nance of 27th September, 1650).^' Against the papists, however, certain penal enactments remained in force ; moreover, new provisions, corresponding to those just re- pealed, were by degrees promulgated.^^ "With respect to the adherents of the protestant episcopalian church, the prohibition laid down under presbyterian domination against the use of the episcopal prayer-book in parish churches was not withdrawn under that of the independents. Proceedings were taken against many of the clergy owing to their political attitude. By ordinances of Cromwell in 1654 it was forbidden to give living or public lectureship with fixed salary to any f)erson (minister) who frequently and publicly iised the episcopal prayer-book, and the testimonial required in the said act are repealed. — This ordinance was supple- mented by Cromwell's of 23rd June and 2nd Sept. 1654 cc 30 and 59. The ordinances of 20th March and 2nd Sept. 1654 are confirmed by act of the parliament of 1666 c 10. " Ordinance of the rump parliament of 27th Sept. 1650 (in Scobell, I.e.) For relief of religious and peaceable people from the rigor of former Acts of Par- liamerd in matters of Religion. All parts of the acts 1 Eliz. c 2, 35 Eliz. c 1, 23 Eliz. c i . . . and all and every the Branches, Clauses, Articles and Provisos expressed and contained in any other Act or Ordinance of Parlia- ment, whereby or wherein any penalty or punishm,ent is imposed, or m,entioned to be imposed or any person whatsoever, for not repairing to their respective Parish Churches, or for not keeping of Holydays, or for not hearing Common Prayer, or for speaking or inveighing against the Book of Common Prayer, shall be and are by the authority aforesaid, wholly Repealed and Tnade void. But the ordinances of the parliament then sitting as to the observance of Sundays and days of thanksgiving and humiliation remained untouched. Every one was to go on Sunday to some place where there was divine service or preaching or the expounding of the scriptures. Otherwise, proceedings would be taken against him for breach of this ordinance. ^8 Compare especially (in Scobell, I.e.) : — Ordinance of the rump parliament of 25th Jan. 1650 For the better ordering and managing the Estates of Papists and Delinquents (valid for two years). Ordinance of same of 26th Feb. 1650 For removing all Papists, and all Officers and Soldiers of Fortune, and divers other Delinquents from, London and Westm,inster, and confining them within five miles of their dwellings, and for Encouragement of such as discover Priests and Jesuits, their receivers and abettors (valid till 20th March, 1651 ; prolonged by ordinance of 19th March, 1651, until 1st Nov. 1651). The ordinances of Cromwell of 20th March and 29th August, 1654 (compare notes 56 and 69) exclude papists from offices in the church. Act of the Cromwellian parliament of 1656 c 16 An Act for Discovering Con- victing and Repressing Popish Recusants (in it an oath is imposed aimed at the most important doctrines which separate Eoman Catholicism from protestantism). Even under Cromwell a Eoman catholic priest was executed (Eanke, Z.c). 86 TO THE PRESENT DAY [f, Ic ejection of such persons from their offices was enjoined/^ After that, in 1655, a revolt had been quelled, in which churchmen were the chief participants, Cromwell issued a new edict by which the deprived clergy were even removed from private posts as chap- lains, tutors or schoolmasters, and forbidden the use of the episcopal prayer-book whether in public or private meeting.*" Nor were the sectaries freed from all restrictions. The main- tenance of certain ' blasphemous and atheistic ' opinions, which had been rendered penal by the long parliament (ordinance of 2nd May, 1648), was still prohibited. Against the utterance of other views couched in religious form, but involving an attack on the existing social order, was directed a resolution of the rump parliament on the 9th of August, 1650.*^ Ministers of condemned opinions were not, according to the protector's decrees of 1664, to be appointed to church offices and, if in such offices, were to be ejected.*^ The leaders of the anabaptists were imprisoned by Cromwell. On the other hand, those sects which did not assail either the existing government or the existing social order, remained unmolested. By a parliamentary resolution, accepted by Cromwell on 26th May, 1657, free exercise of religious worship and the right to fill offices of state was secured to the followers of all Christian churches, with the exception of papists, the adherents of prelacy and the advocates of ' blasphemous, licentious or profane ' doctrines.*^ ^^ Ordinance of 20th March, 1654 (of. above, note 56) condemns, among other things, the appointment of persons who are ' scandalous.^ Ordinance of 29th Aug. 1654 For Ejecting of Scandalous, Ignorant and Insufficient Ministers and Schoolmasters (in Scobell, I.e.) directs the removal of such ministers. By this ordinance scandalous are : the holding of blasphemous and atheistical opinions which are punishable by act of parliament ; profane cursing or swearing ; the maintaining of those popish opinions which are mentioned in the abjuration oath (ordinance of 19th Aug. 1643) ; adultery, drunkenness etc. ; frequent and public reading of the common prayer-book ; publishing disaffection to the government etc. ^ Ordinance of 24th Nov. 1655 (printed in William Hughes, An exact abridg- ment of Puhlick Acts and Ordinances, London, 1657) ss 2-5. "' Compare upon these ordinances § 19, note 37. °^ Compare above, note 59. "^ Printed in Whitelooke, Memorials Ed. 1732, pp. 657 ff. c 11. That the true Protestant Christian Religion, as it is contained in the holy Scriptures of the Old and New Testament, and no other, be held forth aiid asserted for the pub- lick Profession of these Nations ; and that a Confession of Faith to be agreed by your Highness and the Parliament, according to the Bule and Warrant of the Scriptures, be asserted, held forth, and recommended to the People of these Nations, that none Tnay be suffered or permitted by opprobrious Words or Writing maliciously or contemptuously to revile or reproach the Confession of Faith . . . ; and su^h who profess Faith in God the Father, and in Jesv^ Christ his eternal Son, the true God, and in the Holy Spirit, God coequal with the Father and the Son, one God blessed for ever, and do acknowledge the Holy Scriptures of the Old and New Testament to be the revealed Will and Word of God and shall in other things differ in Doctrine, Worship or Discipline, from the publick Profession held forth. Endeavours shall be used to convince them by sound Doctrine and the Example of a good Conversation: But that they may not be compelled thereto by Penalties nor restrained from their Profes- sion, bid protected from all Injury and Molestation in the Profession of the § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 87 Upon the death, of Oliver Cromwell (3rd September, 1658), the ascendency of the independents soon came to an end. After the failure of intermediate attempts at government, the members of the long parliament returned to their seats, voted a dissolution and ordered new elections. The parliament which then met received a letter from Charles II, promising that thenceforward none should be disturbed for religious convictions if harmless to the state, and that he would approve a bill to that effect.^* The recognition of Charles as king took place on the 8th of May, 1660. Upon his return all the ordinances issued during the revolution without royal assent and all dispositions based upon them were treated as null and void ; nevertheless, by a series of special enactments the greater' part of the administrative proceedings of the interim were confirmed.*^ Faith and Exercise of their Religion, whilst they abuse not this Liberty to the civil Injury of others, or the Disturbance of the publick Peace ; so that this Liberty be not extended to Popery or Prelacy, or to the counte- nancing such, who publish horrible Blasphemies, or practise or hold forth Licentiousness or Profaneness under the Profession of Christ; and that those Ministers or publick Preachers, who shall agree with the publick Profession aforesaid in matters of Faith, although in their Judgment and Practice they differ in matters of Worship and Discipline, shall not only have Protection in the Way of their Churches or Worship respectively; but be esteemed fit and capable, notwithstanding such difference {being otherwise duly qualifiM and duly approved) of any Trust, Promotion or Employment whatsoever in these Nations, that any Ministers who agree in Doctrine, Worship and Discipline with the publick Profession aforesaid are capable of; and . . . (being otherwise duly qualified) of any civil Trust, Employment or Promotion . . . ; but for such Persons who agree not in matters of Faith with the publick Profession aforesaid they shall not be capable of receiving the publick Maintenance appointed for the Ministry ; . . . such Ministers or publick Preachers or Pastors of Congregations . . . are . . . disenabled to hold any civil Employment, which those in Orders were or are disenabled to hold by ... 16 sq. Car. / c 27 . . . ^ . . . we do declare a liberty to tender consciences, and that no m,an should be disquieted or called in question for differences of opinion in matter of religion, which do not disturb the peace of the Kingdom ; and that we shall be ready to consent to such an act of parliament, as upon mature deliberation shall be offered to us, for the full granting that indulgence. ^^ Compare especially : — 12 Car. II (1660) c 11 An Act of Free and Generall Pardon Indempnity and Oblivion. s48: . . . That no e Conveyance Assurance Grant Bargaine Sale Charge Lease Assignement of Lease Grants and Surrenders by Copy of Court roll Estate Interest Trust or Limitation of any Use or Uses of any Mannours Landes Tenements or Hereditaments not being the Landes nor Heredita- ments of the late King, Queene, Prince or of any Archbishops Bishops Deanes, Deanes or Chapters, nor being Landes or Heredita- ments sold or given or appointed to be sold or given for the delinquency or pretended delinquency of any person . . . by vertue or pretext of any Act order or ordinance, or reput^ Act order or ordinance since . . . 1st of January 1641 . . . shall be impeached defeated made void or frustrated hereby . . . [The restoration of the lands above excepted was to be, for the most part, without compensation, but with certain qualifica- tions. Under date 7th October, 1660, the king named commissioners — their warrant is in Cardwell, Doc. Ann. II, 22B— to effect the transference back to crown or church.] s 49. Nothing in the act shall extend to indemnify those who have entered 88 TO THE PRESENT DAY [1, Ic But from such confirmation were especially excepted all dealings with the property of bishoprics and chapters. As to the clergy, even those who had not been consecrated by a bishop were left in possession of their livings. On the 25th of October, 1660, Charles published a declaration in which, having regard to his undertaking already given, he endea- voured in some respects to meet the wishes of the presbyterians and promised a revision of the book of common prayer.^^ The government presented this declaration to be ratified by parliament, but laboured, it would seem, to have the ratification refused, which actually happened. The king, however, in the spring of 1661 sum- moned a number of episcopalian and presbyterian divines to meet at the Savoy in London. The conference was productive of no result. Meanwhile a new parliament had been elected. Once more it on fabric lands, or possessed themselves of revenues given for the repair of any cathedral or church, or converted church plate and utensils to their private use. 12 Car, II c 12 An Act for Confirmation of Judiciall Proceedings, 12 Car. lie 17 An Act for Confirming and Bestoreing of Ministers. s 1. As real and lawful incumbent, parson etc. is recognized, despite non- ohservance of legal prescriptions, every ecclesiastical person, ordained by any Ecclesiastical persons, who is twenty-four years of age, has not renounced ordination, was presented or nominated after 31st Dec. 1641 by some patron to a benefice with cure of, souls, vacant at the time, in England or Wales, obtained possession and was in possession on 25th Dec. 1659. s 4. Every ecclesiastical person or minister, sequestered or ejected after law- „ ful presentation and receipt of the profits, is to be restored to possession on or before the 25th Deo. next approaching, provided that he did not petition to bring king Charles to trial or justify the murder of the said king, and has not declared his judgment to be against infant baptism. s 10. Those removed from livings etc. are to hold the profits already re- ceived. s 11. Those who petitioned to bring king Charles to trial, have justified his murder or pronounced against infant baptism, are to be removed. s 14. If a patron presented his clerk to the Commissioners for approbation of publique preachers (see above, note 56) or to the Committee for plundered Ministers of 1659, and that clerk was rejected withoiit lawful cause, such clerk is enacted to be ' perfect incumbent of such benefice to all intents and purposes,' unless the patron has since presented another clerk or the clerk originally pre- sented has obtained some other- benefice. s 20. Those restored must take the oaths of allegiance and supremacy. 12 Car. II c 31 An Act for Confirmation of Leases and Grants from Colledges and Eospitalls. s 1. Grants, leases etc. made by de facto officers of colleges and hospitals between the 25th March, 1642, and the 25th July, 1660, are confirmed, as also are all elections to vacancies by such officers. s 4. No person shall be confirmed in mastership, provostship, fellowship or chaplaincy in either of the two universities of Oxford or Cambridge or in the colleges of ' Eaton ' and Winchester who is not ordained by bishop or presbyters or who has renounced ordination, if the local statutes of the colleges require ordination as a condition of office. 12 Car. lie 83 An Act for Confirmation of Marriages, Marriages made since 1st May, 1642, before a justice of the peace or reputed justice of the peace are confirmed. ™ Printed in Card well, Docum. Annals II, 234 fi". § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 89 was expressly asserted by legal enactment tliat tlie parliamentary ordinances made without the king's assent were null and void.^^ In this parliament, as far as church matters were concerned, the strictly episcopal party enjoyed a decided preponderance. Thus the first business was to recall the concessions to which Charles I had agreed in the early years of the long parliament : the prohibi- tion of the exercise of temporal powers by the clergy, and so the revocation of the bishops' right to vote in the upper house, were cancelled by 13 Car. II (1661) st. 1 c 2.«8 By 13 Car. II st. 1 c 12 the ecclesiastical courts received back, under the form of an ex- planation of a previous statute, their regular punitive powers to the extent to which these had been exercised before 1639 ; the proviso against the ex-officio oath remained in force ; nor was there any repeal of clauses abolishing the high commission court and for- bidding the establishment by commission of any similar court ; a reservation of the king's supremacy is appended ; lastly, it is set forth that nothing in the act is to be construed as confirming the canons of 1640 or other ecclesiastical lawS.^*' By 14 Car. II (1662) "' 13 Car. II (1661) st. 1 c 1 An Act for Safety and Preservation of his Majesties Person and Government against Treasonable and Seditious practices and attempts. s 2. Whosoever shall maliciously maintain during the lifetime of Charles II that the king is a heretic, or a papist, or that he is endeavouring to introduce popery, shall be punished and shall be disabled from holding any office in church or state. [For a similar provision in the year 1640 see above, note 31.] s 3. The parliament of 1640 is declared to be dissolved. Affirming that parliament has legislative power without the king, or that anyone is bound by ' Oath Covenant or Engagement ' to endeavour a change of government in church or. state is threatened with the penalties of praemunire. It is laid down that the oath called ' the Solemn League and Covenant ' was unlawful ; and that all Orders and Ordinances or pretended Orders and Ordinances of both or either Houses of Parliament for imposing of Oathes Covenants or Engagements Leavying of Taxes or Raising of Forces and Armes to lohich the Royall Assent either in Person or by Commission was not expressly had or given were in theire first creation and making and still are and soe shall be taken to be null and void . . . '^^ 13 Car. II (1661) st. 1 c 2 An Act for Repeal of an Act of Parliament Entituled An Act for disinabling all persons in Holy Orders to exercise any Temporall Jurisdiccion or Authorityj entirely repeals 16 sq. Car. I c 21 (cf. above,, note 39). ^^ 13 Car. II st. 1 c 12 ^n Act for Explanation of a Clause contained in an Act of Parliament made in the seventeenth yeare of the late King Charles Entituled An Act for Repeal of a Branch of a Statute Prima Elisabethe con- cerning Commissioners for Causes Ecclesiasticall. s 1. The part of 16 sq. Car. / c 11 s 2 which relates to jurisdiction (cf. above, note 36) is cited : whereupon some doubt hath beene m,ade that all ordinary power of Coertion and Proceedinges in Causes Ecclesiasticall were taken awaxf . . . Be it therefore declared and enacted . . . That neither the said Act nor any thing therein contained doth or shall take away any ordinary Power or Authority from any of the said Archbishops Bishops or any other person or persons namM as aforesaid {i.e. vicar general etc.) but that they and every of them exercising Ecclesiasticall Jurisdiction may proceed deter- mine sentence execute and exercise all manner of Ecclesiasticall Jurisdiction and all Censures and Coertions apperteyning and belonging to the same before the makeing of the Act before recited in all causes and matters belonging to Ecclesiasticall Jurisdiction according to the Kings Majesties Ecclesiasticall 90 TO THE PRESENT DAY [I, Ic c 4, An Act of Uniformity, the exclusive use of the newly revised prayer-book, which, however, had not been altered as the puritans desired,^^" was prescribed ; the act, moreover, declared that all ministers who had been ordained otherwise than by a bishop and who should not obtain episcopal ordination within a short time were ipso facto deprived of their offices ; whilst further provisions were made to secure the strict orthodoxy of all the clergy of the state churchJ" The terms of this act of uniformity are, apart from Lawes used and practised in this Realme in as ample manner and forme as they did and might lawfidly have done before the makeing of the said Act. s 2. 16 sq. Car. 7 c 11 is repealed (excepting what concerns the High Com- mission Court or the new erection of some such like Court by Commission). s 3. The part of 1 Eliz. o 1 s 18 repealed by 16 sq. Car. Jell is not to be revived by this act. s 4. Prohibition of the ex-offieio oath. s 5 : Provided alwaies that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishopp Bishop or any other Spirituall or Ecclesiasticall Judge Officer or other person or persons afore- said any power or authority to exercise execute inflict or determine any Eccle- siasticall Jurisdiction Censure or Coertion which they m,ight not by Lawe have done before the yeare of our Lord 1639 nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiasticall Tnatters and affaires nor to confirm, the Canons m,ade in the yeare 1640 nor any of them nor any other Ecclesiasticall Lawes or Canons not formerly confirmed allowed or enacted by Parliament or by the established Lawes of the Land as they stood in the yeare of the Lord 1639. °^» Compare Perry, Hist. Engl. Church II, 492 ff. c 82 §§ 12 ff. Tr. ™ 14 Car. n (1662) cA: An Act for the Uniformity of Publique Prayers and Adm,inistracion of Sacraments and other Rites and Ceremonies and for estab- lishing the Form of making ordaining and consecrating Bishops Preists and Deacons in the Church of England. si: . . . all . . . Ministers . . . shall be bound to say . . . all publique and common prayer in such order and forme as is mencioned in the . . . Booke annexed and joyned to this present Act and entituled The Booke of Common Prayer and Administration of the Sacraments and other Bites and Ceremonies of the Church according to the use of the Church of England togeather with the Psalter or Psalmes of David pointed as they are to be sung or said in Churches and the forme or manner of making ordaining and consecrating of Bishops Preists and Deacons. s 2. Every Parson Vicar or other Minister, now in office, . . . who . . . hath . . . any Ecclesiastical Benefice or Promotion shall read the morning and evening prayer and publicly declare before the congregation his unfeigned assent and consent to everything contained in the book of com- mon prayer and in the above mentioned supplements to it. s 8. Whosoever does not do so is ipso facto deprived. s 4. Every person presented in future into a benefice shall do the same within two months after he shall be in actual possession. The penalty of neglect is ipso facto deprivation. s 6. Deans, canons ; masters or other heads, fellows, chaplains and tutors of colleges ; professors and readers in the universities ; parsons, vicars, curates, lecturers and all others in holy orders ; schoolmasters and tutors must sub- . scribe a declaration of which the text is given. The penalty for not subscribing is ipso facto deprivation. The declaration contains a statement of abhorrence at taking up arms against the king, a promise to conform to the liturgy of the church of England and a denial of the lawfulness and binding force of the covenant. s 7. Schoolmasters in private houses and tutors in the same need an episco- pal licence to teach. Parsons etc. have to procure an episcopal certificate that § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 91 trifling changes, still in force. at the present day.''' By its stringent provisions parliament completed that line of demarcation between the state church and the progressive reformers which first began to be drawn in Elizabeth's reign. Moreover, towards the protestant sects already driven from the church and having each its indepen- dent constitution, the legislation of the first nine years of this parliament is characterized by extreme intolerance — a natural reac- tion after the victory of those sects in the revolution.'''^ From 1661 to 1679 there was no dissolution. The king, under the pretext of affording some relief to the oppressed sects, endeavoured to arro- gate a right of dispensing from the observance of legal enactments, in order to apply that right in favour of the papists. The result was a repetition of controversy upon the same question of constitu- tional law as had been brought prominently forward under James I and Charles I.'''^ Upon his own authority Charles II issued, first in 1662 then in 1672, declarations of indulgence,''* but in both they have signed the declaration and to read the certificate publicly along with the declaration. s 8. From and after 25th March, 1682, the part referring to the covenant is to be omitted from the declaration. ss 9-11. Requirement of episcopal ordination. Tor certain offices and acts priest's orders are requisite. s 13 relates to uniformity in the universities and in the colleges of West- minster, Winchester and Eaton (Eton). ss 15 if. contain special provisions for uniformity among lecturers (compare § 53, notes 2 and 5). s 20. Earlier acts of uniformity still in force are to be applied to establish- ing the new prayer-book, '"■ Compare § 15'. " Cf. especially 14 Car. II (1662) ol An Act for preventing the Mischeifs and Dangers tliat may arise by certaine Persons called Quakers and others re- fusing to take lawfull Oaths; 16 Car. II (1664) c 4 An Act to prevent and sup- presse seditious Conventicles (E'lrst Conventicle Act) ; 17 Car. II (1665) c 2 An Act for restraining Non-Conformists from inhabiting in Corporations ; 22 Car. II (1670) c 1 An Act to prevent aiid suppresse Seditious Conventicles (Second Conventicle Act). — Afterwards when the danger threatening all sec- tions of protestantism from the Romanist party at court was evident, the commons passed a bill aimed at a limited toleration of the protestant sects, which, however, was thrown out by the upper house. Perry, Hist, of Engl. Church II, 509 c 33 § 16. Compare also Neal, Hist, of Puritans Ed. 1822 IV, 432 ff. '' Compare above, note 12. " Declaration of 26th Dec. 1662 (printed in Cardwell, Docum. Annals II, 260) : ... So as for what concerns the penalties upon those who {living peaceable) do not conform, thereunto through scruple and tenderness of mis- guided conscience, but modestly and without scandal perform their devotions in their own way, we shall make it our special care so far forth as in us lies,, without invading the freedom of parliament, to incline their wisdom at this next approaching sessions, to concur with us in the making some such act for that purpose, as may enable us to exercise with a more universal satisfaction,^ thai power of dispensing , lohich we conceive'to be inherent in us . . . As against the papists, the king declares that he intends to include them in the toleration and that it is particularly distasteful to him to execute the stringent laws against them, wherein punishment of death is threatened ; on the Other hand he must maintain the laws which forbid the Roman catholic religion to encroach at the expense of the state church. Declaration of 15th March, 1672(printed in Cardwell, i.e. II, 282): . . . ive 92 TO THE PRESENT DAY [I, Ic instances had. to give way before the opposition of the house of commons. Yet whilst James I and Charles I had only aimed at toleration for the Roman catholics in order the better to use their influence against the progressive tendencies within protestantism, Charles II inclined to the Eoman cathohc faith and desired its toleration only as a step to its enthronement. In 1662 he had married a Portuguese princess who remained a Homan catholic. In January, 1669, he made in private a profession of adherence to the Homish religion ; whilst in the following year he concluded a secret treaty with France in which it was left to him to choose his own time for a similar profession in public. His brother, the heir- apparent James, duke of York, formally though at first secretly, went over to the Roman church ; this was in the spring of 1672.''^'' .. Endeavours to promote popery were vigorously opposed by par- liament, and the king found himself compelled to assent to laws by which the papists were excluded more stringently than before from offices in the state or at court, and also from parliament.''" He dissolved parliament when the commons began to proceed against Danby for high treason. The majority in the newly elected lower house urged the exclusion of the duke of York from the throne. The latter had already, in consequence of the test act, resigned his office as admiral, and so openly acknowledged himself a Roman catholic. Owing to the constant revival of the exclusion bill there were three dissolutions from 1679 to 1681, and Charles ruled in the last years of his reign without a parliament. He died on the 6th of February, 1685, after professing himself, in his last sickness, a member of the Roman catholic church and accepting the services of a Roman catholic priest. The accession of his brother, James II, was not at first attended tliirik ourself obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us, but hath been declared and recog- nised to be so by several statutes and acts of parliament ; . . . We do de- clare our will and pleasure to be, that the execution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of non-conform- ists or recusants, be im,mediately suspended . . . The protestant non- conformists are also allowed the public exercise of worship, royal approval being first had of the place of assembly and of the teacher of the congregation. Eoman catholic non-conformists are only permitted to worship in their private houses. ''*'■ Report of abbot Falconieri to Altieri, 1674 (quoted in Eanke, Geschichte, Analekten, Sect. 2, No. II, Ed. 1872, VIII, 251) ; before the duke joined the fleet •at the breaking out of the war with Holland. " 25 Car. II (1672) o2 An Act for preventing Bangers which may happen from Popish Recusants. This is what is known as the Test Act. Besides the taking of the supremacy oath and of the oath of allegiance, the subscription of the following declaration is now for the first time required : I, A. B., doe de- ■clare That I doe beleive that there is not any Transiibstantiation in the Sacra- ment of the Lords Supper, or in the Elements of Bread and Wine, at, or after the Consecration thereof by any person whatsoever. 30 Car. II (1678) st. 2 c 1 An Act for the more effectuall preserving the Kings Person and Government by disableing Papists fro7n sitting in either House of JParlyamervt. According to s 11 this act is not applicable to the duke of York, § 7] STRUi^^GLE AGAINST PAPISTS AND PROTESTANT SECTS 93 by open opp\isitioii in the country. The clergy of the established church had resisted the exclusion bill with might and main, holding fast to the docitrine of the divine right of kings and of the regular descent of the ^ crown in the royal house. True to their principles they at first rainged themselves on the side of James ; in the new parliament the al|vocates of his succession had the majority. The Monmoutii rebelHon was quickly suppressed (July, 1685). The king appointed to the army several officers of the Eoman catholic faith, dispensing them from making the declarations re- quired by law. OL the 9th of November, 1685, in his speech from the throne at the oioening of the second session of parliament, he expressly stated this fact. The commons rephed with a courteous address in which i^~ was pointed out that dispensation from the provisions of the laws; could only be by statute. The king gave, an evasive answer, anm the commons seemed for the moment ap- peased. But now the {lords raised the same question ; it was to be expected that they wojuld take up a still more decided attitude towards the king's prehensions than the lower house. Parliament was prorogued and not Wain called together ; on the 2nd of July, 1687, it was dissolved. \ To obtain a judicial decision in favour of the dispensing power, tiie government caused proceedings to be taken against one of the| officers appointed in virtue of a dispensa- tion. Changes on the bench ensured a verdict favourable to the king (21st June, 1686). ^The king now began to make the freest use of the dispensing po/wer. Public exercise of the Eoman catholic religion was allowed ; tjie adherents of that faith were appointed in large numbers to offices of state and to commissions in the army ; the Roman catholic orders founded settlements in England ; a Jesuit was made a member o| the privy council and obtained a decisive influence over the king;s mind. In the summer of 1686 James set up a new high commission court in spite of express statutory pro- hibition/^ Lastly, in 1687 he published a general declaration of freedom of conscience, s^^ispending all the relevant penal enactments, remitting all penalties 'already incurred by offences against those enactments, allowing free exercise of every form of religion, and dispensing with all oaths of supremacy and allegiance, as also with the oaths and declarations prescribed by 25 Car. II 2 and 30 Car. II St. 2 c 1." Next -year (27th April, 1688) he repeated this declara- tion,'''^ and to complete the humiliation of the established church, in which signs of opposition were now visible, he ordered the clergy of that church to read the declaration from their pulpits. In opposi- tion to this order Bancroft, archbishop of Canterbury, and six of the '" Compare § 80, note 10. " Declaration of 4th April, 1687 (printed in Cardwell, Doc. Ann. II, 308) : . . . We . . . have thought fit by virtue of our royal prerogative to issue forth this our declaration of indulgence ; making no doubt of the con- currence of our two houses of parliament, when we shall think it convenient for them to meet. '* Declaration of 27th April, 1688 (printed in Cardwell, I.e. II, 313). In it the declaration of April 4th, 1687, is repeated verbatim. 94 TO THE PRESENT DAY [T, Ic bishops addressed a petition to the king, wherein they I'ddd stress on the fact that the dispensing power claimed by the king, on which his declaration rested, had been repeatedly pronounaed by parlia- ment to be illegal ; they were not inclined to share his* responsibility by reading the declaration in their churches; ha was therefore prayed not to persist in his demand.''^ The king aid not recall 'his order, but, as a matter of fact, the reading of the . declaration took place only in a few churches. The seven bishdips were, charged with ' contriving, ma,king and publishing, a seditious libel,' but acquitted by the jury (30th June, 1688). James- now contemplated proceedings before the high commission court against the bishops and against those of the clergy who had not r,ead the declaration; and on the 12th of July the high commissjr'n directed that the names of such clergymen should be ascertain^^d, Up to this time Mary, daughter of- James by his first wife and brought up a protestant, had been regarded las the eventual succes- sor to the throne. She had in 1677 marmed the Statthalter of Holland, William, prince of Orange, also a Jprotestant. The birth of a son to James on the 10th of June, 16881, opened the prospect of a Roman catholic succession to the crown a!nd so of a continuance of the prevailing abuses. William had long had secret communica- tions Avith the malcontents in England. Bmieving that the moment had come when the deposition of James /might be attempted, he now prepared to invade England. When James received trust- worthy news of this (September, 1688) he addressed himself to re- pair his mistakes ; he summoned the bishojps to his presence, and by their advice revoked a number li his arbitrary measures. Nevertheless, he could not induce them to 'declare formally against the prince of Orange. . The latter landed in|. England on the 5th of November, 1688. A number of the troops sent against him deserted to his standard. James found himself, compelled to leave the country and fled to France (22nd December, 1688).'''* The prince of Orange undertook in the fir st instance the regency of the country. Resolutions of the parliament which met shortly afterwards declared the throne vacant, and offered William and his wife the royal title. They accepted the jCrown, February 13th, 1689. Instead of the previous supremacy and allegiance oaths, simpler forms were substituted by statute. According thereto allegiance was now to be sworn to their majesties king William and queen Mary.^" The stricter party in the estabhshed church had, I . ^ -^ ™ The petition is' in Cardwell, I.e. II, 316 ; it was presented on the 18th May, 1688. I 79a rpjjg ^g^^Q jg ^jja^t; pf James's departure from Rochester on his second flight. Tr. *" 1 Gul. & Mar. sess. 1 c 1 An Act for removeing and Preventing all Questions and Disputes concerning the Assembling and Sitting of this present Parlia- ment ; c 8 An Act for the Abrogating oftheOathes of Supremacy and Allegiance and Appointing other Oathes. Cf. the mention of the same oaths in 1 Gul. S Mar. sess. 2 o 2 An Acte dedareing the Eights and Liberties of the Subject and Setleing the Succession of the Crowne, and the express extension of penal pro- § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 95 it is true, favoured the cause of the prince of Orange, but had only- desired his appointment to the regency ; it still held fast to the doctrine that the order of succession to the crown was immutable. Accordingly, archbishop Saucroft and eight of the bishops, as well as some four hundred of the clergy, refused to take the oath ; they were, with some reservations, deprived of their offices. A number of them combined to form the sect of nonjurors, which remained detached from the established chjirch, in politics favoured the re- turn of the Stuarts, and did not ultimately disappear until the beginning of the nineteenth century.*' As against the papists dis- qualifying laws were again passed.*^ The obligation to maintain the protestant religion and also such rights of the bishops and clergy ' as by law do or shall appertain unto them,' was in- corporated in the coronation oath, and the succession restricted to protestants, even those who married Eomari catholics being ex- cluded.*^ As regards protestant sects, 1 Gul. & Mar, sess. 1 c 18 (the ' Toleration Act ') granted them considerable relief and, in particular, upon condition of their fulfilling certain formal condi- tions, the right of the free exercise of divine worship.** The attempt of the government to produce, by means of a change in the laws touching the established church, a reconciliation between that church and the protestant sects broke down owing to the resistance of the house of commons and of convocation.*^ The expulsion of James II and the measures, already mentioned, adopted in the first years of the new reign, mark the close of a great chapter in the history of the established church. It had maintained Tisions against Bouiau catholic recusants to those who refused the new oaths by 7 & 8 Gul. & Mar. (1695/6) c 27 An Act for the better Security of His Majesties Royal Person and Government. ^' Lathbury, History of the Nonjurors. The sect in 1718 split in consequence of liturgical disputes into the 'Usagers' and their opponents. The greater number of the latter, however, united again in 1733 with the usagers. The last bishop of the united nonjurors died in 1779, the last bishop of the moder- ates who remained separate, in 1806. ^^ 1 Gul. & Mar. sess. 1 c 9 .4n. Act for the Amoving Papists and reputed Papists from, the Cityes of London and Westminster and Ten Miles distance from the same ; c 15 An Act for the better secureing the Governm,ent by dis- arming Papists and reputed Papists ; c 26 An Act to vest in the Two Universi- ties the Presentations (tf Benefices belonging to Papists. Cf. also the acts cited in note 80. *' 1 Gul. & Mar. sess. 1 c 6 .4jz Act for Establishing the Coronation Oath ; 1 Gul. & Mar. sess. 2 c 2 Bill of Rights s 1 (art. IX, X); both again confirmed in 12 & 18 Gul. 7/7(1700/1) c 2 Act of Settlement.— The king according to the new coronation oath has first to promise to govern according to the Statutes in Parlyament Agreed on and the Laws and Customs. The part of the oath which relates to religion is worded : Will You to the utmost of Your poiver Maintains the Laws of God the true Profession of the Gospell and the Protes- tant Reformed Religion Established by Law ? And will You Preserve unto the Bishops and Clergy of this Realme and to the Churches committed to their Charge all such Rights and Priviledges as by Law doe or shall appertaine unto them or any of them. f— All this I Promise to doe. ^* An Act for Exempting their Majesty es Protestant Subjects dissenting from the Church of England from the Penalties of certaine Lawes. ^ See more in Perry, Hist, of Engl. Ch. II, 543 ff. c 36 §§ 11 ff. 96 TO THE PRESENT DAY [I, Ic at all points the independent constitution gained at the reforma- tion ; it had finally excluded from its camp on the one hand the papists, on the other the advanced protestant sections ; and it had secured itself against further intrusion of these alien elements. From this time forth, neither papists nor protestant sectaries could struggle for preponderance in the church with the hope of drawing it over to themselves ; both were now compelled to build up their own organizations outside the church, to struggle for equality with it, or to dominate it, if they could dominate it, from without. Their struggles thus leave from henceforth the constitutional principles of the church untouched ; their attacks are directed solely against the privileges enjoyed in the state by the established church. The protestant sects obtained in the course of the eighteenth cen- tury ever increasing toleration ; towards the middle of the nineteenth century the restrictions which hampered them were gradually removed. The disabilities of the Eoman catholics were long con- tinued. This was especially due to the circumstance that a large part of them joined the foreign foes of England in the attempt to restore by force the Stuarts to the throne. Not until 1829 was a form of civil oath devised (10 Oeo. IV c 7), upon taking which Roman catholics became eligible for almost all offices of state, as also to sit in parliament. Some of their disabilities had been removed before this act, some were not swept away till later ; lastly, some few still remain.*^ With the middle of the nineteenth century began attempts to wrest from the church its last important advantage — its endowment. The endeavou.r succeeded in the case of the Irish church, as also in most of the colonies ; *' the disendowment of the "Welsh church has many advocates ; ^* in England the attack has not yet gained the same strength. §8. c. Relation of state and church to one another." In the period from the Norman conquest to the reformation the action of the church upon the monarchy and upon the civil power which the king controlled had been in general of a restrictive cha- racter. To weaken the royal authority the church had not infre- *•" A conspectus of the laws against papists and protestant dissenters from Edward VI onwards, and of the form of their repeal, will be found in Muscutt, History of Church Laws in England, London, 1851, pp. 104 ff. Of. also on modern legislation Gneist, Engl. Verwaltungsrecht, 3rd Ed. p. 1060. — On the history of the constitution of the Eoman catholic church in England after the reformation see Meyer, Die Propaganda in England, Leipzig, 1851. *' Compare § 11, note 36 and § 12, note 15. ^* A bill has been brought in by the government for the disestablishment and disendowment of the church in Wales. In regard to Scotland cf. § 10, note 60. » Gneist, Engl. Verfassirngsgesch. §§ 31, 33, if. Engl. Verwalfungsr. Sri Ed. §§ 168, 172-174. §8] RELATION OF STATE AND CHURCH 97 quently, especially since the beginning of the thirteenth century, made common cause with those whose claim was for greater political liberty ; and, in return, the latter had allowed the church to win itself new privileges. This grouping of antagonistic forces had somewhat changed when, with the middle of the fourteenth century, parliament attained its full development and when, towards the end of that century, there sprang up in the lollards a sect which aimed at reform ijot only in the church, but also, in some respects, in the constitution of the state. Parliament no longer needed so urgently the assistance of the church in defending political freedom, and was now constrained to regard the privileges of the church as impairing its own powers no less than those of the king. The church, on the other hand, if it were to resist successfully the attacks of the lollards on its constitution and doctrines, was forced to assure itself of the support of the state. But in seeking that support it did not sur- render the principle of independence, and its policy was mainly determined by its own interests. Thus from the end of the four- teenth to the beginning of the sixteenth century, slight friction between the church and the civil power from time to time arose. In the sixteenth century the reformation robbed the church almost wholly of its independence. The king was now free in filling epis- copal sees to ignore the wishes both of the chapters and the pope. Moreover-, the preferment at the disposal of the crown was otherwise considerably increased by the confiscation of monastic estates with the rights of patronage attached thereto, and by the reservation of such rights upon the new foundation of secular chapters. The dis- solution of the monasteries was the destruction of those centres of ecclesiastical power which until then had been least accessible to royal influence ; it operated at the same time to sweep away the ecclesiastical majority in the upper house of parliament. The con- vocations could henceforth issue binding laws only with the consent of the crown ; whereas the crown exercised an uncontrolled right to settle by ordinance the affairs of the church. Appeal lay from the decisions of the ecclesiastical courts to a civil tribunal, whilst in the high commission court the crown set up a judicial body, dependent on its instructions, with punitory powers in matters ecclesiastic. To all this was added, lastly, that general authority to govern the church involved in the idea of the supremacy, an authority which was manifested especially in the visitations carried out under the royal name. During the struggles of the reformation, parliament and the more advanced reformers had supported the sovereign in the endeavour to destroy the independence of the church. As a consequence of the changes which the reformation produced, the church had now be- come, as we have seen, largely subject to the crown ; the crown, for its part, had gained increased strength, which the Stuarts_ imagined they could use to the curtailment of the liberties of the citizen. The result ^n the seventeenth century was a new arrangement of the determinative forces in the state. Partly from regard to the adherents of Roman Catholicism, partly to defend its own preroga- H.C. H 9*^ TO THE PRESENT DAY [I, IC tives, the crown became the champion of the constitution and doc- trines of the established church against the protestant sects. The church promoted the objects of the crown by evolving doctrines ■yrhich were calculated to prepare the way for despotism in England. The opposition had originally, under Elizabeth, only protested against any standing still in religious matters ; but when the Stuarts, in order to strengthen their temporal power, took to favouring a retrogressive movement therein, then the resistance of parliament was extended to temporal concerns. As on the one side crown and state church had allied themselves together, so on the other the defenders of political freedom and the advocates of a presbyterian or congregational form of church government combined their forces. Hence in the contests of the seventeenth century political and ecclesiastical considerations are curiously and incessantly inter- woven. Towards the end of the reign of James II the church again asserted its independence of the crown. A part of its clergy made a similar attempt against the new government, refusing to recognize William III as king ; as, however, the greater number of the clergy submitted themselves to him, and the nonjurors, excluded from the church, were but lukewarm in defence of their views, the estabhshed church presently fell once more into complete subordination to the government. Impulses towards ecclesiastical independence, which survived among the lower clergy, were suppressed by the proroga- tion in 1717 of convocation, which did not meet again, except as a mere formality, for more than a hundred years. Moreover, at this time, owing to the toleration of all sorts of abuses of patronage, the lower clergy fell into more and more abject dependence on the large landowners, who formed the ruling class in the state. Hence in the eighteenth and the beginning of the nineteenth century the administration of the church was not much more than a branch of the general administration of the state. As such it was largely under the influence of parliament, which gradually became the dominant power in the constitution and determined the changes of party government. But the parties made no endeavour to meddle with the internal administration of the ecclesiastical body politic. Since the church appointments in the gift of the government were for life, and the government, in regard to the majority of the in- ferior offices, were not in a position to exercise any influence what- ever upon the filling of them, party nominations could effect only 9- very gradual change in the balance between the various schools of thought in the church. The laws admitted to parliament and the offices of state, none but churchmen and members of other protestant societies, the latter commanding a comparatively small number of adherents. Thus the church might be secure that no adverse current in legislature or government would thwart its progress. A change in this relation of state and church has been preparing from the middle of the nineteenth century. Entrance to parliament and to almost all offices of state was then opened to professors of all §8] RELATION OF STATE AND CHURCH 99 creeds ; the exclusively profcestant character of state institutions was gone. Simultaneously there awoke in the church, in conse- quence of numerous internal reforms, a stronger consciousness of self, which caused it to place its own interests in the first line. This spirit of self-assertion led to an attempt to win greater indepen- dence of the state. With that object in view the more advanced representatives of the tendency recurred not infrequently to the views of the prereformation time or aimed at rapprochement with the present Roman catholic church, alike in liturgy and in dogma. The church of E/Ome, on its part, sought to gain over completely those who favoured the new departure ; one of the clergy of the state church who changed his opinions was made a cardinal, another a cardinal and archbishop of the newly created Eoman catholic see of Westminster. The established church found utterance for those who sought greater independence of the state by means of the revived convoca- tions. In these at the present time the lower house represents, as a rule, the purely church view, whilst the bishops, who form the vipper house, having regard to general considerations of state policy, exercise a moderating influence. There are three points in parti- cular in the constitution of the church at which the purely church party directs itsjittacks. It demands that, the altered composition of parliament being taken into account, state legislation affecting the church should only ensue when the convocations have given their assent or at least been heard;^ It protests against the continued existence of a final court of appeal in ecclesiastical matters which consists principally of laymen, and repudiates the co-operation of the crown in appointing the judge in the provincial courts. Lastly it requires,' as to the appointment of bishops, that a right of proposal or a more extensive right of co-operation should be conferred on the chapters. Whilst the advanced church party thus aspires to limit the rights of the state in the affairs of the church, the opposite party raises its voice in parliament for cancelling the duties of the state towards the church. As then pressure is being brought to bear from both sides to sever the connexion between the two, it is not improbable that a gradual development in that direction will take place. Already the church, to assure itself of sufficient means for freer movement, has had to call for voluntary assistance in many ways from laymen. Should the detachment of church from state be further advanced, the counterpoise to purely church tendencies supplied by the present necessity of gaining the co-operation of the civil government will hereafter be found in an increased consultation of the laity. So only could the disestablished church avoid schism and provide itself with the funds necessary for the continuance of its work. Compare § 55, note 27. lOO TO THE PRESENT DAY [I, Ic §9. d. Development of the church constitution internally.* I. Archbishops. The mutual relations of the archbishops of Canterbury and York underwent no change. The loss of the rights which they had exercised in virtue of their legatine capacity was compensated, down to the first revolution, by their appointment to the high commission. Their practice of personally adjudicating in the archiepiscopal court, common down to the reformation, became less and less frequent, until ultimately the presidency was left almost invariably to professional lawyers nominated by them. II. Bishops and their officers. The number of bishoprics was largely augmented, first under Henry VIII, and then from the middle of the nineteenth century onward.^ The position of suffragan bishops was ~ regulated anew under Henry VIII; but from the end of the sixteenth century the nomination of such bishops fell into desuetude, and has only been reyived in quite recent times.^ The cathedral corporations which down to the reformation had retained a monastic constitution were by Henry VIII converted into secular chapters.^ Parliamentary measures of reform, dating from the middle of the nineteenth century, reduced, as far as possible, the inequalities in the incomes of the various archbishoprics, bishoprics and chapters, or rendered the constitutions of the chapters more uniform, whilst a part of the revenues was set aside in aid of parochial cures of souls. Archdeaconries have been gradually multiplied in the present century. The office of rural dean had much sunk in importance even before the reformation. In the course of the sixteenth and seventeenth centuries it became almost everywhere extinct. From the beginning of the nineteenth century it began by degrees to be restored in the several bishoprics, and has now again come to be general in all.* III. Parish priests. The after effects of the appropriations continued to be felt in the insufficiency of the incomes attached to many livings. Appropriated income which, in consequence of the dissolution of the monasteries and the confiscation of their property, passed to the crown, was by it further alienated, in many cases to lay owners ; so that it was lost to the parishes. Repeated attempts were afterwards made to recover some part of the appropriated property for the parishes to which it had originally belonged ; ^ but a general restitution was never made. At the beginning of the eighteenth century money was obtained for the better maintenance of poor parsons by the transference of an ecclesiastical tax, which 1 Compare § 33, notes 36, 37-89. " Compare § 39, notes 6 and 7. ' Compare § 37, notes 21 and 22. ■* Compare § 43, note 13. 5 2 & 3 Phil. & Mar. (1554) c 4 (of. 1 Eliz. co 4, 19), pari, ordin. of 8th June, 1649 (cf. ordin. of 5tli April, 1650, 2nd Sept. 1654 c 49, act of 1656 e 10, 12 Car. 7/ [1660] diss 44, 48). » Gneist, Engl. YerwaUwngsrecht, 3rd Ed. §§ 169-171, 173, 174. § 9] INTERNAL DEVELOPMENT lor from reformation times had formed part of the revenue of the crown, to the purposes of a fund for assisting such maintenance." In the eighteenth and in the first half of the nineteenth century the state several times granted considerable sums to be applied in erecting new parish churches and endowing poor livings.'' Further means of improving livings were procured in the present century by devoting to such purposes part of the property of the bishopries and chapters* and % encouraging private liberality.^ The pay- ment of tithes in kind or by modus was, also in this century, commuted into a rent dependent on the price of corn.i° The personal exercise of clerical ministrations in cures of souls was gradually obtained by means of permanent parish priests, resident and independent, and especially by means of stricter regulations respecting pluralities and residence," abolition of commendams^^ and sinecures,^' by means of the more careful enforcement of pro- hibitions against simony,^''' and by endeavouring to place the minis- ters of parishes appropriated quoad temporalia et spiritualia on the same level, in respect of perpetuity and endowment, as the holders of other parochial cures. ^* The parish, even after the reformation and for the most part until a quite recent date, formed a unit for both ecclesiastical and secular purposes. The vestry and many parish officers, such as churchwar- dens, sexton, beadle and parish clerk, united in themselves spiritual and temporal powers.^^ This identity of ecclesiastical and secular administration ceased in respect of a number of parishes (especially in the northern counties) owing to an act of 1662, by which it be- came allowable to appoint overseers of the poor in smaller districts (townships and villages) of large parishes.*"* By a series of acts beginning in 1818 (Church Building Acts and New Parishes Acts), « Compare § 31. ' Compare § 31, note 10 and § 32, near notes 1 and 3 ; also Perry, Hist, of Engl. Church 11, 577, note 2 c 39 § 1. « Compare § 82, note 13. ' Cf . Perry, Hist, of Engl. Ch. Ill, 537 c 33 § 4. According to the Church Year-Book for 1893, p. 559, voluntary contributions for church purposes in 1860-84 amounted to £81,500,000, including £21,500,000 for church schools. '" 6 & 7 Gul. IV (1836) o 71, to which are supplementary 1 Vict, c 69, 1 & 2 Vict, c 64, 2 & 3 Vict, c 62, 3 & 4 Vict, c 15, 6 & 6 Vict, c 54, 9 & 10 Vict, o 73, 10 & 11 Vict, c 104, 14 & 15 Vict, c 53, 23 & 24 Vict, c 93, 36 & 37 Vict, c 42, 41 & 42 Vict. 42, 48 & 49 Vict, c 32, 49 & 50 Vict, c 54. " 21 Hen. VIII c 13, 1 & 2 Vict, c 106, 13 & 14 Vict, c 98, 48 & 49 Vict, c 54. " 6 & 7 Gul. /Fc 77 s 18, 1 & 2 Vict, c 106, 13 & 14 Viet, c 98. '^ Compare § 44, near note 22. ^* Compare especially 31 Eliz. (1588/9) c 6, canon 40 of ^|f |, 1 Gul. & Mar. eess. 1 (1688) e 16, 13 Ann. (1713) c 11 s 2, Perry, Hist, of Engl. Church III, 19 cl§23, " Cf . § 44, near notes 20 and 24 £f. '' Cf. especially Toulmin Smith, The Parish . . . with Rlustrations of the Practical Working of this Institution in all secular affairs ; and of some modern attempts at ecclesiastical encroachment, 2nd Ed. London, 1857. '*' 14 Car. II (1662) c 12 s 21. A similar regulation in reference to the repair of highways was made by 14 Car. II c 6, an act which, however, remained only a short time in force. 102 TO THE PRESENT DAY ^ [I, Ic it -was rendered possible to divide existing parishes in regard to some or all ecclesiastical purposes, without thereby destroying the parish as a unit for temporal, purposes. Thus there arose new- ecclesiastical parishes, districts etc. especially in localities where there was a rapid increase of population.^*'' Even where the parochial administration remained identical for^ spiritual and tem- poral affairs, a partial separation of the two departments took place by an act of 1868,^' which allowed the creation of.' Church Trus- tees,' to administer property for ecclesiastical objects, abohshed compulsory church rates and deprived those who refused to pay such rates of the right of voting on the expenditure of them. In 1894 the ' Local Government Act,' 56 & B7 Vict, c 73 completely detached (except in regard to the appointment and duties of some unimportant officials, and with certain modifications in the case of small parishes without a parish council) the secular from the eccle- siastical administration in rural parishes, and it became allowable for urban districts also, upon the application of the council or other representative body of any municipal borough or other urban district, to make such detachment by order from the local government board. The act has called into existence, for those parishes to which it applies, new boards to deal with the secular business of the parish ; the old parochial officers and bodies retain their former powers but with limitation to ecclesiastical affairs.^'''' IV. Church assemblies. After the reformation the importance of the convocations slowly declined, partly as a consequence of the extended competence of king and parliament in matters ecclesi- astical, partly owing to the restraints imposed upon them by the provisions of the submission act. Their discussions were almost wholly confined to the internal affairs of the church. From the beginning of the eighteenth century they were not permitted by the government to deliberate, and only gradually recovered vitality in the middle of the nineteenth.'^ In recent times two houses of laymen have been established side by side with the convoca- tions, the latter having since the twelfth century consisted solely of ""= The various formations, differing from each other in this or that respect, which arose hore such names as : — parish for all ecclesiastical purposes ; dis- trict parish or ecclesiastical district ; parochial chapelry ; district churchy district chapelry or particular district ; separate district for ecclesiastical purposes ; new parish for ecclesiastical purposes. Relevant are especially the following acts :— 58 Geo. Ill c 46, 59 Geo. Ill c 134, 3 Geo. IF e72, 6 Geo. IV c 103, 7 & 8 Geo. /F c 72, 1 & 2 Gtd. IV c 38, 2 & 8 Gul. JT^ c 61, 1 & 2 Vict. c 107, 2 & 3 Vict, c 49, 3 & 4 Vict, c 60, 6 & 7 Vict, c 37, 7 & 8 Vict, cc 56, 94, 8 & 9 Vict, c 70, n & 12 Vict, c 37, 14 & 15 Vict, c 97, 19 & 20 Vict, c 104, 82 & 33 Vict, c 94. The essential provisions are brought together in Thomas Brett, Commentaries on the present laws of England, 2nd Ed. London, 1891, p. 1156. " 31 & 32 Vict, c 109 Compulsory Church Bate Abolition Act. "" Cf. § 48, note 16a, and Makower, Die Englische Kirchengemeiiwle und die Landgemeindeordnung von 1894 in the Deutsche Zeitschrift filr Kirchenrecht 1894, p. 171. " Cf. § 54. §10] SCOTLAND I03 clergy." Episcopal synods began with the reformation to fall into disuse. A substitute for them has been found in the gatherings of the clergy and laity which are known as diocesan conferences.^'* §10. 2. HISTORY OF THE CONSTITUTION OF THE CHURCH IN SCOTLAND.=^ Christianity was diffused in Scotland from the fifth and sixth centuries [partly by British but in greater measure by Irish mis- " Cf. § 56. 20 Of. § 67, near notes 12 fF. * I. Sources. 1. Legislation : The Acts of the Fm-liaments of Scotland, 1124-1707; 12 vols, issued by the Record Commission ; vols. I to XI, 1814-44, vol. XII, 1875. The appendix to vol. I contains the book called Regiam Majestatem and a number of ancient documents ; vol. XII contains supplements, documents and the index. 2. Besolutions of councils : Eobertson, Concilia Scotiae. Ecclesiae Scoticanae statuia tarn promncialia quam, synodaUa quae sv/persunt, from 1225-1559. Edinburgh, 1886, 2 vols. (The first volume consists of a preface with appendix. This preface treats at length of the history of councils in the prereformatiou time and of many details of Scotch ecclesiastical history. The appendix contains documents relating to the Scottish church, Vol. II contains the Statuta.) — Acts a/nd proceedings of the General Assemblies of the Kirlc of Scotland from iseo to 1618. [Be- tween 1618 and 1638 there was no general assembly.] Publications of the Bannaiyne Club, 3 vols. Edinburgh, 1839-45. [Another edition of the same Acts and proceedings is ; Tlie Boole of the Vniversall Kirk of Scotland : wherein ^ the headis and conchosionis devysit be the Ministers and Commissiona/ris of the pa/rticular 'Kirks thereof, are specially expressed and contained. Ed. Peterkin, Edinburgh, 1839. Contains in appendices the enactments of the time which refer to the constitution of the church.] — Acts of the General Assembly of the Church of Scot- land, 1838-1849, reprinted from the original edition, under the superintendence of the Church Law Society, Edinburgh, 1843. 3. Other documents : Theiner, Angustin. Vetera Monumenta Sibemorum et Scotorum Mistoriam Illustrantia, .. .. . ex Vaticani, Neapolis ac FlorenUae Tabulariis . . . Eome, 1864. (Embraces the years 1216-1547.)— The collections of Spelman, Wilkins, Haddau and Stubbs (appendix XIV, I, 1) also extend to Scotland. II. Church history. 1, Ancient and modem times : Bellesheim, Alphons. OeschAchte der KathoUschen (= Roman catholic) Kirche in Schottland von der Binfahrung des Christentums bis auf die Gegenwa/rt. 2 vols. Mainz, 1883. Translated into English with notes and additions by D. O. H. Blair. 4 vols. Edinburgh and London, 1887-90. — Cunningham, John. The Church History of Scot- land from the Com/mencement of the Christian Era to the present century. 2 vols. Edinburgh , 1859 ; 2nd Ed. 1882. (From the end of the 17th century is chiefly concerned with the presby- teriau church.) — Grub, George. An Ecclesiastical History of Scotland from the Introduction of Christianity to the present time. 4 vols. Edinburgh, 1861. (Contains the history of the pres- byterian and of the episcopal church.) — Luckock, Herbert Mortimer. The.Chwrch in Scotland. London, 1893. (Abstract of the history of the presbyterian, the protestant episcopal and the Broman catholic church.) — Skinner, John. An Ecclesiastical History of Scotland from thef/rst appea/rance of Christianity in thai kingdom to the present time. 2 vols. London, 1788. (Re- lates especially to the protestant episcopal, but also to the presbyterian church.) — Spotswood (Spotiswood), John, archbishop of St.~ Andrews. The History of the Church and State of Scotland, beginning the year . . . 202, and continued to the end of the Beign of King James VI (1625). 4th Ed. London, 1677. New edition in 3 vols, by M. Russell for the Spottiswoode Society. Edinburgh, 1851. — Stephen, W. History of the Scottish Church. vol. I. Edinburgh, 1894 (in progress). — Story, Robert Herbert (editor). The Chwch of Scot- la/nd, past arid present. 5 vols. London, 1890 ff. This work consists of the following treatises: 3a,xaea Cam^'beW. {History of the Church) . . , from its fovjndation to the reign of Malcolm, Cranmore ; James Rankin, . . . from the reign of Malcolm Cranmore to \&S&; T. B. W. Niven, . , . from l&&i to the present time ; A.-a.&te'W tSaaseorge, The Chwrch in its relation to the Law and the State ; Adam Milroy, The Chwrch's Doctrinej Thomas'Leith- man, The Chwrch's Ritual; Andrew Edgar, The Church's Discipline; Nenion Elliot, Teinds or Tithes arid Chv/rch property in Scotlamd. 2. Ancient times :, Keith, Duncan. A History of Scotland, civil and ecclesiastical, from the 104 SCOTLAND [I, 2 sioiiaries.^ The Keltic uses, wliich deviated from those of Eome, held their ground here until the beginning of the eighth century .^ ' Ninian {circ. 411), wh.o is mentioned as converting the southern Piots, was of British nationality but educated at Rome. From 563 the Irish missionary Columba was actively engaged in spreading the church in the west of Scotland. For Columba and other Irish missionaries in Scotland see Haddan and Stubbs, Councils 1, 116, note. ^ Compare § 1, note 21. earliest times to the death of Damd I, 1153. 2 vols. Edinburgh, 1886. (Vol. I contains the political, vol. II the ecclesiastical history.) — Mac liauchlan, Thomas. The Ea/rVy Scottish Ghwrch ; the Ecclesiastical History of Scotland from the first to the twelfth century. Edin- burgh, 1865. — Skene, F. William. Celtic Scotland: a History of Ancient Album. Edinburgh, 1876-80. 3 vols. 2nd Ed. 1886-90. (Vol. II contains a full history, with maps, of the church in Keltic Scotland.)— See also appendix XIV, II 36. 3. Eeformation and modem times : Calderwood, David. The Sistory of the Kirlc of Scot- land. 1678. New Ed. in 8 vols. Edited for the Wodrow Society by Thomas Tliomson. Ediaburgh,1842. (Covers, apart from a short introduction, the years 1514-1625.)-THetherington, W. M. History of the Church of Scotland (the presbyterian) from the Introduction of Chris- tianity (fully, only from the reformation) to the period of the cUsrivption, May ISth, 1843 ; with am introductory essay on the principles and constitution of the Ohv/rch of Scotland. Ap- pendices containing thefvrst and secondbooks of discipline, amd various historical documents. 2 vols. 7th Ed. Edinburgh, 1852.— Keith, Robert. The History of the Affairs of Chwrch amd State in Scotland, 1527-1568. Edinburgh, 1734. 1 vol. Mew Ed. prepared by John Parker Lawson for the Spottiswoode Society. 3 vols. Edinburgh, 1845. — Kirkton, James. The Secret and triie History of the Church of Scotland from the restoration to the year 1678 j to which is added an account of the Murder of Archbishop Shwrp, by James Bussell a/n actor therein. Published at Edinburgh, 1817.— Knox, John (the reformer). The History of the Reformation in Scotland, in 4 boeks, covering the years 1494-1564. There is also a fifth book, covering the years 1564-67, first printed in 1644 and probably not by Knox himself. New edition of the five Books in The Works of John Knox, collected and edited by David Lwitig iat the Bannatyne Club. Edinburgh, 1846 6f. — Koestliu, J'ulius. Die schottische Kirche {i.e. the presbyterian), ihr inneres L^en und ihr Verhaltnis zum Stoat, von der Reformation bis OAif die Oegenwo/rt. Hamburg and Grotha, 1852. — Lawson, John Parker. History of the Scottish Upiscopal Chwch from the Revolution to the present time, Edinburgb etc., 1843.. (Covers the time since 1661, and in more detail, that between 1688 and 1842.)— Kow, John. The History of the Kirlc of Scotland from 1558 to 1637 ; with a continuation to July, 1639, by his son Jolvn Row. Printed for the Wodrow Society. Edinburgh, 1842. — Skinner, John. Annals of Scottish Episcopacy, from the year 1788 to the year 1816 inclusive ; . . . Edin- burgh, 1818. — Society for the Liberation of Religion from State Patronage and Control, The Scottish Kirk {i.e. the presbyterian elmrch), its History and present Position. London, 1870. (Contains in particular an account of the circumstances at the present day.) — Stephen, Thomas. The History of the Church of Scotland (the episcopal) from, the Reformation to the Present Time. 4 vols. London, 1843-45. — Stevenson, Andrew. The History of the Chmch amd State of Scotlwnd from the accession of King Cha/rles I to the year 1649. Edinburgh, 1840. — Wodrow, Eobert. The History of the Sufferings of the Church of Scotla/nd, from the Restora- tion to the Revolution. 2 vols. Edinburgh, 1721. Another edition : 2 vols. Glasgow and Edinburgh, 1829, 30. 4. Special : Bannatyne Club, Origimes Parochiales Scotiae, The Antiijuities ecclesiastical a/nd terHtorial of tlie pa/Hshes of Scotland (ed. by Cosmo Innes, James B. Brichan and others). 2 vols. (vol. II in 2 parts). Edinburgh, 1850-55.— Keith, Robert. An Historical Cata- logue of the Scottish Bishops, down to the year 1688. New edition, corrected and continued to th^present time. . . .^ by M. Russell. Edinburgh, 1824. (Contains also : Keith's View of the parishes of Scotland before jfiss ; John Spottiswoode, An Account of all the Religious Houses that were in Scotlamd at the Ume of the Reformation; Walter Goodall, On the first pUmting of Christianity in Scotla/nd, and on tlie history of the Culdee's.) —Reeves, Wilham. The Culdees of the British Islands as they appear in history, with an Append/in of Evidences, Dublin, 1864. (See on p. 67 of the book a conspectus of literature on the meaning of Culdeus.) — Torry, Synodical Action in the Scottish Church (the episcopal) in Warren, Synodalia 1853 pp. 248, 298, 363, 465, contmued in Jowm. of Com. Cant. (Ed. Wwrren) 1865 p. 155 ; 1856 pp.26, 103; 1857 p. 375.— Walcott, Mackenzie E. C. Scoti-Monasticon . , . A History of the Cathedrals, Conventual Foundations, Collegiate Ch/wrches a/nd Hospitals of Scotland. London, 1874. See further the list of authorities in the English translation of Bellesbeim, pp. xxiff. III. Church law. . Gemberg, Aug. Fr. Leop. Die schottische Nationalkirche, nach ihrer gegenwoHwm, und Hussern Verfasswng. Hamburg, 1828. — The constitution and law of the church of Scotland, by a member of the college of justice. With introductory note by TuUoch, Edinburgh and London, 1884. (A short methodic outline of the present state of the law.) §10] CHURCH CONSTITUTION I05 Missionary enterprise was in the main conducted from monasteries ; and from that circumstance arose the custom of investing a number of the clergy with episcopal rank without assigning them definitely limited districts.-* It was only in some of the southern, debatable lands and in the islands, which, for the most part, did not yet belong to the kingdoms of Scotland,^ that separate sees were formed. Soon after king Kenneth had united (843j the two chief parts of what is now called Scotland, the countries of the Picts and the Scots, he fixed on Dunkeld as the ecclesiastical capital of his realm (850).* About 906 the seat of the head' bishop was removed to St Andrews.^ The bishop of St. Andrews held the position of a dio- cesan bishop of all Scotland. He was, however, not the superior of other bishops ; nor did he receive a pallium from Rome. The num- ber of diocesan bishops, at first small, was not increased until the beginning of the twelfth century.^ Consecration of a bishop was, at least in the twelfth century, by one other bishop."" Queen Margaret, wife of Malcolm III of Scotland, an English princess, was the first to enter into relations with the English clergy, offering submission to the archbishop of Canterbury (be- tween 1070 and 1089).'' But the archbishop of York-^so far as is known, now for the first time — put in a claim to supremacy over the Scottish church, particularly over the bishop of St. Andrews. His title to such supremacy was recognized at the English councils ^* But compare also Loofs, Antiquae Britonum-Scotorumque ecclesiae, quales fuerint mores, pp. 60, 64, who thinks that the conclusion is justifiable that even at that time bishops with fixed dioceses were to be found in Scotland, although he admits that there existed side by side with them certain bishops without dioceses, performing the functions of abbots or at any rate inhabiting monasteries. ^ King Alexander III acquired in 1266 the isle of Man and the other islands belonging to the Norwegians in the western sea. This was by treaty with Magnus V of Norway. James III (1460-88) received the Orkneys and Shetlands as a marriage portion with his wife Margaret of Denmark. As to Galloway, see below, note 11 ; as to the isle of Man, § 33, note 25. * Skene, Celtic Scotland 2nd Ed. II, 307.— From the end of the sixth to the beginning of the eighth century lona had the precedence. ' The bishop of St. Andrews, called from the then designation of the kingdom in question [see map in Skene, Celtic Scotland 2nd Ed. I, 340] bishop of Alban, is sometimes characterized as ardepscop ( = prominent bishop. Todd, St. Patrick p. 16, note 1). Haddan and Stubbs, Councils II, 148, note. Eobertson, Coun- cils I, 207. ° For example, in 1115 were founded the sees of Moray and Dunkeld ; before 1119 (according to Skene, I.e. II, 375: about 1116) Glasgow, an old see, was resuscitated; about 1125 Aberdeen, before 1130 Ross and Caithness, probably in 1128 or 1130 Brechin (at the end of the 10th cent, there had already been a bishop of Brechin), in 1155 Dunblane was established. Haddan and Stubbs II, 190, 195,' 210, 216 (149), 217, 231. Of. also the, in part different, account in Ada JSanctae Sedis, vol. XI p. 12 (Rome, 1878). "» Bull of Calixtus II, 1119, printed in Haddan and Stubbs II, 192.— Compare Loofs, I.e. p. 76, who doubts whether the same mode of consecration was used fit an earlier period. ' Letter of Lanfrano, archbishop of Canterbury (1070 to 1089) to Margaret. Haddan and Stubbs II, 155. At the queen's wish : , . . De tunc igitur sim pater tuus, et tu meafilia esto. I06 SCOTLAND [I, 2 keld to mediate between Canterbury and York, of Winchester and "Windsor (1072).8 In like manner, the popes also ratified at first the subjection of the Scottish bishops to the archbishop of York. Nevertheless, the Scottish kings did not acquiesce in this trans- ference, made without their assent, of archiepiscopal rights to York^ but sought, mainly on national grounds, to assert independence of any English prelate. From the side of the Scottish clergy a lasting resistance was also offered to the pretensions of York. Another obstacle to its predominance was found in the jealousy of the arch- bishops of Canterbury, who endeavoured though in vain to acquire rights of supremacy over Scotland. For a century the struggle con- tinued ; sometimes the archbishops of York made good their claim, at others their supposed rights were ignored.^" At last the popes 8 Wilkins, Concilia I, 325. Council of Windsor : . . . Svbjectionem vera Dunelmensis, hoc est, Lindisfamensis, episcopi atque omnium regionum a terminis Licifeldensis episcopi et Humhrae magni fluvii usq'ue ad extremos Scotiae fines, . . . Cantuariensis metropolitanus Eboraeensi archi- episcopo ejusque successoribus in perpetuum obtinere concessit. On these councils cf. § 84, notes 5 and 6. ' Paschal II in 1101 announces to the bishops of Scotland the translation of Gerard to the see of York : . . . Unde mandamus praecipientes, ut ei dein- ceps tanquam vestro Archiepiscopo debitam, oboedientiam exhibeatis. Haddan and Stubbs II, 167. Calixtus II, 1119, writes to the bishops of Scotland that one bishop is not to consecrate another, but that they must go to their metropolitan : . . . praecipimiis, ut nulhis deinceps in ecclesiis vestris in Episcopum, nisi a metropolitano vestro Ebor. Archiepiscopo aut ejus licentia consecretur. Porro . . . mandamus, ut . . . Turstino in Eboracensem Archiepiscopum, consecrato, . . . canonicam oboedientiam, deferatis ; sicut temporibus Gerardi . . . a . . . Paschale Papa mandatum est. Had- dan and Stubbs II, 192. Similarly Calixtus II, 1122, to king Alexander of Scotland and the Scottish bishops, I.e. II, 205 ; Innocent II, 1131, to the Scottish bishops, I.e. II, 217 ; Hadrian IV, 1155, to the same, I.e. II, 231. '■" The facts to be mentioned in connexion with the struggle are, in par- ticular, the following : Between 1072 and 1093, if we may trust the register of York, a partisan authority, Foderoch, Scotorum. episcopus in sede Sancti Andree professed subjection to the archbishop of York and his successors. Haddan and Stubbs II, 160. In 1109 Turgot, an Englishman, was consecrated bishop of St. Andrews by the archbishop of York. According to the more credible account the question whether York had a right to the primacy of Scotland or not was reserved. In conseqiience of disputes with the king Turgot could not perform his functions and had to withdraw. I.e. II, 171, 189. On the death of Turgot (1115) Alexander I of Scotland begged counsel and help from the arch- bishop of Canterbury in determining Turgot's successor, and declared at the same time that he did not account the transference to York in 1072 of archi- episcopal rights as binding. In 1120 the king begged the archbishop of Can- terbury to send him Eadmer as bishop of St. Andrews. This was done and Eadmer, after discussions as to the manner of his investiture, took possession of the see. Acting in concert with the archbishop of Canterbury, who was striving to subject Scotland to himself, Eadmer now insisted on having himself consecrated at Canterbury. Alexander's reply was to inform him . . . (se) penitus absolutum ab Ecclesia Gantuariensi, . . . seque in vita sua con- sensum non praebiturum, ut Episcopus Scotiae subderetur Pontifici Cantuari- orum. Eadmer now resigned the see conditionally and returned to Canterbury. In spite of subsequent concessions by him, Alexander did not recall him, l.c, II, 191, 196, 198, 201, 205. In 1124 (probably after Eadmer's death, 1124 ; but compare appendix XIV, II 1 c No. 81) Eodbertus (Kobert), prior of Scone, was elected bishop of St. Andrews. A synod held (1125) by the legate John of §10] CHURCH CONSTITUTION 10/ yielded to the wishes of the Scotch and pronounced, for the first, time in 1188, that the Scottish bishops were immediately subject to- the papal see." In 1225, at a synod held by the direct command of pope Honoring III, without the presence of a legate, the Scottish- bishops resolved to choose every year, as a substitute for an arch- bishop, one of their number as a conservator^ ; to him was to be assigned the calling of synods, the presidency in them and the Crema to settle the dispute between York and the Scottish bishops had no result. Not until 1128 was Eodbertus consecrated by the archbishop of York, salva querela Ebor. Ecclesiae, et salva justicia Sancti Andreae, I.e. II, 209, 211, 214, 215. In 1154 pope Anastasius IV ratified the establishment (1148) by a legate of an archbishopric in Trondhjem (Norway), having subject to it the Orkneys and the insulas Suthraie {i.e. Man and a part of the islands on the west of Scotland). To the two last mentioned sees bishops were frequently consecrated by the archbishop of York, but not without opposition, I.e. II, 229. Also, on thff resuscitation of the see of Glasgow (about 1116), the archbishop of York conse- crated the new bishop (I.e. II, 195), and for a time in the twelfth century the bishop of Glasgow acted under the archbishop of York as his superior. In IIGS^ the Scottish bishops consecrated Eichard, bishop of St. Andrews. In the treaty of Falaise confirmed at York, 117B, is the following nugatory clause : Concessit . . . rex Seotiae . . , et Barones et alii homines sui, domino Regi (of England), quod Eeclesia Seotiae talem subjectionem amodo faciei Ecclesiae Angliae, qualem illifacere debet, et solebat tevipore Regum Angliae praedeces' sorum suorum. Similiter Rieardus Episcopus St. Andreae et . . . eon-- cesserunt, quod etiam Eeclesia Anglieana illud jus habeat in Eeclesia Seotiae, quod de jure habere debet, et quod ipsi non erunt contra jus Anglicanae Ecclesiae . . . Hoc idem facient alii Episcoin et clerus Seotiae ... At the legatine council of Northampton, 1176, the Scottish bishops refused to mak» the submission to the English church required by the English king, because they had not before been subject. The archbishop of Canterbury here revived his claim to Scotland. In 1176 pope Alexander III, upon representations by the' Scottish bishops, forbade the archbishop of York tt exercise archiepiscopal powers in Scotland until final decision by the papal see, I.e. II, 236-245. In the- years 1179-1188 there was a disputed election to St. Andrews. Neither of the- candidates was consecrated at York. Ultimately the king of Scotland carried his point against Eome, I.e. II, 251 fi'. " Clement III to William, king of Scotland: . . . duximus statu- endum, ut Scotticana Eeclesia Apostolicae sedi . . . nullo mediante debeat subjaeere ; . . . Adjicimus, ut nulli de caetero qui de regno Seotiae non fuerit, nisi quern Apostolica sedes propter hoe de cor pore suo sjiecialiter destinaverit lieitum sit in eo legationis officium exereere . . . This bull was probably repeated by Celestine III in 1192, as also by other popes, e.g. ia 1208 (by Innocent III), in 1218 (by Honorius III). Haddan and Stubbs H, 273,. 274, note. For more as to these bulls see Eobertson, Councils I, 40, note. At the wish of the king of Scotland Innocent IV further laid down (1245) -^ . . . ut eaedem causae (disputed church elections) vel aliae, si quas in eodem regno oriri contigerit, aut etiam examinaciones praedietae {eleetionum), extra^ idem regnum auetoritate Sedis Apostolicae vel Legatorum ipsiiis committi non valeant. Quas si forsan ab eodem Sede extra idem regnum ex legitime causa committi contingeret, in civitate ac diocesi Eboracensi minime commit- tantur, sed committantur dumtaxat in Karleolensi vel Dunelmensi civitatibus^ ac diocesibus quae vestris partibus sunt vicinae . . . The constitutional position of Galloway, a principality lying on the southwestern border of Scot- land, was long disputed. The bishops of Whithern, in whose hands the ecclesiastical government of the province was, subjected themselves from the beginning of the twelfth to the middle of the fourteenth century to the archbifhop of York. Stubbs, Const. Hist. I, 597 c 13 § 158. Eaine, Introd. p. xxxviii to Rer. Brit. Scr. No. 61. I08 SCOTLAND [I, 2 execution of their decrees.^* At last in 1472 Scotland received the normal church constitution, St. Andrews being raised to an arch- bishopric. In 1492 a division was made and Glasgow was erected into a metropolitan see.^^ Its archbishop, however, was not placed in all respects on an equal footing with the archbishop of St. Andrews. Hence arose contentions which lasted until the reformation.'* The reformation in Scotland was developed at first in opposition to the government and under the influence of the calvinistic John Knox. The church assumed a presbyterian form : the holders of the spiritual office were presbyters, all of equal rank, and the government passed from the earlier bishops to sessions, presbyteries, synods and the general assembly. This result was not attained without struggles. The battle lasted for more than a century and falls, as in England, into two sections : 1. The struggle against Rome. The sect of the loUards had adherents in Scotland as Well as England. The rise of Luther led to an increase in the number of those whose endeavour was for reform. In 1525 an act*^ prohibited the introduction of lutheran books. James V (1513-42) supported the Romanists, and declined an invitation from Henry VIII to reconstruct the Scottish church upon the English model. The in-^ ^uence of James's second wife, Mary of Guise (m. 1537), contributed materially to keep his secular and ecclesiastical policy in unison with that of France, and many heretics were burned in his reign. During the regency of Mary of Guise in the minority of her 'daughter Mary Stuart (1542-60), the policy of Scotland, in spite of temporary deviations, was governed by hostility to England and the reformation. When Somerset in 1547 revived Henry VIII's scheme of marriage between Edward and the young queen of Scot- land, his efforts to promote in this way an union between the countries failed, although supported by force of arms. "'' The resolutions run (Wilkins, Concilia, Introduction p. 30) : — I. Quod annis singulis unus episcopus communi reliquorum consilio con- servator eligeretur, qui de concilio ad concilium sua fungeretur officio, praesertim .in concilio provinciali quotannis indicendo auctoritate conserva- toria per literas ad singulos episcopos ; quibus eos requireret quatenus die et loco praescriptis adessent in habitu decenti, una cum praelatis, id est abbatibus et majoribus prioribus suae dioecesis ; nee non cum capitulorumjCollegiorum, et conventuum procuratoribus idoneis, decanis, et archidiaconis . . . II. Quod idem conservator pro tempore concilio praesideret, materias tractandas proponeret, suffragia colligeret, cum maiori et saniori parte patrum, conduderet, et decretum interponeret . . . ///. Qtiod idem conservator pro tempore manifestos ac notorios eitisdem concilii seu alicuius statuti in eodem violatores puniret . . . " Wilkins, Introduction 31. Acta Sanctae Sedis (1878), vol. XI p. 14. The IbuUs are printed in Eobertson, Counc. 1, 110, note 1 ; 122, note 1 ; 123, note 1. The detachment of the province of Glasgow by the pope was a consequence of i-esolutions of the Scottish parliament. '■* For details see Eobertson, Counc. I, 122 fif. '* No. 4 {Acta Pari. II, 295). §10] THE STRUGGLE AGAINST ROME T09 Jolin Knox had in 1547 been sent in the galleys to France. Re- gaining his freedom, he spent some years in England and on the continent of Europe. In 1555, a period of comparative toleration in Scotland allowed him to return there, and to spend some nine months in his native land, preaching and propagating his views.^^* The first covenant'^'' was signed on the 3rd of December, 1557, by Argyll and other nobles and gentry ' to maintain, set forward and establish the most blessed word of God and His congregation.' The prosecution of a number of protestant preachers before the royal court at Stirling for unlicensed exercise of priestly functions, and their condemnation, per contumaciam^ as .rebels, caused a general outbreak of the reformers. First at Perth under the guidance of Knox,^^" afterwards almost all over the country ' the monuments of idolatry ' were destroyed and the monks driven away (1559). After a short struggle a compromise was agreed to. But the queen regent called in French troops, and refused the demand of the protestant nobility that they should be dismissed. Upon this actual war broke out. At first the protestant nobles, secretly supported by Elizabeth,, were at a disadvantage ; but when the English queen had openly allied herself with them by the treaty of Berwick, the French were defeated. Upon the death of the queen regent (1560) the war between England and the Scottish government was practically ended by the peace of Edinburgh (1560), although the treaty was- never ratified by Mary Stuart.^* The Scottish parliament which then met approved almost , without any dissent a protestant con- fession of faith, declared papal jurisdiction abolished, repealed the laws which obstructed the reformation, and forbade under penalties- the celebration of mass or of baptism in the papal form.^' '^" At one of his ministrations (Easter 1556) those present band thame selfis,. to the uttermost of tliare poweris, to manteam the trew preaching of the Evangell of Jesus Christ, as God should offer unto thame preacheris and opportunitie. Knox, Hist, of Reform,. Ed. Laing I, 251. On the authority of this passage it has heen asserted, that there perhaps was a formal hond re- sembling later covenants. 15b Tjje document is printed in Knox, I.e. I, 273. '^= Knox reached Edinburgh on his return from Geneva, May 2nd, 1559. "* In the draft of the treaty there was nothing laid down as to the exercise= of religion. " Acta Pari. II, 526-35. No. 1 of 17th August, Nos. 2-4 of. 24th August. No. 1 ratifies a confession of faith, quoted verbatim,. No. 2 : ... that the bischope of Rome haif na Jurisdictioun nor autoritie within this realme in tymes cum,ing And that nane of oure saides soveranis subiectis of this realm,e sute or desire in ony tyme heireftir title or rycht be the said bischope of Rome or his sait to ony thing tvithin this realme under the panis of barratry e 'That is to say proscriptioun banischement and nevir to bruke honour office nor dignitie within this realme. . . . No. 3 repeals older laws which would have prevented reformation. No. 4 : . . . that na maner of persone or personis in ony tymes cuming administrat ony of the sacramentes foirsaides [baptism and the eucharistj secreitlie or in ony uther maner of way bot thai that ar admittit and havand power to that effecte and that na maner of person nor personis say messe nor yit heir messe nor be present thairat under the pane of confiscatioun of all tliair gudes movable and unmovable and pun^issing of thair bodeis at the: discretioun of the magistrat, ... no SCOTLAND [1, 2 Mary Stuart repaired (1561) on tlie death of her husband Francis II ■of France (1560) to Scotland, and assumed her royal powers. Her favour was extended in the earliest years of her rule to the protes- tants, negotiations with Elizabeth being in progress with the object of securing the explicit recognition of Mary as heir to the English crown. When, however, these negotiations broke down, Mary allied herself with pope Pius V and Philip of Spain to suppress protestantism in Scotland and to urge her claims to the throne •of England.^^ A series of insurrections now ensued in Scotland, induced by political rather than religious causes. In the course of these disorders the act of April the 19th, 1667, again declared the ■old laws, temporal or ecclesiastical, which stood in the way of the reformation annulled, and secured the professors of the reformed faith irom prosecution for their religious belief.^' Mary was compelled, \>y a deed signed the 24th of July, 1567, to abdicate in favour of her son, James VI (born 1566). The acts of the 20th of December, 1567, now confirmed those" of 1560, including the confession of faith, .acknowledged the reformed church as the one true church in Scot- land, embodied in the coronation oath a pledge to maintain it, excluded the papists from public ofi&ces except those conferred for life, or those hereditary, and bestowed on the authorities of the •church certain rights of jurisdiction in matters of belief or morality.^" '^ Compare § 6, nr. note 52. '' 1567 Mariae No. 2 {Acta Pari. II, 548) : . . . Our said Soverane with the awyse of the haill thre estaites of this parliament, hes thocht neidfull and convenient To dispense case abrogat and annull like as Mr Majestic presentlie dispenses eases atrogattis and annulUs all and quhatsumevir lawis aetis and constitutionis Canone civile or municipale with all uther constitutionis and practik penale Introducit contrar to the foirsaid Beligioun and professoures ■of the, samyne. . . . 2» 1567 Jac. VI {Acta Pari. Ill, 14 ff.). No. 3 Anent the abolissing of the Pape, and his usurpite authorite, confirms the act No. 2 of 1560. No. 4 Anent the annulling of the actis of Parliament, maid againis Goddis word, and maintenance of Idolatrie in ony tymes bypast, confirms act No. 3 of 1560 and the confession of faith of 1560 (No. 1). No. 5 An£nt the Messe abolischit, and punisching of all that heiris, or sayis the samin, confirms act No. 4 of 1660. No. 6 Anent the trew, and holy Kirk, and of thame that ar declarit not to he of the samin . . . the foirsaid Kirk, is declared to be, the onlie trew, and haly Kirk of Jesus Christ within this Realme. . . . Those who speak against the received confession of faith or refuse to partake of the sacra- ments as they are administered in the reformed church, are decreed to be na ■memheris of the said Kirk . . . swa long as thay keip thame selfis sa deuyditfra the societie ofChristis body. No. 7 Anent the admissioun of thame, that salbe presentit to benefices, hauand cure of ministerie. The right of patronage is maintained; the super- intendent or in the last resort the general assembly to decide as to the admis- •eibility of the presentee. No. 8 Armnt the Kingis aith, to be geuin at his Coronatioun. The corona- -tion oath, the substance of which is given; contains a promise to maintain religion as then received. No. 9 Anent thame that'sould heir piiblict office heirefter. Only professors of the reforrded faith may be admitted to offices from which they are removable at will, to the office of notary or to that of a member of Court. § 10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS III Mary, assisted especially by the Roman catholic party, again essayed to seize the reins of government ; but the attempt miscarried and she fled to England (1568) in the hope of gaining Elizabeth's sup- port against the Scotch. James VI was brought up in the reformed faith. After many disorders during successive regencies, in 1578, whilst still a minor, he resolved to govern for himself. The legisla- tion of 1578 and the following years confirmed the earlier enact- ments in favour of the reformed church.^^ 2. Struggle between the presbyterians and the protestant bishops. In the year 1572 a mixed commission, to which a presbyterian assembly and the civil government sent deputies, had resolved that archbishoprics and bishoprics, vacant or becoming vacant, should be filled by protestant ministers, nominated by the govern- ment and elected by the chapters, the right of confirmation being reserved to the king ; but the prelates so appointed were to be subject to the general assembly, and only to have the right of the previous superintendents.^^ Although Knox (who died later in the No. 10 confirms an act of 1561 whereby one-third of the incomes of the bene- fices are to go to the ministers, the rest to the use of the king. No. 11. None are to have charge or cure in schools, colleges or universities except such as have been tried by the superintendents or visitors of the church. No. 12 Armnt the iurisdictioun of the Kirk : . . . The Kingis grace, with avise of . . . grantit iurisdictioun to the said Kirk, quhilk consistis amjd standis in preicheing of the trew word of Jesus Christ, correctioun of maneris, and administratioun of holy Sacramentis . . . And that thair be na uther iurisdictioun ecdesiasticall acknawlegeit within this Bealme, uther than that quhilk is, and salbe within the same Kirk, or that quhilk flowis thairfra concerning the premissis. . . , Whether further provisions are to be made in respect to jurisdiction, is to depend on the report of a royal commission. " No. 3 of 1578. Acta Pari. Ill, 95. Nos. 6 and 7 of 1579 repeat the pro- visions of Nos. 6 and 12 of 1567, with inconsiderable alterations. Acta Pari. HI, 137. No. 1 of 1581 enumerates and confirms the laws in favour of the reformed church. Acta Pari. Ill, 210. No. 2 of 1587 confirms again (upon the king's majority) the laws with regard to the freedom of the church. Nos. 3 and 4 contain penal enactments against the Jesuits and seminary priests and against those who spread popish books. Acta Pari. Ill, 429 f . ^^ The resolutions of the commission, ratified by the regent on 1st Feb. 1572, are printed in Acts and proceedings of Gen. Assembly, publications of the Bannatyne Club, I, 208 ff. They relate to the constitution of archbishoprics, fcishopriijs, chapters, collegiate churches, and the non-filling of monastic offices which become vacant. The first and fundamental article runs : — Anent Archebishoprikkis and Bischoprikkis. It is thocht, in consideratioun of the present state, That the names and titillis of Archebischoppis and Bischoppis are not to be alterit or innouat, nor yit the boundes of the Dioceis confoundit; bot to stand and continew in tyme cnming, as thay did befoir the reformatioun of religioun; at leist, to the Kingis Majesties maioritie, or consent of Parliament. That personis promovit to Archebischoprikkis and Bischoprikkis be, safar as may be, indewed with the qualiteis specif eit in the Epistlis of Paule to Timothe and Tytus. 112 SCOTLAND [1,3 year) supported tlie resolutions of tlie mixed commission in a letter addressed to the general assembly,^^ the zealous presbyterians raised immediate opposition to their execution. The general assembly- only accepted them as temporary, and desired above all the aboli- tion of the titles borrowed from prereformation times. Nevertheless, the government proceeded to give eflfect to the resolutions. But the general assembly of April, 1678, forbade chapters until its next meeting to make any election to bishoprics which might become vacant, and the next assembly of June, 1678, rendered the injunction, perpetual. The assembly of 1580 voted the immediate abolition of the episcopal office. Resolutions in 1678 and 1681 furthermore adopted the ' second book of discipline ' as the foundation of church polity. In this treatise the assumption by the sovereign of the title ' head of the church ' is denounced ; moreover, it is laid down that in ecclesiastical matters the person of the civil magistrate is subject to the spiritual authorities, and that it is not admissible, as a general rule, to combine temporal and spiritual power in one person.^* All these resolutions were ignored by the government and a new bishop was appointed. Upon this issue a quarrel arose between the king and the church. The raid' of Ruthven placed the presbyterians for That fhair be a certane assembly or cheptoure of learnit ministeris annext t» every Metrapolitan or Cathedrall seatt. To all Archebischoprikkis and Bischoprikkis vacand or that sail happin tO' vaik heirefter, personis qualifeit to be nominat within the space of yeir and day eftir the vacance ; and the personis nominat, to be 30 yeirs of age at the leist. The Deane, or failyeing the Deane,the nixt in dignitie of the Cheptoure^ during the tyme of the vacance, salbe Vicar generall and use the jurisdictioun in spiritualibus as the Bischop m,ycht have usit. All Bischoppis and Archebischoppis to be admittit heirefter, sail exerce na farther iurisdictioun in spirituall functioun nor the superintendetdis hes and presently exerces, quhill the same be agreit upoun ; and that all Archebischop- pes and Bischoppis be subiect to the Kirk aiid Generall Assembly thairof in spiritualibus, as thay ar to the King in temporalibus ; and haif the advise of the best learnit of the Cheptoure, to the nowmer of sex at the leist, in the admissioun of sic as sail have spirituall functioun in the Kirk ; as alsua that it be lauchfull to als many utheris of the Cheptoure as plesis, to be present at the said adm,issioun, and to voit thairanent. The general assembly of August, 1572, framed a protest to the effect that they regarded the rules of the mixed commission as for an interim only ; at the same, time it expressed a wish that the titles of archbishop, dean, archdeacon, chancellor and chapter, in particular, should be changed (I.e. I, 246). The presbyterians dispute that the assembly of Leith, January, 1572, which sent members to the commission, was a regularly isummoned general assembly. Compare Hetherington, Hist, of Church of Scotland I, 138 ff. — Banke, Engl. Geschichte Brd Ed. II, 6 asserts that the resolutions were confirmed by parlia- ment in January, 1573. But no such confirmation is discoverable, in the ylcte Parliamentorum. ^^ The letter is printed in Acts and proceedings of Gen. Assembly, I.e. I, 248. ^^ c 1 No. 6 : It is a title falslie usurpit be Antichrist,to call himself e heid of the Kirk, . . . No. 9 : Notwithstanding, as the ministeris and uthers of the ecclesiasticall estait ar subject to the magistral civill, so aucht the person of the magistral be subject to the Kirk spirittudly, and in ecclesiasticall govern- inerd. And the exercise of both these jurisdictiones cannot stand in one person ordinarlie . . . § 10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS 113 ,a time in the ascendency. When, however, the former government was restored, the acts of May, 1584, declared the king supreme over all persons, spiritual as well as temporal, and made the holding of all assemblies dependent on his consent ; every attack on the prelates as a part of parliament was pronounced to be treason ; and on the bishops was bestowed the right of exercising powers of visitation and disciplinary powers within their dioceses and of receiving, along with other commissioners, all presentations to benefices.^^ As against the Roman catholics, the church again summed up its doctrines in a solemn confession of faith, which was signed by the king (1581). This confession of faith was likewise designated a covenant. When the Spanish invasion was impending, James and Elizabeth concluded the league of Berwick (1586) for the defence of the religion practised in England and Scotland against every assailant.^* " Acts of 22nd May, 1584 {Acta Pari. II [, 292 ff.) : — No. 2 : . . . our soverane lord and his thrie estatis assemhlit in this present Parliament ratefeis and apprevis and perpetuallie conflrmis the royaU power and auctoritie over all statis alsweill spirituall as temporall within this realme . . . And . . . That his hienes, his said aris and successouris be thame selffis and thair counselUs ar and in tyme to cum salbe Juges com,petent to all personis his hienes subiectis of quhatsuTnevir estate degrie, functioun, or conditioun that ever they be of, spirituall or temporall, In all materis quahai- rin they or ony of thame salbe apprehendit, summound or chargeit to ansver to sic thingis as salbe iiiquirit of thame be our said soverane lord and his counsell ; . . . None shall decline the royal judgment under pain of treason. No. 3. None shall impugn the dignity and authority of the three estates of parliament under pain of treason. [The hishops are thus secured.] No. 4 : , . . our soverane Lord and his thrie estatis assemblit in this present parliament dischargeis all Jugemerdis and Jurisdietionis spirituall or tem- porall accustomat to' be usit and execute upoun ony of his hienes subiectis, quhilkes ar not approvit be hi^ [hienes and his saidis thrie] estatis [convenit] in Parliam,ent, and be allowit and ratefeit be thame ; . . . And . . . That nane of his hienes subiectis of quhatsumever qualitie, estate or functioun they be of, spirituall or tem,porall presume or tak upoun hand to convocat, convene or assemble thame selffis togidder for halding of counselUs, conventionis or assembleis To treat, consult and determinat in ony m,ater of estate, civill or ecclesiasticall {except in the ordinare Jugem-entis) without his maiesties speciall commandemeni, expres licence had and obtenit to that effect, under the panis ordinit be the lawis and actis of Parliament aganis sic as unlawfullie convo- catis the Kingis liegeis. No. 20 : . . . That pdtrik Archiebischop of sanctandrois and utheris the hishopis . . . with sic utheris as salbe constitute the Kingis maiesties Comm,issionaris in Ecclesiasticall causes Sail and m,ay direct And put ardour to all materis and causes ecclesiasticall within thair dioceises viset the Kirkis and state of the m,inisterie within the same, Seforme the collegeis thairin, Besave his hienes presentationis to benefices . . . And that na presenta- tionis to benefices be directit in tyme cuming to ony utheris ; And that com.- missionis be extendit particularlie heirupoun in sik maner as his hienes and \his\ previe counsell sail think expedient . . . An act of 22nd Aug. 1584 No. 2 {Acta Pari. Ill, 347) required of the clergy, under penalty of deprivation, a declaration they would be obedient to the bishop or commissioner appointed by the king and would observe the laws of the last parliament. ^° Printed in Eymer, Foedera 3rd Ed. VI pt. IV p. 185. The fundamental pro- visions of the treaty run : — Primum, Conventum concordatum et conclusum, est, quod iidem Principes H. C. I 114 SCOTLAND [1.2 As a consequence of common effort in repelling the Roman catholic attack, the king and the zealous presbyterians were drawn nearer together. Thus in 1592 an act was passed embodying a compro- mise. Meetings of the general assembly and of the minor church assemblies were permitted and their jurisdiction acknowledged within certain limits ; the king or his commissioner was to summon the general assembly, but this at least once a year ; the episcopal constitution was, indeed, retained, but the rights given to the bishops by the act of 1584 were withdrawn.^'' The general assembly at de vera pura et evangelica, quani nunc profitentur, Beligione, adcersus quoscunque alios qui, ejusdem Seligionis evertendae causa, contra alterutrum eoruni quicquam molientur attentabunt velfacient, tuenda et conservanda, hoc speciali et sacrosancto Foedere cavebunt, ac omm quo poterunt studio sedulo conabuntur et operam dabunt, ut reliqui Principes, qui eandem veram colunt Religionem, una cum illis in hoc tarn sanctum Propositum et Foedus conveni- ant, junctisque Viribus verum, Dei Cidtum, in suis Ditionibus conservent, ac sub dicta antiqua et apostolica Beligione suum Populum tueantur et regant. Item, Conventum concordatum et conclusum est, quod hoc speciale Foedus pro tuenda et retinenda Christiana et Catholica Beligione, quae hoc tempore ab utroque Principe servatur, ac in Begnis et Ditionibus earundem Divino Favore colitur et fovetur, sic et Defensionis et Offensionis Foedus contra quoscunque, qui liberum ejus exercitium, in eorum Begnis et Dominiis impe- dient sett quo vis Tnodo im,pedire conabuntur, non obstantibus quibuscunque Tractatibus Amicitiarum Foederibus Confoederationibus, inter alterutrum eorum', ac ejusdem Beligionis Infestatores seu Adversaries quoscunque prius " No. 8 of 1592 {Acta Pari. Ill, 541) :— The earlier laws in favour of the reformed church are confirmed, especially No. 1 of 1581 (of. above, note 21) and the acts cited therein. The present act ratifies and apprevis the generall Assemblies appoyntit be the said kirk And declaris that it salbe lauchfull to the kirk and ministrie, everilk yeir at the leist, and ofter pro re nata as occasiovin and necessitie sail require To hold and keip generall assemblies Providing that the kingis Maiestie or his com- missioner with thame to be appoyntit be his hienes be present at ilk generall assemblie befoir the dissolving thair of Nominal and appoint tyme and place quhen and quhair the nixt generall assemblie salbe haldin. And in caise nather his Maiestie nor his said commissioner beis present for the tyme in that toun quhair the said generall assemblie beis haldin That and in that caise It salbe lesum to the said generall assemblie be thame selffes To nominal and appoynt tyme and place quhair the nixt generall assemblie of the kirk salbe keipit and haldin as they haif bene in use to do thir tymes by past. And als ratifies and apprevis the sinodall and provineiall assemblies To be lialdin be the said kirk and ministrie twyise ilk yeir as thay haif bene and ar presentlie in use to do within every province of this realme And ratifies and apprevis the presbiteries and particulare sessionis appointit be the said kirk with the haill iuris- dietioun and discipline, of the same kirk aggreit upoun be his Maiestie in conference had be his hienes with certane of the ministrie convenit to that effect. Off the quhilkes articles the tennour followis : . . . The general assembly •_ . _ • hes power to handle ordour and redress all thingis omittit or done amiss in the particulare assemblies. It hes power to depose the offke beraris of that province for gude and iust causes deserving deprivatioun. ... A number of old acts, favourable to the Eomish church, are repealed. No. 2 of 1584 (cf. above, note 25) is thus explained : it stall na wayes be preiu- dicall nor dirogat any thing to the privilege that god hes gevin to the spirituall office beraris in the kirk concerning heades of religioun, materis of heresie, excommunicatioun, collatioun, or deprivatioun of ministeris or any sic essen- tiall censoures speciali groundit and havand warrand of the word of god. The act of 1584 No. 20 (of. above, note 26) is repealed. In place thereof it is §10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS II5 Perth (1597), and the following one at Dundee (1597), granted the king many additional powers of church government.^^ An act of December, 1597, ordained that preachers and ministers only should be promoted to bishoprics, confirmed the right of the bishops to take part in the deliberations of parliament, and left the closer deter- mination of episcopal rights to be agreed between the king and the general assembly.^® enacted : ... all presentationis to benefices To be direct to the particular presbiteries in all tyme cuming with full power -to thame to giff collatianis thairupoun and to put ardour to all materis aiid causes ecclesiasticall within thair boundis according to the discipline of the kirk, Providing the foirsaidis presbiteries be bund and astrictit to ressdve and admitt quhatsumevir qualifiet Ttiinister presentit be his Maiestie or uther laic patrounes. ^* The resolutions of 4th March, 1597, of the general assembly at Perth are printed in Acts and Proceedings, I.e. Ill, 895. The most important as to church constitution run : — 1. That it is laufull to his Majestie, be hiniselfe, or his Hienes Com- ■missioners, or to the Pastours, to propone in a Generall AssenMie, quhatsoevir poynt his Majestie or they desyres to be vesolvit or to be reformit in matters of externall goverment, alterable according to circumstances ; provyding it be done in right tyms and place, animo edificandi, non tentandi. 9. No Conventiouns sould be among the Pa.ftours without his Majesties knowledge and consent, except alwayes thair Sessiouns, Presbitries, and Synods, thair msitings in visitatioun of kirks, admissioun and deprivatioun of Ministers, taking up of feids, and sick uthers as hes not bein found fault be his Majestie. 10. In all principall townes. Ministers soidd not be chosin without the consent of thair awin flock and his Majestie, The most important of the Dundee resolutions (14th May, 1597) run {Acts and Proceedings, I.e. Ill, 925) : — First, Anent the propositioun movit be his Majestie to the Assemblie,-craving that befor the conclusioun of any weghtie matters concerning the estate of his Hienes or of his subiects, his Majesties advyce ami approbatioun be cravit therto, that the same being approvit be his Majestie, may have the better executioun, and, if neid beis, be authorizit be his Hienes lawis : The Assemblie craves most humblie, that his Majestie, either be himself e or his Hienes Com,- ■missioners, in m,atters concerning his Majesties estate, or the haill estate of his subiects, and uthers of great wecht and importance, that hes not bein treattit of before, wald give his advyce and approbatioun therto, before anyfinall con- clusioun of the same : and, for the better obedience to be given to such lyke statutes in all tyme comeing, that his Majestie wald ratifle the same, either be act of his Hienes Parliament, or Secreit Counsell, as salbe thocht neidfull : The quhilk his Majestie promised to doe, according to his Hienes proposi^ tiou-ii, quhilk was acceptit and allowit of the haill Assemblie. ^^ Act of 16th Dec. 1597 No. 2 {Acta Pari. IV, 130) :— . . . that the kirk within this realme, quhairin the samin religioun is professit, is the trew and halie kirk ; and that sik pasturis and ministeris within the samin as at ony tyme his maiestie sail pleis to provyid to the office place title and dignitie of ane bischoip abbott or uther prelat sail at all tyme heirefter haifvoitt in parliament Siclyk and als frelie as ony uther ecclesias- ticall prelat had at ony tyme bigane, And als' declaris, that all and quhatsum- evir bishopreis presentlie vacand in his hienes handis, quhilkis as yit ar undisponit to 07iy persone,or quhilkis salhappin at ony_ tyme li^irefter to waik, salbe onlie disponit be his maiestie to actuell prechearis and ministeris in the kirk or to sik utheris personis as salbe fundin apte and qualifeit to use and exerceis the offlce andfunctioun of ane minister or precheour, and quha in thair provi. Act of 9th July, 1606 No. 2 {Acta Pari. IV, 281). »* Acts and Proceedings of Gen. Assembly, I.e. Ill, 1027, 1029, 1039. The general assembly appended a number of restrictions. The bishops were to have as psrpetual moderators no greater rights than their predecessors, and weteonly to act with the assent of the assembly. The right of disciplinary proceedings against the moderators .of the presbyteries was to belong to the provincial assemblies, against the moderators of provincial assemblies, to the general assembly. ^2 Compare § 30, note 5. •''3 The resolutions are printed in Acts and Proceedings of the Gen. Assembly, I.e. Ill, 1095. The most important of the motions adopted are:— . . . ther salbe yeirlie Generall Assemblies, the indictioun quherof the Assembly acknowledges to appertaine to his Majestie be the prerogative of his royall crowne ; . . . . . . that the Bischops salbe Moderatours in every Diocesian Synod, . . . . . . that no sentence of excommunicatioun, or absolutioun therfra, be pronouncit . . . without the knowledge and approbation of the Bischop of the Dyoeie, . . . §10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS II7 year the English bishops consecrated three Scottish bishops, thus doing away with the presbyterial character of the Scottish church constitution in the last decisive point. An act of 1612 confirmed the resolutions of the general assembly of 1610 with certain alterations favourable to the episcopal party, the regulations as to the depriving of a bishop being, in particular, omitted.^* Now followed, when Spottiswood, one of the bishops consecrated in England, had become archbishop of St. Andrews (1615), the attack on presbyterian doctrine and the form of worship connected therewith, The general assembly of Aberdeen (1616) adopted a new confession of faith ^^ and gave a commission for the drawing up of a book of common prayer for Scotland.^® In 1618 the irregularly con- stituted general assembly of Perth, under pressure from the king and with opposition from the presbyterian party, approved five articles in which kneeling at the communion, confirmation by the bishop and the observance of high holidays are prescribed, whilst the private reception of the eucharist and, in case of need, baptism in private, are declared permissible.^'' The five articles of Perth were confirmed in 1621 by an act of parliament.^* Long discussions ensued as to the liturgy to be introduced, James I and Charles I alike advocating the simple adoption of the English book of common prayer. Ultimately a special prayer-book for Scotland was pre- pared, but the resistance anticipated led to repeated delays in introducing it. When, however, the acceptance of the English thirty- nine articles in Ireland had been carried (1634), Charles I, ... . that all presentatiouns be direct heirafter to the Bischop ; . . . the Bischop) is to requyre the Ministers of these bounds quher he is to serve, to certifle . . . his conversatioun past, and abilitie, and qualiflcatioun for the functioun ; . . . the Bischop is to take farther try all ; and finding him qualified, and being assisted be such of the Ministrie of the bounds quher he is to serve, as he toill assume to himselfe, he is then to perfyte the haill act of ordinatioun. . . . in depositioun of Ministers, the Bischop associating to himselfe the Ministrie of these bounds . . . is . . . to depryve him. . . . that everie Minister, in his admissioun, sail sweare obedience to his Majestic, and his Ordinar . . . (rorm of oath according to the resolutions of the mixed commission of 1572). . . . the visitatioun of ilk dyocie is to be done be the Bischop him,selfe ; and if the bounds salbe greater then he can overtake, he is . . . to appoint some worthie man to be visitour in his place ; . . . . . . the Bishops salbe subiect, in all things concerning thair lyfe, conversatioun, office, and benefice, to the censures of the GenercM Assemblie ; and being found culpable, with his Majesties advyce and consent, to be deprivit . . . '* Acts of 1612 No. 1 (Acta Pari. IV, 469). At the following general assem- blies of 1616 and 1618 the archbishop of St. Andrews, contrary to usage, ' stepped into the moderator's place without election.' Acts and Proc. of Gen. Ass. I.e. Ill, 1116, 1144, 1145. '^ Printed in Acts and Proceedings of Gen. Ass. I.e. Ill, 1132. ^' Acts and Proceedings, I.e. Ill, 1128. Compare also the addition made by the archbishop of St. Andrews to a commission issued by the general assembly in regard to another matter ; I.e. Ill, 1132. ^' Printed in Acts and Proceedings, I.e. Ill, 1165. ^8 Acts of 1621 No. 1 (Acta Pari. IV", 598). Il8 SCOTLAND [1,2 advised by Laud, determined to proceed in Scotland without further delay. In that country the king's right to issue ecclesiastical ordinances without the consent of the general assembly or of parlia- ment had never been conceded. Nevertheless, Charles on his own authority published canons for Scotland by letters patent of May 23rd, 1635. In these canons it was laid down that to impugn the king's supremacy in causes ecclesiastical was an offence punish- able with excommunication ; that national or general assemblies were to be called only by the king's authority ; that the holding of private meetings by presbyters or others to expound the Scripture or to discuss ecclesiastical matters was not allowable ; and that for the future no person should be admitted to holy orders or to the per- formance of any ecclesiastical function without first subscribing the canons.^^ Furthermore the king, likewise upon his own authority, ordered the introduction of the newly elaborated Scotch liturgy at Easter, 1637.^o The first attempt to introduce this liturgy in Edinburgh led to a popular outbreak. Further revolutionary proceedings followed. On the 28th of February, or the 1st of March, 1638, the chiefs of the presbyterian party solemnly bound themselves together to defend their religion against all errors and corruptions. The document drawn up, ' the great covenant,' was signed all over the land.*^ The king still believed that a partial retreat would leave him able to achieve something. Accordingly, he revoked the canons he had issued, suspended the introduction of the liturgy and called a general assembly. But this was no longer enough to content the presbyterians. The assembly having met addressed itself to the task of calling the bishops to account. The king now dissolved it. The assembly decided not to obey the order, and by its resolution of December the 4th, 1638, declared all general assemblies from the year 1606 to have been ' unfree, unlawful and nuU.'^^ Open war '" Compare Collier, Eccles. Hist. VIII, 96 ff. *" The order (20th Dec. 1636) is printed in Stevenson, Hist, of the Church etc. 16B. *' The ' great covenant ' consists of three parts: 1. The confession of faith of 1581, in which Romish doctrines were repudiated, is repeated. 2. The acts of parliament condemning popery and supporting the reformed church are enumerated. The high commission is imputed to be illegal. 3. The confession of faith of 1581 and the laws mentioned are to be interpreted as referring to the innovations of recent times ; accordingly, the subscribers bound themselves to- stand together in defence of the true religion and of the royal authority against all assailants. ^^ Eesolution of 4th December, 1638 {Acts of Gen. Assembly p. 5) : Anent the report of the committie for trying the six last pretended Assemblies, they pro- duced in writ sundrie reasons clearing the unlawfulnesse and nulUtie of these Assemblies, . . . The Assembly . . . declared all these six Assemblies of Linlithgow, 1606 and 1608, Glasgow, 1610, Aberdeen, 1616, St. Andrews, 1617, Perth, 1618; and every one of them, to have been from the beginning unfree, unlawful!, and null Assemblies, and never to have had, nor hereafter to have, any Ecclesiasticall authoritie, and their conclusions to have been and to bee of no force, vigour, nor efflcacie ; prohibited all defence and observance of tliem, and ordained the reasons of their nullitie to be insert in the books of the Assembly; . . . §10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS II9 soon_ broke out. But before a decisive battle was struck, the hostile parties concluded the pacification of Berwick. By the treaty the king even conceded for the present the abolition of episcopacy. New disputes, however, presently arose. The king armed against Scotland. To anticipate him, the Scots in 1640, acting in concert with a part of the English opposition, invaded England, and during the further progress of the revolution presbyterianism was not only triumphant in Scotland, but dominant for a time in England also. After the execution of Charles I, his son was proclaimed king in Scotland, and the Scottish parliament entered into negotiations with the prince. A rising which aimed at the unconditional recognition of the young sovereign was suppressed by the parliamentary forces (1660). Charles now accepted the presbyterian conditions, consent- ing in particular to subscribe the covenant.*^ But the victory of Cromwell over the Scots at Worcester (3rd September, 16B1) com- pelled him to take refuge in France.''* An ordinance of Cromwell dated April the 12th, 1654, declared Scotland to be one common- wealth with England,*^ and Scottish deputies attended the parlia- ment in London. Af t,er the restoration episcopal government as it had existed before the revolution was again introduced by law.*** Moreover, an act of 1669 confirmed the right claimed by the last kings of issuing ordinances for the external government of the church, it being held that such right was implied by the supremacy.*'' In an act of 1681 *^ After the restoration Cliarles II in his declaration of October 25th, 1660 (cf. as to this declaration § 7, note 66 ; it is printed in Cardwell, Bocum. Annals II, 238) states that he had not expected to be reminded of his earlier promises made in Scotland under duress. ** The general assembly was dispersed, 20th July, 16B3, by Cromwell's orders ; a proposed meeting in July, 1654, was likewise forcibly prevented. The general assembly was next summoned by "William and Mary, Oct. 1690 (Acts of Gen. Ass. pp. 220 ff.). ^^ Scobeli, Collection of Acts and Ordinances. The ordinance in question was confirmed by act of parliament, 1656 c 10. At the restoration, the temporary union of parliaments ceased. '^ The act of 1661 No. 46 (Acta Pari. VII, 30) repealed the ordinances of the parliament which met in 1649, the act of 1661 No. 126 (Acta Pari. VII, 86) repealed the acts and ordinances of the parliaments of 1640, 1641, 1644, 1645, 1646, 1647, 1648. Trom 1638 to 1640 there had been no acts passed. The acts of 1661 No. 22 {Acta Pari. VII, 18) declared the covenant of 1638 and all obligations based thereon abolished, and forbade the renewal of the covenant without the king's express authority.— Commission of Charles II, under date 12th Dec. 1661, instructing the English bishops to consecrate bishops for Scotland, in Wilkins, Concilia IV, 573. The prayer-book of 1637 was not again introduced. — After final recognition of the presbyterian system under William III, the Scottish adherents of the epis- copal church adopted the use of the English prayer-book. For the communion service, however, the form retained was that of the Scotch prayer-book of 1637. By a resolution of the synod of 1811 the English communion service became admissible as an option ; its use is the regular rule under the canons of 1863, although the congregations are left free to use the Scotch form if they prefer it. Procter, Hist, of Prayer Book c 5 Appeiidix. " Act of 1669 No. 2 {Acta Pari. VII, 554) : . . . asserted and declared . . . that his Maiestie hath the Supream Authority and Supremacie over all 120 SCOTLAND [1, 2 it was laid down that succession to the crown was independent of any confession of faith.** James II did not take the prescribed coronation oath. After the landing of "William of Orange the Scottish bishops expressly declared against him, whereas the English bishops avoided doing so. In Scotland, therefore, the revolution was directed also against the bishops. Scotland having been denuded of troops to repel William's attack, at the end of 1688 and the beginning of 1689 the clergy of the episcopal party were driven from a great part of the country. The government was entirely disorganized. A claim was now laid before the conqueror on the part of the Scottish estates setting forth that prelacy, as being contrary to the inclinations of the people generally, ought to be abolished,*" and the abolition was effected by statute in 1689.^" An act of 1690 restored the presbyterian clergy expelled since the 1st of January, 1661, to their churches, manses and glebes, whilst it forbade the episcopalians who had supplanted them to continue the ministry of the parishes ;^^ in the same year the Westminster confession of faith was approved and the presbyterian form of church government established.*^ An persons and in all causes ecdesiasticall within this Kingdom ; And that be vertew therof the ordering and disposall of the Externall Government and policie of the Church Doth propperlie belong to his Maiestie and his Succes- sours As ane inherent right to the Croun; And that his Maiestie and his Successours inay setle enact, and emit such constitutions, acts dnd orders, concerning the administration of the externall Government of the Church, and the persons imployed in the satne, And concerning all ecdesiasticall meitings and maters to be proposed and determ,ined therin. As they in their RoyaU wisdome shall think fit. Which acts orders and constitutions being recorded in the books of Councill and dewly published Are to be observed and obeyed be all his Maiesties Subiects, Any latv, act or custome to the contrary notwith- standing . . . ^8 Act of 1681 No. 2 (Acta Pari. VIII, 238). ■«' Claim of right of 11th April, 1689 (Acta Pari. IX, 38ff.).— A new form of the coronation oath was established on 18th April. 1689 (Acta Pari. IX, 48). 5» Act of 22nclJuly, 1689 No. 4(J[cta Par?. IX, 104): . . . the King and Queens Majesties with advyce and consent of the Estates of Parliament, doe hereby abolish prelacie and all superioritie of any office in the church in this Kingdome aboiie presbyters . . . 51 They were allowed, however, half the income of the year preceding. Acts of 1690 No. 2 (Acta Pari. IX, 111)^ ^' Act of 1690 No. 7 Act Ratifying the Covfession of 'Faith and settleing Presbyterian Church Government, the Revolution /Settlement (Acta Pari. IX, 133). All laws against the papists and in favour of the reformed church are revived. . . . they by these presents Ratify and establish the Confession of faith (i.e. the confession of Westminster ; cf. § 16, note 21) . . . As also. They doe establish Ratifie and confirm,e the presbyterian Church Government and discipline That is to say the Government of the Church by Kirke sessions, presbyteries, provinciall synods and Generall assemblies ratified and estab' lished by the 114 Act Jac. VI pari. 12 anno 1B92 JEntituled, Ratification of the Liberty of the true Kirke (identical with the act of 1B92 No. 8; cf. above, note 27) . . . Confirmeing the for said act . . . except that part of it, relate- ing to patronages . . . Rescinding, Annulling and mackeing voyd . . . (acts severally specified) . . . with all other Acts Lawes statutes ordinances and proclamationes And that in svafar allennerly as the saids Acts . . . are contrary or prejudiciall to. Inconsistent with, or derogatory from the pro- testant Religion and presbyterian Government noio established . . . § 10] CHURCH CONSTITUTION 121 act of 1695 prohibited the ' outed ' episcopaUan clergy under penal- ties to baptize children or to solemnize marriages.^^ The enactments of 1689 and 1690 form the legal basis of the present Scottish state church, in English statutes called simply ' The Church of Scotland.' In consequence of the efforts of political separatists, which found expression in a measure of the Scottish parliament, the government of queen Anne took seriously in hand the legislative union of the two countries. "When the negotiations upon the subject were draw- ing to a close, it was considered necessary in Scotland once more solemnly to lay down the constitution and the belief of the estab- lished church. Hence was passed the Scotch act. No. 6 of 1707, ' for securing the Brotestant Religion and Presbyterian Church G-overnment.' ^^ This was presently ratified in the English act 6 Ann. (1707) c 11 s 2, ' for an Union of the Two Kingdoms of England and Scotland,' in which corresponding reservations are made to secure the church of England.^^ The government of the state church ' of Scotland is conducted at the lowest stage by a ' kirk-session.' This consists of the minister and the elders, the latter usually two in number. The higher authorities are the common presbytery of several parishes,^® the provincial synod and the general assembly.^'' ^' Act of 1695 No. 16 Act against Iri-egidar Baptin'ins and Marriages (Acta Pari. IX, 387). " Acta Pari. XI, 402 :— . . . Her Majesty with -advice and consent of the said Estates of Pai-lia- Ttient Doth hereby Establish and Confirm the said true Protestant Religion and the Worship Discipline and Government 'of this Church to continue without any alteration to the people of this land in all succeeding generations And more especially . . . EatMes Approves and for ever Conflrm,s th£ bth Act of the first Parliament of King William and Queen Mary Itatifieing the Confession of Faith and settling Presbyterian Church Government (identical with tlie act, cited above, of 1690 No. 7), with the haill other Acts of Parliament relating thereto . . . ami . . . expressly Provides and Declares that the fore- said trite Protestant Beligion contained in the above -mentioned Confession of Faith with the form and purity of worship presently in use within this Church, and iVs Presbyterian Church Governm,ent and Discipline, that is to say the Government of the Church by Kirk Sessions Presbyteries Provincial Synods and General Assemblies, all established by the foresaid Acts of Parliament pur- suant to the Claim, of Right, shall rem,ain and continue unalterable, And that the said Presbyterian Government shall be the only Government of the Church tvithin the Kingdom of Scotland . . . That . . . the Sovereign suc- ceeding . . . in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or Tier accession to the Crown Swear and Subscribe that they shall inviolably maintain and preserve the foresaid Settle- ment of the true Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom in prosecution of tft^ Claim of Right . . . ^^ 6 Ann. c 11. si art. II contains a provision for the descent of the crown in the protestant line, papists and persons marrying papists being barred. s 2 repeats verbatim and confirms the Scottish act of 1707 No. 6. s 3 confirms the corresponding English act 6 Ann. (1706) c 8. ^ It consists of all the ministers and one elder from each congregation. Oil it falls the duty of examining and ordaining candidates for the ministry. " Ministers and elders are chosen to it by the presbyteries ; othev delegates 122 SCOTLAND [1, 2 lu the nineteentli century a great controversy arose in the estab- lished church. A very strong party was aiming in particular at the abolition of the rights of patrons. As this abolition could not be realized, at the general assembly of Edinburgh in 1843 a rupture ensued ; in that and the following years nearly half the ministers and laymen seceded from the state church and, aided by liberal donations, founded an independent church system, resting on the choice of ministers by the congregations, and known as the ' Free Church.' ^^ In 1874, by 37 & 38 Vict, c 82, private patronage was abolished in the church of Scotland and, in so far as the right was vested in the sovereign or in public corporations, without compensation. are sent from towns, universities and colonial congregations. A royal commis- sioner attends the meetings. ^* The pati-onage of the crown and of private persons was upheld against the attacks of Knox by Scottish act, 1567 No. 7 (of. above, note 20) and confirmed by 1581 No. 4 (That ministeris salbe presentit be the kingis maiestie and the Lawit patronis to all benefices of cuir under prelacyis. Acta Pari. Ill, 212) and by 1592 No. 8 (cf. above, note 27). By ordinance of the Scottish parliament, 9th March, 1649 No. 205 {Acta Pari. VI pt. II p. 261) all rights of patronage were abolished. This was cancelled by the enactment of 1661 (cf . above, note 46). By the act of 1690 No. 53 {Acta Pari. IX, 196) patronage was again abolished. For the future the heritors of the parish (being protestants) and the elders were to name a suitable person to the whole congregation, the final ' calling and entry ' to be by the presbytery of the bounds. 10 Ann. (1711) c 21 {An Act to restore the Patrons to their ancient Rights of presenting Ministers to the Churches vacant in . . . Scotland) restored the rights of the previous patrons and at the same time transferred to the crown those rights of patron- age which until 1689 had belonged to the dignitaries of the episcopal church. 4 & 5 Gul. IV (1834) ,c 41 ordained that, in case a new church should be erected within the bounds of a parish standing under patronage, by funds contributed voluntarily and not at the patron's charge, and should be raised by the authori- ties to a parish church, the original patron should have no rights of patronage in regard to the new church ; but presentation should be according to regu- lations to be made by the ecclesiastical authorities. — The Scottish general assembly of 1835 resolved that in all cases the congregations should have the right of refusing the minister designated by the patron (resolution of 29th May, 1835, Acts of Gen. Assembly']?. 1044) : TJie General Assembly declare, That it is a fundamental law of this Church, that no pastor shall be intruded on any congregation contrary to the will of the people ; and, in order that this priiiciple may be carried into full effect, the General Assembly, with the consent of a majority of the Presbyteries of this Church, do declare, enact and ordain. That it shall be an instruction to Presbyteries, that if, at the moderating in a call to a vacant pastoral charge, the Tnajor part of the male heads of fam,ilies, members of the vacant congregation, aiid in full comm,union ivith the Church, shall disapprove of the person in whose favour the call is proposed to be moder- ated in, sucJi disapproval shall be deemed sufficient groiiiul for the Presbytery rejecting such person, and that he shall be rejected accordingly, and due notice thereof forthwith ^iven to all concerned ; but that, if the major paH of the said heads of families shall not disapprove of such person to be their pastor, the Presbytery shall proceed with the settlement according to the rules of the Church ; . . . The courts did not recognize this resolution as valid, regard- ing it as an infringement of the rights of property. Nor did parliament and the government acquiesce in the abolition of patronage ; 6 & 7 Vict. (1843) c 61 declared that the opposition of a majority of the members of a congregation was not in itself a sufficient ground for refusing to admit a minister. The act laid down, however, that on opposition by the congregation the presbytery, and on appeal the higher church authorities were to deliberate and decide concern- ing the grounds of the opposition. 10] CHURCH CONSTITUTION 123 The actj^rescribes that ministers are to be named by the congrega- tion, or if no election is made within six months, by the presbytery of the bounds, hitherto existing rights being continued to the au- thorities of the church to try the qualifications of those appointed and to decide finally upon their admission and settlement. In spite of the fact that the main controversy between the church of Scotland and the free church has thus been removed, no reunion has yet taken place.^*" The circumstance that the state church only embraces about half the inhabitants is suggestive of disestablish- ment, and proposals to that end (1886, 1888, 1890, 1892) have received the support of ever increasing minorities in the lower house of parliament.'^'' The overthrow of the episcopal constitution by the legislature during William Ill's reign and the confirmation, by the acts of Anne already mentioned, of its abolition, did not avail to extinguish utterly the episcopal church. A section of the people held fast to it, as also to the English prayer-book ^^ and to the English articles of faith. As the Stuarts had always supported the episcopal church, whilst William III sacrificed it to the presbyterians, a natural conse- quence followed : the episcopalians were opposed to the new govern- ment and the chief part of them advocated the claims of the exiled house. In this way a close connexion arose between the episcopal church of Scotland and the English nonjurors.^^ Notwithstanding the reservation made in the act of union with regard to church legislation for the two countries, the union soon began to exercise a modifying influence. Without alteration of the laws, first of all, the holding of episcopalian worship in separate places of assembly was tolerated ; the old bishops consecrated new bishops, not, however, for definite dioceses ; going back to the con- stitution of the Scottish church from 1225 to 1472, the college of bishops under an elected head called ' primus ' assumed the supreme government. The enforcement of the still surviving laws against a clergyman who had held divine service according to the English liturgy, led to statutory expression of tolerance for the protestant episcopal church in Scotland. 10 Ann. (1711) c 10 ^^ allowed those of the episcopal communion to worship after their own fashion any- where except in the parish churches, and permitted ministers of episcopal congregations to christen and to solemnize marriages. Ministers alike of the established and of the episcopal churches were ^' A map of the ecclesiastical divisions of Scotland as connected with the establishment and free church is prefixed to vol. I of Hetherington's History of the Church of Scotland. "" The liberal government in 1893 brought in a bill preparatory to the dis- establishment of the church of Scotland, which is one of the questions of the day. '' Compare above, note 46. '* Compare ij 7, note 81. *' An Act to prevent the disturbing those of the EjnscojMl Communion in that Part of Great Britain called Scotland in the Exercise of their Religious Worship and in the Use of the Liturgy of the Church of England and for repealing the Act passed in the Parliament of Scotland, intituled Act against irregular Baptisms and Marriages (compare above, note 53). 124 SCOTLAND [1, 2 required before admission to take certain oaths, repudiating Stuart pretensions to the throne and acknowledging Anne's right thereto and the right of the Hanoverian line to succeed. Further, all ministers of either communion were bidden under penalties for disobedience to pray some time during the service for queen Anne, the electress Sophia and all the royal family. After the jacobite rising of 1715, B Geo. I (1718) c 29 in substance repeated the same provisions, whilst increasing the penalties for breach.^* The rebellion of 1745 called forth 19 Geo. II (1746) o 38. This act, to render supervision easier, directed the sheriffs to keep a register of epis- copal meeting-houses ; the penal clauses against holding episcopal service without fulfilment of the prescribed formalities, without having taken the oath and without praying for the king were made still more severe, whilst new penalties were enacted for resorting to unregistered meeting-houses ; at the same time it was laid down that no minister might officiate except those to whom letters of orders had been given by some bishop of the church of England, or of Ireland.^' The effect of this last provision was to prohibit abso- lutely the conduct of divine service by those who had only been ordained by Scottish bishops. But with the accession of Greorge III (1760) penal enactments against the episcopal church in Scotland ceased to be put in force. Hence public worship began gradually to be celebrated without observance of the legal conditions. When in 1788 Charles Edward died, the authorities of the Scottish epis- copal church resolved not to transfer their allegiance to his brother, but to submit to the English government, and to adopt in their service the prayer for George HI. As a consequence, 32 Geo. Ill (1792) c 63^" abolished the necessity of a registration of the meeting- houses, as also the severe penalties of previous acts ; ordination by Scottish bishops was recognized as a qualification to officiate in Scotland ; the requirements to take oath of allegiance to the exist- ing government and to pray for the royal family were still persisted in ; a new provision was that ministers of the episcopal church were, before their admission, to subscribe to the English thirty- nine articles. "Within the Scottish episcopalian church there broke out at the beginning of the eighteenth century liturgical disputes, especially in regard to certain usages in the eucharistic office. The quarrel was settled by a compromise in 1724.''^ In 1732 direction by a college of bishops without fixed dioceses "^ An Act for malciny more effectual the laws appointing the oaths for security of the government to be taken by ministers and preachers in churches and meeting-houses in Scotland. "* An Act more effectually to prohibit and prevent pastors or ministers from officiating in episcopal meeting-houses in Scotland, without duly qualifying themselves according to law ; and to punish persons for resorting to any 'meeting-houses where such unqualified pastors or m,inisters shall officiate. Supplemented by 21 Geo. II (1748) o 34 ss 11 ff. •'^ An Act for granting relief to pastors, ministers, and lay persons of the episcopal communion in Scotland. "' The terms are printed in Grub, Eccles. Hist. Ill, 394. § 11] IRELAND 125 gave way to regular church government by diocesan bishops. In 1743 canons regulating the supreme control of the church were drawn up by a synod of bishops. The canons so framed w'ere supplemented owing to subsequent resolutions in general synods. Those now in force were last collected, amended, and published in 1890.68 According thereto the seven bishops "' of the ' Episcopal Church in Scotland ' choose from among their number a * primus.' He has substantially only the right of summoning the episcopal synod {i.e. the assembly of bishops) and, in accordance with a resolution of the majority of the episcopal synod, the provincial synod (called before 1890 the general synod), and of presiding at these synods ; further, in vacant sees he may, with the assent of the other bishops, give decisions upon discipline and perform every necessary episcopal function. The provincial synod does not meet regularly at stated intervals, but only as the episcopal synod determines.'''' It consists of two chambers ; the members of the first are the bishops ; the second, under a ' prolocutor,' is composed of the diocesan deans, on© or two professors of theology, and chosen representatives of the lower clergy of each diocese in the proportion of one for every ten entitled to vote in the diocesan synod. In 1878 Roman catholic episcopal sees were again founded in Scotland." §11. 3. HISTORY OF THE CONSTITUTION OF THE CHURCH IN IRELAND. « The conversion of the Irish, which dates from the middle of the fifth century, was effected by missionaries from Eome and British ™ Code of Canons of the Episcopal Church in Scotland, as amended, adopted, and enlarged by a general synod holden at Edinburgh, in the Year of our Lord 1890. Edinburgh, 1890. °' The bishoprics are (1890): 1. Edinburgh; 2. St. Andrews with Dunkeld, with Dunblane ; 3. Aberdeen with Orkney ; 4. Argyll and the Isles ; 5. Brechin ; 6. Glasgow with Galloway ; 7. Moray with Boss, with Caithness. '" It last met in 1890 after an interval of fourteen years. " Constitution of Leo XIII in Acta Sanctae Sedis, vol. XI pp. 3 ff. It ordains the establishment of six bishoprics : iSt. Andrews adiuncto titulo Edinburgh as see of the archbishop with four suffragans : Aberdeen, Dunkeld, Candida Casa (=Gai.\\o-m Sty), Ergadiensis {= Argyll) and the Isles ; furthermore Glasgow is named as the see of a bishop with the title and insignia of an archbishop, but without suffragan, without archiepiscopal jurisdiction and with the duty of taking part in the synod of the province of St. Andrews. These bishops are- still under the papal congregatio de propaganda fide. ' I. Sources. 1. Laws : The Statutes at La/rge, passed in the Parliaments held in Ireland, from the third year of Edward II, 1310, to the twenty -sixth year of George III, 1786, inclusive, with . . . Index. Continued down to 1800. Dublin,- 1786 ff. In all 20 vols. (Published officially; based mainly on earlier printed editions. For collections of the Irish laws see Statutes of the Realm, Introduction pp. 44 and 83.) 126 IRELAND [1, 3 clergy.^ A -very large number of bishops, for some centuries with- out fixed districts, were from the earliest times spread over the ' There were individual Christians in Ireland before the time specified. About 430 the Eoman missionary Palladius sought to gain footing in Ireland, but without success. Haddan and Stubbs, Councils 11, 290. Him followed (according to Greith in 432, according to Todd not until later) Patricius (St. Patrick), who converted the people over a large part of the island. According to Greith the mission of Patricius was also hy. mandate of the pope. Todd is against this view. Compare Robert, I. infra c. Loofs, pp. 30-53, thinks it probable that Palladius and Patricius are identical and that Prosper Aquitanus, Chron. year 431 (written 455-63), from whom all remaining information about- Palladius is derived, made use of the name Palladius instead of Patricius by mistake. In any case the Irish mission was supported in its progress by aid from Rome, but also, on the other hand, by the bishops of the Britons, expelled by the Anglo-Saxons. 2. Collections of documents : Uoher (Dsserias), James. Teterum Epistolarum Hibernicarum Sylloge, quae partim ab Hibernis, parUm ad Hibemns, partim cLe Hibernis vel rebus Hibemicis ■ sunt conscriptae. Post Edit. Dublin, et Parisien. primum in Oerman/ia editum Herbornae . Nassovicorum, 1696. — Wasserschleben. Die irische Kanonensamnilung. Giessen, 1874. (.Hibemensis, perhaps from the end of the seventh or beginning of the eighth century. This, a collection of canons of all the Christian churches, contains, among others, Irish canons.) — As to the collections of Haddan and Stnbhs, Spelman and Wilkins see appendix XIV, 1, 1 ; .as to the collection of Theiner see § 10, note a. II. Church history. Ball, J. T. The Reformed Church of Ireland (1537-1889). 2nd Edition. London and Dublin, 1890. (Relates to the protestant episcopal church.) — Bellesheim, Alplions. Geschiehte •der Icatholischen Kirclie in Irland i;o«/ der EinfiXhrv/ng des Christentums bis auf die Qegen- wart. 3 vols. Mainz, 1890-91. (Relates to the Jloman catholic church. In vol. I a map which shows the division of Ireland into four archbishoprics [1500] ; in vol. Ill a map exhibiting the present division of Ireland into Roman catholic archbishoprics and bishoprics.) — Brenan, M. T. .4?!, Ecclesiastical History of Irelamd. (From the earliest time to 1829 ; relates to the Roman catholic church.) New Edition, Dublin, 1864. — Greith. Geschiehte der alUrischen Kirche und ihrer VerbindvMg mit Bom, Gallien und Alemannien. Freiburg i. Br. 1867. — Killen, W. D. The Ecclesiastical History of Ireland. London, 1875. 2 vols. (Relates to all religious persuasions; from the earliest time to 1871.) — Lanigan, John. An Ecclesiastical History of Ireland from the fi/rst introducUon of Christianity among the Irish to thg beginning of the ISth century. Dublin, 1822. 2nd Edition, Dublin, 1829. 4 vols.— Mant. History of the Chwrch of Ireland, from the Reformation to the Union, with a preliminary survey from the papal usurpation in the 12th century to its legal abolition in the ISth. London, 1840. 2 vols. — Moran, Patrick Francis. Essoa/s on the Origin, Doctrines, and Discipline of the Early Irish 0/i«rc?i. Dublin, 1864. — Olden, Thomas. The Church of Ireland. London, 1892. (Abstract of the history down to the disestablishment; relates to the protestant episcopal church.) — Reid, James Seaton. The History of the Presbyterian Chwrch in Ireland (till 1735, con- tinued by W. D. Killen till 1841) . . . with a preliminary sTcetch of the progress of the Reformed Religion in Ireland dwrimg the Wth centwry and cm wppendix consisting of original papers. Edinburgh, London, 1834-53. 3 vols. New Edition by Killen (continued to 1867), Belfast, 1867. 3 vols. — Robert, Benjamin. Etude critique sur la vie et I'ceuvrede Ht. Patrick, Elbeuf, 1883.— Stokes, Geo. T. Ireland and the Celtic Chv/rch. A History of Ireland from St. Patrick to the English Conquest in 1172. London, 1886. 2nd Edition. London, 1888. (Contains mainly church history.) As a continuation, by the same author, Ireland and the Anglo-Norman Church. A History of Ireland and IHsh Christianity from the Ari.gh)Sorman Conquest to the Dawn of the Reformation,. London, 1889. (Both civil and ecclesiastical history.) — Todd. 8t. Patrick Apostle of Ireland, A Memoir of his Life and Mission, vrithan introductory dissertation on some ea/rly usages of the Church in Ireland, and its historical position from the establishment of the English colony to the present day. Dahlia, 1864. — Usher, James. A Discoiurse of the Religion ancientVy professed by the Irish and British. London, 1867 ._ — Warren. Convocation of Ireland, in Journal of Convocation, 1857, p- 328. (As to the Irish convocation see also Ball, I.e. 21, note.)— Cf. the lists of authorities at the beginning of each of the 3 vols, of Bellesheim, I. c. — For the common history of the old Keltic churches see the works of Loofs, Stillingfleet and Usher, cited in appendix XIV, II, 3b; for the Culdees, the work of Reeves cited in § 10, note a II, 4. III. Church law. Bullingbrooke. Ecclesiastical law, or The statutes, constitutions, canons, rubricks and articlis of the Chtirch of Ireland. Methodically digested under proper heads. With a com- mentary, historical and juridical. Dublin, 1770. 2 vols. The arrangement is as in Gibson's Codex juris etc. (cf. appendix XIV, III). § 11] CHURCH CONSTITUTION I27 country.^ In Ireland, as in England, Keltic peculiarities of liturgy prevailed, nor did they give way to Roman uses before the middle of the seventh or beginning of the eighth century.^ Beginning at the end of the eighth century came descents and settlements of heathen Northmen (Danes and Norwegians). The new inhabitants were, from about the middle of the tenth century onwards, gradually converted to Christianity.* The bishops of these settlements (Dublin, Waterford and Limerick) submitted themselves, after the conquest of England by the Normans, who were of a stock kindred to their own, to the archbishop of Canterbury.^ The church in the rest of Ireland came by degrees to recognize the bishop of Armagh as its primate." Besides Armagh it created a second We should mention here the canon ascribed to Patricius (who, as is alleged, founded the archbishopric of Armagh ; of. however, below, note 6) : — . . . Item quaecunque causa valde difficilis exorta fuerit atque ignota cunctis Scotorum gentium (i.e. the Irish) iudicibus, ad cathedram archiepiscopi Hibernensium., id est Patricii, atque huius antestitis exaTniinationem, rede referenda. Si vero in ilia cum suis sapientibus facile sanari non poterit, causa prae- dictaenegotionis ad sedem Apostolicam, decrevim,us esse m,ittendam, i.e, ad Petri apostoli cathedram,, auctoritatem Romae Urbis habentem. Hi sunt qui de hoc decreverunt, i.e. Auxilius, Patricius, Secundinus, Benignus. Post vero exitum Patricii saiicti alumni sui valde ejusdem libros ■con.scripserunt. This canon is a forgery to support the claim of Armagh to the primacy of Ireland, and thus probably is of the eighth century. Haddan and Stubbs II, 332. But see also Greith p. 455, who defends the genuineness of the canon. (Compare a similar regulation in Wassersohleben's collection of Irish canons, Book XX, cap. 5.) ^ Todd 4, 27 ff. ' For confessions of faith of the old Irish church, especially that of bishop Mochta (died 584, pupil of Patricius) and the liber dogmatuin of the 6th or 7th century, see Greith pp. 403 ff. ; on the older Irish or Scotic liturgy and on some missals which have been preserved see Greith pp. 435 ff. Compare Haddan and Stubbs I, 138 and Lanigan, Hist. 32 §§ 9 ff. For particulars of the Easter •controversy see Lanigan, Hist, c 15. In southern Ireland at the synod of Old Leighlin [circ. 630) the greater part of the clergy decided for the Roman method of calculation. In northern Ireland, in so far as it was not under the influence of lona, the Boman uses were adopted about 704. Beda, Hist. Eccles. Book V •c 16 § 403. — Compare also § 1, note 21. * The first conversion on a large scale was that of the Danes of Dublin (pro- hably in 948). Lanigan, Hist, c 22 § 12. ' It is not known that the archbishop of Canterbury exercised archiepiscopal rights in Ireland before the Norman conquest. Lanigan, Hist, c 23 § 16. The first known vow of canonical obedience made by an Irish bishop to the arch- bishop of Canterbury dates from the second bishop of Dublin (1074). Lanigan, I.e. c 24 §§ 7-11. Compare the letter of the clergy and people of Dublin to arch- bishop Lanfranc, containing a request that he will consecrate as bishop a priest Patricius, chosen by them. Epistolae Lanfranci (ed. Giles) p. 57. Letter of Lanfranc to king Gothrious after the consecration. I.e. p. 61. Waterford was raised to a bishopric in 1096, and its bishop also vowed obedience to the arch- bishop of Canterbury. Lanigan, I.e. c 25 § 6. In the appendix to Usher's Sylloge there are printed the vows of obedience of the bishops of Dublin : 1074, 1085, 1095, 1122, Waterford : 1096, Limerick : 1140. * Patricius did not establish the see of Armagh as an archiepiscopal see ; but he raised buildings there and often made the place his abode. Todd, 468 ff. Hence the claim of later bishops of Armagh to archiepiscopal rank. In ancient 128 IRELAND [I, S archiepiscopal see at Cashel. At this time its connexion with Rome was a very loose one. Several institutions forbidden by the popes, that of chorepiscopi for instance, held their ground. Not until the national synod of Kells''' (1152) was a closer union between the church and "the papacy established, the legate Paparo bestowing- palliums by order of Eugene III on the archbishops of Armagh and Cashel and on the bishops — as they had been hitherto — of Dublin and Tuam ; at the same time the limits of the archiepiscopal pro- vinces, now four in number, were determined, and the archbishop of Armagh generally acknowledged as primate of all Ireland, even by the bishops who had hitherto been suffragans to the archbishop of Canterbury.* In 1154-6 pope Adrian IV, an Englishman by birth, approved the conquest of Ireland projected by Henry II.' The actual taking times frequent mention occurs of a chief or prominent bishop {ardepscop) at various places; but there is no reference in the title to the official subordina- tion of other bishops to the one so designated. Todd p. 14 (cf. for Wales § 33, note 1 ; for Scotland § 10, note 5). That in the 9th century there was no see with full episcopal rights in Ireland is perhaps to be inferred from an allusion in the English council of Celchyth, 816 (Haddan and Stubbs III, 581) c 5 r Ut nullus permittatnr de genere Scottorum {i.e. at this time Irishmen) in alicujus diocesi sacra sibi ministeria iisurpare . . . Scimus quomodo in canonis jjrdbcipitur, ut nullus Episcoporum, [seu] presMterorum invadere temptaverit alius parochiam,, nisi cum consensu proprii Ep>iscopi. Tanto magis respmendunfi est ah alienis nationibus sacra ministeria jicrcipere, cum quibus nullus ordo metropolitanis, nee honor aliquis habeatur. ' For the fact that the decisive synod was held at Kells {=Kennanus, Kenana)^ and as to the question of a possible subsequent assembly at Mellifont see Lani- gan, Hist, c 27, note 96. Mansi, Conciliorum CoUectio XXI, 767 also distin- guishes two councils. * Respecting this synod and other regulations made at it, compare Lanigan, Hist, c 27 §§ 14, 15. One of the reports upon it is printed in Wilkins, Cone. I, 425. — Malachias O'Morgair (originally archbishop of Armagh, after resignation [1137] bishop of Down, still later papal legate) had before wished to bring the Irish church into nearer relations with Rome, and had induced a national synod at Holmpatrick (1148) to apply to the pope for palliums for Armagh and Cashel. He was to have carried the request to Rome, but died on the waj'. — The only legate in Ireland before Malachias was the bishop of Limerick, at the end of the eleventh and the beginning of the twelfth centviry. As to erroneous mention of earlier legates see Lanigan, Hist, c 24 § 9. — At a later time the rights of the archbishop of Armagh as primate were, in regard to the province of Dublin, curtailed in favour of Dublin by papal bulls (of Lucius III in 1182 ; Innocent III in 1216 ; Honorius III in 1216). Compare on this point Lanigan, Hist, c 30 § 4. Hence a struggle for precedence in the province of Dublin be- tween the archbishops of Armagh and Dublin, which lasted until the reforma- tion. Details in Mant, Hist. 1, 18. Under Edward VI an order of the English council took the primacy from the archbishop of Armagh and conferred it on the archbishop of Dublin (1551). Letters patent of Mary (dated 12th March, 1554) restored the primacy to Armagh. For the above facts see Wilkins, Con- cilia IV, 80. Finally in Charles I's reign Wentworth recognized the precedence of Armagh. Ball, Church of Ireland p. 129. » Bull of Adrian IV, printed in Eymer's Foedera 4th Ed. I, 19 (year 1154), and Wilkins, Concil. I, 426:— Sane Yberniam et omnes insulas quibus .sol justicie, Christus, illuxit, ef qiie documenta fidei Chri.stiane receperunt, ad jus beati Petri et sacrosancte Romane ecclesie, quod tua etiam nobilitas recognoscit, non est dubium perti- nere : . . . Six/nifica.sti siquidem nobis . . . , te Hyhernie insulam, ad § 11] CHURCH CONSTITUTION 129 possession of the country by the English began in 1169 and pro- ceeded rapidly. In 1172 Alexander III confirmed Adrian's grants** Bub the subjugation of Ireland was by no means complete. The English occupation was almost confined to Dublin and the adjacent eastern coast ; and it was only this pale that was administered in the English fashion and under English law. As to the other parts of the country, it was enough if the suzerainty of England was recognized by the native princes, or by the English barons who presently supplanted them. If such recognition was made, there was no interference with internal affairs. The frequent risings of the Irish princes to assert their former independence, induced a lasting hostility between the English settlers and the native popu- lation. Several enactments, especially the statute of Kilkenny '^ in Edward Ill's reign (1367), sought in the English interest to prevent a fusion of the two nationalities. Ireland received a separate parliament.'* How the assembly was constituted before reformation times is not precisely known.^^ We may, however, be sure that it consisted almost exclusively of repre- sentatives of the immigrants and of those parts of the country where , the immigrant element predominated. The Irish legislature was at first tolerably independent; yet from time to time the English parliament also issued laws for Ireland. 10 Hen. VII (1495) c 4 (Irish), the well-known Poyning's law, subjected Ireland more com- svhdendwm ilium populuia legibus, et vicioTum, plantaria inde, extirpanda velle intrare ; et de singulis domibus. annuaw, unius denarii beato Petro velle solvere pensionem, et jura ecclesiarum illius terre illibata et integra conser- vare. Nos itaque . . . gratum et aoceptum habemus ut, pro dilatandis ecclesie terminis, pro viciorum restringendo decursu, pro corrigendis moribus et virtutibus inserendis, pro Christiane religionis augynento, insulam illam in- grediaris . . . et illius terrae populus honorifice te recipiat, et sicut domi- num veneretur, jure nimirum ecclesiarum illibata et integro permanente et salva beato Petro et sacrosanetoje Romanae ecclesiae de singulis domibus annua unius denarii pensione. Upon the exact date of this bull see Lanigan, Hist, c 28, note 14.— The genuineness of this bull and of the bull of Alexander III which follows is dis- puted, but, as it appears, ou insufficient grounds. Literature of the subject in Jaife, Regesta 2nd Ed. No. 10056 and Bellesheim, Gesch. d. Kath. K. in Irland I, 367. Compare also Liebermann in Beilage zur Dtsch. Zeitschrift f. Geschichts- wissenschaft, vol. Vtl (year 1892), pt. 1, E. 58. " Bull of Alexander III in Usher, Sylloge No. 47 : Quoniam ea, quae a de- cessoribus nostris rationabiliter indulta noscuntur, perpetua meruntur stabili- tate firmari ; vensrdbilis Adriani Papae vestigiis inhaerentes wastrique desiderii fructum attendentes, concessionem eiusdem super Hibernici regni dominio vobis indulto (salva beato Petro et sacrosanetae Bomanae Ecclesiae ; sicut in Anglia, sic et in Hibemia, de singulis domibus annua unius denarii pensione) ratam habemus et confirmamus. . ' . . " The statute is not printed in the official collection ; but the text has been issued by James Hardiman in the Publications of the Irish Archaeological Society, vol. III. " Edward II ordered the holding of yearly parliaments. Their institution in a more complete form dates from 31 Ed. Ill (1357) St. 4. Stubbs, Const. Hist. II, 431 cl6 § 259. " Compare Ball, Church of Ireland, append. I) and Q. H. C. K 130 IRELAND [1, 3 pletely to English influence. The position of the two parliaments in regard to each other after that enactment was a disputable matter, and was not definitively settled until the eighteenth century.** In spite of the fact that the English regulations against provisions were introduced in Ireland, the appointments to Irish bishoprics in the two centuries before the reformation were made in Rome, " The Poyning's act laid down that the English king and council must approve beforehand the laws to be enacted in Ireland and the summoning of parliament there : — . . . that .... wo Parliament be holden hereafter in the said llind, but at such season as the King's lieutenant and counsaile there first do certifie the King, under the great seat of that land, the causes and considerations, and all such acts as them seemeth should pass in the same Parliam,ent, and such causes, considerations, and acts affirm,ed by the King and his counsail to be good and expedient for that land, and his licence thereupon, as well in affirm,a- tion of the said causes and acts, as to summon the said Parliament under his great seal of England had and obtained ; that done, a Parliam,ent to be had and holden after the forme and effect afore rehearsed. . . . The act 3 & 4 Phil. & Mar. (1556) c 4 (Irish), ' declaring how Poning's act shall be exponed and taken ' provided for the introduction of new bills or the alteration during the session of parliament of those already introduced. An act of the same Irish parliament as had adopted the Poyning's law, 10 Hen. VII c 22 ordered : That all estatutes, late m,ade within . . . England, concerning or belonging to the comm,on and puhlique weal of the sam,e, from, henceforth be . . . aeceptyd, used and executed within this land of Ireland. . . . Acts of the English parliament between 1495 and 1800 were, however, only valid in Ireland, when it was so specified in them. Thus in many statutes of the reformation times we find the phrase : this Realm, (England) and other the Kings Dominions. For early cases of legislation for Ireland by the English parliament see, for ex- ample. Peers Report I, 176. As early as Henry VI the Irish parliament dis- puted the right of the English to make laws for Ireland, and the quarrel lasted until the reformation. It is worthy of note that in several cases in which English acts were passed for England ' and other the king's dominions,' the Irish parliament made its own laws upon the same subject. Ball, Church of Ireland, appendix L. Moved by several acts passed by the English parliament for Ireland in William Ill's reign, Molyneux, in his The Case of Ireland's being bound by Acts of Parliament in England stated, attacked at some length the right claimed. In opposition to this attack it is declared in 6 Geo. I (1719) c 5 (English) An Act for the better securing the dependency of the Kingdom of Ireland upon the crown of Great Britain : . . . that the . . . Kingdom of Ireland hath been, is, and of right ought to be subordinate unto and dependent upon the crown of Great Britain . . . , and that the Kings majesty, by and with the advice and consent of the lords spiritual and temporal and commons of Great Britain in parliament assembled, had, hath, and of right ought to havefydl power and authority to make laws and statutes of sufficient force and validity, to bind the Kingdom and people of Ireland. . . . After the accession of George III Irish opposition to this view grew stronger. 21 & 22 Geo. Ill (1781-2) c 47 (Irish) laid down as against the pro- visions of the Poyning's act that ratification under the great seal of Great Britain was only to be sought in respect of bills already passed by the Irish parliament. To meet the wishes of the Irish, 6 Geo. / c 5 was repealed by 22 Geo. Ill (1782) c 53 (English), whilst 23 Geo. Ill c 28 (English) declared the right claimed by the people of Ireland to be bound only by laws enacted by the king and the parliament of that country to be established and ascertained for ever. The inconveniences which arose from the now independent position of the Irish parliament Jed soon (1800) to its union with the English. Upon recent Irish demands we need not here touch. Sll] CHURCH CONSTITUTION I3I although the desires, usually expressed by the king concerning the English districts, were, as a rule, treated with respect.'* "Whilst Henry VIII in England was taking the final steps to shake off the papal yoke, a serious rising had again broken out, the leader being Thomas Fitzgerald. The rebellion suppressed (1535), Henry now endeavoured to carry his measures against the papacy into effect in Ireland no less than in England. With this object in view he procured the election of Browne, provincial of the Austin friars in England, whose sympathies were with the reformation, to the arch- bishopric of Dublin, and assigned to him and others the mission of negotiating with the nobility and winning its support for the Eng- lish policy towards the church. But Browne's negotiations bore no fruit ; whilst from the overwhelming majerity of the clergy, especi- ally in the districts under the control of the archbishop of Armagh, Henry's policy encountered stubborn resistance. As nothing was to bedone in the way of kindness, resort was had to legislation, and decisive measures were passed partly by the Irish parliament, which was under Enghsh influence, partly by the English parliament directly.'^ But compulsory enactments were only operative where there was an organized administration upon the English model; and the laws in question, although applicable to the whole country, remained unexecuted in the native provinces, that is, in by far the larger part of Ireland. The government of Edward VI continued the efforts to intro- duce ecclesiastical reform in Ireland; Its exertions were especially directed to securing the acceptance of the new English book of common prayer ; but here again success was only achieved in the districts under regular English administration." Mary contented herself with depriving of their benefices those of the clergy who were leading spirits of the protestant movement. In correspondence with the course adopted in England, pope Paul IV " Ball, Church of Ireland, append. I.— Cf. also 32 Hen. VI (1454) c 1 (Irish) An Act that all Statutes made against Provisours, as well in England, as in Ireland, shall be had and kept in force. ^ The following are the most important statutes of Henry VIII for Ireland, dealing with ecclesiastical policy : 28 Hen. VIII (1537) c 2 (Irish) An Act of Succession of th^e King and Queen Anne; c 5 (Irish) Act of Supremacy ; c6 (Irish) An Act ofAppeaies; c 13 (Irish) against maintaining the supremacy of the pope, introduced the supremacy oath ; cc 8, 14, 26 (Irish) conferring the First Fruits and twentieths on the king; c 19 (Irish) against the validity of papal dispensations.— The monasteries, excepting those in remote Irish districts, were dissolved : 28 Hen. VIII c 16 (Irish) An Act for the Suppression of Abbyes ; 33 Hen. VIII. (1642) sess. 2 c 5 (Irish) An Act for the Suppression of Kylmaynham and other Beligious Houses. " The English act 1 Ed. VI cl si ordered the receiving of the eucharist in both kinds in the church of England and Ireland. The first prayer-book of Edward VI was introduced not by statute, but by a royal ordinance to the chief officials in Ireland (dated 6th Feb. 1551). But the greater part of the clergy, led by the archbishop of Armagh, refused obedience. The English rules of consecration were not expressly introduced into Ireland, but were observed at tlife consecration of two bishops in Feb. 1553. No attempt was made to compel the use of the second prayer-book of Edward VI. Cf. Ball, Church of Ireland pp. 38 ff. 132 IRELAND [1, 3 issued a bull, in which he confirmed the disposals of church lands which had been made, as also other acts of administration under the reform laws; an Irish statute then incorporated these papal concessions and, at the same time, repealed the most im- portant part of the reform legislation.'^ Another Irish act revived the old laws against heresy.'^ A commission, given not long before the queen's death, to put them into force never had efi&cacy, so that the sanguinary persecution of heretics which characterized the reign of Mary in England was in Ireland unknown. But her policy did not tend to mitigate national animosities. A new insurrection of the native princes broke out, and its suppression was followed by an extension of the English pale at their expense. Elizabeth procured the adoption in the Irish parliament of 1560 of reforming laws which, with a few variations, answered to those passed in England at the beginning of her reign.^" But these again could only be rendered in some degree operative in the country settled by Englishmen ; in the Irish, parts Elizabeth, like her predecessors, met with unyielding opposition. New revolts occurred, which, fomented by the pope ^' and by the catholics in England, were afterwards supported by the landing of Spanish troops and could not be entirely extinguished. A' truce concluded in 1599 with the rebels by Essex, the commander of the royal forces, by which, among other con- ditions, freedom of worship appears to have been granted to the Roman catholic church,^'" was not ratified by Elizabeth ; only a few '^ 3 & 4 Phil. & Mar. (1556) c 8 (Irish) An Act repealiTig Estatutes, and Pro- visions made against the See apostolique of Rome, sithence 20 Hen. VIII, and also for the Establishment of spiritual and ecclesiastical Possessions and Hereditaments conveyed to the Laity. — Of. further 3 & 4 Phil. & Mar. (1556) c 10 (Irish) An Act for the Dischardge of the Furst Fruites ; o 13 An Act declar- inge the Queen's Highnes to have bene bom in a m,oste just and lawfull Matri- mony, and also repealinge all Actes of Parliament and Sentences of divers had and m,ade to the contrarie. " 3 & 4 Phil. & Mar. (1556) c 9 (Irish) An Act for reviveinge of thre Statutes m,adefor the Ponyshement of Heresies. ^'' We may mention especially 2 Elie. (1560) c 1 (Irish) An Act restoring to the Crown the auncient Jurisdiction over the State Ecclesiasticall aud Spirituall, and abolishing allforeine Power repugnant to the same; c 2 (Irish), concerning the introduction of the new prayer-book ; c 3 (Irish) An Act for the Restitution of the First Fruits and Twentieth Part, and Rents reserved nomine X. or XX. and of Parsonages impropriate to the imperiall Crown of this Realm; c 4 (Irish) concerning the appointment of bishops (a variation from the cprresponding English act was that appointment by royal letters patent was retained ; nevertheless, upon the advancement of Loftus to the archbishopric of Armagh in 1563, a cong4 d'eslire was issued. Ball, Ch. of Ireland p. 73) ; c 5 (Irish) An Act of Recognition of the Queene's Highnesse Title to the Imperial Croume of this Realme ; c 7 (Irish) concerning a new con- fiscation of the possessions of the hospitallers of saint John, possessions which Mary had released. The English thirty-nine articles were not introduced into Ireland during Elizabeth's reign; the eleven articles of 1559 had been in use from 1566 (cf. § 16*).- " Compare, for example, a papal bull of 1600 in Wilkins, Concilia TV, 362. ^" An abstract of the demands of Tyrone in Winwood, Memorials I, 119. There was no written agreement. As to the trustwortliiness of this abstract see Bagwell, Ireland under the Tudors III, 349, note 1. § 11] CHURCH CONSTITUTION 133 days after the queen's death a convention was arrived at, by -w Tyrone, the chief of the Irish rebels, submitted, the possessic which possession of almost all his lands being secured to him ; the definitive treaty did not contain any proviso as to religious matters.^''' In the period of transition which followed the reform laws of Henry VIII the practice as to the filling of episcopal sees in Ireland was not determinate.^^ Henry made some appointments indepen- dently, even in the native provinces, without remonstrance from the pope. In other cases he confirmed papal nominations upon which he had not been consulted ; or, at least, silently acquiesced in them. Daring his rule a double nomination was only once made, namely to the archbishopric of Armagh (1543), the pope's nominee never obtaining possession. Not until the beginning of Elizabeth's reign did the division between papal and protestant bishops become accentuated. About 1670 bishops of both kinds were found in the greater number of dioceses, and in the years ensuing the two parties, as far as might be, perfected their organizations, which grew to be independent, each of the other, in all parts of Ireland. Under James I the suppression of a rebellion in Ulster furnished the occasion for new and extensive confiscations of land. The domain so won was given up to Scotch and English settlers, and the whole north of Ireland transformed in this way into a new fulcrum for English power and for protestantism. On the other hand James I was concerned to draw the Irish from the position of a merely subject race and induce them to participate in the administration of their country. Accordingly, at the elections for 1613, those of Irish stock and even those who had refused the oath of supremacy were declared eligible for the lower house ; yet the manner in which the constituencies were divided was used to secure a preponderating number of protestants. In this parliament the laws which aimed at keeping the Irish as a people permanently separate from the English, were repealed. ^^ In the year 1615 the protestant church of Ireland, influenced largely by the Scots settled in such numbers in the north, adopted a series of articles of belief which, without abolishing the episcopal constitution of the church, did not ratify it, which passed over in silence the difference between bishops and priests, and in many other respects took into account puritan diversities of opinion.^^ These articles were ultimately ratified by the lord deputy, pur- ^^'' According to Bellesheim, Gesch. d. Kathol. Kirche in Irland II, 229 Tyrone had in the draft of the treaty stipulated for religious liberty, hut was answered that the English had no intention of troubling the Roman catholic clergy. "* See more in Brady, The Episcopal Succession in England, Scotland and Ireland 1 400-1875, tpith appointments to Monasteries. Eome, 1876; and Cotton, Fasti Ecdesiae Hibemieae. Dublin, 1845-60, supplement 1878. — Illus- trations are collected, particularly from the preceding works, in Ball, Church of Ireland, app. I. N. R. S. '3 11-13 Jac. /c 5 (Irish). '* Articles of Religion agreed upon by the Archbishops, and Bishops, and the rest of the Clergy of Ireland in the Convocation holden at Dublin in the year 134 IRELAND [r, 3 suant, it is said, to the direction of the king.^^ But in 1634 Wentworth succeeded in robbing these 'Irish articles' of their cha- racter as a mark of separation from the English church by inducing the Irish convocation to accept a series of canons, wherein the English thirty-nine articles were taken over and approved without any change.^^ From this point the protestant church of Ireland remained bound to the state church of England.^' The presby- terians had, however, established meanwhile a constitution of their own in Ireland as elsewhere. The year 1641 was marked by a new and general rising of the Irish Roman catholics, measures for whose repression were taken by Charles as well as by the English parliament. The rising had at the outset been the issue of mingled national and religious anti- pathies. Political divisions, a consequence of the civil war in England, complicated the situation still further. Thus for the next few years the grouping of parties in Ireland was subject to alteration. The lord lieutenant Ormond, at the head of a royalist middle party, now sought by concessions to win the Irish for the king, now made common cause with the parliamentary forces to baffle that severance of Ireland from England at which the pope was aiming. It was only after the execution of Charles that, in 1649 and 1650, Cromwell and his successors in the command crushed the Irish rebellion,^^ and so swept away the indulgences granted by Charles to Roman Catholicism. By an act of the Barebene parlia- ment of 26th Sept. 1653 ^® a large portion of the land that had been of our Lord God 1615 /or the avoiding of diversities of opinions, and estab- lishing of consent touching true religion (Wilkins, Cone. IV, 447). The Lambeth articles of 1B95 (see § 16, note 20) are adopted in them almost ver- batim. (Wilkins, I.e. note.) ** Ball, Church of Ireland 115. ^« Printed in Wilkins, Concilia TV, 496. Canon 1 of 1634 runs : For the manifestation of our agreem,ent with the Church of England in the Confession of the sam,e Christian Faith, and the Doctrine of the Sacraments : We do receive and approve the Book of Articles of Religion agreed upon by the Arch- bishops and Bishops, and the whole Clergy in the Convocation holden at London in'the year of our Lord God lbQ2, . . . And- therefore if any hereafter shall affirm, that any of those Articles are in any part superstitious or erroneous, or such as he may not with a good conscience subscribe unto, let him, be ex- com,m,unicated, and not absolved before he m.ake a publick Revocation of his error. In the following canons the supremacy of the king is recognized and the iise of the English prayer-book and form of consecration declared obligatory ; further, as in the English canons of 1604, there are detailed rules for officiating clergy. — Wentworth prevented any simultaneous declaration in affirmance of the articles of 1615. On the other hand the latter were not expressly cancelled. Whether both sets were subscribed by candidates, is not certain. After, the restoration, signature under canon 1 of 1634 was all that was required. Ball, Church of Ireland 129 fF. " The Irish canons of 1711 (printed in Wilkins, Concilia TV, 651) are also of some importance. ^ An act of the united London parliament of 1656 An Act for the Attainder of the Rebels in Ireland fixes 26th Sept. 1653 as the day of final submission. ^' Printpd in Scobell, Acts and Ordinances, under the title Satisfaction of the Adventurers for Lands in Ireland; and of the Arrears due to the Soldiery there, and of other Publique Debts. § 11] CHURCH CONSTITUTION 135 confiscated during the insurrection was distributed amongst the English soldiers and those who had lent money to meet the expenses of the expedition ; many Irishmen, mostly landowners, were ex- pelled from the greater part of the country, but were permitted to settle in the province of Connaught and the adjoining county of Clare; Irish protestants who had remained loyal to the English government, were not affected by these measures. The restoration of the monarchy brought the Irish papists at first only a slightly higher degree of toleration than before. The distribution of land which Cromwell had ordained and executed was confirmed by Charles II, by declaration of 30th November, 1660, and by act of parliament in 1662, but with certain mitigations.^" The king filled the vacant sees of bishops who had died during the revolution. Afterwards James II showed favour to the Roman catholics and placed a follower of this faith at the head of the administration in Ireland. On the expulsion of James from Eng- land, the Irish papists espoused his cause, being assisted by French auxiliaries landed in the country. They were, however, defeated by William (1690 and 1691), and reduced to subjection. Limerick, the last of .the fortresses that was held by the Irish, was surrendered by an agreement according to which the Roman catholics of Ire- land were to have ' such privileges in the exercise of their religion, as are consistent with the laws of Ireland or as they did enjoy in the reign of king Charles II.' ^•''' The exact scope of this claiise was subject to doubt, as there were still statutes unrepealed prohibiting Roman catholic worship, and the extent of its toleration had changed under Charles II. Soon there were put on the statute book numerous restrictive laws against the Roman catholics and their clergy, corresponding in essentials to English enactments of the same class.^^ Especially did the test imposed, the obligation of receiving on some Sunday the eucharist according to the usage of the church of England, exclude the Roman catholics from par- liament and public office. It was only towards the end of the eighteenth century that the fear of popular risings led to modifica- tions of these enactments. But in spite of these concessions and of others a great rebellion at length broke out (1798), which, though supported by the French republic, was suppressed by the English. The latter now effected the union of England and Ireland under a common parliament (1800). The act of union further ordained that '" No parliament was summoned in Ireland during the commonwealth. The parliament in London acted temporarily as parliament of the united realms of England, Scotland and Ireland. In the new Irish parliament summoned in 1661 the protestants had a majority. By act of this parliament, 14 & 16 Car. II (1662) c 2 (Irish) the former declaration of the king concerning the distribu- tion of lands was confirmed with some few modifications. — The new English prayer-book was approved in Ireland by a resolution of the Irish convocation of 1662, and introduced by an act of the Irish parliament 17 & 18 Car. //(166B) c 6. Compare also Ball, Church of Ireland p. 347, appendix GG-. ^"^ The articles of Limerick, of 3rd Oct. 1691, with the king's ratification are printed inPlowden, An Historical Review of the State of Ireland, London, 1803, vol. I appendix No. 49. ^* See Ball, Church of Ireland p. 175. 136 IRELAND [I, 3 thenceforth the established churches of the two countries should be joined together into one united church.^^ Mainly in consequence of agitation on the part of the Irish, the acts 9 Geo. 7F(1828) c 17 and 10 Geo. IV (1829) c 7 were carried, granting the Eoman catholics in all the realm equal rights in their civil and, with few exceptions, in their poUtical relations. Hardly . had the Romanists thus gained a removal of their personal disabili- ties, when they began to demand an equalisation of the rights of their church with those of the protestant church. The latter was still retained as the established church, the fiction being that all Irishmen belonged to it. Thus Boman catholics and protestants had ahke to contribute to rates levied for its objects. In like manner tithes, which attached to the soil, continued to be paid. The officers of the state church were far too numerous in proportion to the actual number of its adherents, and in particular, as a survival from the early days of the propagation of Christianity in the island, the number of bishops was unduly large, so that the cost of the higher administration was needlessly great, whilst most of the parochial clergy were but scantily endowed. The legislation of the following years aimed at producing a change in all these respects. The ' Church Temporalities Act ' (Ireland), 3 & 4 Gul. IV (1833) c 37 and the amending acts 4&5 Gul. IF (1834) c 90 and 6 & 7 Gul. IV (1836) c 99 35 abolished church-rates, combined the sees in such a "^ 39 & 40 Geo. Ill (1800) c 67 (English). The union was to be operative from 1st Jan. 1801. s 1 art. V : TTiat it be the fifth article of union, that the churches of England and Ireland, as now by law estaiblisTved, be united into, one protestant episcopal church to be coiled ' The United Church of England and Ireland'; and that the doctrine, worship, discipline, and government of the said united church shall be, and shall remain in full force for ever, as the same are now by law established for the church of England ; and that the con- tinuance and preservation of the said united church, as the established church of England and Ireland sh-cdl he deemed and taken to be an essential and fundamental part of the union ; and that in like m 1 Gid. & Mar. (1688) c 18 s 3 first declared ecclesiastical prosecution for non-conformity inadmissible as against protestant dissenters, provided they observed certain forms and ceremonies. ■" For the proceedings of the convocations against heretical doctrines in the eighteenth and nineteenth centuries cf. § 54, near notes 62-5.— On 9 Gul. Ill (1697/8) c 35 cf. § 61, note 23. ly. ^Ije Cler^iT iiittr lljeir #rbers. § 20. 1. GENERAL.'' Since the reformation ^ there have been in England only the three orders of deacons, priests and bishops.^ The members of these orders form the spirituality. The episcopal ofEce is, according to the prevailing opinion in the church of England, a perfectly distinct one, not merely special dignity combined with the priestly ofBce.^ The five lower orders of the Roman catholic church, ostiarius, lector, exorcista, acolutha and suhdiaconus, apparently fell into disuse with the introduction of the new prayer-books and form of ordination in Edward VI's reign. But the office of reader was maintained for a considerable time and has, indeed, in recent times been revived. It is said to be a survival of the Roman catholic order of lector; ' For the Anglo-Saxon time cf. Phillips, Angelsachsische Rechtsgeschichte § 61. ' Introduction to prayer-book form of ordination : It is evident unto all men diligently reading the holy Scripture and ancient Authors, that from the Apostles' time there have been these Orders of Ministers in Christ's Church : Bishops, Priests and Deacons. . . . And therefore to the intent that these Orders may be continued and reverently used and esteemed in the Church of England ; no man shall be accounted or taken to be a lawful Bishop, Priest, or Deacon in the Church of England . . . except he be called, tried, exam,ined and admitted thereunto, according to the Form hereafter following, or hath had formerly Episcopal Consecration or Ordination. ^ For the canon law see Eichter, Kirchenrecht § 103, note 11. In England it was disputed, e.g. by Aelfrio in a letter to bishop Wulfsin (the so-called canones Aelfrici, 992-1001, printed in Thorpe, Ancient Laws etc. 441 fip.) that a separate episcopal order was to be distinguished, c 17 : . . . Nis na mare betwyx maesse-preoste and bisceop, buton poet se bisceop biS gesett to hadigenne preos- tas, and to bisceopgenne did, and to halgyenne cyrcan, and to gymenne Godes gerihta, for}>an J^e hit waere to maenigfeald, gif aelc maesse-preost swa dyde, and hy habbatS aenne had, peah se o&er sy wurtSor. ("There is no difference betwixt a mass-priest and a bishop, save that the bishop is appointed for the ordaining of priests, and confirming of children, and hallowing of churches, and to take care of God's dues ; for it would be too multifarious if every mass- priest so did: but they have one order, though the latter have precedence.") The same doctrine was afterwards taught by the lollards and the presbyterians. The same view obtains in TTie Institution of a Christian Man, composed by a committee of bishops and approved by the king (1637). Perry, Hist, of Eng. Church II, 152 c 9 § 19. " Blnnt, The Booh of Church Law, Book III e 1. — Phillimore, Eccles. Law 108 ff. 196 THE CLERGY AND THEIR ORDERS [IV, 1 but at present there is no order of readers, as distinct from the office, and the reader is a layman.* Similarly there is the office of deacon- esses, who likewise are not in ecclesiastical orders.^ Spiritual rank is attained by receiving one of the three orders ; it attaches to the hoider for life irrespective of his filling any par- ticular office. It is lost by degradation ; or, since the Clerical Disabilities Act, 1870 (33 & 34 Vict, c 91), and in the case of priests and deacons, may be voluntarily relinquished if certain formalities are observed.* Ordars are received by solemn conferment. The conferment is entitled ' ordination ' or ' consecration,' both words designating the same act,'' though usually, in the language of to-day, the former is applied to the dedication of priests and deacons, the latter to that of bishops. The person who confers the orders must himself be in bishop's orders. At the consecration of a bishop there must further be two others assisting.^ Similarly at the ordination of deacons and priests certain persons besides the ordaining bishop are to be present or to co-operate." There is no sacrament of orders.^" As spiritual rank in general, so also is the possession of orders of every kind independent of the filling of a particular office ; nor are orders lost by the surrender of office. There is sometimes in prac- tice a difference between bishop's orders and priest's or deacon's orders in that the former, except in unusual circumstances, are only conferred after the bestowal of a particular office, and indeed are the last step, as it were, in the bestowal, whilst the latter, as a rule, precede it. Thus even in respect of their conferment priest's and deacon's orders exhibit their independence of the office ; bishop's, * On the office cf reader cf. § 46. ^ On deaconesses cf. § 47. * In case of such relinquishment, the right to pension is lost (34 & 35 Vict. c 44 s 15, Incumbents Resignation Act, 1871). — Compare also the prohihition of such relinquishment in canon 76 of 1604 (appendix XII). ' Thus in the prayer-book The form of ordaining or consecrating of an arch- bishop or bishop. " See in the prayer-booh form of consecrating ; cf. also 26 Hen. VIII (1533/4) c 20 ss 3, 4 (appendix X), 26 Hen. VIII (1534) c 14 s 5 (§ 39, note 4). On the canon law see Eichter, Kirchenrecht § 184, note 23. For England Gregory I had answered in 601 upon the inquiry of Augustine (Haddan and Stuhbs, Counc. Ill, 21) : Et quidem in Angloriim ecclesia, in qua adhtic solus tu Episcojms in- veniris, ordinare Episcopum non aliter nisi sine Episcopis potes . _. . Cum . . . fuerint Episcopi in propinquis sibi locis ordinati, per omnia Episco- porum ordinatio sine adgregatis tribus vel quatuor Episcopis fieri non debet. —For Scotland see § 10, note 6«. According to Haddan and Stubbs 1, 155, among the ancient Britons and Irish consecration by one bishop was the usage ; on the other hand see Loofs, Antiquae Britonum ScotoTumque ecclesiae quotes ftcerint mores p. 25. For the East Indies consecration by only two bishops is allowed by 3 & 4 Gul. IV (1838) c 85 s 19. ^ The ordinal prescribes in the cases of all three orders that one bishop should speak the words and lay hands on the ordained. At the ordination of a priest, the priests present ; at that of a bishop, the bishops present, are also to lay on hands. Canons 31 and 35 of 1604 (appendix XII) direct the presence, both at the ordination of priests and that of deacons, of certain persons besides the bishop. " See article 25 (appendix XI). § 20] GENERAL 197 outwardly at least, do not. Following, however, the provisions of canon law,i^ English law even at the present day restricts the con- ferment of deacon's or priest's orders unless the recipient has the prospect of ' some certain place where he may use his function.' The precise rules are contained in canon 33 of 1604. According thereto ordination is only permissible when the person to be ordained has the sure prospect of a certain office in the disposal of the bishop or of some other, when he is a fellow of some college of Oxford or Cambridge, or when he is a resident master of arts of five years' standing ; ^^ if the bishop ordains without observing these condi- tions he must support the person ordained ' till he do prefer him to some ecclesiastical living.' The conferment of the lower orders must precede that of the next higher. Between ordination as a deacon and ordination as a priest there is to be, as a rule, an interval of one year ; priest's orders and deacon's orders cannot be conferred on the same day.^^ Ordination as a deacon presupposes that the person ordained has reached the age of twenty-three ; as priests only those may be ordained who are at least twenty-four years of age ; as bishops only those who are fully thirty." The canonical rule that unbaptized persons and women are in- capable of receiving orders is observed in England ; but not the minute regulations as to irregularilates ex defectu and ex delicto of baptized men.^^ Instead of them, the only requirements, apart from the conditions as to age just mentioned, are that the bishop *' The history of these provisions will be found in Eichter, Kirchenrecht § 108 ; for England compare Philliriiore, Eccles. Law 120. '^ By these rules the Eoman titulus beiieficii and, with limitation to masters of arts, the titulus patrhnonii are maintained ; the titulus mensae is abolished. " Prayer-book form of ordination : ... It must be declared unto the Deacon, that lie must continue in that Office of a Deacon the space of a ichole year {except for reasonable causes it shall otherwise seem good unto the Bishop) . . . Canon 32 of 1604 (appendix XII). " Canon 34 of 1604 (printed in appendix XII) ; so the rubric in the ordinal : And none shall be admitted a Deacon, except he be Twenty-three years of age, unless he have a Faculty. And every man which is to be admitted a Priest shall be full Four-and-twenty years old. Aiul every man which is to be or- dained or consecrated Bishop shall befidly Thirty years of age ; 13 Elis. (Ibll) c 12 s 4 : And that none shalbe made Mynister (here equivalent to ' priest ') or admitted to preache or miynister the Sacraments, being under thage of four e and twenty yeres, nor unles hefyrst bring to the Bisshop of that Diocesse, from Men knowne to the Bishop to be of sound Eeligion, a Testimoniall both of his honsst lyfe and of his professing the Doctryne expressed in the said Artycles ; nor unless he be able to aunsicere and render to the Ordynary an Accompt of his faith in Latyne, according to the said Articles, or have .special Gyfte and Habilitie to be a Precher ; nor shalbe admitted to thorder of Deacon or Minis- terie, unles he shall fyrst subscribe to the saide Artycles ; 44 Geo. Ill (1804) c 43 to remove doubts and make usage in Ireland and England uniform, enacts, that, with reservation of the rights of the. archbishops of Canterbury and Armagh to grant faculties, 720 person shall be admitted a deacon before he shall have attained the age of 23 years compleat, and that no person shall be admitted a priest before he shall have attained the age of 24 years compleat. '^ On the prohibition of the ordination of women see Eichter, EirchenreeJit § 101, note 2; for the irregxdaritates, the same authority §§ 105-7. 198 THE CLERGY AND THEIR ORDERS [IV, 1 shall of his own knowledge or by testimony establish that the-per- son is of virtuous life and without crime, and by examination and trial assure himself ' that he is learned in the Latin tongue and sufficiently instructed in the Holy Scripture.'^* As evidence of previous good conduct a candidate must produce letters testimonial, — according to the canon, from some college of Oxford or Cambridge, or from three or four grave ministers,- ' to- gether with the subscription and testimony of other credible per- sons, who have known his life and behaviour for the space of three years next before.' ^' In the case of one who had resided any con- siderable time out of the university, archbishop "Wake ^^ required a certificate that notice had been given in the church of the parish where the candidate lived, on some Sunday at least a month before the day of ordination, of his intention to be ordained at such a time. The examinations are conducted by the examining chaplains of the bishops, the number of these chaplains varying in different dioceses.^" The examination for priest's orders is distinct from that for deacon's.^" The right of examination was, by canon law and usage, vested in the archdeacon, and hence it is he or his deputy who presents to the bishop the persons proper to be ordained. Since the year 1874 there has been also a central examining body, ' to promote the better preparation of candidates for holy orders.' ^^ A formal examination upon belief, etc. is contained in the several forms of ordination. Before ordination in each of the three kinds, the oath of allegi- ance to the king ^^ is to be taken ; nor did 28 & 29 Vict, c 122, ' An act to amend the law as to the Subscriptions and Declarations and Oaths to be taken by the Clergy of the Established Church of Eng- '" Etibrio in ordinal : And the Bishop knowing either by himself, or by suffi- cient testimony, any Person to be a man 0/ virtuous conversation, and without crime ;■ and, after examination and trial, finding him learned in the Latin Tongue, and sufficiently instructed in holy Scripture, may . . . admit him, a Deacon . . . ; 13 Eliz. (1571) c 12 s 4 (above, note 14) ; canon 34 of 1604 (appendix XII). Cf. Phillimore, Eccles. Laic 114 ff. " Canon 84 of 1604 ; compare 13 Eliz. c 12 s 4 (above, note 14). By resolu- tion of the upper bouse of Canterbury (6th May, 1890; printed in Church Year- Book, 1891) detailed requirements in regard to testimonials were agreed and recommended to the bishops. '* His letter, written after deliberation with his bishops (1716), is printed Cardwell, Doc. Annals II, 868. Many other recommendations are contained in it. '^ Canon 35 of 1604 (appendix XII) treats of the examination to be under- gone prior to ordination. 2» Canon 84 of 1604. Blunt, The Book of Church Laic 200, 210. Compare the agreement (1886) of all the English bishops as to the subjects of examination. Church Year-Book, 1891, p. 7. " The particulars of this examination will be found in the Church Year- Book, 1891, p. 6. ^'' 28 & 29 Vict. (1865) c 122 Clerical Subscription Act; 31 & 32 Vict. (1868) c 72. The latter (s 143) does not touch the Oath of Homage taken by Arch- bishops and Bishops in the Presence of Her Majesty. § 20] GENERAL 1 99 land,' aiFect the oath of canonical obedience to the bishop, or the oath of obedience to the archbishop taken by bishops on consecra- tion. A declaration of assent to the thirty-nine articles of religion, the book of common prayer and of the ordering of bishops, priests and deacons is required of every person about to be ordained priest or a deacon.^* ^^ Ordination of priests and deacons must be by the competent bishop, unless that bishop has granted letters dimissory. Com- petent are, according to the rule of canon law still followed, the bishops of the diocese wherein the candidate was born, of that where his domicile is and of that wherein he has filled office. Bat in extension of a privilege conferred by the pope, for members of any college in the two universities, every bishop is competent.^' The conferment of orders gives the recipient the capacity or authority to perform certain ecclesiastical acts. These acts are set forth or indicated in the words of ordination.^" Bishop's orders alone invest the holder with the power of conferring orders on others, of holding confirmations and of consecrating churches and burial places. The possession of siich orders is a previous condition necessary to the exercise of the functions of an archbishop, or of a diocesan, suffragan, assistant or coadjutor bishop. Priest's orders empower to administer the communion and to give absolutions and benedictions ; ^^ none but a priest can receive a ' parsonage, vicar- age, benefice or other ecclesiastical promotion or dignity.' ^'' Deacon's orders do not, properly, confer a position of independent responsi- 22" 28 & 29 Vict, c 122 s 4. 2^ As to the oatli of canonical obedience of. 28 & 29 Vict, c 122 s 12, and 31 & 32 Vict, c 72 s 14*. ^* Canon 34 of 1604. Phillimore, Ecdes. Law 123, 137. Richter, Kirchen- recht §§ 109, 110. The competentia ratione familiaritatis, first generally- recognized by the council of Trent, seems not to have been admitted in England. When several bishops are competent, letters are not required in England from the others. Letters testimonial are always exacted, and if they are signed by- clergy who do not belong tothe diocese of the ordaining bishop, countersigna- ture of the bishops set over them is usual. The upper house of the convocation of Canterbury approved this practice by resolution of May 6th, 1890 (above, note 17). ■ ■ _ 2° The words of conferment are, in the case of a deacon : Take thou Authority to execute the Office of a Deacon. . . . Take thou Authority to read the Gospel in the Church of God, and to preach the same, if thou lie thereto licensed by the Bishop himself (cf. note 28) ; in the case of a priest : lieceive the holy Ghost for the Office and Work of a Priest in the Church of God, . . . Whose sins thou dost forgive, they are forgiven ; ami whose sins thou dost retain, they are retained. . . . Take thou Authority to preach the Word of God, and to minister the holy Sacraments in the Congregation, where thou shall be lawfully appointed thereunto. *" See the words of the ordinal quoted in note 25 ; in respect to the eucharist cf. also 14 Car. lie 4. Act of Uniformity, s 10 (note 27). " 14 Car. II (1662) c 4, Uniformity Act, slO: . . . no person . . . shall . . . be capable to bee admitted to any Parsonage Vicarage Benefice, or other Ecclesiastical Promotion or Dignity nor shall presume to consecrate and administer the Holy Sacrament of the Lords Supper before such time as he shall be ordained Preist ... 13 Miz. (1571) c 12 s 3 is thus amended. 200 PARTICIPATION OF THE CLERGY [IV, 2 bility ; ^' so that a deacon may only use his orders ' as a chaplain to some family, or as a curate to some priest, or as a lecturer without title.'^^ ^ The possession of deacon's or priest's orders is attested by letters of orders. § 21. 2. PARTICIPATION OF THE CLERGY IN THE DELIBERATIONS OF PAR- LIAMENT.^ In Anglo-Saxon tinies the bishops took part in the national coun- cil or ' witenagemot ' side by side with the temporal magnates. But as the term ' magnates ' was apparently not very strictly defined,^ so besides the bishops others of lower rank were often present for special reasons.^ In particular, as the monasteries grew in import- ance, abbots appeared in ever-increasing numbers.^ This state of affairs was still continued under the first Norman kings. At the assemblies at the king's court, the substitute for the '"^ The functions of a deacon are expressed in the ordinal : It ajjpertaineth to the Office of a Deacon, in tM Church where he shall be apiwinted to serve, to assist the Priest in Divine Service, and specially when he ministereth the holy Communion, and to help him in the distribution thereof, and to read holy Scriptures and Homilies in the Church; and to instruct the youth in the Catechism ; in the absence of the Priest to baptize infants, and to preach, if he be admitted thereto by the Bishop. And furthermore, it is his Office, where provision is so made, to search for the sick, poor and im,potent people of the Parish, to intimate their estates, names, and jjlaces where they dwell, unto the Curate, that by his exhortation they may be relieved with the alms of the Parishioners and others. "> Cf. Phillimore, Eccles. Laic 134, 314. ' Compare, however, Stubbs, Const. Hist. 1, 139 c 6 § 52. ^ This is deducible e.g. from the introductions to the laws of Ine (688 to 726-8) and 4ethelstan (924-940) II {and Codes pedica). ' ^ Examples of the number of abbots present are brought together in Stubbs, Const. Hist. I, 139, note 3, 140 c 6 § 52. ■ Gneist, Engl. VerfassungsgescMclite §§ 22, 24, 29.— Stubbs, Const. Hist, o 15 §§ 186, 198, 200 ; 20 §§ 428-30, 432.— For the parliamentary sittings of the clergy after the time of Ed- ward 1 see also the references under § 54 note a II. Collections of writs of summons to parliament, etc. : Dugdale. A perfect copy of all Sum- mons of the Nobility to the Great Councils and Parliaments of this Realm from 49 Hen. IIT to 1 Jac. II. London, 1685.— Palgrave^ (Cohen), Francis, for the Record Commission. The Par- liamentary writs and writs of Military Summons together- with the Records and Muniments relating to the suit and service due and performed to the king's High CowH of Parliament and the Councils of the Realm, or affording evidence of attendance given at Parliaments and Councils. 1827-34. 3 vols. ; the 2nd in three parts (relates to the times of Ed. I and Ed. III.— Prynne, William. Brief Register, Kalendar and Swrvey of the several Kinds andForms ofPar- liavientarg Writs. 4 parts. 1659-64. (Ft. I contains writs of summons from the years 1205-1483. Ft. Ill has the Bej>a,Ta.te title Brevia ParUamentaria Rediviva.)^RepoH of the Lords' Com- mittees on the Dignity of a Peer of the Realm. 4 vols. 1819 ff. (Vol. I contains as First Report the history of the legislative assemblies from 1066 to 1707; vols. II and III contain appendix I thereto, consisting of a reprint of the writs of summons to parliament from John to Edward IV; vol. IV contains appendices II-IV to the First Beportandthe Reports 2-4, here irrelevant.) §21] IN THE DELIBERATIONS OF PARLIAMENT 201 earlier witenagemot, there attended the highest state officials and a number of. the king's tenants-in-chief together with their followers. Among these state officials were numerous members of the clergy- superior and inferior. The tenants-in-chief included not only the bishops^* but also many abbots, and a few canons and parish priests.* The number of those present at the assemblies varied in an extra- ordinary manner. The king listened in weightier matters to the counsel of the more important members, but was not bound to make his measures dependent on their consent.^ Nor had any defi- nite persons the right of being summoned : actual participation in the assemblies at the king's court and their later, developments '' was, apart from exceptional cases, confined to those most prominent by official position or extent of possessions.^ Of the clergy appeared, as a rule, the archbishops and bishop, as also — at first in varying num- bers^abbots of the larger monasteries, some priors, and heads of orders. From time to time in the period of transition from the end of the twelfth to the end of the ■ thirteenth century, mention is further made of the attendance of deans and archdeacons.'' i" * It is disputed whether the hishops in the middle age.s sat in the national council merely as secular harons or as ecclesiastical dignitaries. , See Stubhs, Const. Hist. I, 388, note 1 c 11 § 123. The historical reason of the obscurity which surrounds the question is that the feudal idea was extended to non- feudal relations, without being fully carried out in all its consequences. — It was Lanfranc, not the king, who appointed and invested according to old custom bishops Ernostus and Gundulfus of Eochester (Eadmer, Hist. Nov. ; Ber. Brit. Scr. No. 81 ; p. 2), as also Anselra the next bishop Eadulfus (Eadmer, I.e. p. 196). After 1148 the chapter seems for some time to have exercised the right of electing. Cf. Wharton, Anglia Sacra I, 384. King John by ordinance of 22nd Nov. 1214 (printed in Wharton, Anglia Sacra I, 386 ; cf. also the information to the chapter of Rochester sent by the king on the same day, printed in Eymer, Foedera 4th Ed. I, 126) conveyed to the arch- bishop of Canterbtiry the patronage in respect of the bishopric of Eochester, inclusive of the right to invest the bishop with the temporalities. Nevertlieless, the bishop of Eochester appeared at the national council. On the jrasition of the bishop of Llandaff after the attachment of Wales to England see Coke, Inst. IV, 283 ; on the position of the bishop of Sodor and Man, § 33, note 25. ° Gneist, Kngl. Verfassungsgesch. § 7, p. 104, note 1, states (after Ellis, Intro- duction to the Domesday Book, 1833, I, 361 ff.) that there are set down in the Domesday Book as holding immediately from the king: 19 archbishops and bishops (among them some of Normandy), 20 canons, 56 abbots, abbesses, abbeys, 38 churches, 11 priests, 2 deacons, 3 chaplains. " So Gneist, Verfassungsgesch. § 5.— Stubbs, Const. Hist. I, 398 if. c 11 §§ 124, 125 ascribes to the assembled magnates a somewhat more extensive influence. ' From Henry II's reign these meetings gain in importance ; the name par- liament appears in the reign of Henry III, without, however, until a century later being strictly confined to the national council. * The custom had grown up, probably as early as Henry I, but at latest in the beginning of Henry II's reign (Stubbs, Const. Hist. I, 608 c 13 § 159), of inviting these prominent persons by .separate writs; general summonses were issued thi-ough the sheriffs. — The presence of secundae dignitatis barones at the coun- cil of Nortliampton, 1164, is attested by William Fitzstephen (Ber. Brit. Scr. No. 67) III, 67. " Stubbs, Const. Hist. I, 610 c 13 § 159.— Benedict (Eer. Brit. Scr. No. 49) I, 145 : Venerunt etiani illuc (to the council of London, March, 1177) tot ab- bates, tot decani, tot arehidiaconi quot sub niimero -non cadebant. Venerunt etiam illuc comites et barones regni, quorum non cit numerus. Et congregaiis 202 PARTICIPATION OF THE CLERGY [IV, 2 After the beginning of tlie thirteenth century we find that on some occasions, besides the before mentioned persons, specially elected representatives of certain bodies were summoned. Such summonses were, for the most part, caused by the endeavour to ob- tain a general grant of taxes without the necessity of entering into negotiations with various separate organizations.^^ The first known examples of the attendance of such representatives occur in the year 121.3. At the council of St. Albans in 1213, representatives of communities on the royal domain lands were present. For the coun- cil of Oxford, held later in the same year, it was directed that four men from each county should present themselves. A further experi- ment was made in 1254 : '^ at the national council of April the 26th two knights from each shire and representatives of the clergy from each diocese were to appear, to report the amount of the aid which those whom they represented were prepared to grant.*^ At the omnibus in {aula) regia apud Lundonias, ... In 1265 to the great parlia- ment of Simon de Montfort, besides abbots, priors, and heads of orders, four deans were summoned. (Stubbs, Const. Hist. II, 96 c 14 § 177.)^It is to a church council rather than a national that we must refer the passage in ErOger de ■ Wendover, Mores Historiarum {Eer. Brit. Scr. No. 84) II, 83 : Modem, anno ( 1213), octavo Kalendas Septembris, convenerunt in civitate Londoniarum apud sanctum Paulum Steplianus, Cantuariensis arcMepiscopus, cum, episcopis, ab- batibus, prioribus, \decanis et baronibus regni, ubi archiepiscopus indulsit tain ecclesiis convektualibus quam presbyteris saecularibus, ut haras canoni-' cas in ecclesiis suis\ audientibus parocManis, suppressa voce cantarent. ^° The archbishops and bishops received separate writs of summons. Other ecclesiastical personal who were to attend were generally also invited by special writ. Instances, ho^yever, occur — analogous to general summons through the- sherifE — of general summons through the bishop. Compare e.g. the oldest writ preserved, addressed to the bishop of Salisbury in 1205. (Stubbs, Sel. Chart. ■282 after Report on the Dignity of a Peer, app. I p. 1) : Rex episcopo Saris- buriensi. Mandamus vobis rogantes quatenus omni occasione et clilatione postpositis, sicut nos et honorem, nostrum, diligitis, sitis ad nos apud Londonias die Dom,inica proxima ante A.^censionem, Dom,ini, nobiseum tractaturi de mag- nis et arduis -negotiis nostris et com.nnuni regni nostri utilitate, quoniam, super Mis quae a rege Franciae per nuncios nostros et suos nobis mandata sunt, unde per Deil gratiam bonum speramus provenire, vestrum expedit habere consil- ium et aliorum m,agnatum terrae nostrae quosad diem ilium, et lociim fecimus convocari ; vos etiam, ex parte nostra et vestra abbates et prior es con- ventuales totius diocesis vestrae citari faciatis ut concilio praedicto nobiseum intersinf, sicut diligunt nos et communem regni utilitatem,. " Of. § 4, near notes 74 ff. — Riess, Geschichte des Wahlrechts zum Englischen Parlainent, Leipzig, 1885, pp. 1-14 seeks to show that in these older times the chief aim of every sunlmoning of representatives of the counties, etc. was, not that they might gram taxes, but to control the local officers of the king and to enrol the elected repreisentatives for service in the collection of taxes. 1' For similar case.? in 1222 and 1227 see Stubbs, Const. Hist. II, 222 c 15 § 208. " The summons toj the knights (1254) is printed in Stubbs, Sel. Ch: 376 after Report on the Digmty of a Peer, app. I p. 13. Eeport of queen Eleanor and Eichard of Cornwall to the king, who was on the continent, 14th Feb. 1254, printed in Shirley, jloyal Letters (Rer. Brit. Scr. No. 27) II, 101 :— . . . habito tractatu cum praelatis et magnatibus . . . super subsidio vestro, videlicet in quindena S. Hilarii proximo praeteriti . . . ; respond- §21] IN THE DELIBERATIONS OF PARLIAMENT 203 parliament of the 13th October, 1255, procuratores clericorum from the several archdeaconries or dioceses attended.^* But whilst the representatives of the shires were again summoned to the parlia- ments of 1261 and 1264, and the representatives of the shires and towns to the parliament of 1265 and more regularly to all parlia- ments after the beginning of the reign of Edward I,^= no invitation was issued, as far as is known, in the years specified to representa- tives of the whole body of the inferior clevgj. Special representa- tives of the cathedral chapters were summoned to a parliament which was to meet at Winchester on June the 1st, 1265.^^ For January, 1283, the king summoned laity and clergy, divided according to the ecclesiastical provinces, to two assemblies, one to be held at North- erunt nobis archiepiscopi et episcopi, quod si rex Castdlionis venerit contra vos in Wasconiam singuli eorum cfe bonis propriis vobis subvenient, . . . sed de auxilio clericorum suorum vobis faciendo nihil facere potu- erunt, sine assensu eorundem clericorum, . . . Praeterea . . . omnes comites et barones regni vestri potentes ad trans- fretandum, ad vos venient in Wasconiam cum toto posse sito ; sed de aliis laicis ad vos nan transfretaturis non credimus aliquod auxiliuin ad opus vestrum obtinere, nisi . . . Dom,inationi igitur vestrae innotescat quod cum clericis et laicis prae- dictis habit uri sum us tractatum apud Westmonasterium in quindena Paschatis proximo futuri super auxilio praedicto, . . . " Annates de Burton {Rer. Brit. Scr. No. 36 ; Annates Monastici) I, 360 if. : . . . Fast festum Sancti Michaelis autem tenuit rex parliamentum suum apud Westmonasterium, convocatis ibidem, episeopis, abbatibus, et prioribus, comitibus, et baronibus, et totius regni majoribus ; . . . Episcopi vero, abbates, priores, et procuratores qui ibidem, pro universitate- affu- erunt, nolentes hujusmodi exactioni adquiescere, sed potius decernentes fore resistendum et contradicendum, rationibus et gravaminibus in scriptis redac- tis et allegatis, per fiddes et discretes nuncios electos eadem gravamina summo Pontifici sub sigillis destinarunt. Quorum tenor talis est : — ' Procuratores clericorum beneficiatorum archidiaconatus Lincolniae pro tota communitate proponunt, . . .' ' Proponunt procuratores subditorum ecclesiarum Covintrensis et Lichfeldensis dioecesis ; . . .' De singulis dioecesibus totius regni consimiles ibidem con- fecti sunt articuli, et summo Pontifici pro universitate similiter destinati ut supradictum, est. " The dates are collected in Stubbs, Const. Hist. II, 231 ff. cl5 § 214. '* The summons is printed in Stubbs, Select Charters H^: Rexdecanoet capi-_ tulo Eboracensi salutem,. Cum praelatos et magnates regni nostri jam vocari fecerimus quod sint ad nos apud Wintoniam primo die Junii proximo venturi ad tractandum, nobi.Kum super nostris et regni no.stri negotiis quae sine'eorum praesentia finaliter expleri nolumus, vobis mandamus in fide et di- tectione quibus nobis tenemini, firmiter injungentes quatenus modis omnibus duos de discretioribus concanonicis ve&iris ad dictos diem et locum mittatis qui plenum, habeant potestatem vice vestra ad tractandum nohiscum una cum, praefatis praelatis et magnatibus super negotiis antedictis, et ad faciendum nomine vestro quae vos ip.si facere possetis si praesentes ibidem essetis. Et hoc . . . nullatenusomittatis.T.R.apudGloucestriam, XV dieMaii. This summons was issued by the kinf!;, then a prisoner in the hands of Montfort. (On 23th May prince Edward escaped.) The parliament of Winchester which was to meet on 1st June is different from the parliament of "Westminster (or London) of 1285, which sat from January to March, and to which representa- tives of the shires and to^ns were summoned. 204 PARTICIPATION OF THE CLERGY [IV, 2 ampton, the other at York-^' It was perhaps intended to introduce joint deliberation by the clergy and laity of each province. Neverthe- less, the assemblies of the clergy remained separate from those of the laity. The summons to both to debate by provinces was not repeated.i^ Not until 1295 did Edward I make a new attempt to bring about a single grant of the taxes to be paid by clergy and laity. He summoned to parliament an extraordinary number of pre- lates, among them sixty-seven abbots. The writs of summons to the bishops contained an instruction (beginning with the word prae- munientes) to bring with them the heads of their chapters, their archdeacons, a representative of each chapter and two representatives of the rest of their clergy.^^ The council so summoned met duly ; but resolved itself into three sections : 1. the barons and knights of the shires ; 2. the representatives of the cities and boroughs ; 3. the clergy. Each of these sections deliberated apart and passed sepa- rate resolutions. The prelates appear to have deliberated with the rest of the clergy, the archbishop of Canterbury presiding.^" Thus, if we leave out of view the form of summons, there was hardly any difference between this meeting of the clergy and the similarly con- stituted national synod of the church. Even the distinguishing form of summons was not retained in the following years. On the contrarj', we find the king, instead of including the summons to the inferior clergy in those to the several bishops, merely bidding each archbishop to summon for himself his clergy to parliament ^' — a " See more in Stubbs, Select Charters 4G0 ff. The clergy were to be invited through the archbishops, the laity through the sheriffs. The writ addressed to the archbishop of Canterbury, dated 22nd Nov. 1282, is to be found in Regist. Epist. Peckham (Eer. Brit. Scr. No. 77) II, 486 and Willdns, Cone. II, 91. '■^ For the history of the granting of taxes and of the summoning of synods by the king important is a purely ecclesiastical national council of 1294, on which see Stubbs, Sel. Charters 479 ff. '" Stubbs, Select Charters 484 : Rex . . . Cantuariensi archiepiseopo . . . salutem. (Similarly to each of the other bishops) . . . vobis manda- mus, . . . quod die Domenica proxima post festum Sancti Martini . . . apud Westmonasteriuin personaliter intersitis. Praemunientes priorem et capitulum ecclesiae vestrae, archidiaconos, totumque clerum restrae dioecesis, facientes quod iidem prior et archidiaconi in propriis personis suis, et dictuin ca}>itulum per unitm idemque clerus per duos procuratores idoneos, plenam et sufficientem ]}otestatevi ab ipsis capitulo et clero hdbentes, una vobiscum inter- sint, modis omnibus tunc ibidem ad tractandum, ordinandnm et facien- dum, nobisciivi et cum ceteris pii'dclatis et proceribus et aliis in- colis regni nostri. The persons and representatives thus summoned are exactly the same as those who, according to the constitution of the southern provincial synod, were entitled to appexr at such a synod. The same persons and representatives were likewise summoned by the king in 1294 by writ addressed to each bishop severally. But in that case the summons was to a purely ecclesiastical council : ad tractanduTn una vobiscum et ceteris jyraelatis ac clero ejusdem regni (Stubbs, Sel. Charters 480, from Report on the Dignity of a Peer, app. I p. 59). "" Compare Stubbs, Sel. Charters 483. Bartholomaeus de Cotton (Eer. Brit. Scr. No. 16) 299. Similarly, for example, the clergy appeared in parliament in 1296, hut again deliberated apart. B. de Cotton, 314. ^' So e.g. in 1804. But whilst referring to the royal order, the archbishop summons the clergy to appear before himself on the Sunday before the meeting §21] IN THE DELIBERATIONS OF PARLIAMENT 205 proceeding which had already had many precedents in the assem- bling of church councils.^^ But all the kings' efforts to induce the lower clergy to take a real part in the national councils were encountered by stubborn resist- ance. In outward form the clergy obeyed the royal or archiepiscopal summons. They chose their representatives or 'proctors and em- powered them to act on their behalf in the discussions of parliament, at the opening of which the representatives appeared.^^ But the clerical deputies always found means to detach themselves under some form or other from the laity and to form a separate assembly. Though the attempts of Edward I to combine clergy and laity in one deliberative assembly had produced no satisfactory result, Edward II again essayed to realize the project. By writ of the 25th (27th) of March, 1314 (7 Ed. II), he ordered the archbishops to summon the clergy of their provinces to discuss with royal com- missioners to be appointed the granting of an aid. But again the opposition was strong, and the attempt was not repeated.^* of parliament. (Document in Atterbury, Eights, appendix XIV c). Summons of the archbishop by the king's order to the parliament of Dec. 1311 inWilkins II, 408. On the form of the summons to the parliament of 1312 see below, note 25. ^^ Compare § 54, near note 21. '3 Atterbury, Bights 236 ff. Joyce, Synods 278, 279.— Stvibbs, Const. Hist. Ill, 417 c 20 § 420. — In the parliament of Carlisle (1307) the lower clergy were represented by dignitaries and by delegates. (List in Sotuli Farliamentoruin 1, 189. Compare Stubbs, Const. Hist. II, 165, note 1 c 14 § 182 for the constitu- tion of the parliaments from 1802 to 1307.) Similarly the presence of repre- sentatives of the lower clergy in parliament is sometimes mentioned in the reigns of Richard II, Henry IV and Henry VI (examples in Hody, Hist, of Engl. Councils II, 420 £E.). In some instances during Eichardll's reign the pre- lates and lower clergy allowed themselves to be represented in parliament by a single layman as their common delegate (cases in Hodj', I.e.). Numerous examples of authorities to represent ecclesiastical electoral bodies in parliament are given, from the years 1295-1425, in Atterbury, Rights, app, XI, where see also an authority (1503) for both parliament and convocation. In earlier times, as a rule, diflferent persons were chosen as representatives for parliament and con- vocation and svTch cases are also foimd later. Joyce, i.e., after Atterbury, Bights, Addenda pp. 616-626. Compare also in Wilkins II, 534 the executio episcopi Lincohiiensis as a consequence of a summons by the archbishop to a provincial council (1326) : only a short time was left but the archiepiscopal summons could be obeyed, si dictus clerus procuratoribus suis pro parliamento jam destinatis, ad consentienduni de his, quae in dicto concilio provinciali . . . ordinari contigerit seu concedi, potestatem liberam transmiserit et mandatum speciale. Even from post-reformation times elections of representatives in parliament by ecclesiastical electoral bodies are given in Atterbury, Bights, Addenda 616-626 (Joyce, I.e.) as follows : 1629 (Exeter, the register of which was most accessible to Atterbury). 1536 (York), 1538 (Exeter), 1539 (York), 1541, 1542 (Exeter), 1544 (Exeter and London), 1546, 1547, 1552, 1563, 1554 (Exeter), 1670 (Salisbury), 1572 (Exeter), 1584 (Salisbury), 1688 (Peterborough), 1614, 1620 (Exeter), 1623 (Lich- field and Coventry), 1627 (Exeter), 1676 (Peterborough). "* For the archiepiscopal summons, wherein the royal summons to the arch- bishop is repeated, and the protest of the clergy, see Wilkins II, 442. The royal summons ran : vobis mandamus, rogantes, quatenus . . . sitis in propria persona vestra apud Westmonasterium . . , coram fidelibus nostris ad hoc deputandis, ad tractandum cum eisdem super competenti auxilio a clero provinciae vestrae Cantuar. nobis impendendo . . . prout in proximo parliamento nostro apud Westm. habito, tarn per clerum, quam per communita- 206 PARTICIPATION OF THE CLERGY [IV, 2 A summons of the inferior clergy to a tax-granting parliament (that of York) in such a way that the praemunientes-c\aMSQ was con- tained in the summons to the bishops, whilst at the same time the archbishops were also bidden themselves to invite the inferior clergy, was issued, so far as we know, for the first time on the '29th of July, 1314 (8 Ed. II )P The same procedure was repeated in the following years ; after 1332 (6 Ed. Ill) it became fixed, and from that time forth the praemunientes-c\&VLBe became an essential part of the summons of a bishop to parliament.^" The relation of these two simultaneous summonses to one another is further complicated by the fact that sometimes the archbishop determined a different time and place of assembly from that fixed by the king, and that he summoned sometimes to parliament and sometimes coram nobis, apparently without difference of meaning.^'' After, at latest, the first years of the reign of Edward III we can no longer distinguish the tax-granting assemblies of the clergy from the ordinary provincial synods. This may be a result of a gradual fusion of the parliamentary and the synodal assemblies; but perhaps, on the other hand, the parliamentary meetings fell out of vogue whilst, as a compensation, the provincial councils extended the scope of their operations.*** Anything beyond a mere formal tern regni nostri extitit concordatuvi ; et prout per praedictos fideles nostras eritis requisiti. Et ad euiidem diem venire faciatis coram dictis fldelibus nostris, suffraganeos vestros, decanos et prim-es etc (In Atterbury, Rights, app. XIII the summons is dated 27th, by Wilkins I.e. 25th March.) " Atterbury, Rights 231. The writs to the several bishops (also to the arch- bishops) with praemunientes-alsixxae are printed in Dugdale, Summons 97; the instruction to each of the archbishops to summon the inferior clergy is printed in Atterbury, Rights, app. XIV a. — The summoning of the clergy to parlia- ment through the archbishop alone (at the king's request) had taken place several times (cf. above, note 21). A transition from this form to the double summons by the archbishops and by each bishop severally, is exhibited by the king's writ of 8th Oct. 1312 to the archbishop of Canterbury, and to the vicar- general of tlie absent archbishop of York. This writ (printed in Dugdale, Summ,ons 78) runs : . . . mandamus, rogantes ; quod praemuniatis decanos et priores ecclesiarum cathedralium, ac etiam capitidi, necnon abbates, archi- diaconos ac totum clerum vestrae dioeceseos totiusque vestrae provinciae Cantuariensis, quod . . . Parliamento in Octabis Sancti Martini proximo futuro . . . exhibeant sepraesentes. ^^ Atterbury, Rights 230. For examples of writs with prae)nunientes-ci.a,us& from the year 1.B28 see Wilkins II, 545. 'i' Upon the earlier cases of 1804 and 1811 see note 21. In 1821, for example, the archbishop by the king's command summons the inferior clergy quod com- pareant in . . . j)o,rliamento apud Westmonasterium prout hactenus fieri consuevit . . . (Wilkins II, 50(5). In 1329 the king issued to every bishop a writ containing a jjraemunientes-cl&use; nolentes tamen negotia nostra praedicta prae defectu praemunitionum, praedictarum, si forsan minus rite facta fuerint, aliqualiter retardari (this clause was customary iinder Edward II and Edward III. Atterbury, Rights 237), he calls pn the archbishop to summon for himself the clergy of his province to parliament (commune consilium regni). Upon this the archbishop issues a summons to appear before himself {compareant coram nobis), Wilkins II, 567.— Example of a similar double summons, dated 15th May, 1321, in Atterbury, Rights, app. XIV e and Palgrave, Pari. Writs II, div. II, 234 No. 1, 286 No. 6. 2* Compare § 54, note 14. §21] IN THE DELIBERATIONS OF PARLIAMENT 207 appearance of the inferior clergy at those assemblies to which the name of parliament now became restricted, was by degrees aban- doned.^'' The prelates were from ancient times members of the national council. They, too, sometimes deliberated apart from the secular members. This was especially the case during the time when parliament in its modern form was in progress of development ; and several instances are on record. ^° In order not to come into open conflict with the pope, the ecclesiastical magnates took no part in the passing of many important enactments levelled against papal encroachments.^^ Acting moreover on the principle that the church ^° For the last traces of the lower clergy exercising a right of electing repre- sentatives to parliament, see above, note 23. — Under Edward VI, 22nd Nov. 1547, the lower house of convocation proposed apparently ut . . . convocatio hujus cleri, si fieri possit, assiiniatur et co-optetiir in inferiorein clomum parliamenti sicut ah antiquo fieri consuevit. (Wilkins, Concilia IV, 15 ; Cardwell, Synodalia II, 419. Compare, however, two other reports there. According to one of these request was made either for a fusion with parliament or for an assurance that laws of ecclesiastical purport shall only be pro- mulgated with the consent of convocation. According to the other the only demand was that convocation should be heard before the promulgation of debatable acts affecting the church.) '" Compare, for example, as to the council at "Westminster in 1244, Stubbs. Cons. Hist. II 62 f. c 14 § 175 ; as to the parliaments of 1331 and 1332, I.e. Ill, 445, note 1 c 20 § 426. — See also the petition of the lower house, 1381 (Eohdi Pari. Ill, 100), in which the wish is expressed that in a particiilar case there might deliberate les Prelatz par eux mesmes, les grantz Seigneurs Temporelx par eux me.^mes, les Chivalers par eux, les Justices par eux, et toicz aufrcs ^statz singulereTnent. '' The following are the most important laws to which the prelates are not mentioned as consenting or against which they even protested : Stat. Karlioli 85 Ed. I (1306/7) ; post deliberacionem plenariam et tractatum cum Cwnitibus, Baronibus, proceribus, et aliis ndbilibus, ac communitatibus . . . de consensu eorum. [So with the resolution on which this is based, 33 Ed. I: de consilio Comititm, Baronum, Magnatum, proceruin, et aliorum nobilium, et regni sui communitatum.] Stat, de Provisoribus 25 Ed. Ill (1350/1) st. 4 ? (In the text of the act we read : par assent de touz les grantz et la Communalte. The word grantz is mostly used only of the secular magnates, but sometimes of hoth secular barons and prelates. Perhaps the ambiguous term is intentional. At any rate the prelates did not expressly protest. Cf. Stubbs, Cons. Hist. II, 413 c 16 § 259 ; III, 340 c 1 9 § 392.) Stat, contra adnullatores ludiciorum Curiae liegis 27 Ed. Ill (1353) st. 1 c 1 ? (In the text we read : assentu est et acorde par notre . . . Seigneur le Roi et les grantz et communes. It was passed at a consilium which Prelatz, Grantz et Communes attended. Cf. Eot. Parliament. II, 252 [No. 33], 258 [No. 42], 257 [No. 16].) According to the text ■ of 38 Ed. Ill St. 2 o 1 the acts against the encroachments of the pope, particu- larly those in 25 Ed. ZZ7and27 Ed. Ill were through it confirmed by the king : de lassentement et expresse volunte et concorde des Dues, Contes, Barons, Nobles et communes. Who assented to the other parts of the act is not shown by the text of it. Cf. here Pofuli Pari. II, 285 : As queles Ordinances [the act 38 Ed. Ill St. 2] issi'nt lues les Dues, Countes, Barons, et Communes se assenteront bien si il plust au Eoi, les Prelatz tout dis fesantz low Protestations de rien assenter lie faire qe purr a estre ou tourner en prejudice de lour Estat ou Dignite. 3 Eic. II (1379/80) c 8 [in text of act : le Eoi par ladvis et commune assent de touz les seigneurs temporels. The act was passed under incitement from the king and on the petition of the commons. Eot. Pari. Ill, 71 (No. 4), 82 f. (No. 37)]. 7 Eic. II (1383) c 12 [in text of act : assentuz est . . . piar mesmes 2o8 PARTICIPATION OF THE CLERGY [IV, 2 sheds no blood, they, as a rule, withdrew when the upper house, in its judicial capacity, was about to pronounce sentence of death or mutilation.^^ On the other hand, the king and the secular members of parliament at all times held fast the theory that the prelates as members of the national council were merely on an equal footing with the rest, and did not form a separate whole, whose assent was necessary to give validity to the resolutions of parliament.** Thus les seigneurs as in 3 Ric. II c 3]. 13 Ric. II (1389/90) st. 2 oc 2 and 3 [assent des grantz de son roialme. The protest of the arch'hishops of Canterbury and York in the name of the wliole clergy was at their wish entered on the rolls. Rotuli Parliamentorum III, 264 : . . . quod nolumiis nee intenditnus alieui Statuto in presenti Parlimnento nunc noviter edito, nee antiquo pretenso innovato, quatenus Statuta hujusmodi, seu eorum aligiiod, in restrictionem Potestatis Apostoliee, aut in subversionem, enervationem, seu derogationem, Ecclesiasfice Libertatis tendere dinoscuntur, quomodolibet consentire, set eisdeni dissentire, reclamare, et contradicere. . . . ] [To the chief prae- munire act, 16 Ric. II (1392/3) c 5, the spiritual magnates assented, but (in respect to part of its provisions) : fesantz protestacions qil nest pas lour entencion de dire ne affermer qe notre Seint Piere le Pape ne poet excomenger Evesques ne quil poet faire translacions des prelatz solonc la ley de Seinte Esglise.] In reformation times the spiritual magnates did not assent to the uniforjnity act 1 Eliz. (1B58/9) c 2 (see note in Statutes of the Realm). Cf. further the protest of the archbishop of Canterbury in Wilkins, Cone. Ill, 746 and the precedents in Coke, Inst. II, 585-87. '^ National synod of London, 1075 (Wilkins, Concilia 1,363): Ex conciliis Eliberitano et Toletano XI; ut nullus episcopus, vel abbas, seu quilibet ex clero, homineni occidendum, vel membris truncandum judicet, vel judicantibus suae auctoritatis favorem conim odet. Const. Clarendon, 1164, c 11 : . . . sicut barones caeteri debent interesse judiciis curiae domini regis cum baronibus, usque perveniatur in judicio ad diminutionem membrorum vel ad mortem,. Canones concilii sub Richardo Cantuariensi archiepiscopo Jiabiti (according to Wilkins' assumption : Westminster, 1173 ; Wilkins, Concilia I, 474) c 17 : Clerici publicis muneribus non fungantur, nee eausas sanguinis agant. Council of Westminster, 1 175 (Wilkins, Concil. I, 476) : Ex concilia Toletano III. Hiis qui in sacris ordinibus constituti sunt, judicium sanguinis agitare non licet. Unde prohibemus, ne aut per se membrorum truncationes faciant, aut inferendas judicent . . . Council of Oxford, 1222 (Wilkins, Concilia I, 585) c 8 : . . . ne clerici beneflciati aid in sacris ordinibus constituti, ad villarum x)'''OCurationes admittantur ; viz. id non sint sene.scalli aid ballivi talium administrationum. occasione quarum laicis inreddendis ratiociniis obligentur ; nee jurisdictiones exerceant seculares, praesertim illas, quibus judicium sanguinis est annexum. Constitutions of legate Othobon, 1268 (Wilkins, Concilia II, 1) c 6. Cases in which the bishops did take part in such judgments are collected from 4 & lb Ed. Ill, 5 Hen. IV,3&5 Hen. Fin Phillimore, Eedes. Law 72. ^^ Compare 11 Ric. II (1387/8) c 1 petit. 3 ; the appelles, pursuites, accuse- ■mentz, processes, jugementz et execucions made by that parliament (held after a. period of disturbance) were to be valid in spite of the fact that the spiritual psers had absented themselves when the said judgments were given, porloneste et .salvacion de lour estat ; but no precedent was to be drawn therefrom. [By 21 Ric. 11(139718) c 12 all the acts of the parliament of 11 Ric. II are declared to be unlawful (but according to the contents of the statu);e, for other reasons than the non-participation of the prelates). 1 Hen. IV (1399) o 3 repeals all the acts of the parliament of 21 Ric. II, and c 4 expressly confirms the enactments of the parliament in 11 Ric. II. But cf. Rotuli Pari. Ill, 348 touching the parliament of 21 Ric. II: . . . les Communes monstrerent au Roy, Coment devant ces heures pluseurs Juggementz, Ordenances, faitz en tem,ps des progenitours notre §21] IN THE DELIBERATIONS OF PARLIAMENT 209 in respect of the prelates that permanent detachment from the common parliament which prevailed in the case of the inferior clergy was not allowed to take place. The archbishops and bishops were from the outset, as a general rule, all summoned.''* But the number of the other prelates (abbots, priors, heads of orders) whose attendance in the upper house was bidden, at first varied largely from time to time.^^ In a case which arose in 1319 (12 Ed. II), and after 1341 (15 Ed. Ill) constantly, it was acknowledged that only those who held by barony, and not those who held by frankalmoign, were bound to appear.'^" After that the number gradually became fixed at some twenty-five abbots, two priors and three heads of orders."'^ The higher and lower prelates were thus together more numerous than the temporal peers'^* and could, if they were unitad, prevent the passing of any Seigneur le Hoy en Parlement, oiint este repeilez et adnuUez, pur ceo qe VEstat de (Jlergie nefeust present en Parlement a la faisaunce des ditz Juggemcntz et Ordenances. Et pur ceo prierent au lioi, qe . . . les Prelatz et le Clergie ferroient un Procuratour, avec poair sufficeant pur consenter en leur noun as toutz chases et ordenances a justiflers en cest present Parlement.]—!^ 1641 twelve bishops declared that they had baen kepi from the house by the menaces of the crowd, and tliat all proceedings in their absence were void. (Cf. § 7, note 38.) This served as the basis of a charge of high traason against the bishops for having attempted to form a special spiritual estate as a third part of parliament. '' According to Stubbs, Const. Hist. II, 211 c 15 § 201 omissions were only made when the bishop omitted was in disgrace. — For more as to the form of the summons sea Stubbs. I.e. Ill, 404 if. c 20 § 417. ^' Cf. Stubbs, Const. Hist. II, 211 c 15 § 201 ; III, 459 f . c 20 § 430. On the summoning of four abbesses to the national assembly of 1306 see I.e. Ill, 454 c 20 § 423. °' Grneist, Verfassungsgesch. p. 348. For more on the cases of 1319 and 1341 see Parry, Parliaments 2nd Ed. p. 83, note j), p. 112, note n. — On possession in frarilcalm,oign sse Coke, Inst. I, 93 ff. and F. W. Maitland, Franlcalmoign in the 12th and IStJi centuries in The Law Quarterly Seview, 3891, p. 354. Accord- ing to Ellis, Introduction to Domesday I, 258, possession in this kind did not free from the trinoda necessitas. Cf. also the distinctions in Bracton (7?er. Brit. Scr. No. 70) I, 112 : ... est enim libera eleemosina et magis libera eleemosina, . . .; 1,216: Poterit etiam. fieri donatio in liberam,eleemosynam,, sicut ecclesiis cathedralibus, conventualibus, parochialibtts,' viris religiosis, et quandoque in liberam eleemosynam et perpetuam, et ^uo casu, non ex- cus.atur ille, qui accipit, a praestatione servitii. Si autem. fiat donatio in liberam, puram, et perpetuam eleemosynam, excusatur ; IV, 372: . . . si ecclesiis parochialibus, utrum sit libera vel magis libera, secundum, quod data fuerit in dotem, tempore dedicationis (=if at the dedication- of the church, then, it would seem, magis libera) vel alio tempore . . . Si autem terra data fuerit ecclesiis cathedralibus vel conventualibus ... quamvi.^ hujusmodi terrae dentur in liberam eleemosinam, non solum, dantur ecclesiis seel et personis tenendae in baronia, ... " Upon occasion 122 abbots and 41 priors of various monasteries were sum- moned. Frequently during the vacancy of a see the ' Guardians of Spiritual- ities ' were summoned (cf. thereon Stubbs, Const. Hist. II, 178, note 2 c 15 § 186 ; III, 408, note 1 c 20 § 417), as was once (in 81 Ed. I) the archbishop of Dublin, Gneist, Verfassungsge.sch. p. 348, For summons to archbishop of Dublin see Peers Report, app. 1, 156. " For example, at the meeting of the reformation parliament of 1529 the upper house consisted of 44 temporal and 48 spiritual peers ; the number^gf the latter being made up thus: 2 archbishops, 16bishops, 2 'guardians of spiritual- ise. P 210 PARTICIPATION OF THE CLERGY [IV, 2 civil enactment. A change in this respect was brought about by the dissolution of the monasteries. As a consequence thereof, within a few years all the lower prelates disappeared from the upper house,*^ and the preponderance of the spirituality among the lords was ended for ever. During the first revolution the archbishops and bishops also lost their seats by 16 sq. Car. 7(1640 ff.) c 27.^» But this act was re- pealed on the restoration of the monarchy by 13 Car. 7/(1661) st. 1 c 2." ■ About the same time the relations of the clergy to the lower house of parliament underwent alteration. Probably from a feeling that the church synods were equivalent to parliamentary represen- tation, the clergy had up to this time taken no part in elections to the house of commons. In 1665 grants of taxes to be paid by the clergy ceased to be voted in the convocations, and were made ex- clusively in parliament.''^ It was perhaps in connexion with this fact that the clergy, about the year named, began without any special enactment to share in electing members to the lower house.'*^" Thus from the end of the seventeenth century that house has been representative both of clergy and laity. Before this time it had become doubtful whether the clergy were eligible as members of parliament. After the reformation parlia- ment repeatedly pronounced against their eligibility,^^ and theory was on the side of this contention.** In agreement herewith 41 Geo. Ill (1801) c 63 enacted ' that no person having been ordained ities,' 25 abbots and 2 priors. Amos, Observations on the Statutes of the Re- formation Parliament p. 3. '^ In 1539 abbots sat for the last time under Henry VIII in the house of lords. Under Mary and in the first session of Elizabeth's reign there still sat in that house the abbot of Westminster, now restored as a monaster}'. Gneist, Verfassungsgesch. p. 477, note. *' Of. § 7, note 39. As to the time when the priors of the great orders dis- appeared from parliament, see Stubbs, Const. Hist. Ill, 457 c 20 § 428, '' Cf. § 7, note 68. " Compare here § 54, nr. notes 57 ff. "• Observations of Onslow in Burnet, Hist, of Time Ed. 1823 ff. I, 340 and IV, 508. That clergymen may vote is assumed in 10 Ann. (1711) s 2 and 18 G?eo. // (1745) c 18 ss 1, 5. ■■' Resolution of a mixed committee of both houses, 21 Hen. VIII. Atterbury, Rights 72 (after Moor, Bep. p. 781). On Oct. 12th, 1553, a committee was appointed by the commons to examine into certain elections. On Oct. 13th, 1563, it is declared by the Commissioners, that Alex. Nowell, being Prebendary in Westminster, and thereby having voice in the Convocation-house, cannot be a 3{ember of this House ; aiul so agreed by the House ; atul the Queen's Writ to be directed for another burgess in that place (Journal, Commons). On the elec- tion of a clergyman it was resolved, with this and another precedent in vieWj on the 8th Feb. 1621 : his return void; and a new writ to issue for a new elec- tion {Journal, Commom, 8th Feb. 1620). 17th Jan. 1662, on the recommendation of the Committee of Privileges and Elections it was resolved that Dr. Craddock (being in holy orders) was a person incapable to be elected, and his election void ; and that Mr. Wandesford (who had obtained the next greatest number of votes) was duly elected a burgess for the said borough of Richmond and ought to sit in this house (Journal, Comm.ons, 17th Jan. 1661). ** Coke, Inst. TV, 47, maintains that no clergyman, even of the lowest degree, ig eligible, in that the clergy belong to another body, viz. to convocation. So, on §21] IN THE DELIBERATIONS OF PARLIAMENT 211 to the office of priest or deacon, or being a minister of the church of Scotland, is or shall be capable of being elected to serve in parlia- ment as a member of the house of commons.' ** But by the Clerical Disabilities Act, 33 & 34 Vict. (1870) c 91, those who relin- quish under the terms of this act become eligible. The praemumentes-c]a,nse was used, even after the reformation and after the first revolution, in the writs summoning bishops to parliament, in spite of the fact that special representatives of the clergy no longer appeared even as a matter of form. The clause still stands in the writs.*'' The number of bishops summoned to the upper house was, in and after Edward VI's reign, two archbishops and twenty-four bishops, that is to say, all the bishops of England proper and the principality of Wales.''''' As there were no new sees established until the nine- teenth century, that number was not increased ; on the contrary, the relative importance of the spiritual element was diminished. Im- mediately after the reformation the archbishops and bishops formed about one-third of the house of lords. Then temporal peers began to be multiplied ; so that by the end of the eighteenth century the spirituality commanded but a small minority of votes, and the pro- portion has since been continuously reduced.** On the tmion of Ireland with England, 39 & 40 Geo. 111(1800) c 67 gave the arch- bishops of the established church of Ireland one seat, and its bishops three seats, in the house of lords of the parliament of the united kingdom ; the archbishops and bishops were to sit by rotation of sessions.*^ An increase of episcopal votes in the upper house, such as might have occurred when in the nineteenth century new bis- hoprics were created, was prevented by the movement against the preference of any church as a state church.^" In the first act to authorize the establishment of new sees, 6 & 7 Gul. IV (1836) c 77, the possibility of any addition to the spiritual peers was obviated by the proposed combination of old dioceses at the same time that new were marked off. It was thus not necessary to break with the principle accepted hitherto, that all the bishops of England and Wales were entitled to a seat in the house of lords. The first in- fringeinent of that principle was by 10 & 11 Vict. (1847) c 108, which enacted that one of the projected unions of sees was not to take place and that a see of Manchester was nevertheless to be founded. The the same ground, Blackstone, 1 Comm. 175 and others, whereas Coleridge dis- putes the soundness of tliis reason. (See Phillimore, Eceles. Law 632, notes i ff.) ■" An Act to remove doubts respecting the eligibility of persons in holy orders to sit in the house of commons. *" Compare e.g. the writ of summons for 1866 printed in Joyce, Handbook of Convocations, London, 1887, p. 189. "" The hishop of Sodor and Man was not summoned, because Man does not belong to the kingdom of England. Cf. § 33, note 25. •** No, of temporal peers at the accession of Geo. I, 181 ; at that of Geo. Ill, 372 ; now above 500. Gneist, Verfassungsgesch. p. 676. " Cf. § 11, note 32. ™ To exercise pressure on the upper house, frequent proposals were made in the '20s and '3Gs to exclude the bishops wholly from it, 212 HISTORY OF THE CELIBACY OF THE CLERGY [IV, S same act laid down tliat tlie number of the lords spiritual was not to be increased by the foundation of the new bishopric; the twO' archbishops and the bishops of London, Durham and Winchester were always to be summoned ; but of the rest only the legal numbsr according to priority of appointment ; translation to an- other see did not destroy the right to be summoned. A similar reservation is repeated in all later acts for the creation of new sees.^' Lastly, at the disestablishment of the Irish church it was laid down that thenceforth Irish bishops as such had no right to be summoned to the house of lords/^ § 22. 3. HISTORY OF THE CELIBACY OF THE CLERGY. At the time of the conversion of the Anglo-Saxons, there were already existing in the Christian church, especially in the west, numerous prohibitions, differing in details, of marriage or sexual intercourse on the part of the clergy at least from the diaconate upwards. Bat these prohibitions had not been strictly carried into effect.i Gregory I, in an instruction to Augustine (601), takes it for granted that those below the grade of a. deacon may legally marry.* In the centuries after the death of Augustine marriages of the clergy even from the diaconate upvvards were tolerated in England as elsewhere in the west.* In the ssventh and eighth centuries 5' 10 & 11 Vict. (1847) c 108 s 2 ; St. Albans Act 38 & 39 Vict. (1875) c 84 s 7 ; Truro Act 39 & 40 Vict. (1876) c 54 ss 5, 6; BisJwpricn Act 41 & 42 Vict. (1878) c 68 ; Bristol 47 & 48 Vict. (1884) c 66, the case being brought under the Biahoprics Act 1878. " 82 & 33 Vict. (1869) c 42 ; cf. § 11, note 36. ' Eichter, Kirchenrecht § 116; Hinschius, Kirchenrecht I, § 19. ' Gregory I's answer to Augustine's first question (Haddan and Stubbs, Councils III, 19 ; also priated in Gratian, Decret. I, dist. 32 c 3) : . . . si qui vera .sunt clerici extra sacros ordines constituti, qui w continere non possunt, sortiri iixores debeiit, et stipeiidia sua exterius accipere. In canon l^w ordines majores {=sacri) and ordines minores are distinguished. In the earlier part, of the middle ages sub-deacon's orders were reckoned among ordme.* niinores. According to the Decretals of Gregory IX {Liber Extra) 1, 14 c 9 they were included by Urban II (1088-99) in ordines sacri. Compare Eichter, Kirchenrecht § 103, note 9. At a later time by ordines sacri were understood the higher orders including those of the sub-deacon, ' Instances of mention of the wives and children of English bishops, priests and deacons from the seventh to the eleventh century, without any sign that offence was taken at such relations, are collected in Kemble, Tlie Saxons in England, Book II c 9 Ed. 1876, II, 444 ff. ; two examples from Domesday- Boole (1086) will be found in Ellis, Introduction to Domesday, 1833,1,342.— Among the Britons the marriage of the clergy was tolerated and long survived; in spite of the fact that the tendency to discountenance it grew by degrees stronger. Passages in support of this statement are to be found in Haddan and Stubbs I, 155. In 961 the priests in the dioce-se of LlandafFwere ordered only to mai;ry with the pope's consent. This led to disturbances, with the efiect that the priests were again allowed to marry without restriction. Haddan and §22] HISTORY OF THE CELIBACY OF THE CLERGY 2 13 priests and deacons were only forbidden to make a second marriage, or a marriage with a woman man-ying for the second time, or with & heathen woman ; '■ they were also forbidden to keep concubines.* It was not until the middle of the tenth century that, favoured by archbishops Odo (941-58) and Dunstan (959-83) of Canterbury, a Stubbs I, 285. — For cases of monastic or other church property falling by in^ heritance to the family of the holder see Stubbs, Const. Hist. I, 243 f . c 8 § 84. .' ■* Compare, in particular, the following rules : — Poenitentiale Theodori (probably dating from the time of Theodorus, G6S- SO; printed in Haddan and Stubbs, Counc. Ill, 173 E) :— Book 1 c i) JDc his qui degraduntur vel ordinari non possunt. § iSi quis presbitei- aid diaconus iixorem extraneam duxerif, in con- scientia populi, deponatur. § 5 Si adulterium perpetraverit cum ilia et in conseientia devenit populis, projiciatur extra aecclesiam et peniteat inter laicos qiiamdiu vixerit. [In the corresponding passage of the Poenitentiale Egberti (its authenticity is tolerably certain and it is to be referred to Egbert, archbishop of York, 732-G6 ; printed in- Haddan and Stubbs III, 413 ff.) the word extranea is, in the form in which the penitential has been transmitted to us, left out. The passage runs :^ c ^ % 1 Si presbyter vel diaconus vel monacliiis uxoreni duxerit in con- seientia popidi, deponatur. § 8 Si adulterium perpetraverit cum ea et in conseientia populi devener it, proiciatur extra aecclesiavi et inter laicis peniteat quamdiu vivit. Extranea in the extract from I'oen. Theodori is, it would seem, used in the' sense of gentilis. The prohibition of marriage with heathen women applied not only :to the clergy but to all Christians. Cf, Voenitentiale Theodori, Book II c 4 § 11 : Non licet haptizatis cum caticuminis manducare neque osculiim eis dare, ■quanto magis gentilibus ; cl2 ^ . . . cuj us uxor est infldelis et gentilis ■et non potest converti, dimittatur. Councils of Celehyth and I'incahala, 787 (Haddan and Stubbs III, 455) c 15 : Interdicuntur omnibus injusta connubia, et incaestuosa, tarn cum ancillis Dei,. vel aliis illiciti's personis, quam cum propinquis et consanguine! s, vel alie nig enis uxoribus ; . . .] Dialogus Egberti (universally regarded as genuine, 732-66; printed in Haddan a,nd Stubbs, Counc. Ill, 403) :— c 16 Interrogatio: Pro quibus criminibus nidlus sacerdos potest fieri vel pro quibus jampridem ordinatus deponitur ? Besponsio : Hvjusmodi tunc ordinatio Episcopi, presbiteri, vel diaconi, rata esse dicitur: si nidlo gravi facinore probatur infectus; si secundam nonhabuit [uxorem], nee a inarito relictam ; . . . ^ Poenitentiale Theodori (Haddan and Stvibbs, Councils III, 173 S.), Book I « 9 § 6 : Si quis concubinam habet, non debet ordinari. To others than the clergy the church allowed at this time and later allowed the keeping of either a wife or a concubine. Can. poenitent. sub Edgar, rege (a compilation of the tenth century from earlier penitential books ; whether king Edgar had any connexion with it is not known) c 19. Knut fl017-1037) II c 54, Compare also Freeman, Hi.^t. of Norman Conquest 3rd Ed. I, 624 ff. appendix X. (Only a legitimum connubium is allowed by the council of rHervitford, 673, c 10 ; printed in Haddan and Stubbs III, 118. Similarly Institutes of Polity c 23 ; printed in note 6.) The boundary line between marriage proper and the keeping of a concu- bine was not yet strictly drawn in ecclesiastical law, because, whilst the blessing of a priest on the union was desired, it was not as yet regarded as a condition of validity. On priestly blessing of marriage see: Poenitentiale Theodori, Book I c 14 § 1 : In primo conjugio presbiter debet missam agere et benedicere ambos . . . — Be iclfmannes beweddunge (of the marriage of a woman), printed in Schmid, Ges. d. Angelsachsen, append. VI. The treatise is of ancient date; the MSS. attach it to the laws of Aethelstan (921 [925]-40) or Eadmund (940-l'4G). In it an account is given of the whole procedure on 214 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 stricter school of thouglit arose, the followers of which aimed at compelling the celibacy of the clergy in the higher orders. Con- nected therewith was the endeavour to substitute monks for the secular canons of the chapters, which met, however, with only partial success. To this time belong the first civil and ecclesiastical laws in England, which recommended celibacy to mass-priests and deacons -^sometimes to all ' servants of the altar.' " To priests and deacons occasion of a marriage, s 8 runs: Aet }>dni g if tan sceal maesse-2)re6st bedn mid rihte, se sceal mid Oodes bletsunge lieora gesomnunge gederian an ecdre gesundfulnesse. ("At the giving [of the bride] rightly there shall be a mass^ priest; he shall with God's blessing bind their union to all prosperity.") Let- ter of Aelf ric to bishop Wulfsin (the so-called canones Aelfrici, 992-1001 ; printed in Thorpe [Record Commission] Ancietit Laws etc. 441 ff. c 9) : . . . Se laeweda mot swa-/)cah, be pass apostoles leafe, otSre sitfe wifigan, gyfhis wif him aetfyW, ac ]}a canones forbeodat! pa bletsunga fiaer-to, and gesetton ddedbote swylcum mamium to donne. ('' The layman may, however, with the apostle's leave take a wife a second time, if his wife falls away from him ; but the canons forbid blessing thereto and have ordered such men to do penance.") — Report of the council of Winchester, 1st April, 107G, Parker, De Antiquitate Britannicae Ecclesiae etc. Lambeth, 1572, p. 98: ex lib. Constitutionum. Ecclesiae Wigorn. p. 101; printed also in Wilkins, Concilia 1,367: Praeterea statutum est, ut nullus fitiam suam, vel cognatam det alicui absque benedic- tione sacerdotali. Si aliter fecerit, non ut legitimum. coniugium sed utforni- catorium iudicabitur. — Council of London, 1102 (Wilkins I, 382) c 23: Ut fides inter virum et mulierem, occidte et sine testibus, de conjugio data, si ab alterutro negata fiierit, irrita habeatur. On the gradual introduction of priestly co-operation in the conclusion of marriages in England and Scotland see Friedberg, Das Recht der Eheschliessimg, Leipzig, 1865, pp. 33 ff., 309 ff. — In regard to Ireland see, for example, Benedict (Rer. Brit. Scr^ No. 49) I, 28 : . .. . Praeterea praeceperunt in eodem, concilio (that of Cashel, 1171, after the partial conquest of the country by the English) ut laid qui uxores habere vellent, tas sibi copularent jure ecdesiastico. Plerique enim illorum quot valebant uxores habebant, et etiam cognatas siias germ,anas habere solebant sibi uxores. ° Edm,und (940-46) I c 1 : Se gehddedra manna claenisse. paet is aSrest, Jjoet }>d hdlgan hddas . . . heora cla&nesse healdan be heora hdde, swd wer- hddes swd wtf-hddes. (" Of the purity of the clergy. This is the first [thing], that those holy oi-ders . . . hold their chastity according to their degree, men and women alike) ; if they do not so, then are they worthy of that which the canon ordains, that is, that they forfeit their worldly possessions and a consecrated burial place, unless they do penance." caii. sub Edgar. (959-75) rege, c 8 : AruJ we laerap, paet aenig preost silfwilles ne forlaete tSa circan, Se he to gMetsod waes, ac haebbe him, Sa to riht aewe. (" And we teach that no priest should willingly leave the church, to which he was consecrated ; but should have her for his true wife.") c 60 : And we laeraj>, poet aenig preost ne luflge wifmanna neawyste ealles to swipe, ac lufige his riht aewe, poet is, his cirice. (" And we teach that no priest should love the proximity (Beischlqf) of women too ihuoh ; but should love his true wife, that is his church.") can. poenitent. sub Edgar, (penitential perhaps from the tenth century, merely repeats earlier provisions, mostly of Frankish origin) c 30 : Gifmae sse-preost oppe munuc haemed Ifinge drih}> okpe aewebrycp, faeste X gear and reowsige aefre. Diacon VII, cleric VI, laewdeman V, swabe manslihte. (" If a mass- priest "or monk commits fornication or adultery, let him fast for ten years and repent always ; let a deacon fast for seven years, a clericus for six, a layman for five, as in the case of homicide ") \hae.med= Beisehlaf, is, as a rule, employed in the sense of unlawful Beischlaf^ unriht-haemed appears to designate not merely Beisehlaf oi the unmarried; but Bei.9chlaf which is for special reasons unlawful ; riht-haemed =ma,rii&ge. ■Sohmid, Ges. d. Angelsachsen ; Glossary s. v. haemed]. c 81 : Gif m.aesse-preost^ oppe munuc oppe diacon riht wif haefde, aer he gehadod waere, and hi §22] HISTORY OF THE CELIBACY OF THE CLERGY 2I5 who observe the prohibition is promised as a reward equality in the eye of law with the thegn ; whilst those who transgress it are forlaete, and to hadefencge, cud sijjfian tSurh liaemed tSingc hi eft underfenge, faeste heora aelc swa be manxUhte, and reowsian sicipe. (" If a mass-priest or monk or deacon has had a wife before he was consecrated and leaves her and receives consecration, then takes her again for Beischlaf, let each of them fast as in case of homicide and repent sorely.") According to Stubbs, Introduction to Memorials of Dunstan (Her. Brit. Scr, No. 63) p. cvii, note 2, this canon is taken from the fourth book of the Pseudo-Egbertine penitentials, which again is from the Pseudo-Theodora, which takes it from the Poenitentiale Homanum, published by Halitgar of Cambray; there it is taken from the penitential of Columbanus and the earlier writers. Aethelred V (ordinance of 1008) c 9 : Fid georne M witan, f^aet ht ndgan mid rihte purh haimed-ping wtfes gem&nan. (•'Full well they [the mass-priests] know that they have not with right through concubinage (Beischlaf) intercourse with a woman [wii=midier or iixor]), and let him who will abstain from this, and preserve his chastitj', have God's mercy'; and in addition thereto, for worldly honour, that he be worthy of thane-' wer ' and thane-right . . . ; and he who will not that which is befitting his order,; let his honour wane before God and before the world." [Aethelred VI (Gouncil of Ensham, 100(>-11, perhaps only a revision of the ordinance of 1008) c 5, as above, but applied to 'all God's servants, and priests above all,' and without any promise of the rights of a thegn.] Similarly Aethelred VIII (1014) cc 28-80 [here the prohibition is — it is not seemly for the servant of the altar ndn fiinge ne to wtfe neto worold-wlge] and Knut (1017-37) I c G pr. and § 2. For private Sources whsrein similar admonitions are contained are to h& compared: — Letter of AeHric to bishop Wulfsin (the so-called canonci Aelfrici, 992- 1001, printed in Thorpe's Ancient Laws etc. pp. 441 ff.) co 5, G, 17. Letter of Aelfric to archbishop Wulstan, agreeing to a great extent with the preceding (in Thorpe, I.e. p. 452) cc 9 if., cc 31 if., 43. — c 33 runs: L. we ne magon eownu neadunga nydan to claennesse, ac we inyngiats eoiv swa lyeah, fiaet ge claennesse healdan . . . ("Beloved we cannot now forcibly compel you to chastity, but we admonish you, nevertheless, that ye observe cha.sity.") Eccle-iiastical Institutes (Thorpe, I.e. pp. 466 ff.) c 12. Institutes of Polity (an Anglo-Saxon treatise, printed in Thorpe [Record Com- mission], Monumenta Ecclesiastica) c 23 : Be gehadodum Mannum. (Of the clergy) . . . }>aet syndon Jia aew-brecan, pe purh healicne had ciric-aewe underfengdn, and sytSSan fjaet abraecan. Nis nanum weofod pene alyfed fiaet he wiflan mote, ac is aelcitm forboden, mt is peah paera ealles tofela }>e pone aew-bryce wyrea& and geworht habbatS . . . Laewedum men is aelc. wif forboden, butan ■ Ms riht aSwe . . . Ciric is sacerdes aewe. ("Those are the adulterers who, through holy orders, have entered into an ecclesiastical marriage, and afterwards broken it. To no minister of the altar is it allowed to marry, but it is forbidden to every one (i.e. every minister) ; yet there are now altogether too many who commit and have committed adulterj-. . . . To a layman every woman is forbidden, except his lawful wife; . . . The church is a priest's spouse.") Compare further the Listituta Knuti (Schmid, appsndix XX; a law-book, probably written shortly after 1110) III c 63 : . . . clericus, qui discendo tantum profecerat, ut ordines haberet et in castitate Chrixto serviret, is tunc judicabitur libertatem habere debere . . . [In the Anglo-Saxon treatise Be ledd-geJjinHtum and lage (Schmid, append. V) c.7, whenc3 the preceding is translated, the words corresponding to in castitate are wanting] ; Leges Henrici I (a law-book ; probably written 1110-18) c 67 § 9 (printed below, § GO, note 24). In connexion with the concession of the rights of a thegn are to be placed the regulations which assure to those mass-priests and deacons who live according to rule greater credibility in a lawsuit than those who do not. Aethelred Mill cc 19-21 ; Knut I c 5. 2l6 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 threatened with the imposition of ecclesiastical penances, not, however, with loss of office^ Moreover there is found a regulation, probably dating from the same time, which assumes the permanent cohabitation of a priest and a woman (wife) to have been allowed in Northumbria." About the time of the conquest the movement against marriages ' The contrary is often maintained on the ground of a report (in AVilkins I, 27) of a council alleged to have been held in 712 or 714 by archbishop Brith- wald, at which resolutions were passed de abdicandis sacerdotiini uxoribus ; and on the ground of a report (in Mansi XIX, 15) of a national council in 969 in the reign of king Edgar. The report of this council of 712 (714) is based on forged papal bulls and on late arbiti-ary additions to documents (Haddan and Stubbs III, 280, note). The account of the assembly of 969 is taken from the Vita St. Oswaldi, printed in Historians of the Church of York {Ser. Brit. Scr. No. 71) II, 505 and mentioned by Hardy, Descriptive Catalogue of Materials etc. (Rer. Brit. Scr. No. 26) vol. I No. 1207, cc 6, 7 : . . . Kon multo vera post, comite Ailwino amplas possessiones concedente, S. Ostcaldus i nfr a quinquen- nium aediflcavit insigne ibidem moiiasterium, et anno Domini 974 solemniter dedicavit, Ednothum monachum abbatem constituit. I'er idem, tempiis aucto- ritate Joannis papae Dunstanus archiepiscopiis,coacto generali concilia, statuit et decreto firmavit, ut canonici om,nes, presbyteri, diaconi, subdiaconi aut caste viverent, aut ecclesias quas tenebant dimitterent. Habebat autem regem Edgarum in hoc negotio fidelem adjutorem, et firmum defensorem,. Hujus enim decreti executio Oswaldo Wigorniensi episcopo, et Ethelwoldo Wintoniensi episcopocommisjsa est. . . . According to Hardi', Z c. this FiVa, the author of which is unknown and which forms part of the collection attri- buted to John of Tynemouth (as to this collection see Hardy I, 20, note), is based probably on Eadmer's Vita St. Oswaldi. Eadmer in his Vita St. Oswaldi c 17 (printed in The Historians of the ■ Church of York ; Rer. Brit. Scr. No. 71 ; II, 20), as also, borrowing from Eadmer a second, anonymous, Vita St. Oswaldi c 7 (in Historians York, I.e. II, 493, Hardy, I.e. vol. I No. 1210) reports : Fer idem, temporis, ex sanctione et auetoritate Johannis Apostolicae sedis antistitis, Beatus Dunstanus archiepis- copus Cantuariae et primas totius Britanniae, cujus panlo siiperius m.entionem fecimus, coaclo generali concilio statuit, et statuendo decretum confirmavit ; videlicet ut canonici omnes, diaconi et subdiaconi omnes aid caste viverent, aut ecclesias quas tenebant una cum rebus ad eas pertinentibus ■perdcrent. Habebat autem regem, Edgarum in hoc negotio fidelem fautor em, constantem adjutorem, firmum defensorem. Qui rex, ipsius patris consilio utens, curam exequendi decreti hujus super totum, regnum, ductus viris injun- ' xit, Oswaldo scilicet episcopo Wigorniensi et Aethelwaldo Wintoniensi. This report of Eadmer is incredible, if only from the mention of the sub-deacons (cf. ■ above, note 2\ No such account is found either in the contemporary Vita St. Oswaldi (I.e. I, 392 ff.), or in the biographies of Dunstan by his contemporaries and by Eadmer (in Memorials of St. Dunstan ; Rer. Brit. Scj: No. 63). Most nearly resembling it is the statement of Eadmer in Vita St. Dunstani {Memo- rials etc. I.e. 211): . . . Ordo clericalis ea tempestate plurimum erat cor- ruptus, et canonici cum presbyteris plebium voluptatibus carnis plus aequo inserviebant. Quod malum Dunstanus corrigere cupiens,fretus (this word is wanting in one MS.) auetoritate Johannis apostolicae sedis antistitis, apud regem, obtinuit quatenus canonici qui caste vivere nollent ecclesiis quas tene- bant depellerentur, et monachi loco eorum intromitterentur. Praesidebat ea tempestate Wentanae ecclesiae praesul Aethelwoldus, . . . Cf. below, note 13, for a report of the same tendency, likewise it would seem incorrect, of the resolutions of 1108 c 5 by Eadmer. * Nor&hymbra predsta lagu (time of origin not precisely known ; according to the common view, end of tenth century ; Schmid, appendix II) c 33 : Gif preOst cwPnan forlaite, and otire nim.e, anathema sit. (" If a priest forsake wife [or woman] and take another, anathema sit.") §22] HISTORY OF THE CELIBACY OF THE CLERGY 217 of the clergy received a new impetus from the exertions of Gregory VII (pope from 1073 to 1086), and the resolutions of Eoman councils, particularly those of 1059 « and 1074.i» In England it was, at first, only decided — at the council of Win- chester (1G7G) under archbishop Lanfranc — that members of the chapter clergy might not be married ; that priests in other positions might not for the future marry ; but, if they had wives already, need not put them away.^^ Very soon, however, there came a long series of resolutions by other councils, forbidding absolutely, upon pain of loss of oiifice, the keeping of wives even by those who held the lower places in the church. That a more determined effort was now being made to execute the prohibitions is shown by the more precise and definite language in which they are couched. The injunction was .no longer directed indiscriminately sometimes to the mass-priest, sometimes to priest and deacon and sometimes to all ministers of the altar; but almost always definitely, to all clergy in sub-deacon's orders^- or in orders above them, or in possession of a benefice. [Further, the command was not, now to observe celibacy, now to re- main chaste, the same legal consequences following transgression of either kind ; but from the end of the twelfth century onward the cases are clearly distinguished : Joss of office is the penalty only for a breach of the prohibition to marry, not for other sexual intercourse with women, unless indeed such intercourse by its duration and publicity or by other characteristics should assume the appearance of a breach of the injunction to celibacy.^'' The often-repeated pro- " Mansi, Concilia XIX, 898. " Mansi, Concilia XX, 402 fF. 434. " Matthew Parker, De Antiquitate Britannicae Ecclesiae et Privilegiis li^cclesiae Cantuarieiisis, cum Archiepiscopis eiusdem 70. Lainbetli, 1572, p. 98 : Ex lib. Const itutionum Ecclesiae Wigorn. p. 101 (after Parker, also printed in Wilkins, Concilia I, 367) : Sexto anno celebratur Concilium apud Winton. in haec verba. Anno ab incarnatione Domini 1076 indictione 14 . . . in kalend. Aprilis habita est Synodus Wintoniae convocata ab eodem Cant. Ecclesiae Primate. . . . Decretumque est ut nullus Canonicus uxorem habeat. Sacerdotum (Wilkins : sacerdotes) vero in castelUs vel in vicis habi- tantium (Wilkins : habitantes) habentes uxores non cogantur ut dim.ittant, non habentes interdicantwa ut habeant, et deinceps caveant. Episcopi, ut sacer- dotes vel diaconos non praesum,ant ordinarefnisi prius profiteantur,ut uxores non habeant. . . . Cf. letter of Lanfranc to bishop Herfast of Norwich in Epistola Lanfranci (Migne, Patrologiae Cursus vol. IBO p. 526 No. 21. — Ed. of Giles, p. 46 No. 24). — Urban II enjoined his legate in 1095 to make repre- sentations to William II defomicatione clericorum. Hugo of Flavigny, year 1096, printed in § 4, note 17. " About this time the subdiaconate began to be reckoned one of the higher orders. Compare note 2. '" Compare from this period of transition the following illustrative pass- ages : — Council of London, 1 102 (Wilkins, Concilia 1, 382) c6: Ut nullus archidtaconus, presbyter, diaconus canonicus uxorem ducat, vel ductam retineat. Subdiaconus vero qicilibet, qui canonicus non est, si post professionem castitatis uxorem duxerit, eadem regula constringatur. c 6 : Ut presbyter quamdiu illicitam conversationem mulieris habuerit, non sit legalis, nee missam celebret ; nee si celfbraverit, ejus missa audiatur. cl : Ut nullus ad siibdiaconatum, aut supra, ordineiur sine profe^sione castitatis. Henry of Huntingdon (JSer. Brit. 2l8 HISTORY OF THE CELIBACY OF THE CLERGY [IV, S vision that the son of a priest could not succeed his father in the possession of a benefice was also aimed against the marriages of Scr. No. 74) 234 : . . . tenuit Anselmus archiepiscopus concilium aptid Londoniam, in quo prohibuit sacerdotibus uxores Anglorum, ante a non prohibitas. [Of. here Eadmer, Hist. Nov. ; Eer. Brit. Scr. No. 81 ; p. 193 : Multi nempe presbyterorum statuta concilii Lundoniensis, necne vindictam quam in eos rex exercuerat . . . postponentes, suas feminas retinebant, aut certe duxerant quas prius non habebhnt.] Eesolution of the bishops assembled for the curia regis at London, Whitsun- tide 1108, in presentia . . . regis Henrici, assensu omnium baronum suoi'um, (contained [with an allegation that these resolutions were made at Winchester and with the erroneous statement that archbishop Gerard of York was present] in the law-book Quadripartitus Book II c 18, whence it is here printed ; other versions in Florentius Wigorniensis, Chron. II, B7 and Ead- mer, Hist. Nov. 194) c 1 : Statutum est, ut presbyter i, diaconi, stibdiaconi caste vivant etfoeminas in dom,ibus suis non habeant preter proximo consanguinitate sibi iunctas secundum hoc quod sancta Nicena sinodus definivit. c 5 : Illi autem presbiteri, qui . . . preelegerint cum uxoribus suis [Florentins a,ni Eadmer have m,ulieribus instead of uxoribus suis] habitare, a divino officio re- moti [Florentius and Eadmer add : omnique ecclesiastico beneflcio privati] extra chorum, ponantur, infames pronunciati. [Eadmer, not Florentius, adds : c 10 : Omnia vero m,obilia lapsorum posthac presbyterorum, diaconorum, svb- diaconorum, et canonicorum, tradentur episcopis, et concubinae cum rebus suis,. velut adulterae.] ' Council of London of 9th Sept. 1125, under the legate, John of Crema (Wilkins, Concilia I, 408) c 13 : Presbyteris, diaconibus, siU)diaconibus, canonicis uxorum, concubinamm,, et omnium omnino foeminarum contubernia auctori- tate apostolica inhibem,us, praeter matrem, aut sororem, vel amitam, sive illas midieres, quae omnino careant suspicione. Qui decreti hujus violator extiterif confessus vel convictus., ruinam proprii ordinis patiatur. National council of Westm,inster, 1127 (Wilkins, Concilia 1, 410) c 5 : Presbyteris, diaconibus, subdiaconibus et omnibus canonicis contubernia muli- crum illicitarum. penitus interdicimus. Quodsi concubinis (quod absit) vel conjugibus adhaeserint, ecclesiastico priventur ordine, honore simul, et benefi- cio. Presbyteros vero parochiales {si qui tales fuerint) extra chorum ejicimus^ et infames esse decernim,us. c 7 relates to the punishment of priests' concu- bines. Council of London, 1129 (Henry of Huntingdon ; Per. Brit. Scr. No. 74 ; Book VII § 40 p. 250) : Eex . . . in Angliam rediit. Tenuit igitur concir- Hum maxim,um ad Kalendas Augusti apud Londoniam,, de uxoribus sacerdo- tum prohibendis. Intererant . . . (here follow the names of two archbishops and ten bishops) . . . Verum rex decepit eos simplicitate Willelmi archi- episcopi. Concesserunt namque regi justitiam, de uxoribus sacerdotum, et improuidi habiti sunt, quod postea patuit, cum res summo dedecore terminafa est. Accepit enim rex pecuniam infinitam de presbyteris, et redemit eos. Legatine council of Westminster, 1138 (Wilkins, Concilia I, 415) c 8 : Sane- torumpatrum vestigiisinhaerentes, presbyteros, diaconos, subdiaconos iixoratos, aut concubinarios ecclesiasticis officiis et beneficiis privamus ... Canones concilii sub Itichardo, archiep. Cant. {Westminster, 1173? Wilkins, Concilia I, 474) c 3 : Clerici focarias non habeant. c 4 : Conjugati ecclesias non habeant, seu ecclesiastica beneficia. Council of Westminster, 1175 (Wilkins, Concilia I, 476) : Ex decretali epis- tola Alexandri papae III ad Rogerum, Wigorn. episcopum. Siquis sacerdos vel clericus in sacris ordinibus constitutus ecclesiam vel ecclesiasticum benefl- cium habens, publice fornicariam habeat, et semel,secundo,et tertio commoni- tus,fornicariam suam non dimiserit .. . . , omni officio et beneflcio ecclesiastico spoiietur. Si qui vero infra subdiaconatum constitutimatrimonia contraxerint, ab uxoribus suis, nisi de communi consensu ad religionem transire voluerint, §22] HISTORY OF THE CELIBACY OF THE CLERGY 219 priests." The enforcement of the prohibition to marry was-^pera- tive from the end of the twelfth century ; on the other hand, the et ibi in Dei servitio vigilanter permanere, nullatmus separentur ; sed cum uxoribus viventes, ecclesiastica beneflda nnllo modo percijnant. Qui autem in subdiaconatu, vel supra, ad matrimonia convolaverint, mulieres etiam invitas d; renitentes relinquant. "When Innocent placed the country under an interdict, John seized the women of the clergy and exacted heavy ransom for their release. Roger de Wendover, Flores Historiarum (Rer. Brit. Scr. No. 84) II, 47, year 1208: . . . presby- terorum et clericorum focariae per totam Angliam a ministris regis captae sunt et graviter ad se redimendum compidsae ; . . . Council of Oxford, 1222 (Wilkins, Concilia I, 585) c 28: . . . ne clerici beneficiati vel in sacris ordinibits constituti, in hospitiis suis publice concubi- nas tenere praesumant, nee alibi, cum scandalo publicum accessum habeant ad easdem. Et si forte concubinae eorum,, commonitione publice proposita, ab eisdem nan recesserint, ab ecclesia Dei, quam infamarepraesumunt, expellantur„ nee admittantur ad ecclesiastica sacramenta . . . Ipsos etiam, clericos per subtractionem. officii et beneficii . . . volumus coerceri. Council of London, 1226 (Wilkins I, 607) : Concubinae sacerdotum et cleri- corum, qui infra sacros ordines constituti et beneficiati sunt, ecclesiastica- careant sepultura . . . Item, non recipiantur ad osculum, pads, nee panem, benedictum percipiant in ecclesia, quamdiu concubinarii eas detinent in domi- bus suis vel publice extra domos . . . ' Constitution of the archbishop of Canterbury Edmund, 1236 ("Wilkins I, 635) c 3 : . . . in generali concilia statutum est, quod clerici, praesertim in sac- ris ordinibus constituti, qui deprehensi fuerint incontinentiae vitio laborare^ et pro hoe causa suspensi, offlcium suum exequi praesumpserint ; non solum ecclesiasticis beneficiis spolientur, verum etiam pro Jiac duplici cidpaperpetuo deponantur ; . . . c4: Concubinae sacerdotum frequenter moneantur -. . . , ut vel matrimonium contrahant, vel ut claustrum, ingrediantur, vel, sicitt pub- lice peccaverunt, publice agant poenitenfiam . . . Constitution of legate Otho, 1237 (Wilkins, Concilia I, 649) c 15 : De uxoratis a beneficiis amovendis, c 16 : De concubinis clericorum removendis . . ._ statuimus . . . , ut nisi clerici et maxime in sacris ordinibus constituti, qui in domibus suis vel alienis detinent publice concubinas, eas a se prorsus re- Tnovednt infra mensem, ipsas vel alias de caetero nidlatenus detenturi, ab officio- et beneficio sint suspensi, ita quod usquequo super hoc digne satisfecerint, der beneficiis ecclesiasticis se nullatenus intromittant ; alioquin ipso jure ipsas decernimus ipsisfore privatos. Episcopal constitution of Worcester, 1240 (Wilkins, Condi. I, 672). The arch- deacons are to make inquest, . . .an aliqui eorum {clerici beneficiati) fuerint uxarati, vel concubinas publice temterint in domibus suis, vel alibi, . . . Constitution of legate Othoban, 1268 (Wilkins, Concilia II, 1) c 8 confirms Otho's constitution cited above, and adds provisions against such concubines and persons who harbour'them. '^ Council of London, 1102 (Wilkins, Concilia 1,382) c 8: Ut filii presbyter- orum non sint haeredes ecclesiarum patrum, suarum. Pope Paschal II, however, gave Anselm by letter of 30th May, 1107 (in Eadmer, Hist. Nov. ; Rer. Brit. Scr. No. 81 ; 185) the right of dispensation in regard to this prohibition, quia in Anglarum regno tanta Jtujusmodi plenitudo est, ut major peneet Tnelior clericorum pars in hac specie censeatur. Legatine council of London, 1126 (Wilkin«, Concilia I, 408) : Sandmus prae- terea, ne quis ecclesiam si'bi sive praebendam, paterna vendicet haercditate, . . - Similarly legatine council of Westminster, 1188 c G (Wilkins, Concilia I, 415). Canones sub Richardo arcliiep. Carituar. (Council of Westminster, 1173? Wilkins T, 474) 5 : Filii non succedant patribus in ecclesiis. Coimcil oi Westminster, 1175 (Wilkins, Concilia I, 41G) : Ex decretali epis- tola Alcxandri papae III ad Rogeriim, Wigom. episcopum. — . . . Deere- 220 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 rales against the maintenance of a concubine by the parochial or chapter clergy were never really effective.'* In a council of the southern province held at London in 1414, the prohibition to marry was extended to all who exercised any sort of ecclesiastical jurisdic- tion, and laymen were wholly excluded from participation in such functions.'" The reformation at first brought with it no change in these regu- lations. It is true that, under the influence of the new doctrines, some of the clergy married. But this caused Henry to issue several proclamations against such marriages, and even to threaten to visit the offenders with sharper penalties.^' The persistency with which vimus etiam, ejusdem epistolae aiictoritate, ne filii sacerdotum in paternis ecclesiis amodo personae instituantur, nee eas qualibet occasione media non intercedente persona, obtineant. , Decrees of Alexander III on this subject to English archbishops and bishops in Decret. Gregor. IX, lib. I tit. 17 cc 2-11. Constitution of Otho, 1237 (Wilkins, Concilia I, 649) c 15 : . . . Ipsi qiio- qi^e filii (of holders of benefices by secret marriages) ad ecclesias et ecclesiastica iteneficia et ecclesiasticos ordines, velut inhabiles, nullatenus admittantur, nisi Juerit cum eis, exigentibus eorum meritis, canonice dispensatum, per Romanum pontifleem. c 17 : Licet . . . in eis (sc. beneflciis) etiam, sit interdicta suc- cesgio sdbolis bene natae ; quidam, tamen de nefario coitu procreati . . . in .beneflcia hujusmodi, quae patres eorum, nullo m,ediq tenuerunt, irrumpere ...... . nonform,idant. Hoc . . . prohibemus ... Constitution of Peckham published at the council of Lambeth,^ 1281 ("Wil- kins, Concilia II, 51) c 25 : Cum a jure sit inhibitum,, ne absque dispensatione Mpostolica praeficiantur filii presbyterorum aut rectorum in ecclesiis, Jn quibits patres eorum, im,m,ediate seu proximo m,inistrarunt, et constet ipsa beneficia ■vacare, si contrarium de facto fuerit attem,ptatum ; praecipim,us, ut praelati de ecclesiis sic vacantibus diligenter inquirant, et juxta juris exigentiam, de «is non differant ordinare, cautius praecaventes de caetero, ut tales ad hujus- ■modi beneficia nullo titulo admittant, . . . " According to Stubbs, Const. Hist. 111,336 c 19 § 406 many bishops in the twelfth century were, if not married, yet heads of half legitimate families ; whilst in the following centuries until towards the end of the middle ages this was only exceptionally the case with the higher clergy in England. " Wilkins, Concilia III, 369: . . . quod nullus laicus vel clericus con- jugatus, sive bigamus, . . . de caetero jurisdictionem spiritualem exerceat qualemcunque, nee in causis correctionum, scilicet cum ad correctionem Mnimae, vel ubi ex judicis proceditur officio, scriba seu registrarius, aut Tcgistri correctionum hujusmodi custos quomodolibet existat ; . . . '" Proclamation of beginning of 1535 (Wilkins, Concilia I, 776) : Finally, his majestic understanding, that a few number of this his realme being priests, as well religious as other, have taken u-ioes, and marryed themseh-es, . . ■ ; his highness in no wise minding, that the generalitie of the clergy of this his realme should . . . proceed to marriage, without a common consent of his highness and the realme ; doth . . . command as well all and singular of the ,said priests as have attempted marriages, as all such as will hereafter pre- Mumptuously proceed in the same, that they nor any of them shall minister Mny sacrament or other ministry mysticall, nor have any office, digriity, cure, privilege, profitt or commodity e heretofore accustumed, and belonging to the ■clergie of this realme, bid shall utterly after such marriages be expelled and deprived from the same, and be had and reputed as lay persons, to all pur- poses and intents. And that such, as shall after this proclamation . . . take wives, and be married, shall run in his grace's indignation, and suffer Jurther punishment and imprisonment at his grace's will and pleasure. — §22] HISTORY OF THE CELIBACY OF THE CLERGY 221 the king clung to the celibacy of the clergy was one of the chief reasons why the negotiations then in progress for union with the German protestants proved abortive." In 1539 the doctrine that priests may not marry was laid down by the six article law, 31 Hen. VIII c 14, as fundamental and secured by heavy penalties against attack or violation.'" In spite of all which, the king allowed Cranmer, who had married, to keep his wife. , . The influence of Cranmer brought it about that the penalties threatened in the six article law were, in so far as they were applic- able to the intercourse of a priest with his former wife and the main- tenance of concubiaes by priests, somewhat modified by 32 Hen. VIII (1540) c 10.^"^ A later act, 37 Hen. VIII (1545) c 17, declared that ecclesiastical prohibitions against the exercise of ecclesiastical juris- Siniilarly proclamations of 16th November, 1538 (Strype, Cranmer Ed. 1812 I, 08) and of 1539 (Wilkins III, 847). The proolanaations liad the force of law, as can be seen from 31 Hen. VIII (1539) c 8 [An Acte that Prodamacions made hy the King shall be obeyed]. -18 perj.y^ jjist. of Engl. Ch. II, 156 c 9 §§ 24 ff. " The following are the provisions relevant here : — s 1. The doctrine is laid down (article III) that priests after the order of priesthood received may not marry. s 2. Any person who shall preach, teach, affirm or, when called before a judge, stubbornly maintain the contrary, as also an3' priest who marries thereafter is to be punished as a felon with death and forfeiture of propertj'. s 3. Any person who, otherwise than as specified in s 2, shall ' publishe, declare or holde opynion ' that the marriage of priests is permissible, is to be punished by forfeiture of goods and chattels, loss of ecclesiastical or other office and of profits from land etc. for life ; in case of relapse, by death and forfeiture as a felon. s 4. The marriages of priests already made are void, and the ordinaries are to ' make separation and divorces of the said marriages and contracts.' s 5. A priest and his former wife who should thereafter have intercourse or open converse together are to be punished as felons and their property con- fiscated. s 20. If any priest doe carnally use and accustome any Woman or Icepe her as his Concubyne, as by paying for her bourde maynteyning her with money array or any other giftes or ineanes, he forfeits his goods and chattels, as also his ecclesiastical offices and benefices, and is to be imprisoned during the king's pleasure. s 21. Penalties also fall on the concubine. The act contains in like manner provisions against breach of vows of chastity or widowhood, unless they are made before twenty-one years of age and under pressure. 31 Hen. VIII (1539) c 6 § 2 forbids the marriage of members of dissolved monasteries who are priests, or who have taken the vows without compulsion when at least twenty-one years of age. ^^ An Acte for rnoderaeion of Incontinence for Pristes. It only amends the penal provisions of ss 5, 20, 21 of the six article law. — That law was amended, in a minor point touching procedure, by 32 Hen. VIII (1540) c 15 ; in other respects it was confirmed by 34 & 35 Hen. VIII (1642/3) cl § 21 and by 35 Hen. VIII c 5 ; the last enactment, however, mitigated the procedure in favour of the accused and fixed a short limit of time within which indictment must be.— The assumj)- tion of Perry, Hist, of Engl. Ch. II, 173 c 10 § 22, that the six article law was intended to be modified by 34 & 36 Hen. VIII c 1 is hardly justified ; on the con- trary, the latter act refers only to the denial of other doctrines, less fundamental than the six articles. 222 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 diction by layman and married men were to be regarded as abolished, ■■'1 as being in breach of the king's prerogative. It was not until Edward VI's reign that the reformation carried the day in regard to the marriage of priests. 1 Ed. VI (1547) c 12 repealed the six article law. On the 17th of December, 1547, the lower house of the convocation of Canterbury passed a resolution praying that all provisions against clerical marriages might be set aside and all vows of chastity pronounced void.^^ A bill, however, based on this resolution, failed at first owing to opposition among the lords. Next year 2 & 3 Ed. VI (1548) c 21 was carried, an act which, while sweeping away, owing to the great inconveniences involved, all civil and ecclesiastical laws against the marriage of priests, contained an expression of belief that a celibate priest- hood was to be preferred.^^ A later statute 5 & 6 Ed. VI (1551/2) c 12 explained this as meaning not simply that the marriages in question were exempt from punishment, but that they were good and lawful marriages, the offspring of which were legitimate and could inherit in the usual way, and that priests might be tenants by courtesy on the death of their' wives, and wives endowable of their lands.^* Daring the reign of Edward VI the second English arch- bishop, Holgate of York, also entered the marriage state. Both 2 & 3 Ed. VI c 21 and 5 & 6 Ed. VI c 12 were repealed by 1 Mar. st. 2 (1553) c 2,-^ and a royal ordinance of 1554 prescribed, as of old, the celibacy of the priests as the condition of their remaining in of&ce.^^ Elizabeth did not at once undo completely the measures of her pre- decessor. The enactments of Edward VI were not revived. But one of the queen's ' injunctions ' of 1559 allowed a priest or deacon to " Cf. § 4, note 117. 37 Hen. VIII c 17 was repealed by 1 & 2 Phil. & Mar. (1554 & 1554/5) c 8 § 6, ivvived, so far as not repealed under Edward VI, by 1 Eliz. (1558/9) c 1 § 3. =** Resolution in Wilkins, Concilia IV, 16. '' An Acte to take away all posityve Lawes againste Marriage of Priestes. ^* An Acte for the declaracion of a Statute made for the Marriage of Priestes and for the legittimacion of their Children. " An Acte for the Repeale of certayne Statutes made in the time of the Baigne of Kinge Edwarde the Syxthe. "^ Articles of queen Mary, 4tb March, 1554 (Cardwell, Doc. Ann. I, 111) :— Art. 7. Item, That every bishop, and all the other persons aforesaid, proceed- ing summarily, and with all celerity and speed, may, and shall deprive, or declare deprived, and amove according to their learning ami discretion all such persons from their benefices and ecclesiastical, promotiom, who, contrary to the state of their order, and the laudable custom of the church, have married and used women as their wives, or otherwise notably and slanderously disordered or caused themselves ; sequestering also, during the said process, the fruits and profits of the said benefits and ecclesiastical promotions. Art. 8 mitigates the penalties for priests whose wives are dead, or who, with the consent of their wives, declare their intention of living apart from them. Art. 9. Item, That every bishop, and all persons aforesaid, do foresee, that they suffer not any religious man, having solemnly professed chastity^ to continue with his woman or wife ; but that all such persons after deprivation of their benefice, or ecclesiastical promotion,be cdso divorced every one'fromhis said woman, and due punishment other icise taken for the offence thurein. §22]. HISTORY OF THE CELIBACY OF THE CLERGY 223 marry if he could obtain the approval of the following persons : of his bishop, of two justices of the peace dwelling next to the place where the woman had mostly lived before her marriage, of her parents, if living, or two of the next of kin, or if such were not known, of the master and mistress whom she had served. For the marriage of bishops the approval of the archbishop and of commissioners specially appointed by the queen was requisite.^^ By injunction of the 9th of -August, 1561, the queen further ordained that, upon pain of forfeiting his office, no head or member of any college or cathedral church should have his wife or other woman within the precincts.^^ In the thirty-nine articles of 1563 the marriage of the clergy was recognized as permissible.^^ Only by slow degrees were the obstacles which in practice such marriages had to encounter removed. That even at the death of Elizabeth some reserve still prevailed is shown by the fact that, in the Millenary Petition addressed by the puritans to James I at his accession,^" among other requests was one for the restoration of the laws of Edward VI as to the marriage of priests. That restoration " First injunctions of Elizabeth, 1559 (Card well, Doc. Ann. 1, 178) c 29 : Item, Although there be no prohibition by the word of God, nor any example of the primitive church, but that the priests and ministers of the church may lawfully, for the avoiding of fornication, have an honest and sober wife, and that for the same purpose the same was by act of Parliament in the time of our dear brother king Edward VI made lawful, whereupon a great number of the clergy of this realm were then married, and so continue ; yet because there hath grown offence, and some slander to the church by lack of discreet and sober behaviour in m,any ministers of the church, both in choosing of their wives, and indiscreet living with them, the remedy whereof is necessary to be sought: it is thought therefore very necessary, that no manner of priest or deacon shall hereafter take to his wife any m,anner of woman without the advice and allowance first had upon good examination by the bishop of the same diocese, and two justices of the peace of the same shire, dwelling next to the place, where the same ivoman hath m,ade her m,ost abode before her marriage ; nor without the good will of the parents of the said woman, if she have any living, or two of the next of her kinsfolks, or, for lack of know- ledge of such, of her master or mistress, where she serveth. . . . And for the m,anner of marriages of any bishops, the same shall be allowed and (approved by the metropolitan of the province, and also by such commissioners, as the queen's majesty thereunto shall appoint. And if any master or dean, or any head of any college shall purpose to m.arry, the same shall not be allowed, but by such to whom the visitation of the same doth properly belong, who shall in any wise provide that the same tende not to the hinderance of their house. "' Printed in Cardwell, Doc. Ann. I, 273 : . . . that no manner of persons, being either the head or member of any colledge or cathedral church , . . shall . . . have . . . within the precinct of any such colledge his wife or other woman to abide and dwell in the same, or to frequent and haunt any lodging within the said colledge, upon pain that whosoever shall do to the con- trary, shall forfeite all ecclesiasticall promotions in any cathedrall or collegiate church within this realme. '"' Art. 32 : Episcopis, Praesbiteris, et Diaconis nullo mandato divino prae- ceptum est, ut aut codibatum voveant, aut a matrimonio abstineant. Licet igitur etiam illis, ut caeteris omnibus Christianis, ubi hoc ad pietatem magis facere. iudicaverint, pro sua arbitratu matrimonium contrahere. °° Compare § 7, note 13. 224 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 and, concurrently, the repeal of the obstructing act of Mary were accorapUshed by 1 Jac. I (1603/4) c 25 s 8. The rules which forbade a son to succeed immediately to his father's benefice remained nominally in force ; but the dispensing power previously exercised by the pope had passed to the archbishop of Canterbury,'^ who, as it seems, always granted the dispensation required.^^ 31 25 Hen. VIII (1533/4) c 21 § 3, repealed by 1 & 2 Phil. & Mar. c 8 s 3, revived by 1 Eliz. c 1 s 2. ^' According to Gibson, Codex 796, three hundred such dispensations were given between 1660 and 1712. Of. Phillimore, Ecd. Law 404. 1. THE KING. A. MEDIEVAL POWERS. a. In relation to foreign influences. § 23. 1. The supreme judicial power. Restriction of appeals to the pope.'' The first instance of an appeal reaching the pope from England is found in the early Anglo-Saxon period : in 678 "Wilfrid, bishop of York, appealed against archbishop Theodore of Canterbury, who, in concert with king Egfrid of Northumbria and without "Wilfrid's consent, had divided his see.^ "Dpon the same question in 702 "Wilfrid lodged an appeal against the decision of a council held by king Aldfrid of Northumbria in the presence of Brihtwald, arch- bishop of Canterbury.^ The decisions of the supreme pontiff at this time were, however, executed either not at all, or after fresh discussion which took place in England. Another case in which recourse was had to Eome is reported from the tenth century. The occasion was a sentence of excommunication pronounced by Dunstan, archbishop of Canterbury (959-88), for entering into an unlawful marriage. The pope advocated the recall of the excommunication,, which Dunstan, however, refused to make.^ A new example of ^ The text of Wilfrid's appeal (in which occurs the phrase hujus sacrosanctae-. sedis appellari suhsidiuin) and of the decision of the Roman episcopal councill under the presidency of pope Agatho (statuimus atque decernimus) will he; found in Haddan and Stubbs, Counc. Ill, 136. " Haddan and Stubbs, Counc. Ill, 253 : . . . fidueialiter sedem appello apostolicam : vestrum autem quisquis deponere meum dignitatis gradum- praesumit, a me hodie invitatus mecum pergat illuc ad iudicium. For two intervening appeals to the pope by Wilfrid see Haddan and Stubbs, Counc. Ill, 254, note. ' Adelard, Vita S. Dunstani {Memorials of Dunstan ; Rer. Brit. Scr. No. 63) p. 67: . . . quidam illustriumpro illicito matrimonio saepius ab eo redargutus, sed non correctus, gladio tandem evangelico est a Christo divisus. Qui Bo mam adiens dom,inum apostolicuTn pro se Dunstano scriptis satis- facere optinuit. Hie JDunstanus . . . moveri non potuit : sed ipso apos- tolico mente altior in se solidus perstitit, ' Scias,' inquiens legato, ' nee capitis plexione me a Domini mei auctoritate movendum.' ' For tlie period up to the reformation see Stubbs, Const. Hist. Ill, 360 ff. cl9 § 403. H.C. 2^6 :226 MEDIEVAL POWERS OF THE KING [V, 1a appeal was furnished in 1052 by arclibishop Eobert of Canterbury* But in all these cases there was no question of a tribunal with jiirisdiction acknowledged on all sides, but rather of an appeal by one of the parties to a foreign power whose decisions and repre- sentations would not be recognized by the other.^ The same state- ment holds good in respect of certain cases in later times. "With the conquest applications for a papal judgment became more frequent. This is perhaps to be ascribed to the circumstance that the Normans brought with them from France the views cur- rent there as to relations with the pope; moreover, the assignation by the state to the church of particular departments of law to be governed by ecclesiastical forms must have tended to encou- rage in such departments the multiplication of appeals to Rome. But from the outset, the Norman kings set themselves to restrict applications to a foreign quarter for final judicial decisions : they allowed no appeals whatever when the matter at issue fell within the province of the royal courts ; and to test the admissibility of appeal in each case, they required that the royal licence to make it should first be procured. ° Pope Paschal II complained (1115) * Robert was a Norman. He fled before tbe leaders of the Anglo-Saxon party, when they returned in arms to England, and was then declared an outlaw by the national council {Anglo-Saxon Chronicle, Ber. Brit. Scr. No. 23 ; I, 319-21). "William of Malmesbury, Gest. Bont. {Ber. Brit. Scr. No. 52) 3B : . . . juditii deliberationem (at the council) preveniens, Bomam ivit. Unde cum epistolis innocentiae et restitutionis suae allegatricibus rediens,finem vitae apud Gime- gium (.Jumifeges) invenit. No notice was taken in England of his appeal to the pope ; and Stigand was appointed archbishop in place of the absent Eobert. The non-canonical appointment of Stigand then played a part in securing the pope's support for William of Normandy's attack on England. * The distinction between appeals to a higher court, in the modern sense, and informal applications to a third party is further obscured by the fact that up to the late middle ages appellatio to the pope might be made even before the lower authorities had given their final decision. Cf. Eichter, Kirchenrecht § 210. ° William I had before the conquest taken proceedings at Rome touching his marriage (Stubbs, Const. Hist. Ill, 361 c 9 § 403). The, questions as to the precedence of the archbishop of Canterbury and as to boundaries of the pro- vinces of Canterbury and York (from 1070 onwards) were discussed both in England and in Rome (cf. §§ 33, 34). Of William II's principle Anselm reports in a letter of 1099-1100: . . ■■ sine sua jussione apostolicum nolebat recipi aut appellari in Anglia (printed more fully in § 4, note 17). In 1097 when Anselm begged for permission to make a journey to Rome, the king called upon him : quatinus aut jurejurando promittas quod nunquam amplius sedem Sancti Petri vel ejus vicarium pro •quavis quae tibi queat ingeri causa appelles, aut sub omni celeritate de terra sua (the king's) recedas. Anselm refused the oath. Eadmer, Hist. Nov. {Rer. Brit. Scr. No. 81) 83. Similarly Anselm in the letter above mentioned. — In a case before the curia regis against William, bishop of Durham, 1088, for breach of homage (he had taken part in a rebellion) the bishop sets up the plea (accord- ing to the canons a well-grounded one) that, before he is bound to answer to the charge, he must either be reinstituted in possession of the bishopric taken from him or it must be settled by ecclesiastical judgment that such previous reinstitution is not requisite. This preliminary point is decided, in spite of the bishop's protest, not by the bishops alone and by ecclesiastical procedure, but by the curia regis, a court composed, both of laymen and bishops ; and the §23] IN RELATION TO FOREIGN INFLUENCES 227 in letters to the king and the English bishops that appeals to Rome ■were hindered.^'' After that, in the year 1126, archbishop William of Canterbury had accepted the position of a papal legate — his successors for the most part filling the same office — the boundary between the authority which the archbishops exercised in their own right and that which they derived from the pope, was gradu- ally effaced. The admissibility of appeal from one who had received a commission to him who gave it could hardly be disputed. The weakness of Stephen's rule had the same tendency. The conse- quences were a substantial increase in the number of appeals, and, possibly, neglect of the requirement that the king's permission should previously be obtained.'' These evils Henry II endeavoured Ibishop's plea is rejected. The bishop appeals to the see of Rome against this ruling as uncanonioal. Upon this the curia deliberates anew and pronounces by the mouth of the original accuser the sentence : Domine episcope, regis curia et barones isti vobis pro justo judicant, quando sibi (the king) vos respondere non vultis de his de quibus vos per me appellavit, sed de placito suo invitatis eum Romam, quod vos feodum vestrum, indeforisfacitis. So far, however, as is known, bishop William did not afterwards institute proceedings in Rome. (A fuller account of the whole proceedings will be found in the treatise : De injusta vexatione Willelm,i episcopi primi per Willelmum regem Jilium Willelmi magni regis, in Rer. Brit. Scr. No. 75, 1, 170 fE.) <*• Letter to Henry I (Eadmer, Hist. Nov.; Rer. Bi-it. Scr.No. 81; p. 229) : Nullus inde (from England) clam,or, nullum, inde judicium, ad sedem apos- tolicam destinatur. Letter to Henry I and the English bishops {I.e. 233) : Vos oppressis apostolicae sedis appellationem subtrahitis, cum, sanctorum patrum conciliis decretisque sancitum, sit ab omnibus oppressis ad Romanam ecclesiam, appellandum. — Of. Hugo Cantor (The Historians of the Church of York, Rer. Brit. Scr. No. 71) II, 212 : Rex . . . abeuntibus archiepiscopis pro- hibendo imperavit, si dominus papa concordiam inter se provisam concedere et conjirmare nollet, ne inde placitarent ; sin autem, ad ecclesias suas non reverterentur. (The ai-chbishops were formally summoned to Home in the matter of the disjlute about precedence. Summons I.e. 210; it is dated 13th April, 1126:) ' In the year 1128 Urban, bishop of Llandaff, appealed to the pope against the decision of a national synod, held at Westminster in 1127 by the arch- Tbishop of Canterbury as papal legate, in a boundary dispute between himself and the bishops of St. David's and Hereford. At first the last mentioned bis- hops did not appear at Rome ; in the course of the proceedings, however,- the bishop of St. David's defended his cause there and delivered, amongst other papers, a letter of recommendation from the king (Haddan and Stubbs, Coun- cils 1, 884). It is not apparent that Henry I opposed this exercise of papal jurisdiction, although the pope repeatedly gave him notice of the impending discussion of the case at Rome. Documents in the case will be found in Haddan and Stubbs I, 321-344. An earlier appellatio of Urban of Llandaff in 1119 (Haddan and Stubbs I, 309) was merely an appeal for papal protection, and was not followed by proceedings before the pope in which both parties were repre- sented; the pope, on the contrary, instructed the archbishop of Canterbury to pronounce upon the disputed questions. For later discussions in this boundary dispute see Stubbs, Const. Hist. I, 402, note 8 c 11 § 125. During Stephen's reign, with the extended right of chapters to elect begin, appeals in respect of disputed episcopal elections. See more on this point in Stubbs, Const. Hist. Ill, 311 c 19 § 381.— Henry of Huntingdon (,Rer. Brit. Scr. No. 74) 282, contemporary with Stephen, writes : Anno XVI (i.e. 1151) Theo- baldus Cantuariensis arcMepiscopus, apostolicae sedis legatus, tenuit concilium generate apud Lundoniam in media Quadragesima, ubi rex Sfephanus etfllius 228 MEDIEVAL POWERS OF THE KING [V, 1a to check in the constitutions of Clarendon (1164), which provided that, if justice could not be had of the archbishop, appeal should be to the king, and that by his orders the suit might be finally determined in the archiepiscopal court ; it was not allowable to proceed further without the king's assent.* This provision was in keeping with the older law, as, indeed, the constitutions declared, setting forth that the intention of them was only to establish what had been law in the days of Henry I. Nevertheless, the principle could not be main- tained. On the contrary, at the reconciliation of Avranches (1172) the king had to concede that thenceforth, in matters ecclesiastical, appeals to the pope should not require royal consent ; doubtful appellants could, however, be required to give security that they intended no injury to the king or the realm.^ In the years which followed the attempt was, indeed, still continued, by intervention suics Eustachlus et Angliae proceres interfuerunt, totumque illud concilium novis appellationibus infrenduit. In Anglia namque appellationes in usu non erant, donee eas Henricus Wintoniensis episcopus,dum legatus esset {i.e. 1139-43), malo suo crudeliter intrusit ; in eodem namque concilio ad Somani pontificis audientiam ter appellatus est. Stubbs, Const. Hist. Ill, 361 c 19 § 403 supposes that tbe contention that appeals were first introduced through the legate, Henry of Winchester, should rather be referred to appeals to this legate than to appeals to Home. But such a dis- tinction is not justified by the text of the passage, especially as the chronicler- makes the remark in connexion with the statement that at that council appeal was thrice made to Borne. ^ c 8 : . . . si archiepiscopus defuerit (defecerit) in justitia exhibenda, ad dominum regem perveniendum, est postremo ut praecepto ipsius in curia arehiepiscopi controversia terminetur, ita quod non debeat ulterius. procedere absque assensu doinini regis (see full text in appendix IV). Cf. also the report of the bishop of London to the pope (1165) of a conversation held at the latter's suggestion with the king (Materials for Hist. Becket. Ber. Brit. Scr. No. 67, V, 205) : In appellationibus ex antiqua regni sui constitutione id sibi vindicat honoris et oneris, ut ob civilem causam nullus clericorum regni sui ejusdem regni fines exeat, nisi an ipsius auctoritate et mandato jus suuni obtinere queat, prius experiendo cognoscat. Quod si nee sic obtinuerit, ad excellentiam vestram, ipso in nullo reclam,ante, cum volet quilibet appellabit. In quo sijuri vel honori vestro praejudicatur in aliquo, id se iotius ecclesiae regni sui con- silio correcturum in proximo, juvante Domino, pollicetur. Temporarily, during the struggle with Becket, Henry forbade all appeals to Eome. See his order to the various sherifis, Christmas, 1164 {Materials for Hist. Becket. Ber. Brit. Scr. No. 67, V, 162) : Praecipio tibi quad, si aliquis clericus vel laicus in bailia tua Bomanam curiam appellaverit, ettm, capias, etfirm,iter custodias donee voluntatem meam pereipias [praecipiam ?] . . . Ordinance of Henry II, probably in 1169 (Hoveden, Ber. Brit. Scr. No. 61, 1, 231 ; for the date see p. 262, note, and Materials for Hist. Becket; Ber. Brit. Scr. No. 67 ; VII, 147, note, 150, note), c 4 : Item generaliter interdictum est, ne aliquis appellet ad dominum papam, vel ad Cantuariensem arehiepiscopum, . . . On a national assem- bly at Clarendon, 1166 {Vita St. Thomae by Edward Grim, a contemporary of Becket, in Materials, I.e. II, 405) : Audiens interea rex quod episcopos Angliae dominus papa mandasset, Clarendunam coegit concilium, ubi jura- mentimi exegit a pontificibus ne quis eorum pro quavis appellatione patria egrederetur, nemo m.andatum domini papae susciperet. Et quidem in hunc modum episcopi promiserunt, a laicis vero juratum est. Clainatum est ex ore regis, quod siquis pro quoeunque negotio sedem apostolicam appellasset, omnia quae illius essent scriberentur ad opus regis, et ipse truderetur in'carcerem. ' Cf. § 4, notes 60, 51. .§213] IN RELATION TO FOREIGN INFLUENCES 229 as occasion offered, to reduce the number of appeals ; but the general right to make them in certain cases even without the king's licence was no longer disputed. Under the feeble government of Henry III, the number was very large and, owing to the pope's position as recognized feudal overlord, they sometimes extended to other than ecclesiastical affairs.^" Edward III and Eichard II offered vigorous opposition to their continuance, not however to them as a whole, but to the exercise of appeal in special cases. All the enactments of this and the ensuing period down to the refor- mation which relate to appeals, exhibit themselves merely as sup- plementary to legislation against provisions. Only in so far as was necessary for the execution of the statutes against provisors was the endeavour sustained to limit the power of the pope and to check appeals to him. Thus these were in general prohibited simply in 'cases in which the secular authorities were competent; and even then it was the right of patronage which was mainly defended. Sole competence in all cases was not at this time claimed by the state.ii '" Henry III and liis successors claimed as the privilege of England that the decision of appeals addressed to the pope should take place in England. If those to whom the pope delegated his decision lived in England, the Icing could exert influence upon them. Such delegation was very customary, but did not always take place. (Cf. Stubbs, Const. Hist. Ill, 362 c 19 § 403 and Stubbs, append. I, 30, lieport of Boyal Commission on Eccl. Courts, 1883, Eeports XXIV.) We find references to the privilege in question in Prynne, Records II, 628 (Writ of Henry III, 26th Apr. 1244 : Cum a sede AjMstolica nobis specialiter sit indultiim, ne quis de liegno nostra in foro Ecclesiastico, extra Regnitm nostrum, per Literas Apostolicas trahatur in causam, . . . ), 516 (in year 1239), 718 (in year 1248), 941 sq. (in year 1258), 980 (in year 1261), III, 227 (in year 1279), and in Ann. Dunstapl. (Ber. Brit. Scr. No. 36) III, 170, year 1246. See also below, § 24 note 9 siib flnem, and § 4 note 119 No. 5. Cf. further the letter of Edward II, dated 2Gth Jan. 1320, to the abbot of St Albans, in Eymer, Foedera 4th Ed. II, 416 : . . . considerantes quod cognicio hujusmodi trans- gressionum (namely contra pacem nostram), infra regmim nostrum, factarum,, ad nos racione regie dignitatis nostre, in eodem regno discutienda pertinet ; et quod ullus de eodem regno, sitjjer hiis quorum cognitio ad nos per- tinet, trahi non debeat in causam extra idem regnum ; . . . — For the pro- hibition of appeal against the episcopal decision in a suit touching illegitimacy cf. writ of Henry III to the archbishop of Dublin, 19th November, 1223 {Botuli Clausarum I, 629), Bracton, Book V tract. 6 c 19 § 14 {Ber. Brit. Scr. No. 70 ; VI, 314 and agreement of 1234 in appendix to Bracton, I.e. II, 606 and VI, 510; in a suit touching validity of marriage : Bracton, Book IV tract. 6 c 11 § 4 (IV, 536). — The archbishop of Canterbury exercised in the thirteenth century, perhaps earlier, the right of protecting the property of the appellants during the progress of an appeal. This right was called tuitio. Cf. preface to Begist. Epist. Beckham, vol. II p. cvii and instructions of the archbishop of Canterbtiry, 1308, in Spelman, Concilia II, 457. " The following are the enactments relevant here : — I. Immediately connected with enactments touching provisions : — 25 Ed. Ill (1350/1) St. 4 Statutum de Provisoribus [confirmed by 38 Ed. Ill (1363/4) St. 2 c 1 and 13 Bic. II (1389/90) St. 2 c 2]._ Any one who on the ground of a provision disturbs another in possession is to be im- prisoned and must give satisfaction (in money) to the king and to the person disturbed. Et nient meins, avcint qils soient delivres facent pleine renu'nciacion, et troevent sufficeante seurete qils nattem,pteront tiele chose 230 MEDIEVAL POWERS OF THE KING [V, 1a lu spite of the limitation specified, the enactments against appeals could not long be strictly carried into effect. Open viola- tions of them were not infrequent. Yet, disregarding all the intimidations of the popes, especially of Martin V (1417-31), parlia- ment steadily refused, for the most part in concert with the king, to repeal the acts and so surrender every weapon of defence.'^ They en temps avenir, ne mil proces sueront par eux ne par autre devers nuly en la dite Court de Rome, ne nule part aillours, por nnles tieles em- prisonementz ou renunciacions, ne nule autre chose dependant de eux. (Printed at length in appendix VIII.) 38 Ed. Ill (1363/4) st. 2. cc 1-3 are aimed at those who obtain provisions and those who make appeals, s 4 enacts : any one who proceeds against any person in the kingdom on account of any matter contained in this act shall be punished for so doing and must compensate the injured party. 13 Bic. II (1389/90) st. 2 c 3 : IteTn ordeigne est et etabli qe si ascun port ou envoie deinz le roialme . . . notre . . . Soy ascun somonces sentences on excomengementz envers ascun persone de quel condicion qil soit a cause delamocion . . . fesance assent ou exe- cucion du dit estatut des provisours, he is to be punished ; as is any person who gives effect to such summonses, sentences or excommuni- cations. II. More general : — 27 Ed. Ill (1353) st. 1 Statidum contra adnullatores ludiciorum Curiae Regis, o 1 : . . . assentu est et acorde, par notre dit Seigneur le Roi et les grantz et coviTnunes susditz, qe totes gentz de la ligeance le Roi, de quele condicion qils soient, qi trehent nulli hors du Roialme, en plee dount la conissance appartient a la Court le Roi, ou des choses dount jugevientz sont renduz en la Court le Roi, ou qe sueni en autri Court a deffaire ou empescher les juggementz renduz en la Court le Roi, eient jour . . . destre devant le Roi et son con- seil, oil. en sa Chancellerie, ou devant les Justices le Roi "... a respondre en lour propre persones au Roi du contempt fait en celle partie; . . . 38 Ed. in (1863/4) st. 2 c 1. Those are to be punished who procure summonses from Rome against king or subjects : sur causes dount la cognissance et finable discussion appartient a notre Seig- neur le Roi, et a sa Courte rotate et autrement ; . . . 16 Ric. II (1392/3) c 5 (the chief praemunire act). The commons have set forth as follows : The bishops are bound to execute the decisions of the royal courts in patronage cases et auxint sont tenuz de droit defaire execucion de plusours autres mandementz notre seigneur le Roi, . . . Mes ore tarde diverses processes sont faitz par le seint piere le Rape et sensures descomengement sur cerfeins Evesques Dengle- terre por ceo qils ount fait execucion des tieux mandementz . _ . . and report said that the pope was about to remove, without the king's assent, some bishops from the realm, others into it;-et ensy la Corone Dengleterre qad este si frank de tout temps qele nod hieu nuUy terrien soveraigne, mes immediate subgit a Dieu en toutes choses tuchantz la regalie de mesme la Corone et a nully autre, seroit submuys a Rape, . . . Sur quoi . . . le Roy del assent . . . ad or- deigne et establie, qe si ascun purchace ou pursue ou face purchacer ou pursuer en la Court de Rome ou aillours ascuns tieux translacions, processes et sentences de escomengementz bulles instrumentz ou autre chose quelconqe, qe touche le Roi notre seigneur encountre luy sa corone et regalie ou son Roialme come devaunt est dit, further, any person who brings them into the kingdom or executes them is to be punished. •^ Cf. § 4, notes 124 ff. §23] IN RELATION TO FOREIGN INFLUENCES 23 1 were from time to time enforced and thus served in the long run to check the abuse at which they were aimed. Further progress in the same direction was made by Henry VIII. The impulse which moved him was his wish to have the nullity of his marriage with Catherine pronounced by Cranmer, without-leav- ing open the possibility of an appeal from the archbishop to the pope, who maintained the validity of the union. Henry, like his predecessors, did not at first forbid all forms of appeal ; but he at once went beyond the legislation of Edward III and Richard II. By 24 Hen. VIII (1B32/3) c 12 it was laid down that thenceforth appeals to the pope from the judgments of ecclesiastical courts in causes testamentary, causes of marriage, tithes and offerings were illegal ; such caiises were to be finally determined by the authori- ties of the church in England." But in the very next year, by the Act of Submission, 25 Hen. VIII (1533/4) c 19, the prohibition was made of universal application. 1* The two acts just mentioned of Henry VIII were repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3,i5 but revived by 1 Eliz. (1558/9) c 1 s 2.1" Henry VIII had not confined himself to forbidding a further appeal from the court of the archbishop to the pope ; he had called into existence within the realm court§ of appeal from that of the archbishop. In the first of his acts against appeals the independence of the ecclesiastical courts was secured. As a rule, the judgments of the archbishops were to be final ; in matters which concerned the king, an appeal was allowable to the upper house of convocation. The second act, however, subordinated the ecclesiastical courts to a ^^ This act is commonly entitled the Statute for Restraint of Appeals. The title in the Statutes of the Bealvi is too wide : An Acte that the Appeles in suche Cases as have ben used to be pursued to the See of Rome shall not be from hens- forth had ne used but wythin this Realme. s 1 runs : . . . enacted . . . that all Causes testamentarie, Causes of Matrimony and Divorces, rightes of Tithes, Oblacions and Ohvencions, the knowlege wherof . . . apperteyneth to the Spirituall Jurisdiction of this Realme, allrede coTnmensed . . . or hereafter commyng in contencion . . . shalbe frame hensforth harde examined discussed clerely finally and difflni- tyvely adjudged and determyned within the Kinges Jurisdiccion and Auctoritie and not elleswhere . . . " s4: , . . that . . . no manner of appeales shalbe had pro- voked or made, out of this Realm,e or out of any of the Kynges Dom,ynyons, to the By shop of Rome nor to the See of Rom,e, in any causes or matters hap- penyng to be in contencion . . . ; but that all maner of appelles of what nature, or condicion soo ever they be of, or what cause or rnatter soo ever they concerne, shalbe made . . . after suche maner fo7'me and condicion as is lymyted for appeles to be had and prosecuted within this Realme in causes of matrimonye tythes oblacions and obvencions by 24 Hen. VIII cV2 ... '^ An Acte repealing all Statutes Articles and Provisions made against the See Apostolick of Rome since 20 Hen. VIII, and also for thestablishment of all Spyi'ytuall and Ecclesiasticall Possessions and Hereditamentes conveyed to~ the Layetye. " An Acte restoring to the Croicne thauncyent Jurisdiction over the State Ecclesiasticall and Spirituall, and abolyshing all Forreine Povcer repugnaunt to the same. 232 MEDIEVAL POWERS OF THE KING [V, 1a civil authoritywliose verdicts were subject to no revision. This was the ' Court of Delegates,' consisting of commissioners to be named by the king. The competence of the upper house of convocation was thus silently abolished. Since Henry's day the principle has been maintained that in all cases judgment shall belong, in the last resort, to a civil tribunal, superior to all ecclesiastical courts. The precise constitntion of that tribunal has, however, undergone many changes in later times."' § 24. 2. Restrictions of the papal legates.'^ During the Anglo-Saxon period legates were on several occasions, though in comparison with later periods seldom, despatched to England, sometimes by the king's desire, sometimes for other causes and without consulting him.' It is recorded that under William I it was a recognized rule that the pope might only send legates at the sovereign's request.^ " Cf. on this point § 62. * The passage in the reports of the legates to the pope, 787 (Haddan and Stubhs, Comic. Ill, 448) : . . . ut scitis, a tempore sancti Augustini pontifl- CIS sacerdoe Bomanus nullus illuc inissus est, nisi nos is not to- be taken as . meaning tfiat George and Theophylact were the first legates sent to England since Augustine : for only legates of priestly rank are spoken of, and illuc refers probably to Northumbria and not to all England. And yet Augustine himself had not traversed the north. — Compare, ifor example, the mention of a previous emissary in the report of the council at Eome, 679 (Haddan and Stubbs III, 134) : . . . invenerunt . . . virum venerabilem Johannem archicanta- torem ecclesiae sancti apostoli Petri, et abbateni monasterii beati Martini, qui a Roma per jussionem Papae Agathonis in Britanniam est directus. Beda, Hist. Eccles. 1 V, o 18 § 305 : Intererat hide synodo (Haethfelth, 680) pariterque catholicae fidei decreta firmabat, vir venerabilis Johannes archicantator. — Tor further cases of the despatch of legates in Anglo-Saxon times see Einhard, Ann., to year 808 (Haddan and Stubbs III, 561) : Interea Rex Nordanhumbro- rurn de Brittania insula, nomine Eardulf, regno et patria pulsus, ad impera- torem, diim. adhuc Novismagi (Nimwegen) moraretur venit, et patefacto adventus sui negotio, Romani proficiscitur, Romaque rediens per legates Romani pontificis et domini iTuperatoris in regnum siiiim reducitur. Prae- erat tunc temporis Ecclesiae Romanae Leo Tertius, ciijus legatus ad Brittaniam directus est Aldulfus diaconus de ipsa Brittania, et cum eo ab imperatore missi abbates duo Hrotfridus notarius et Nantharius abbas de Sancto Aude- Tnaro. Moreover the signature, not in a prominent place, to the minutes of the council of Clovesho, 824 (Haddan and Stubbs III, 593): Nothhelm praeco a domno Eugenia Papa. William of Malmesbury, Gesta Pontiflcum {Rer. Brit. Scr. No. 52) 252, year 1062 : Consecuti sunt abeuntes (from Eome) Romanorum legati, qui sanctissimum Wlstanum per consensum Aldredi Wigornie ordina- verunt episcopum. (Cf. also Elorentius Wigorniensis, Chronicon [Monum. Hist. Britann.] I, 610 : pro responsis ecclesiasticis ad regem Anglorum missi.) ^ Eadmer, Hist. Nov. {Rer. Brit. Scr. No. 81) p. 258, on the negotiations of Henry I with pope Calixtus II in 1119: Ada igitur sunt multa inter illos, quorum gratia par erat tantas personas convenisse. Inter quae rex a papa impttravit ut omnes consioetudines quas pater suus (i.e. William I) in • Stubbs, Const. History III, 300 fF. o 19 § 380.— Friedberg, De ^nium inter ecclesiam et civitatem regundorum jitdicio etc. 15t ff. §24] IN RELATION TO FOREIGN INFLUENCES 233 William II, in the year 1095, made an agreement with the papal envoy that no person should be sent save some one to be designated 1:^ the king in each case as it arose.^ Guido, archbishop of Vienne, ■who in 1100 came to England with legatine powers, was not acknow- ledged there.^" In 1116 Paschal II commissioned Anselm, abbot of St. Saba, to represent him, the intention being that the abbot should take up his abode permanently in England and weaken the power of the archbishop of Canterbury, who until then had been almost independent. But Henry refused the legate admission to the land.* The pope was naturally enraged, but failed to carry his point. After the council of Rheims, at which Calixtus II had sought in another way, namely by raising the position of York, to attain the ends of the papal policy,* he abandoned his position in regard to the despatch of legates. At an interview with king Henry (1119) he confirmed him in the possession of the right already, as was averred, enjoyed by William I, that no papal legate could be sent to England save at the king's request.^ During the next hundred years the legatine Anglia habuerat et in Novniannia sibi concederet, et maxime id neminem aliquando legati officio in Anglia fungi permitteret, si non ipse, aliqua prae- cipua querela exigente, et quae ab archiepiscopo Cantuariorum caeterisque episcopis regni terminari non posset, hoc fieri postularet a papa. — After the conqtiest there had appeared (1070) in England papal legates of whose services "William had availed himself in deposing the native bishops. On their depar- ture Lanfrano was authorized by the pope to give final decision in tvfjO pending cases. Letter of the pope to William I, 1072, in Wilkins, Concilia I, 326 : In causis autem pertractaiulis et diffiniendis ita sibi (the archbishop) vestrae [in Eymer, Foedera 4th Ed. I, 1 is nostrae] et apostolicae auctoritatis vicem, dedi- mus, ut quicquid . . . determinaverit, quasi in nostra praesentia difflni- tum, deinceps firmum et indissolubile teneatur. ^ Hugo of Flavigny (printed more fully in § 4, note 17) : . . . conventi- onemfecerat cum eo Albanensis episcopus (cardinal bishop of Albana, legate iu England 1095), quern primum illo miserat papa, ne legatus Eomanus ad Angliam mitteretur nisi quern rex praeciperet, . . . 3- Eadmer, Hist. Nov. {Iter. Brit. Scr. No. 81) 126, printed in § 34, note 13. * Eadmer, Hist. Nov. {Her. Brit. Scr. No. 81) 239 : Sed rex Henricus anti- quis Angliae consuetudinibus praejudicium inferri non sustinens, ilium ab ingressu Angliae detinebat, . . . William of Malmesbury, Gesta Pontificum (Ber. Brit. Scr. No. 52) 128 : Nam et in principio regni Henrici venerat Angliam ad exercendam legationem Guido Viennensis archiepiscopits, qui postea fuit apostolicus ; tunc Anselmus ; nee midto post quidam Petrus. Omnesque reversi nuU'o effectu rei, grandi praeda sui, Petrus maxime, . . . Crebra ergo ad Angliam commeabat legatio Romanorum insidiantium imbecil- litati Radidfi, set effugabantur omnes cautela Henrici. Nolebat enim ille in Angliam praeter consuetudinem, antiquam recipere legatum nisi Cantiiarien- sem archiepiscopum,, illiqite libenter refringebant impetum, piropter violentiam denariorum. Cf. also Florentius Wigorniensis, Chron. (ed. Thorpe) II, 69. = Cf. § 34, near note 10. ° Eadmer, Hist. Nov. ,258, printed above, note 2. Cf. Simeon of Durham, Hist. Eegum (Ber. Brit. Scr. No. 75) II, 276, year 1125 : Johannes Cremensis accepta ab Apostolico super Britanniam legatione, cum diu in Normannia. retentus esset a rege, tandem permissus in Angliam transvehitur, . . . If a legate was admitted into England, he seems at this earlier time not to have had the right to exercise administrative powers without the consent of the archbishop of Canterbury. Cf . a summons by the archbishop to the bishop of Llandaff for a council at London (Wilkins, Concilia I, 408 and Haddan and Stubbs 1, 317) : Literis istis tibi notumfacere volumus, quod Johannes, ecclesiae 234 MEDIEVAL POWERS OF THE KING [V, 1a office was mostly, and afterwards until the reformation constantly, combined witli the archbishopric of Canterbury. From the middle of the fourteenth century the archbishops of York were also almost always papal legates ; indeed they had in several cases before that time held the dignity/ Nevertheless, the pope still despatched, as occasion was, special legates and to these the early regulations were applicable. So, for example, when Vivian (1176) had entered the kingdom without royal licence, he was sharply reminded of the necessity of obtaining it.* At the beginning of the thirteenth cen- tury, in the days of England's deepest abasement, the sending of legates without the royal permission seems to have occurred. But even then the earlier right was not forgotten.^ Afterwards leave was asked -and generally given. ^^ The old right of the crown was Bomanae presbyter cardinalis atque legatus, ordinatione, nostraque con- ni venti a concilium celebrare disposuit . . . 'Kngo CantoT (The Historians of the Church of York; Her. Brit. iSci: No. 71) II, 210: Legatus (John of Crema) iota fere Anglia circuita et perarribulata usque prope Scotiam, in Nativitate Beatae Mariae Concilium Londoniae celebravit, quod in tem- pore regum utriusque Willelm,i Rom,anus legatus nunquam fecerat. Tlie bull of 5th June, 1190 {Bad. de Diceto; Ber. Brit. Scr. No. 68; II, 83) touching the transfer of the legatine office to the bishop of Ely sets forth that this is done juxta . . . desideriuni et postulationem . . . Bicardi , . . regis Anglorum. ' For more on the combination of legatine powers with the archbishopric see § 34, near notes 12 ff. * Hoveden (i?er. Brii.^cr. No. 51) II, 98; July, 1176: . . . Qui (Vivianus) cum in Angliam, veniret, dominus rex Angliae misit ad eum Bicardum Win- toniensem et Gaufridum Elieiisem episcopos, et interrogavit eu7n, cujus auctoritate ausus erat intrare regnum, suum, sine licentia illius. His igitur interrogationibus praedictus cardinalis plurimum, territus, de satisfactione iuravit regi, quod ipse nihil ageret in legatione sua contra voluntatem illius, et sic data est ei licentia transeundi usque in Scotiam. According to Benedict (Ber. Brit. Scr. No. 49) 1, 118, Vivian had to swear: quod nihil ageret in legatione sua, quod esset contra ipsum (the king) et regnum suum. King John ordained : ut nullus de regno . . . legatum vel niintium sedis apostolicae . . . reeipere attentaret ; but shortly afterwards withdrew the order (letter of Inno- cent III to John, 20th February, 1202, Letters, Book V, No. 160), in Migne, Patrologiae Cursus, vol. 214, p. 1175. ° Letter of the temporal magnates of England to Innocent IV at the general council of Lyons, 1246 (Matth. Paris, Chronica Majora; Ber. Brit. Scr. No. 57 ; IV, 441 ; printed therefrom by Eymer, Foedera 4th Ed. I, 362 ; from a document in the Exchequer, with some deviations, in Cole, Documents 351) : . . . gra- vamur , . . , quod magister Martinus praefatum regnum, sine domini Begis licentia, cutu majore potestate qiiam unquam vidimus habere legatum a dom,ino Rege postidatum, nuper ingressus {licet non utens legatiaiiis insigniis, multiplicato tamen legationis officio) novas quotidie proferens potestates inau- ditas, excedens excessit, . . . privilegio Begis admodum derogando, per quod ei a sede apostolica specialiter indulgetur, ne quis in Anglia legationis fungatur officio, nisi a domino Bege specialiter postulatus [in Uole is added : et ne quis extra regnum trahatur in causam]. Resolution of the English mag- nates, 1264 (in Marca, De concordia sacerdotii et imperii. Book V o 56 § 13) : quod nullum legatum debent adm,ittere, nisi fuerit petitus a Bege et regni com- munitate. '" Clement V begs, under date 21st Nov. 1307, a safe conduct, of the accus- tomed form, for his nuncios (Rymer, Foedera 4th Ed. II, 16), Examples of such safe conducts, for a definite time or subject to revocation, will be found in §25] IN RELATION TO FOREIGN INFLUENCES 235 maintained by formal protest when bishop Beaufort of Winchester, who had been engaged in the war with the Hussites and whom Martin V in his dispute with Chichele had appointed legate, re- entered England without invitation (1428)." Even queen Mary- closed the ports (1557) against Peto who, though unacceptable to her, had been nominated by the pope.'^ A natural effect of the reformation was to causa the despatch of legates to be discontinued.^* § 25. 3. Restriction on the introduction of hulls. In most continental countries the rule from the end of the thirteenth century grew to be that the validity of measures con- sequent on papal decrees depended on the approval of such decrees by the civil power {placet).^ With regard to England, it is reported of William I that he brought in the new principle that no one in his realm might receive a letter from the pope before it had been shown to himself.^ William II claimed that, without his consent, none should receive Eymer, I.e. II, 117 (for papal inquisitors of the templars, 13th Oct. 1310), II, 993 (for a nuncio, 28th Aug. 1337), 3rd Ed. vol. IV pt. I p. 114 (for a nuncio, 30th May, 1407), pt. II p. 4 (for an ambassador and his retinue, 25th Jan. 1412 : pro- viso . . . quod . . . quicquam, quod in Regis seu Populi sui x>raeju- diciwrn cedere valeat, non attemptent . . . ), pt. IV p. 194 (for nuncios on their way to Scotland, 29th April, 1433, with a similar reservation). " Cf. Stubbs, Const. Hist. Ill, 809, note 3 c 19 § 380. The protest of the king's proctor (printed in Foxe, Acts and Monuments Ed. 1843 flf. Ill, 717, note) runs : . . . dictus christianissimus princeps, dominus meus supremus, suique inclytissimi progenitores dicti regni Angliae reges fuerunt et sunt, tarn speciali privilegio, quam consuetudine lauddbili legitimeque i>raescripta, necnon a tempore et per tempus {cujus contrarii memoria hominum non existit) paciflce et inconcusse observata, sufflcienfer dotati, legitimeque m.uniti, quod nullus apostoUcae sedis legatus venire debeat in regnum suum Angliae, aut alias suas terras et dominia, nisi ad regis Angliae pro temi>ore existentis vocationem, petitionem, requisitionem, invitationem, seu rogatum, . . . protestor . . . quod non fuit, aut est intentionis praefati . . . prin- cipis . . . ac dictorum dominorum meorum de consilio, . . . ingres- sum hujusmodi dicti reverendissim,i patris, ut legati in Angliam, authoritate ratificare, vel approbare, seu ipsum ut legatum sedis apostoUcae in Angliam, contra leges, jura, consuetudines, libertates et privilegia praedicta quovismodo adviittere seu recognoscere ; . . . '^ Compare § G, note 51. '3 Cf. also § 34, note 31. Under the Stuarts papal agents were tolerated in England. In July, 1687, James II received a nuncio in solemn audience. 11 & 12 Vict. (1848) c 108 declared that the English government might have diplomatic intercourse with the ' Sovereign of the Eoman States,' but that no papal ambas- sador might be received who was a minister of the Roman church or Jesuit or bound by religious or monastic vows. The act was repealed, the ' Roman States' having ceased to exist, by 38 & 39 Vict. (1875) c 66 Statute Law Re- vision Act. '■ Cf. Richter, Kirchenrecht § 48, note 9. 2 Eadmer, Hist. Nov. {Rer. Brit. Scr. No. 81) 9: . . . Non . . . pati volebat quemquam in omni dominatione sua . . . ejus (the pope'.s) litteras si primitus sibi ostensae non fuissent ullo pacto suscipere . . . (printed more fully in § 4, note 12.) .236 MEDIEVAL POWERS OF THE KING [V, 1a communications from Rome, or send them thither, or obey papal decrees.^ The same right was exercised by Henry I.* Probably in this respect, as in many others, the reign of Stephen proved detri- mental to the king's prerogative. During the course of the fierce struggle with the pope under Henry 11, ordinances were issued which forbade absolutely the bringing of papal missives into the land.® But these ordinances were temporary measures of warfare ; and from the mere fact of their issue we may, perhaps, infer that under ordinary circum- stances the English king at that time no longer pretended to the- right of inspecting or approving all injunctions from Rome. But -the kings always persisted in the delivery to themselves of bulls whose matter might be to the prejudice of the law of the land or f Letter of Anselm, 1099-1100 : . . . sine sua jussione . . . nolebat ut epistolam el (the pope) mittereTn, aut ab eo missam reciperem, vel decretis ejus cbedirem. Hugo of Flavigny, year 1096 : Quae res in iantum adoleverat, ut nullus esset in Anglia archiepiscopiis, episcopus,- abbas, nedum monachus aut clericus, qui litteras apostolicas suscipere auderet, nedum obedire, nisi rex iuberet. (Both passages printed more fully in § 4, note 17.) * Letter of Paschal II to Henry I (Eadmer, Hist. Nov. ; Her. Brit. Scr. No. 81 ; 229) : Sedis enim apostolicae nuncii vel litterae praeter jussum regiae tnajestatis nidlam in potestate tua susceptionem aut aditum promerentur. — Hugo Cantor {The Historians of the Church of York, Iter. Brit. Scr. No. 71) II, 198, year 1122: Paululum ante Adventum Domini venit quidam de urbe lioma literas domini papae deferens utrique archiepiscopo Angliae ; . . . nostro (the arohhishop of York) sibi missas tradidit, . . . Non defuit qui (de) latore regi diceret archiepiscopuni literas domini papae devotione ad Con- cilium habuisse, quod ex regni consuetudine absque conscientia et licentia regis suscepisse non debuerat ; unde rex aliquantum comrnotus mandavit ei quatinus super hoc rectitudinem, facturus in proxima Purificatione Sanctde Mariae ad curiam veniret, et literarum bajulum ad se adduceret . . . avchiepiscopus ad regem veniens satis laetabuiule su.sceptiis est, nee de satis- factione pro Uteris acceptis, nee de portitoris earum adductione rex archiepis- copuni causatus est . . . * Ordinance of Henry II, prohahly in 1169 (Hoveden [Per. Brit. Scr. No. 51] I, 231 ; on various readings of this document and on the date of. I.e. I, 232, note and Materials for History Becket ; Per. Brit. Scr. No. 67 ; YII, 147, note, 150, note) : — I. Si quis inventus fuerit ferens litteras vel mandatum domini papae vel Cantuariensis archie2:>iscopi, continens interdictum Christianitatis in Anglia, capiatur, et de eo, sine dilatione flat justitia sicut de regis traditore et regni. III. Item interdictum est, ne aliquis ferat mandatum aliquod domini papae, vel Cantuariensis. Et si quis talis inventus fuerit, capiatur et retine- atur. Benedict (Per. Brit. Scr. No. 49) I, 24: In 1171, the king, fearing an interdict, . . . per commitna edictum praecepit justitiis et ballivis suis Normanniae, et nominatim ballivis j^ortuum m.aris, quod nullo modo permitterent aliquem et nominatim, clericum vel peregrinum tran.tfretare in Angliam, nisi prius data securitate quod nullum malum vel damnum regi vel regno Angliae quaereret. . . . Et simili modo sicut in Normanniafecerat, praecepit per commune edictum justitiis et ballivis portuum maris Angliae quod neminem permitterent in Normanniam transfretare, nisi data prius securitate quod m,alum, regi vel regno suo non quxiereret. Praecepit etiain quod si quis in Angliam applicuisset portans litteras summi pont'ficis, vel aliquod gravamen regno, caperetur tanquam publicus hostis. §25] IN RELATION TO FOREIGN INFLUENCES 237 the royal prerogatives.^ In particular cases they also expressly prohibited the execution of papal decrees which had been promul- ° As examples compare : — Matth. Paris, Chronica Majora (Rer. Brit. Scr. No. 57) IV, 510, year 1246' . . . per idem tempus prohiberi fecit dominus [rex] per literas suas ne quis veniens de curia portans literas bullatas de provisionibus faciendis praecepto Papali, ad extorquendum pecuniam d e ecclesia Anglicana et depauperandum regnum, permitteretur vagari per terram ad praelatos ; et si quis talis inveniretur, caperetur, carceri regis retrudendus. Partus autem hoc praecipiens portuum custodibus, fecit custodiri ... * Order of Edward II, 8th Nov. 1307 (Rymer, Foedera 4th Ed. II, 13) : Rea^ dilecto et fldeli suo Roberto de Kendale, consfabulario, castri sui Dovor' et custodi Quinque Portuum suoruTn, salutem. Quia intelleximus quod nonnulli, jura nostra et corone nostre intendentes pro viribus impugnare, bullas et alias litteras diversas, usque in regnum -nostrum, a partibus transmarinis deferre iiulies non desistunt ; per quas nobis et predicte corone nostre maximum prejudicium poterit defacili evenire. Nos volentes hujusmodi periculis decetero obviari ; de consilio nostro- ordinavimus, quod bulle seu littere alique, per quas nobis aut juri nostro regio prejudicari poterit quoquo modo, infra idem regnum, vet abinde ad partes transmarinas, nobis inconsidtis, minime deferantur : vobis: igitur mandamus, flrmiter injungentes, quod omnes et singulos a partibus transmarinis, usque in regnum nostrum alicubi in balliva vestra trans- fretantes, vel exinde redeuntes, diligenter scrutari ; et omnes bullas ac alias: litteras, si quas secum detulerint, per quas citationes vel executiones alique fieri, seu jurisdictio aliqua, in nostri et juris corone nostre prejudicium exerceri pater unt, vel eciam facte fuerint, arestari, et nos de tenoribus bullarum et litterarum illarum, de verbo ad verbum, sine dilatione aliqua cerciorari,, casque salvo custodiri facialis, donee de tenoribus illis per vos cerciorati fuerimus, et aliud inde vobis duxerimus demandandum : et hoc sicut vos indempnes conservare volueritis, nullatenus om,ittatis. Order of 12th May, 1326 (Rymer, Foedera 4th Ed. II, 627) provides for the-, hetter execution of the above instructions. Order of Edward III to the authorities of London, Dover and the Cinque Ports, and Canterbury, 12th Dec. 1327 (Rymer, Foedera 4th Ed. II, 726) refers to. the orders of Edward II ; in spite of them bulls touching provisions and various causes prejudicial to the rights of the crown and of the magnates have been brought into the land. The directions contained in the earlier order are, there- fore, in the main, repeated. Rotuli Parliamentorum II, 144 [17 Ed. Ill (1343)] : . . . Par qoi notre- Seigneur le Roi en ce present Parlement, a la suite de la dite Communaltee- de son Roialme . . . Par assent des Counts, Barons et Nobles et de la Communaltee de son Roialme ad purveu, ordeignez, acordez, juggez, et considerez, . . . Qe nul, de quel estat ou condition q'il soit, soil il Alyen ow Denzein, port desore, ne facz porter, deinz le Roialme d'Engleterre, sur la: greve forfaiture du Roi, Lettres, Bulles Proces, Reservations, Instrumentz, ou ascunes autres choses prejudicieles au Roi ou a son Poeple, pur les: liverer as Ercevesqes, Evesqes, Abbes, Priours, Counts, Barouns, ou ascuns- autres deinz le dit Roialme ; et qe nul par vertue des ti eux Provisions ou- Reservations resceive Beneficz de Seinte Esgli.se; . . . Order of Bth April,' 1344 (Rymer, Foedera 4th Ed. Ill, 11) : Rex majori et ballivis de Sandwico salutem,. Quia datum, est nobis intelligi quod vos duos: fratres, ordinis Carmelitarum, per dOminum Sum,mum, Pontificem, in episcopos: noviter consecratos, et in portu de Sandwico cum bidlis et Uteris, nobis: praejudicialibus, applicantes, arestdtis, et sic in aresto tenetis ; Scire vos volumus quod non est, nee unquam fuit intentionis nostrae, quod,, virtute alicujus m,andati nostri vobis directi, arestare possetis aliquem in ordinem episcopalem constitutum, ; Et ideo vobis mandamus quod statim ipsos episcopos cum servientibus suis,. si sic arestati sint, dearestetis, et ipsos, qiio voluerint, abire libere permittatis ;: 238 MEDIEVAL POWERS OF THE KING [V, 1a gated in the landJ As late as the fifteenth century, in the year 1427, for example, during the regency for Henry VI we find an instance of the seizure of papal bulls, in order to render the proceed- ings of the pope, Martin Y, against Chichele inoperative.* In like Literas tamen hujusmodi, nobis, praejudiciales, quas per ipsos, vel suos, infra regnum nostrum delatas inveneritis, sanas et integras coram concilia nostro London^ transmittatis. Order of Edward III, 21st August, 1376, to Sudbury, archbisliop of Canterbury {Wilkins III, 107) : . . . Quia datum, est nobis intelligi, diversas literas, iullas, et alia scripta quam plura nobis et regno nostro Angliae, ac subditis nostris ejusdem praejudicialia continentia, vobis a partis exteris in regnum, et potestatem nostra executioni dernandand. fore transmittenda . . . vobis mandamus quod literas, bullas, et scripta quaecunque nobis, ac regno et subditis nostris, ut praedictum est, praejudicialia, si quae vobis deferri contigerit, statim cum, ea receperitis, nobis et concilio nostro salvo et secure m,ittatis ; . . . (tbe subordinates of tbe archbishop are to do the same, if such documents come into their hands) . . . ; ut nos, visis et exam,inatis coram dicto consilio nostro hujusm,odi Uteris et scriptis, ulterius inde fieri faciamus, quod justum fuerit et rationis ; publicationi om,nium liter arum, et aliorum scriptorum hujusmodi, ac executioni inde per vos, seu ipsas personas ecclesiasticas in dioecesi vestra faciendae, quousque aliud a nobis et ipso concilio nostro inde liabueritis in m,andatis, supersedeatis, et supersederi ■demandetis sub periculo, quod incumhit. ' Compare e.g. the letters of the justiciar (regent during the king's absence) Eanulfus de G-lanvilla, dated Julj'-, 1187, to the abbot of Battle (who had been entrusted by the pope with the execution of a papal mandate against the arch- bishop of Canterbury). Praecipio tibi ex parte domini regis, per fidem quam Compare especially l.S Miz. (1571) 2 An Acte agaynste the bringing in and putting in Execution of Bulls and other Instruments from the Sea of Some. s 1, Papal bulls have been brought into the land, according to which those who cease from obedience to the queen will receive absolution and be admitted again into the papal church. ,If any person shall execute such bulls in England or shall give or receive absolution upon the ground of such bulls ; Or els yf any person or persons have obtayned or gotten synce the last daye of the Parlia- ment holden in the fyrst Yere of the Queenes Majesties Raigne, or . . . shall obtayne or get from the sayd Bysshop of Borne or any his Successors or Sea of Rome, any maner of Bull Writinge or Instrument written or prynted, contaynyng any Thinge Matter or Cause whatsoever ; Or shall publishe or by any Waies or Meanes put in Ure any suche Bull Writyng or Instrument, That then all and every suche Acte . . . shalbe demed and adjudged . . . to be Hyghe Treason . . . ' Anselm, for example, in 1097 begs the king's permission to go to Eome. Leave, several times refused, was granted after urgent request. Eadmer, Hist. Nov. (Rer. Brit. Scr. No. 81) 79-86 ; letter of Anselm to Paschal II (printed in § 4, note 17).— According to Eadmer, I.e. 255, Thurstan, archbishop of York, was not allowed to go to the papal council of Rheims (1119), do7iec interposita jide qua ei (the king) sicut domino suo astrictus erat illi promitteret, se apud papam nihil acturum unde ecclesia Cantuariensis ullum antiquae dignitatis suae dispendium incurreret. According to Hugo Cantor (Historians of the Church of York, Rer. Brit. Scr. No. 71) II, 161 Thurstan on this occasion only promised • . > . ita me agam quod quae sunt Dei Deo, et quae regis regi ■reddam.—Alexa,niex III in a letter, dated 18th March, 1163, to Henry II 240 MEDIEVAL POWERS OF THE KING [V, lA declared to be old usage that no archbishop or bishop or persona regni may leave the kingdom without royal licence ; if any such person goes with this licence he must, upon the king's demand, give security that he will attempt nothing on the journey to and fro, or during his stay abroad, to cause evil or injury to sovereign or realm.'' This article belongs, it is true, to those rejected by the pope ; it was, however, even after the reconciliation of 1172,^ re- garded by the king as binding law. The Magna Carta of 1215 abolished the need of a royal licence to travel outside England as far as time of peace was concerned.* But the clause was dropped at the first confirmation of the charter (1216) during Henry Ill's minority and not inserted again at any subsequent confirmation.^ In the fourteenth century the strict rules as to permits were no longer enforced against the magnates of the land ; the lower clergy, however, as well as laymen not of high position, required permis- sion to leave England.* (printed in Eymer, Foedera 4th Ed. 1, 44), having regard to the intention of the king, formed after discussion in the national assembly, to send aU archbishops and bishops to the coming council of Tours, assured him : . . . ut propter hoc tihi aut i^osteris tuis nullum detrimentum vel incommodum debeat provenire ; neque, occasione ista, nova consuetudo in regnum tuum possii induci, vel ipsius regni dignitas minorari. The need of royal permission to travel abroad was not confined to the clergy. Cf. Quadripdrtitus (a law- book, about 1114, edited by Liebermann, Halle, 1892, p. 146) Book II Prae- fatio §§1,2: Begem Anglie singulari majestate regni sui dominum esse, mani- feste veritatis intuitus et singulorum denique cognovit effectus. Quod . . . situs quoque patrie cmifidenter adjuvat, nature beneficiis et maris vicinitate conclusus, ut sine gratuita dominorum licencia nullus exitus, nulli relinqu- antur ingressus. ^ c 4 (printed in appendix IV). Similarly an ordinance of Henry II during the struggle with Becket, probably dating from 1169 (Hoveden I, 231 ; cf. § 2B, note 8) c 2 : Item nullus clericus, vel monachus, vel converses alicujus religi- onis, permittatur transfretare, vel redire in Angliam, nisi de transfretatione habeat litteras justitiarum, et de reditu litteras regis. Et si aliquis aliter inventus fuerit, capiatur et retineatur. ^ Cf. § 4, notes 50, 51. * c 42 (printed in appendix VII) salvafide nostra. ^ Cf. letter of Honorius III to Henry III, 18th January, 1224, in Boyal Letters (Ber. Brit. Scr. No! 27) I, 218 : . . . Ad haec, cum idem episcopus (Peter des Eoches of Winchester) disposuerit ad nostram venire praesentiam, tractatum nobiscum super executione voti, quod de transeundo in subsidium Terrae Sanctae, suscepto signo crucis, emisit, aliisque suis et ecclesiae suae negotiis habiturus, et his qui voluni ad partes accedere cismarinas, egressus, sicitt ferunt, non pateat, absque tua licentia speciali, pracfatum, episcopum cum comitatu sua libenter venire permittas adnos et ad Bomanam ecclesiam matrem suam, nee impediri per aliquos aliquatenus patiaris, quia haec non magis in suam quam in nostram et apostolicae sedis injuriam redundaret . . . « 5 Bic. II (1381/2) St. 1 c 2 enacts that no one, of laity or clergy, upon pain of confiscation of property, may go forth from the realm without the king s leave, excepting seigneurs et autres grantz personcs del roialme, great mer- chants and king's soldiers.— Cf. further 12 Bic. II (1388) c 15,_which, however, is only directed against leaving the land to obtain papal provisions : Item qe nulle liege du Boy de quel estat ou condicion qil soit greindre ou meindre passe le §27] IN RELATION TO THE NATIONAL CHURCH 24I From the reformation period there belongs here an act of Henry VIII's reign, forbidding attendance at church councils which met abroad.'' §27. b. In relation to the national church." In regard to external influences, the king was only concerned to resist aggression ; he claimed no right to co-operate in the central government of the church at Eome. At home, his task was one now of resistance, now of co-operation. Active participation in ecclesiastical government was an inherit- ance which English sovereigns received from the early middle ages, when the king had been regarded as the common head alike of the secular and the spiritual administration. As-the church grew more and more conscious of its own dignity and powers, this participation was, by a long series of struggles, gradually diminished in extent, though, at all times, not inconsiderable traces of it remained. "^ But simultaneous with that diminution was the growth of rights which enabled the king to repel the encroachments of the ecclesias- tical authorities within his own land. In the period from the Norman conquest to the reformation, the relations of the king and the civil powers to the national church and its officers may be described as follows : — 1. In the sphere of legislation. . During the time indicated, as contrasted with the Anglo-Saxon period, the sovereign did not interfere by direct ordinance with ecclesiastical affairs. Publishing no mandates of spiritual import, he confined himself, in this respect, to exercising control over the legislation of the church councils. This control was wielded by means of a right, limited from" the thirteenth century onward, to co-operate in the summoning of such councils^ and also, up to the first third of the twelfth century, by means of a right to ratify 01: annul their decisions.^ Attempts of the councils to determine meer nenvoie hors du roialme Dengleterre par licence ou sanz licence, sans especial congie du Roy mesmes, por soy providre ou purchacer ascun benefice . . . — Royal protection (1433) valid for a year, to' the prelates .journeying to the council of Basel in Eymer, Foedera 3rd Ed. IV, pt. IV pp. 194 f. From a later time of. 13 Eliz. (1571) c 3. ' 25 Hen. VIII (1533/4) c 21 s 14: Nor that any, person religious or other resiant in any the Kynges Domynyons shall fromhensforth departe out of the Kynges Domynyons to or for any visitacion congregacion or assemble for Ee- ligeon, but that all suche visytacyons congregatyons and assembles shalbe within the Kynges Domynyons. * Compare also the statement, not in all respects accurate, of the rights of English kings in ecclesiastical matters contained in the judgment in Caudrey V. Alton (33 Eliz.) in Coke, Eeports V, 1 ff. ' * Compare § 54, near notes 16 ff. ' From the time of William I to that of Henry I. Compare § 54, near notes 23 ff. » Gneist, Engl. TerfassungsgeschicTite §§14, 24. H.C. 242 MEDIEVAL POWERS 'OF THE KING [V, lA crown rights were vigorously opposed by the kings.* For the re^t, the sovereign contented himself with upholding the principle that the extent to which purely ecclesiastical laws or canons were to have force was to be fixed, not by the church, but by royal ordi- nance or, at a later time, by act of parliament. 2. In the sphere of jurisdiction. The co-operation of the king in ecclesiastical jurisdiction as a supreme head to whom appeal from the archbishop's court lay, ceased as early as the twelfth century, and the position was not regained until the reformation.' Yet it was necessary to invoke the aid of the crown when recusants were to be reduced to obedi- ence by physical constraint.^ Exceptions occur in regard to im- ' Mandate of John under date 2Gtli Maj-, 1206 (Eymer, Foedera 4th Ed. 1,94):- Rex archiepiscopis, episcopis, abbatibus, archidiaconis, et omni clero apud sanctum Albanum ad consilium convocato, salutem. Conquerente universitate comitum, baronum, militum, et aliorum fidelium nostrorum audivimus, quod -non solum, in laicorum gravem perniciem, sed eciam. in totius regni nostri intollerabile dispendium,, super Romiscotto praeter. consuetudinem solvendo, et aliis pluribus inconsuetis exactionibus, authoritate summ,i Pontificis consilium inire et consilium celebrare decrevistis. . . . Vobis . . . precise m,andam,us et expresse proJiibemus, ne super praedictis vel aliquibus aliis concilium, aliquod, authoritate aliqua in fide qua nobis tenemini, teneatis, vel contra regni nostri consuetudinem, aliquod novum statuatis, set sicut nos et honorem nostrum et communem regni tranquillitatem diligitis, a celebracione hujus concilii et a praedictis tractatibus ad praesens supersedeatis, quousque cum universitate vestra super hoc colloquium habu- tfYhUS ' Rot. Pari. 18 Hen. 77/(1233/4) 2 part. m. 17 (printed in Coke, Tnst. IV, 322) : Mandatum est omnibus episcopis qui conventuri sunt apud Gloucestriam die Sabbathi in crastino Sanctae Katherinaeflrmiter inhibendo quod sicut Baronias suas {quas de Rege tenent) diligunt, nullo modo praesumant consilium, tenere de aliquibus quae ad coronam Regis pertinent, vel quae personam Regis vel statum suum, vel statum concilii sui contingunt. Scituri pro certo quod si fecerint, Rex inde se capiet ad Baronias suas. Teste Rege . . . Compare also, for example, the report on a similar occurrence at the legatine council of 1237 (Matth. Paris, Chron. Maj. ; Rer. Brit. Scr. No. 57 ; III, 417) ; further, similar mandates of Edward I, of 28th Sept. 1281, in view of the approaching provincial council of Lambeth (Regist. Epist. Peckham ; Rer.- Brit. Scr. No. 77 ; I, 235, 236 ; also in Wilkins, Cone. II, BO and Eymer, Foedera 4th Ed. I, 598) ; of 21st March, 1297, to the convocation of the southern province ■which was to meet on the 26th March (Wilkins 11, 224) ; of Edward II, 1309 (Wilkins II, 312); of 30th Nov. 1321 (Wilkins II, 509); of Edward III, 2nd Sept. 1332 (Rymer, Foedera 4th Ed. II, 845). * Of. § 23. * In the Anglo-Saxon period the ecclesiastical authorities could probably execute their own decrees. (Cf. especially the piwvisions of the Anglo-Saxon laws as to the collection of church dues "and as to the penalties of disobedience.) According to Stubbs, appendix I to the Report of the Ecclesiastical Courts Commission, 1883 p. 28, it is not precisely known whether or in what way the bishop, from William I's time, might apply to the sheriff for execution (cf. resolution of the council of Winchester, 1076, below § 60, note 2, and ordinance of William I § 3 in appendix I) ; but early in Henry Ill's time it had become at any rate the rule to request of the central (royal) authorities a hreve de ex- communicato capiendo addressed to the sheriff. The forms for the bishop's §27] IN RELATION TO THE NATIONAL CHURCH 243 prisonment under some of the statutes against heresy.' But the general necessity of intervention by the king's officers secured to them, and through them to the king, a means of keeping the procedure of the ecclesiastical courts in conformity with law, whilst ]t further enabled the secular authorities to thwart any effort of, those courts to extend arbitrarily the domain of their competence. Moreover, for the prosecution of crown vassals and the king's ser- vants royal consent was a condition fulfilment of which was ex- pressly required.^ application to the king and the king's orders to the sheriff to seize, or not to seize or to set free are given in Braoton {aire. 1230-57), Book V tract. 5 c 11 (Ber. Brit. Scr. No. 70 ; VI, 2L8 ff.) and c 23 (VI, 370 if.). Bracton seems, how- ever, in other places to assume that the request for execution was made imme- diately by the bishop to the sheriff; cf. I.e. c 9 § 1 (VI, 204) : . . . si judex ecclesiasticus (in a cause in which he is not competent) . . . judicauerit, judicium suum executioni mandare non poterit, quia iwn est vicecomes nee alius minister, qui in executione facienda ei obternperet, et si ipse exequi volu- erit, locum habebit contra ipsum assisa novae disseysinae, et contra eum qui sequitur, . . .; I.e. c 13 § 6 (VI, 240): Index vero ecclesiasticus si judicave- rit de laieo feodo, non poterit sententiam demandare executioni, quia si illam demandaverit vicecomiti exequendam,, non erit ei parendum,. [Similarly btit without express mention of the vicecomes. Book IV tract. 1 27 § 1 ; III, 852.] — The kings refused to acknowledge any obligation on their part to arrest excom- municated persons. So e.g. the king makes answer to the complaint of the clergy (about 1245 ? Cole, Documents 355) : to art. 9 : Ad requisicionem Episeoporum consuevit Bex aliquando de gracia sj^eciali cum sibi placuit excom- municatos facere capi et detineri, quousque ab ipsis caucio vel emenda prestita fuis^et nee eos liberavit nisi per Episcopos idtra caucionem, idoneam seu emendam ab ipsis excomm,unicatis oblatam, malieiose detinerentur. In quo casu scribere solet Bex ministris suis per quos excmnmunicatos ipsos capi fecerit ut personaliter una cum, dictis incarceratis ad Prelatos ipsos accede- rent. Et si Prelati predicti in presencia ministroriim ipsorum caucionein idoneam seu emendam ab ipsis excommunicatis accipere recusarent, tunc quasi malieiose detentos ipsi ministri eos liberarent, aliter autem, per Begem non liberantur ; to art. 10 : Quod excommunicati quandoque non capiuntur ad requisicionem Prelatorum ; respondet Bex ut supra, faeit enim hoc cum videt expedire qui in hac parte nullo jure se reputat artatum. Quan- doque eeiam nituntur Prelati jus proprium ipsius llegis per hujusmodi capcionem usurpare. Cf. also council of Merton, 1258 (Wilkins, Cone. I, 737 after A7in. Burton) : Praeterea cum excommunicati, et de mandato pradatorum secundum consuetudinem capti, et carceri mancipati, aliquando per regem, et quandoque per vicecomitem, aliosque ballivos, sine consensu praelatorum, et satisfactione congrua liberentur, plerumque etiam hujusmodi excommunicati non capiantur, neque de ipsis capiendis literae regiae eoncedantur ; . . . further, petition of the clergy 1279-85 and king's answer {Northern Begisters ; Ber. Brit. Scr. No. 61, p. 70) c 17. For examples of requests to imprison excom- municated persons see Begist. Epist. Peckham {Ber. Brit. Scr. No. 77) I, 153, 850. Archbishop Peckham, by letter of 11th Nov. 1286 {Beg. Epist. Peckham III, 986), refused to meet the wish of the government, that he should insert the clause nostrae jurisdictiones into such letters of request.— On the breve de haeretico comburendo cf. § 19, note 11. ' Compare § 19. 1 Hen. VII (1485) c 2 (printed § 60, note 29) conferred on the bishops the power of executing their own sentences on the clergy for offences against morality. » Custom under William I (§ 4, note 12) ; Const. Clarendon, 1164 c 7 (app. IV); ordinance of Henry II, probably in 1169 (Hoved3n I, 232, cf. S.23, note 8) o 7 : Item Lundoniensis et Norewicensis episcopi summoneantur, quod sint coram just itiis regis ad rectum faciendum, quod contra statuta regni interdix- 244 MEDIEVAL POWERS OF THE KING [V, lA Apart 'from matters which were committed to the ecclesiastical courts, there always remained subject to temporal jurisdiction various relations affecting the constitution of the church." Moreover, the state exercised direct control to prevent ecclesiastical ofl&cials and courts from transgressing the boundaries of their com- petence as defined by secular law. This control, originally taking the form of royal ordinances upon particular occasions, passed at an early date into the hands ofthe supreme civil courts and was by them quietly, but persistently and effectually, applied.^" In certain emnt terram comitis Ilugonis, et in ipsum senfentiam tulerunt ; language of Henry II to bishop John of Norwich, 1175-89 (Giraldus, Vita S. llemigii ; Rer. Brit. Scr. No. 21; VII, 70); complaint -of the clergy, 1237 (Ann. de Burton; Iter. Brit. Scr. No. 36 ; Annates Mmiastici I, 2B6) : Item, dicunt ballivi domini regis quod non possunt vel debent excommuhicari dum sunt in servitio domini regis, pro aliquo delicto in balliva sua coinmisso, et de excommunicatimie regi conqueruntur. Peckham's concession, 1279 (§ 4, note 71). Cf. Friedberg, De finibus p. 160, notes 1, 2. — Compare, further, the king's answer to the complaint of the clergy (aboiit 1245 ? Cole, Documents 354),>rt. 2 : De excommunicacion- • ibiis, suspensionibus et interdictis Prelatorum quando per ea feodalia Regis seu libertates ipsius aut ejus jurisdiccionem usurpare prestimunt seu execu- ciones suejurisdictionis itnpediunt, arguit eos Rex inforo suo ratione usurpa-' cionis et impedim,enti predicti ; hoc etiam, jure usi sunt Reges Angliae. The form for the prohibition of the prosecution of a king's servant before an eccle- siastical court for some official act will be found in Bracton {Rer. Brit. Scr. No. 70) VI, 186. ' Compare § 60. '" The writ of prohibition to hinder encroachments of special courts, par- ticularly ecclesiastical courts, is mentioned by Glanvilla {circ. 1180-90) in two cases, when the proceedings relate to a lay fief and when they affect a right of patronage. The form in the latter case is in Book IV c 13 (printed § 60, note 153) ; cf. also c 14. The forms of prohibition and of summoning the plaintiff- who wrongly pursues before an ecclesiastical court in the matter of a lay fief are in G-lanvilla, Book XII c 21 : Rex illis Judicibus ecclesiasticis salutem : Prohibeo vobis ne teneatis placitum in Curia Christianitatis quod est inter N. et R. de laico Feodo praedicti R. ; unde ipse queritur quod N. eum, trahit in placitum in Curia Christianitatis coram vobis, quia placitum illud spectat ad Coronam et dignitatem meam. Teste etc. ; c22: Rex Vicecom,iti salutem: Prohibe R. ne sequatur placitum in Curia Christianitatis quod est inter N. et ipsum de laico Feodo ipsius praedicti R. in villa ipsa, unde ipse queritur quod praefatus N. inde eum traxit in placitum in Curia Chris- tianitatis coram Judicibus illis. Ft si praefatus R. fecerit te securum de clamore suo prosequendo, tunc pone per vadium et salvos plegios praedictum N. quod sit coram me vel Justiciis meis ea die, ostensurus quare traxit eum in placitum in Curia Christianitatis de laico Feodo suo in ilia villa, de sicut illud placitum spectat ad Coronam et dignitatem, vieam. Teste etc. Cf. the full account of procedure in prohibitions in Bracton, Book V tract. 5 cc 3 ff. {Rer. Brit. Scr. No. 70 ; VI, 168 ff.). Throughout the middle ages the manner in which these prohibitions were used by the ecclesiastical courts formed the subject of constant denunciation at synods and" of complaints by the clergy to the king. Cf. also the complaint of the English clergy in 1237 (Ann. de Burton ; Rer. Brit. Scr. No. 36 ; Ann. Monastici I, 254) : Item, quod per solos judices saeculares non determinefur de aliquacauia, utrum debeat did ecclesiastica vel saecularis. It was chiefly this instr\iniQnt which enabled English lawyers, alike in the middle ages and later, under the Stuarts; to- repel the attacks of the church in important points. For the proceedings against ecolesia.stical officials who disregarded the pro- hibition served upon Iheni, compare e.g. the 'complaints of the clergy at the pro- vincial-council of LoMon;V2ol (Wilkins, Concilia I, 726) c 30: Item in quibus J 27] IN RELATION. TO THE NATIONAL CHURCH ,245 circumstances the royal courts had even the right of coinpelling .ecclesiastical officials to take action." It is true that.the^persoii of ecclesiastics was_in many,case§ with- drawn from temporal jurisdiction. Yet, the , secular courts retained 'their competence in civil plaints, a circumstance which was par- • ticularly important in view of the fact that prosecution for penal >offences, and especially for minor transgressions, was possible by private action for damages. Furthermore, the secular courts always retained as against the clergy, the power of giving judgment in .offences against the crown ; lastly, from the fourteenth century, -there was created in the writ of praemunire facias a special mode of civil proceeding against encroachments of ecclesiastics and their secular assistants.*^ 3. In the matter of military service. The prelates like other feudatories were, in principle, bound to do .military service in person and to lead their vassals in arms to the .king's side ; and indeed it seems that in theory the clergy generally were no less obliged to serve than laymen. ^^ But personal service omnibus casibus et similibus, si judex eeclesiasticus contra prohibitionem : regiam procedat, attachiatur comparens coram justiciariis, compellitur judex exhibere acta sua, ut per ea decernant, utrum negotium pertineat ad forum •ecclesiasticum, vel seculare. Et si videatur eis, quod pertineat , ad forum ■ regium, querelatur judex, qui, si confiteatur se post, prohibitionem processisse, amerciatur ; si neget, indicitur ei purgatio per judicem secularem.ad testi- .laonium duorum vilissim,orum ribaldorum,. Et si purgare se noluerit, in- carceratur, donee justitiariis.sacramentum praestiterit corporate, :quod non processerit contra prohibitionem; et si facere noluerit, in carcere retirietur similiter actor, si sequatur. Fleta, Book VI c 14 § 8 : S si terra vel aliitd in Foro petatur Ecclesiastieo et.Regia Prohibitio intervenerit ne procedatur ibidem,, et Judex procedere timuerit an res de qua agitur mere spiritualis sit necne, tutum est Judici supersedere litem,que suspendere donee discussum, fuerit a Justiciariis locum Regis .terventibus, utrum licite procedere, valeat in causa necne; qui si in causa illicita praesumptuose- processerit .et inde con- vincatur, dampna querenti restituere . condempnabitur adhibit a .' taxatione Justit, et gaolae committetur donee pro voluntate Regis ab inde rediriiatur. Tor more as to the procedure and the. forms employed see Bracton, Book V tract. 5 cc .12 f . (VI, 224 ff.) ; cf . «.c. VI, 234 : . . . si laicus fuerit, . . . gaolae comTnittatur sicut,praesum,ptor contra regiam. dignitatem ac si crimen -laesae majestatis eommisisset. Si autem, clericus aliquando cum eo m,itius agitur de gratia ob reverentiam ordinis clericalis. The inquiry, after prohihition, of the ecclesiastical judges to the jtisticiaries whether cognizance is theirs or not is called consultatio. See more in Bracton, Book V tract. 5 c 8 (VI," 196).- " By writ of mandamus, fieri facias de bonis ecclesiasticis, venire facias, quare non adm.isit etc. " Compare § 69, near notes 39 if. *^ On the Anglo-Saxon period compare GBeist,;^Engl. Verfassungsgeseh.% 5 .p. 65, note 1. — The transformation of the holdings, of the higher clergy into feofs for which service was rendered by placing a given number of men in the 'field, was probably introduced by William I about 1072 (Round, Introduction of Knight-Service into England, reprinted- from the English Historical Review, July and October 1891, January 1892, pp. 62 sq., against Stubbs,. Const. Hist. I, 386f note.l c 11 § 123 and Gneist, Verfassungsgesch.). For this view is. to be cited, in particular, Historia Eliensis (written, probably, sapn after the middle 246 MEDIEVAL POWERS OF THE KING [V, 1a was seldom exacted, and then only for the defence of the country against invaders ; ^^ whilst even the duty of sending armed men of the 12tli cent. ; edited by Stewart for the Anglia Christiana, 1848) pp. 274, '276 : Interim rex Scottorum Malcotmus ei occiirrens (1072) homo suus devenit, jusserat enim tarn ahbatibus quam episcopis totius Angliae debita militiae obsequia transmittl, constituitque ut ex tunc regibus Anglorum jure perpetuo in expeditione militum ex ipsis praesidia impendi, et nemo licet auctoritate pJurima siibnixits huic edielo prfiesumat obsistere . . . , 'William. II ddiitinn servitium quod pater suus imposuerat ab ecdesiis violenter exigit, . ... ; Hist. Mon. Abingdon, {Her. Brit. Scr. No. 2) II, 8 : . . . cum, jam regis edictO'in Annalibus annotaretur quot de episcopiis, quotve de abbatiia ad pub- Jicam rem tuendam niilites ... . exigerentur , . . ; Matth. Paris, CAroiz. Ilaj. {Her. Brit. Scr. No. 67) II, 6, j'ear 1070 : Episcopatus quoque et dbbatias omnes quae baronias tenebant et eatenus ab omni servifute saeculari libertatem habuerant (only true with a limitation) sub servitute statuit militari, inrotidans singulos episcopidtus et dbbatias pro voluntate sua, quot milites sibi et succes- soribus suis,hostilitatis tempore, voluit a singulis exhiberi. For a correspond- ing proceeding of William II against monasteries cf. Giraldns, De Inst. Princ. (Her. Brit. Scr. No. 21) VIII, 315. On the customary summons to the higher "clergy to present themselves with their retinues for service in the field see ,Madox, The History and ^Antiquities of the Exchequer 2nd Ed. London, 1769, 1, 653 ff. — Compare also writ of Edwai-d I, 20th Augvist, 1297 (printed above, § 4 note 96) : . . . pur ceo qe clercs par fet darmes ne se doiveni def- fendre, . . , " As examples compare writ of Henry III, 19th July, 1257, to the bishops (Rymer, Foedera 4th Ed. 1, 362) : The king who has summoned the feudal army to a campaign against Wales forbids the holding of a convocation .by the arch- bishop of Canterbury . . . eo quod singidi tarn praelati quam, alii, in pro- priis personis venire debeant ad defensionem coronae, et regni nostri. Writ of Edward III, 6th July, 1369, to the several bishops (Eymer's Foedera 4th Ed. Ill, 876): . . . Cum, in ultimo parliamento nostro, de a.ssensu vestro, ac aliorum praelatorum, magnatum, et communitatis regni nostri, ordinatum, et concordatum fuisset, quod omnes hom.ines, de dicto regno nostro Angliae, tarn clerici quam laid, videlicet, quilibet eorum juxta statum, possessiones, et facultates suas, armarentiir et arraiarentur, ad proflciscendum, pro salvatimie et defensione sanctae ecclesiae et dicti regni, contra hostes nostros, si qui in- gredi praesump.ierint idem regnum ; . . . Vobis infide et dilectione,quibus nobis tenemini,firmiter injungirnus et ■)nandamns,rogando quatinus . ■ . omnes abbates, priores, religiosos, et alias per.ionas ecclesiasticas quascumque dioeces/s vestrae, quacvmque dilatione postposita, armari et arraiari, ei armis competentibus, videlicet, quemlibet eorum, inter aetates praedictas, juxta statimi, possessiones, et facultates suas, muniri, et eos in millenis, centenis et vintenis, poni faciatis, its quod prom,piti sint et parati ad proflciscendum, una cuvi aliis fldelibus nostris, contra dictos inimicos nostros, infra regnum nos- trum . . . With the preceding writ, that of Edward III to the several bishops, dated 16th June, 1372 (Ejmer, Foedera 4th Ed. Ill, 947 and Wilkins, . Concilia III, 91) agrees almost verbatim. Writ of Edward III to the bishop of Winchester, 20th July, 1373 (Eymer, Foedera 4th Ed. Ill, 988) : as a landing of the enemy near Southampton was impending, let the bishop forthwith levy the clerus, arm them and send them to the adjacent parts of the coast. Writ ' of Richard II, 25th July, 1377, to the various archbishops and bishops (Eymer, Foedera drdi Ed. Ill, pt. Ill p. 64) : the French having burned different places ■on the coasts and a further attack by them being impending, the king has sent commissions into the counties to levy all capable of bearing arms — ad Arrai- anduon, et Arriari et Armari faciendum ; the prelates and the clerus are hound ■to lend help in opposing the enemy ; the bishops are accordingly to arm all ■abbots, priors, monks and other ecclesiastical persons of their dioceses, to levy them, and to divide them into Millena, Centena and Vintena, that they may be ready at the king's command to march forth to war infra dictum Eegnum §27] IN RELATION TO THE NATIONAL CHURCH 247 into-the field became liable towards the end of the twelfth and during the thirteenth century to many exceptions, partial or com- plete immunity being granted in the course of time.^* 4. In the matter of taxation. Even in the Anglo-Saxon period ecclesiastical possessions were not free from the heavy civil burdens which fell on all landed property.'*^ But more extensive contributions to the national treasury began under the financial administration of the Normans, who well understood how to turn all the rights of suzerainty into means of extracting money. The prelates were called on for auxilia and scutagia to the same extent as the other feudatories. These auxilia, or aids, were originally payments to the overlord on certain important occa- sions, whilst scutages i"*" were regarded as a discharge of the obligation to military service deduced from the feudal relation. The old land tax (traced back to the Danegeld) which was raised from time to time was, under "William II and afterwards, imposed on the holdings of the church.^'' With these methods of taxa- tion was fused in the course of the twelfth and thirteenth centuries a new tax, reckoned by fractions of the income. In the thirteenth century the king's power to impose such burdens arbitrarily was restricted and made dependent on the co-operation of the national assembly. The taxation of the prelates in respect of the incomes from their feuds and the taxation generally of the clergy in respect of their temporal possessions and of their income from temporal nostrum. An example of the execution of a writ (138G) and the levying of the clergy of the diocese of York against the French and their allies will be found in Northern Registers {Rer. Brit. Scr. No. 61) 421 . A similar \yrit of Henry IV, 27th Jan. 1400, upon occasion of a threatening Trench invasion, in Eymer, Foedera 3rd Ed. IIP, pt. IV p. 176. Similar writ of Henry V, 28th May, 1415, to the several bishops on his approaching departure for the French war, in ■Rymer, Foedera 3rd Ed. IV, pt. II p. 123. Writ per concilium, 6th July, 1418 (during the king's absence in France) to the two archbishops directing them to levy and arm the clergy of their provinces, in Eymer, Foedera 3rd Ed. IV, pt. Ill p. 57. Cf. from later times the order of the privy council (1588) men- tioned in the letter of the archbishop of Canterbury in Wilkins, Concilia IV, 336. [Examples of the putting in the field of armed men by the clergy, not them- selves called out, in Rymer, Foedera 4th Ed. I, 607 (20th May, 1282, for a war with Wales), II, 1072 (16th Feb. 1339, to repel the French).] '^ Gneist, Eng. Verfassungsgesch. § 2.5a, note 1, adduces the following examples : the bishop of Lincoln, who under Henry II had to put 60 knights in the field, was under Edward I reduced to 5 ; the bishop of Bath from 20 to 2. According to Round, I.e. Reprint pp. 18, 49, up to 1166 the thirty-nine bishops and abbots of more important monasteries had to furnish 784 knights, the secular vassals about 4000.— 11 Henry VII (1495) c 8 and 19 Henry VII (1503/4) c 1, acts touching the service in war to be rendered to the king, are stated therein to be not applicable to ' spiritual persons.' '^ According to rule they too had to pay the trinoda necessitas (Brycgbote, BurJibote, Fyrd). Cf. Gneist, Eng. Verfassungsgesch. § 5 p. 63, note a. '"" The first known mention of scutage as a recurring tax is in a document of Henry I, 1127. Round, I.e. Reprint p. 33. " Compare § 4, note 21. •248 MEDIEVAL POWERS OF THE KING [V, lA sources was thenceforth subject to the yote of the national asseqibly, at which the prelates and, for a time, the other clergy attended. The taxation of income from ecclesiastical sources was, at the end of the thirteenth century, opposed by the clergy. After that their resistance had been overcome by Edward I and after some further struggles under Edward II, the prelates and the lower clergy granted in their convocations state taxes, reckoned by fractions of their income from ecclesiastical sources.^^ Besides these main sources of revenue the king had certain smaller means of supply "which stand in some sort of relation to the constitution of the church," in especial the usufruct of bishoprics and abbacies during vacancy,^" as also dues from the effects of deceased bishops. ^^ Lastly it is to be mentioned that the king '« Cf . § 4, near notes 72 ff. and § 54, near notes 57 ff. '' E;g. a right to the, tithes from extra-parochial places ; recognized as early as Edward I. For more on this right see Philliinore, Eccles. Law 1487. =" Cf. § 41. ^' According to the law of the church (cf. e.g. Gratian, Decretum II eaus. XII quaest. V) bishops might not dispose by will of their property in so far as it was acquired from ecclesiastical sources; it reverted to the church. — The kings of England obtained the right of' giving tlieir assent to a testamentary disposal, by the bishops of their effects. Cf. the charter of Stephen, 113G (app. II) : Si quis epistopus vpl abbas vel alia ecclesiastica persona ante mor- tem suam rationabiliter sua distribuerit vel distribuehda statuerit, firmum manure concedo. Si vero morte praeoccupatus fuerit, pro salute animae ej%is ecdesiae consilio eadem fiat distributio. According to Coke, Inst. IV, 338, ■many reports from the days of Henry III and Edward I show that the kings then exercised the right. Cf. also in Annal. Burton (Ber. Brit. Scr. No. 36 ; Annates Monasiici) I, 254 the petition handed by the English clergy to legate Otho in 1237 that he might deliver it to the king : Item (petunt) ne testamentum, episcoporum et aliorum impediatur. Resolution. of the council of London, 1257 (Wilkins, Concilia I, 724) : Item, quod dominus rex non impediat testa- menta episcoporum, nee extendat manum ad bladum,, quod sem,inaverint, vel ad alia bona episcoporum defunctorum. Complaint of the clergy at the same council (Wilkins, Concilia I, 726) c 23 : . . . dominus . . . rex non perm,ittit executores testamentorum eorimdem, episcoporum de bonis ipsorum administrare, quousque causa cognita ipsius facinoris, gratiam mereantur super his obtinere. According to Coke, I.e., who finds his oldest instance in the time of Edward II, but thinks that the u^age is older (cf. e.g. the documents from the years 1227-33 in Rer. Brit. Scr. No. 21, VII, 230 f.), the king required as an equivalent for his consent certain dues from the estates of dead bishops : 1. the best horse jwith saddle and bridle ; 2. £i, cloak with a cape ; 3. goblet with lid; 4. basin and. ewer; 5. golden ring; 6. the bishop's hounds. To obtain these dues, the exchequer issued on -the death of the bishop an order to take possession of » the effects. — A Spolienrecht (right of the king to all the per- sonalty of a deceased bishop), such as existed in many countries of Europe already in the twelfth century, seems never to have been exercised in England proper. As to the king's rights in case a bishop died intestate c'f.-.§ 60, near •notes 118 ff. In Scotland (see Robertson, Ecdesiae Scoticanae statuta.l, 100, note 1) this Spolienrecht existed even before the middle of the twelfth century. The papal prohibition was recalled by the pope in 1282. Edward I, from his appearance in Scotland as suzerain, exercised this right there. (Cf. the answer of Edward I to the petition of the^English clergy, 1279-85 [Rer. Brit. Scr. No. 61 p. 75] 13 : . . . in Scotia episcopi non testantur, scd rex oceupat ■omnia bona sua.) In 1367-71 David II with the consent of parliament re- jiounced the right, as did his successor after him. In connexion herewith were issued corresponding papal bulls. Nevertheless the right was again exercised §27] IN RELATION TO THE NATIONAL CHURCH 249 claimed for himself and his officers free quarters, and rights of purveyance and prisage,-^ and that he burdened spiritual corpora- tions by granting pensions and corodies.^^ 5. As to rights of appointment. The Norman kings derived from the Anglo-Saxon period ap almost unlimited right of appointment in respect to the more im- portant bishoprics and a large number of other high offices. A .certain number of the abbots were elected, as a consequence of special privileges, by the convent, and apparently the case was the same with some less important ■ bishoprics.^* The investiture by the king with ring and staff was, owing to the opposition led by Anselm, surrendered by Henry I in 1107,*'^ the king's power of ap- pointment at the latest by John in 1214.^* Even then the neces- sity of royal assent still survived, and the king retained consider- able influence on all elections inasmuch as he had to be approached for leave to elect, and it was usual that in granting the leave he further designated the person acceptable to himself.*'' Apart from this influence in filling the highest ecclesiastical offices the king enjoyed the right of investing prelates with the property appertaining to the see. Anselm had struggled for the dissolution of the feudal bond, but in vain.** At the end of the twelfth cen- tury the bishops, it is true, did not do feudal homage after consecra- tion, they only took the oath of fealty ; they seem, however, for some time longer to have done homage after election but before consecration.*" At any rate, the prelates remained obliged to dis- and not finally surrendered until 1449-50 by renunciation of the king in par- liament. For the continent of Europe see the authorities in Eichter, Kirchen- recht § 316, note 12. — On the heriot which in Anglo-Saxon times even bishops paid the king, compare Gneist, Engl. Verfassungsgesch. § 2, note 4a. " The undue extension of these rights was checked bj' 3 Ed. I (1275) Stat, of Westminster art. 1, 2 Ed. 7/(1309) De prists injustis non capiendis a Viris Ecclesiasticis seu aliis, 9 Ed. II st. 1 (1315/6) Articuli Cleri c 11^ 10 Ed. II (1816) De statuto pro Clero inviolabiliter observando, 14 Ed. Ill (1840) st. 4 c 1 and by later enactments. Cf. also Vocke, GescMchie der Stetiern des britischen Reichs, Leipzig, 1866, pp. 130 fF. Stubbs, Const. Hist. II, 564 ff. c 17 § 279. _ '^ For a restriction of the king in assigning pensions and corodies (it is a case of applying the preces regiae) cf. 9 Ed. II st. 1 (1315/6) Articidi Cleri c 11, also 1 Ed. Ill (1326/7) st. 2 c 10: Et por ce qe Ercevesqes, Evesqes, Abbees, Priours, Dames de religion et- autres ount este avant ces houres grandement grevez par priers des Roys, qe lor unt prie par grandes manaces pur lour Clerks et autres lor servants, por grosses empensions, provendes, Eglises et Corodies, issint qils ne poent rien doner nefaire a ceux qe later avoient servi, ne alor amys, a grant charge et damage de etcx; Le Roi ne voet desore prier, ■mes la ou il devera. '. "* This is the view of Stubbs, Const. Hist. 1, 149 c 6 § 57. Cf. above, § 2, near notes 10 ff. " Cf. § 4, note 23. ^^ Cf. § 4, notes 53, 65. " By letters missive. " Cf . § 4, note 24. ^^ Const. Clarendon (append. IV) c 12 : . . . faciei electus homagium et fidelitatem domino regi, sicut ligio domino, de vita sua et de membris, et de honore suo terreno, salvo ordine suo, priusquam consecratus sit. Glanvilla, 250 MEDIEVAL POWERS OF THE KING [V, 1a charge all the duties arising from the feudal relation. The king as feudal lord continued to be the immediate superior of the bishops ; he could, in particular, claim their services in affairs of state, and possessed in the right of confiscature for breach of fealty an exceed- ingly effective means of constraint. Numerous offices in the cathedral chapters and among the inferior clergy were filled by the king as patron. The administration of the benefices of prelates during vacancy, like the administration of other fiefs during the minority of the heir and in other cases, placed temporarily at the king's disposal the fruits of benefices the right of presentation to which belonged to the owners of the land.^" Clerical corporations were also frequently compelled by 'royal request ' to exercise their rights of presentation in favotir of persons denoted by the king.**^ Lastly, the king had been regarded from early times as ' patron paramount ' of all benefices in England,^^ in which capacity he had an implied right to present in various cases when for any reason no duly qualified patron was found. 6. As to the acquisition of property hy the cJmrch. The king interfered with the acquisition of property by the church in two ways : he restricted appropriations (the absorption of independent livings by the great ecclesiastical corporations), and! the accumulation of landed property in mortua manu. A royal permit for every appropriation seems to have been Book IX c 1 : . . . Episcopi vera consecrati honiagium facere non Solent domino liegi etiam de baroniis suis, sed fidelitatem cum juramentis interpo- sitis ipsi praestare solent. Electi ve.ro in episcopos ante consecrationem suam homagia sua facere solent. Bracton {Rer. Brit. Scr. No. 70) I, 622 : . . . dum tamen electi in episcopos post consecrationem honiagium non faciant,. quicquid fecerint ante, sed tantum fidelitatem. — Cf. Eleta, Book III o 1& §§ 11-13 ; further, above § 20, note 22. '" The so-called presentementz par le Roi en autri droit par auncien title which took place up to the end of the 15th century were abuses. They were prohibited and legal obstacles raised against them by 25 Ed,. /// (1351/2) st. 6 Ordinatio pro Clero cc 1 and 3 ; 13 Ric. II ( 1 389/90) st. 1 o 4 ; 4 Hen. IV (1402) c 22. But the first of these acts contains a reservation not toxiched by later ones : sauvant au dit Roi et a ses heirs toutz tiels presentementz en autri droit de tout son temps et de temps avenir. " Compare above, notes 23, 27. Complaint of the clergy in 1257 (Wilkins I,, 726) c 3 : Item cum electiones in ecclesiis cathedralibiis seu conventualibus de- beant esse liberae, tot'et tales preces regales interveniunt, quibus eleetores per- territi; saepius divinae humanam praeferunt voluntaiem. Eodem modofit de ecclesiis vel praebendis, ad opus regcdium clericorum, cum eas vacare con- tingit. Complaint in 1309 (Wilkins II, 321) : Item si vacet aliqua dignitas, ubi eleetio est facienda, petitur, quod eleetores libere possint eligere absque incursione timoris a quacunque potestate seculari, et quod cessent preces et oppressiones in hac parte. 32 Cf. e.g. 25 Ed. Ill (1350/1) st. 4 Stat, de Provisoribus .- . . . Esghse, provende, on autre benefice qe sent del avoiuerie des genz de seinte esglise, dont le Roi est avowe paramount inmediat . . . ' Immediat ' supplies the oppo- sition to the case of lay patronage. •§28] THE SUPREMACY OF THE SOVEREIGN 25 1 necessary from the end of the thirteenth century .^^ By concerning himself to limit appropriations, the king -worked in the same direction as the authorities of the church. On the other hand, the restriction of the acquisition of land in mortua manu could only be effected by conflict with the church. The endeavours of the sovereign in this respect were aided by the circumstance that arbitrary gifts of land to the church involved a wrong to the private rights of the feudal lord, depriving him, for example, of the chance of an escheat, as also of a number of dues and services to which the clergy by the law of the land were not subject or from which they were able in practice to escape. Even as early as 1164 the constitutions of Clarendon contained the pro- viso that_ for gifts in perpetuity of the king's feud the royal consent was requ.isite. The generalization of this proviso and the elaboration of rules in regard to it took place in the enactments of the thir- teenth century.^* §28. B. THE SUPREMACY OF THE SOVEREIGN AS INTRO- DUCED BY THE REFORMATION. From the end of the twelfth century, at latest, down to the refor- mation no claim was ever made by any king or in any resolution of parliament that England was in purely ecclesiastical matters inde- pendent of the pope. Such a contention would have been in too striking conflict with the actual circumstances of the case. Many of the .resolutions frequently adduced as instances of such declara- tions of independence prove what they are not meant to prove, for they confine the independence claimed to temporal or royal rights ; in others this limitation is to be supplied as being, beyond all doubt, intended. 1 All these resolutions are merely in repudia- '" Conditions for the gi^antingof the permit, apparently to be connected with mortmain legislation (cf. the king's licence [1291 ?] mentioned in Her. Brit. Scr. No. 45 p. liii, note 3) are laid down in 15 Hie. II (1391) c 6 and 4 Hen. IV ' (1402) c 12. — 15 Hie. 11 c 6 refers to the necessity of the licence as something already existing; 4 Hen. IV enacts, among other things, the nullity of all appropriations without licence since 1 Hie. II. ^' Oil the other regulations ses § 4, note 68. Relevant also are 7 Ed. I (1279) de Religiosis ; 18 Ed. 7(1285) St. Westminster II c 32 and later acts. ' Relevant especially are : Bractoff (eirc. 1230-57) Book V tract. 5 o 15 § 2 (Her. Brit. Scr. No. 70; VI, 248) : . . . sicut dominus papa in spirituali- bus super omnibiis habeat ordinariam jurisdictionem, ita habet rex in regno .mo ordinariam in temporalibiis. Similarly c 19 § 2 (VI, 296). — Letter of the barons assembled in the parliament of Lincoln, 1301, for themselves and tota communitas, to the pope (§ 4, note 69).— Resolution of parliament of 1366 against the pope's claim to tribute (§ 4, note 117}.— 16 Hie. II (1392/3) c 5 Stat, of Praemunire, preamble': . . . et eiisy la Cor one Dengleterre qad este si frank de tout temps qe le nod hieu nully terrien soveraigne, mes immediate subgit a Dieu en toutes chases tii,eliantz la regalie de mesme la Corone et a nully autre, seroit submuys a Pape, . . . — Articles of accusation before parliament at the deposition of Richard II, 1399 (Hot. Pari. Ill, 419) No. 10 : Item qitamvis Corona Hegni Anglie et Jura ejusdem Corone, ip- 252 THE SUPREMACY OF THE SOVEREIGN [V, 1b tion of papal pretensions to decide in questions of patronage, to ^AJoy suzerainty and to exercise powers deduced therefrom. When Henry VIII set himself to enforce a right to supremacy in ecclesiastical as well as secular things, he encountered at first the resistance of the clergy. After considerable discussion both convo- cations recognized him unconditionally as supreme lord of the English clergy ; but a supreme head {i.e. as official superior), only in so far as the law of Christ allowed.^ This limiting clause was, however, afterwards silently suppressed, first in a petition of the lower house of parliament, converted into the act, 25 Hen. VIII (1533/4) c 21,3 then in the first supremacy act 26 .Hen. VIU (1534) c 1.** sumque Hegnum, fuerint ab omni tempore retroacto jadeo libera, quod Dominus Summus Potiiifex, nee aliquis alius extra Hegnum ipsum, se intro- Tnittere debeat de eisdem, tamen praefatus Bex ad voborationem Statutorum suorum erroneorum, supplicavit Domino Pape, quod Statuta in ultimo Parlia- mento suo ordinata confirmaret. Super quo dectus Sex Litteras Apostolicas im,petravit, in quibus graves censure prqferuntur contra quoscumque qui dictis Statutis in aliquo contravenire presum,pserint. Que omnia contra Coronam ef Dignitatem Regiam, ac contra Statuta et Libertates dicti Begni tendere dinoscuntur. — For the fact that the supreme judicial power of the pope in purely ecclesiastical matters was not disputed at this time, see § 23, note 11. — Gf. .ilso the authorities given to ambassadors from the English kings to newly elected popes. Authority of Henry VI, 16th May, 1459 (Rymer, Foedera 3rd ,Ed. V, part II p. 84: . . . Itaque, in ejusdem, interioi-is iwstrae Devotionis suae Sanatitati expressioreni dedarationem, vos Oratores nostras et Nuncios speciales ad praestandum, Obedientiam dignam,, atque debitam Devo- tionem, Sanctissim,o in Christo Patri Pio Papae Secundo, vero et indubitato Christi Vicario, Exhibendam Constituim,us, . . . ) and of Richard III, 16th -Dec. 1484 {I.e. V pt. Ill p. 1B7 : . . . Dantes . . . potestatem . . . , pro Nobis et Nomine nostro, Devotionem, quam in Sanctam Sedem, Apostolicam ac ipsius Praesidentem modernum Sanctissim,um Dominum nostrum, Domi- num Innocentium Paparh Octavum gerirnus et habem,us, Filialem^ue et Catholicam, Obedientiam a liegibus Angliae Romanis Pontifici- bus ab antiquo debitam et praestari consuetam, pro Nobis . . . Exhibendi, Praestandi, et Faciendi, . . . ). ^ Grant of a sum of money to the king by the southern convocation 22nd March, 1531 (Wilkins III, 742). In brackets : {cujus [scil. cleri AngUcani\ sin- gularem protectorem unicum et supremum, dotninum, et quantum per Christi legem licet, etiam supremum, caput ipsius majestatem recognoscimus). In May, 1531, there was a grant by the northern convocation with the same clause (Wilkins III, 744). ^ s 1 : . ■. . It may therfore please your . . . Majestie . . . , for asmoche as your Majestie is supreme hede of the Church of Englonde, as the Prelates and Clergie of your Realms representyng the seid churche in their Synodes and convocacions have recognysed, ... ■* An Acte concernynge the Kynges Highnes to be supreme heed of the Churche of Englande and to have auctoryte to refourme and redresse all errours heresyes and abuses yn the same. The essential provisions of this act run : — Albeit the Kynges Majestie justely and rightfully is and oweth to be the supreme heed of the Churche of England, and so is recognysed by the Clergy ■of this Realme in theyr convocacions ; yet neverthelesse for corroboracion and confirmacion tJierof . . . be it enacted by auctorite of this present Parlia- (ment that the Kyng our Soveraign Lorde his heires and successours Kynges of ,the Realme sJialbe takyn acceptyd and reputed the onely supreme heed in er-the of the Churche of England callyd Anglicana Ecclesia, and shall have and enjoye annexed- and unyted to the Ymperyall Crowne of the Realme §28] AS INTRODUCED BY THE REFORMATION 255 From this time onward Henry VIII exercised his right of supre- macy. He strengthened his position by penal enactments "^ and by the introduction of a supremacy oath.^ In like manner the supre- macy was upheld by the regency during the minority of Edward VI. In consequence of the reaction under Mary the position which Henry VIII had won for the crown was, by 1 & 2 Phil. & Mar. (1564 and 1554/5) c 8^, wholly abandoned, and a return was made to the attitude which the crown had taken towards the church in the middle ages. Finally, Elizabeth, without reviving in form the supremacy acts of Henry VIII, adopted instead in her own first supremacy act new provisions which differed but very slightly from the corresponding clauses in Henry's legislation.^ The supremacy aswell the title and style therof, as all Honours Dignyties prehemynences. jiirisdiccions privileges auctorities ymunyties profitis and commodities to the said dignytie of suprem,e heed of the same Churche belongyng and apperteyn- yng : And that our said Soveraigne Lorde his heires and successours Eynges of this Bealme shall have full power and auctoritie from, tyme to tyme to visite represse redresse reforme ordre correct restrayne and amende all. suche errours heresies abuses offences contem,ptes and enormyties what so ever they be, whiche by any Tnaner spirituall aucto.ryte or jurisdiccion ought or m,aie lawfullye be reformyd re- pressyd ordred redressyd correctyd restrayned or amendyd . . . Henry VIII had also obtained in 1534 declarations from the clergy indi- vidually, in which the limiting addition, ' in so far as the law of Christ' allowed,' was left out. ' In harmony herewith in the course of 1534 the northern and southern con- vocations and the universities of Oxford and Cambridge gave a negative answer fo the king's question : An Romanus pontifex habeat aliquam majorem juris- dictionem collatam sibi a Deo in S. Scriptura in hoc regno Angliae, quam aliuS quivis externus episcopus? (Wilkins, Concilia III, 769, 771, 775, 782). " " First by what is called the second supremacy act or ' Treason Act ' 26 Hen. VIII (1534) c 13 An Acte wherby divers offences be made high treason . . . [it was repealed by 1 Ed. VI (1547) c 12 s 1 : .4re Acte for the Repeale of certaine Statutes concerninge Treasons, Felonyes etc. and not agairi revived] ; then, cf. in particular 28 Hen. VIII (1536) c 10 An Act extynguysshing the auctoryte 'of the Busshop of Rome. [Repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s4and not revived but replaced by 1 Eliz. (1558/9) c 1 ss 9-18.] ' First by 28 Hen. VIII (1536) clO s 6 (oaths of allegiance had been intro- duced earlier). _ * .471 Acte repealing all Statutes Articles and Provisions made against the See Apostolick of Rom,e since 20 Hen. VIII, and also for' thestablishment of all Spyrytuall and Ecclesiasticall Possessions and Hereditamentes conveyed to the Layetye. In ss 2-7 a series of acts (specified) of Henry VIII (among them his first supremacy act) are repealed, as also part of an act of Edward VI. Then- s 8 is general : . . . that att clauses sentences and articles of every other Statute . . . made sithence 20 Hen. VIII againste the supreme auctho- ritie of the Popes Holines or Sea Apostolike of Rome, or conteining any other matter of the same effect onely, that is repealed in any of the Statutes afore- said, shall be also by aucthoritee hereof from, heiisforthe utterly voide . . . • ° s 1- repeals 1 & 2 Phil. & Mar. c 8 in those respects with which we are here concerned. (In another respect that act is upheld by s 16.) According to s 4 the acts repealed by 1 & 2 Phil. & Mar. c 8 remain without force in so far as they are not revived by the present statute, s 7 then deterrnines the negative side of the king's supremacy by excluding all foreign superiority, s 8 enacts positively . . . that sudie Jurisdictions Privileges Superiorities and Pre- hemifiences-- Spirituall and Ecclesiasticall, as by aiiy Spiritual I or Eccle- siasticall Power or Aucthorite hathe heretofore bene or maylaivfull^ 254 THE SUPREMACY OF THE SOVEREIGN [V, 1b of the king to the extent fixed in Elizabeth's reign has ever since been acknowledged." The title of supreme head of the English church had been given to the king in the first supremacy act of Henry VIII ; " and thence- forth the king employed it.*^ The titles to be borne by the king were subsequently fixed by the statute, 35 Hen. ¥111(1543/4:) c 3, and in it again the title of supreme head of the church was retained.^* Mary made, except in some few exceptional cases,** no use of it.'* By 1 & 2 Phil. <& Mar. c 8 the two opposing enactments were repealed, and, whilst no new title was ordained, it was declared that it had been within the queen's free will whether she should use her titles or not, and that accordingly all documents wherein this title had not been employed should, nevertheless, be valid.*^ Elizabeth, who revived by statute the supremacy to the extent practically in which it had existed under Henry VIII and Edward Vl, yet took into account the offence which the title supreme head of tbe church had given to many. She, therefore, did not resuscitate the title, but escaped it by the phrase ' supreme governor of this realm . . . in all spiritual as well as in all temporal things.' '^ There have been frequent disputes as to what is included or he exercised or used for the Visitacion of the Eeclesiasticall State and Persons, and for Reformacion Order and C'orreccion of the same and of all maner of Errours Heresies Scismes Abuses Offences Contemptes and Enormities, shall for ever by aucthorite of this present Parliament be united and annexed to the Imperiall Crowne of this Realm,e ; . . . '" The right, given the king in s 8 of the last-mentioned act, to appoint com- missions for the exercise of such powers was afterwards abolished. Cf . § 30. '' Compare above, note 4. " In 1 & 2 Phil. & Mar. c 8 s 18 it is stated that the title Supreme Hedd of the Churche of Englande and of Irelande (or one of the two) has been in use since 3rd Nov. 26 Hen.Vni{lhM).—Ci. also (quoted in Stubbs,'iKs^. Append, to Report of Eccles. Courts Comm,. 1883) : Mem,orandum quod quinto decimo die Januarii anno regni regis Henrici octavi vicesim.o sexto (i.e. 1535), idem dominus rex . . . decrevit et ordinavit stilum et titulum suum, regium., tarn, in chartis et Uteris suis patentibus quam in brevibus quibuscunque in omnibus et singulis curiis suis infra regnum suum Angliae et infra omnia et singula dominia et terras ei subjecta fieri et scribi deinceps sid> ea quae sequitur forma, videlicet ; Henricus octavus Dei gratia Angliae et Fi'anciae rex,fidei defensor et dominus Hibemiae, et in terra suprem,um, caput Anglicanae Ecclesiae. " The Bill for the Kinges Stile. The full title is to run : Henry VHI by the grace of God Kyng of Englonde Fraunce and Irelande Defendour of the faithe, and of the Churche of Englonde, and also of Irelande inearthe the su- preme Hedde. " Collier, Eccles. Hist., Record Ixviii bis, prints after Regist. Bonner fol. 346 a licence to preach, dated 20th Nov. 1563, and given by the queen in accordance with her ordinance of 18th Aug. 1653. It begins : Maria etc. . . . supre- m.um caput, dilecto subdito nostro A. B . . . salutem,. " It is stated in 1 & 2 Phil. & Mar. c 8 s 19 that she had since her accession left out the title supreme head of the church. '» s 19 of act just cited. " This designation is contained in the supremacy oath 1 F3,iz. c 1 s 9. Oath is to ba taken . . . that the Quenes Highnes is thonelye supreme Goy- ernour of this Realme and of all other her Highnes Dominions and Countreis, aswell in all Spirituall or Eeclesiasticall Thinges or Causes as Temporall, . . . §28] AS INTRODUCED BY THE REFORMATION 255 involved m the supremacy. Even tlie first supremacy act of Henry contains in general terms an enumeration of the rights which are to be regarded as implied therein. These are ' honours, dignities, pre- eminences, privileges,' etc. but, as the essence of the whole, the right of exercising every form of spiritual authority or jurisdiction for certain purposes stated in the enactment. From the list of purposes specified it is plain that the king from the outset claimed only what is called thepotestas jurisdictionis (in the sense in which the phrase is employed in Roman catholic ecclesiastical law), not the potestas ordinis as well.^^ In spite of the general expression 'authority,' used in the statute, there was not ascribed to the king therein the ecclesiastical power which springs from consecration. On the other hand, with the ' jurisdiction ' which passed to him passed also the sovereign power to make ordinances touching spiritual matters and the right to supreme control in ecclesiastical administration. This principle was observed, on the positive as well as on the negative side, in all the proceedings of Henry VIII and Edward VI's reign. That the supremacy did not imply potestas ordinis is expressly acknowledged by Henry VIII in a letter of 1B33 to Tunstall, bishop of Durham.^^ When in Henry's reign and in his si;ccessor's the ^* On the difference between the two see Eichter, Kirchenreeht § 91. His § 95 deals with the difference, contained in German protectant professions of faith, between the rights of gdvernments and a power of the keys attaching to the church, this power being divided into potestas ordinis and potestas jurisdic- tionis. The potestas jurisdictionis in the protestant sense is much narrower than in the Roman catholic. For the protestant conception the chief refer- ences are : — Confessio Augustana (1530) art. XXVIII (abusus VII) : . . . Sic autem sentiunt (the protestants), potestatem clavium seu potestatem Episco- porum, juxta evangelium, potestatem esse seu mandatum Dei praedicandi evangeiii, remittendi et retinendi peccata, et administrandi sacramenta . . Porro secundum evangelium,, seu, ut loquuntur, de iure divino, nulla jurisdic- tio com.petit Episcopis ut Episcopis, hoc est his, quibus est com,missum minis- terium verbi et sacrameniorum,, nisi rem,ittere peccata, item cognoscere doctrinam, et doctrinam, db evangelio dissentientem, rejicere, et im,pios, quorum, nota est im,pietas, excludere a communione ecclesiae, sine vi humana, sed verbo. Melanchthon, Apologia Confessionis Augustanae (1531) art. XXVIII § 12: Et placet nobis vetus partitio potestatis, in potestatem, ordinis et potestatem juris- dictionis. Habet igitur Episcopus potestatem, ordinis, hoc est ministerium verbi et sacrameniorum, habet et potestatem iurisdictionis, hoc est auctori- tatem excommunicandi obnoxios publicis criminibus, et rursus absolvendi eos, si conversi petant absolutionem ... " Printed in 'WUkbis, Concilia 111,762: . . . so as in all these articles concerning the persons of priests, their laws, their acts, and order of living, forasmuch as they be indeed all tem,poral, and concerning this present life only, in those we {as we be called) be indeed in this realm ' Caput ' ; and be- cause there is no man above us here, be indeed ' Supremum caput.'' As to spiritual things, meaning by them the sacraments, being by God ordained as instruments of efficacy and strength, whereby grace is of his infinite goodness conferred upon his people ; forasmuch as they be no worldly nor temporal head, but only Christ ... by whose ordinance they be ministred here by mortal men . . . ; who for the time they do that, and in that respect, ' tanquam ministri versantur in his, quae hominum potestati non subjici- 256 THE SUPREMACY OF THE SOVEREIGN [V, 1b bishops were constrained to beg royal permission for the exercise of their ecclesiastical powers of jurisdiction, in the letters patent granted them the reservation was made that they might continue to exercise in their own names such powers ' as they derived from Holy Scripture.'^" Similarly in 1 Ed. VI (1547) c 2 precise distinc- tions are drawn between the documents the bishops are to set forth, * in form as well as fact, under the king's name and those to be issued under their own names.^^ The distinctions applicable in the case of the several documents are not, it is true, in detailed agreement. But this is attributable to the fact that in regard to many episcopal actions it is doubtful whether they emanate from the potestas juris- dictionis or the potestas ordlnis. The underlying principle of dis- crimination is, however, identical in all the distinctions drawn. On the positive side, both Henry VIII and Edward VI laid claim to the right of supreme control in ecclesiastical administration.' This was from the outset clearly indicated by the appointment of Grumwell as vicar general ; and though on- Crumwell's death the" office was not refilled, that did not signify a surrender of the control; but the king thenceforth in exerting it availed himself of other officials, and especially of his privy council. In like manner, the government of Henry VIII as well as that of Edward VI asserted the kingVright to issue independently temporary ordinances touch- ing spiritual matters. In both reigns the right was chiefly exercised b}' means of what were called 'injunctions.' The legal situation established by the legislation of Henry and Edward was as described. It is not, however, of any direct signifi- cance at the present time ; for the enactments which determined it were repealed under Mary and not afterwards revived. The statutes of Elizabeth's reign are the only ones which now, in this matter, are in force. Beyond doubt, the rights deducible from the potestas ordinis were not conferred on the crown in Elizabeth's day any more than under her predecessors. This follows from the enumeration in her first supremacy act of the purposes for which ecclesiastical power is to be exerted by the king.^^ Claim to potestas ordinis on the king's part is, furthermore, distinctly excluded in an appendix to the injunctions of 1559,23 (declared by 5 Eliz. [1562/3] c 1«* to be authoritative untur ; in quibus si male versantur sine scandcdo, Deum ultorem habent, si cum scandalo, hominum cognitio et vindicta est "... 2" Of. § 6, notes 23 and 41. " Cf. § 6, note 42. " Cf. above, note 9. '' An admonition to simple m,en deceived by malicious (Cardwell, Doc. Ann. 1, 199) : . . . her majestic forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which m,ost sinisterly and maliciously labour to notify to her loving subjects, how by the words of the said oath (of supremacy) it may be collected, that the kings or queens of this realm, possessors of the crown, may chcdlenge authority and power of minis- try of divine service in the church ; wherein her said subjects be much abused by such evil disposed persons. For certainly her majesty neither doth nor ever will challenge any authority, than that was challenged and lately used hy . . . King Henry VIII and King Edward VI, which is, and was of ancient §28] AS INTRODUCED BY THE REFORMATION 257 in the interpretation of the supremacy oath),^* as also in the thirty- nine articles.-^ The only question which arises is ichat powers were positively vested in the crown in virtue of the supremacy. Did the power of ecclesiastical jurisdiction accrue, as being the right of supreme ecclesiastical control and government ? Or was it a purely temporal power over ecclesiastical persons and property ? Thei first supremacy act of Elizabeth most explicitly bestows on the sovereign ecclesiastical power, and indeed in almost the same words as the first supremacy act of Henry VIII. But in opposition to this view, it might seem that the injunctions of 1659, and conse- quently the second supremacy act of Elizabeth, referring as it does time due to the imperial crown of this realTn: that is, wider God to have the sovereignty and rule over all manner of persons born ivithin these her realms, dom,inions and countries, of what estate, either ecclesiastical or temporal, soever they he, so as no other foreign power shall or ought to have any superiority over them . . . " An Acte for thassurance of the Queues Majesties lloyall potcer over all Estates and Siibjectes within her Highnes Dom,inions. s 11 : Provided also, that thothe expressed in the sayd Acte made in the sayd first yere shalbe taken and expounded in suche form,e as ys setfoorthe in an Adm,onicion annexed to the Quenes Majesties Injunctions published in the first yere of her Majesties Reigne ; that is to saye, to confesse and acknowledge in her Majestic her Heires a)id Successours, none other aucthoritee then that was chalenged and lately used by the noble King Henry Theight and King Edtcarde the Syxte, as in the sayd Admonicion more playnly maye appeare. '* Art. 37 : . . . Cum, Regiae Maiestati summam gubernationem tribu- ionus, quibus titidis intelligimus, animos quorundam calum,niatorum offendi, non damns Regibus oiostris, dut verbi Dei, aut Sacramentorum administra- tionem, quod etiam, iniunctiones ab Elizabetha Regina nostra, nuper editae, apertissime testantur. Sed earn, tantum praerogativam, quam in sacris scrip- turis a Deo ipso, om,nibus piis Principibus, videm,us seinper fuisse attributam, hoc est, ut omnes status, atque ordines fidei suae a Deo com,missos, sive illi ecclesiastici sint, sive civiles, in officio contineant, et contumaces ac clelin- -quentes, gladio civili coerceant. . . . (appendix XI). On statutory re- quirement to subscribe the thirty-nine articles see § 16, note 12. Only nega- tively are we referred to the injunctions; positively, we have an independent explanation of the supremacy. Whether in the mere requirement to subscribe a certain declaration as a condition of appointment to certain offices, is involved a legal establishment of that declaration would seem doubtful. The idea of .the supremacy is also' determined in the article of the civili Magistrate, in the Irish articles of 1615 (see § 11, note 24). It contains the following statement : nu. 58. We do prof esse that the siipreme government of all estates within the said realms and dominions, in all causes as well ecclesi- astical as tem,poral, doth of right apperiain to the king's highness. Neither do we give unto him hereby the administration of the word and sacra- Tnents, or the power of the keys; but that prerogative only, which we see to have been always given unto all godly princes in holy scripture by God him- self; that is that he should contain all estates and degrees comm,itted to his charge by God, wether they be ecclesiastical or civil, within their dtdy, and restrain the stubborn and evil doers with the power of the civil sword. — The. protestant episcopal church of the United States has adopted the following view : The power of the civil magistrate extendeth to all men as well clergy as laity, in all things temporal ; hut has no authority in things purely spiritual. And we hold it to be the duty of all men who are professors of the Gospel to pay respectful obedience to the civil aidhority, regularly and legitimately constittded, H,C. s 258 THE SUPREMACY OF THE SOVEREIGN [V, 1b to them for its interpretation, gave merely a temporal power over ecclesiastical persons.^^ Tlie substitution, in the first supremacy act of Elizabeth, of ' supreme governor of this realm in all spiritual and temporal things ' for ' supreme head of the church ' might be re- garded as pointing in the same direction. Lastly, in the thirty-nine articles — possibly to be appealed to and, if properly, then decisively, as being the last enactment — the supremacy is declared to be the right to govern all classes and orders, spiritual or temporal, and to punish the stubborn and the evil-doers with the temporal sword.^^" Yet in spite of all this, we should not be justified in assuming that "the position taken up by the first supremacy act, which certainly bestowed ecclesiastical power, is to be abandoned. If we adhere ■closely to the actual texts of the legislative enactments which seem to favour an opposite view, w^e shall find that nowhere in them is it stated that the power of the king to govern the church is of a purely temporal character. In the thirty-nine articles such limitation is confined to his punitive powers. If, moreover, in the expression used in the injunctions, ' sovereignty and rule over all manner of persons ' or in the words employed in the articles hoc est, ut omnes status etc. in officio contineant, the position of the king as- controller of the temporal administration and his right to issue ordinances in temporal matters is included, why not also his right as controller of ecclesiastical administration and his right to make ordinances in things spiritual ? There is, again, the fact to consider that in none of the legislative enactments referred to is the ecclesi- astical jurisdiction previously expressly conferred on the king ex- pressly abolished. On the contrary, both the injunctions of 1669 and the second supremacy act of Elizabeth describe the power claimed as being the same as that claimed and exercised by Henry VIII and Edward YI; the designation 'supreme governor of this realm in all spiritual and temporal things ' loses its dual significance when we consider that it stands in the act which confers ec/Clesi- astical power ; finally, the phraseology in the thirty-nine articles is so like that employed in the injunctions and the other 'passages cited that we cannot suppose that something entirely diflferenjb was to be indicated. \ The reason of the ambiguity in the language used lay in the fact that there was still a desire, in order to appease uneasy consciences, to make the transference of new ecclesiastical powers to the crown as little marked as possible. But there was no intention of surren- dering such powers. In point of fact, even after the issue of the injunctions and after the subscription of the thirty-nine articles had 2' Even Henry VIII expresses himself similarly in his letter to Tunstall. Cf. above, note 19. ^"^ Compare also the canon (not binding on laymen ; § 14, note 16) 2 of 1604 (app. XII), according to which the same authority belongs to the English king quam pii principes apud Judaeos et christiani imperatores hi primitiva ec- clesia obtinuerunt, and canon 36 ' I.e. (now revoked), where the king is desig- nated unicus et supremus gvbevnator hujus regni . . . tarn in omnibus spiritualibus sive ecclesiasticis rebus aid caitsis, quam in secularibus. '§23] . AS INTRODUCED BY THE REFORMATION 259 been required by statute, they were exercised just as before. To control the supreme administration of the church under the queen, a new authority was constituted in the ' High Commission Court ' ; the supreme power of issuing ordinances was employed by the queen when she published her injunctions, and was exercised, to a wide extent, by her successors for more than a century. If in the later enactments of which we have spoken the right of the king is called, in accordance with the formularies of the German protest- ants, supreriiacy over persons temporal and spiritual, whilst in the first supremacy act of Henry VIII and in the first supremacy act of Elizabeth, which follows closely the lines of the act of Henry, eccle- siastical authority according to prereformation ideas is ascribed to the sovereign, the difference is one of language and not of meaniug. The present supremacy of the sovereign in England consists mainly in the possession of those rights— with a few doubtful ex- ceptions — which were claimed by the Roman catholic church as eaclesL&sMcal-potestas jurisoLiciionis ; the king has remained, in every respect, a layman, and. has none of the rights which spring from consecration. Side by side with' the supremacy, wherein lies a right of co- operation, many rights still remained to the king as survivals from the middle ages. These medieval rights were rather rights of defending than of co-operating. So far as they had the former character they were not entirely fused with the supremacy; under the changed circumstances they served more rarely to defend the freedom of the civil power than to defend the individual's liberty of conscience against the might of the church. The indefinite rights implied in the supremacy are now becoming less and less used ; the crown confines itself almost wholly to inter- ference in particular cases in which special powers have been conferred on it by statute. For the exercise of the right of issuing ordinances little room has been left since parliamentary enactments have settled the matters Avith which ordinances might have dealt ; moreover, with the views which now prevail as to the rights of representative bodies, the king would hardly make any permanent ecclesiastical regulation without agreement with the convocations, although he is entitled to do so.^'' The exercise of the right of supreme control in the administration of the church has been rendered more difiicult by the fact that the authority before em- . ployed therein, namely the High Commission Court, has been -abolished and the establishment of any similar authority forbidden. Here again it is the doctrine of the desirabihty of freedom for the .church in the state which tends to restrict the employment of the rights involved in the supremacy. " For a case of an independent, royal ordinance in an ecclesiastioal matter •see § 15, note 23. 26o CIVIL AUTHORITIES OF THE REFORMATION TIME [V, 2fA 2. CIVIL AUTHORITIES FOR THE ADMINISTRATION OF THE CHURCH. A. AUTHOEITIES OF THE EEFOEMATION TIME. § 29. a. Authorities for administering the revenues of the. state from various ecclesiastical sources. Bepoee the reformation the revenues drawn by the crown from ec- ' clesiastical soiirces flowed into the same coffers as all other income. At the time of the reformation certain special authorities were temporarily established for the separate management of several forms of such revenues. The first authority of this kind was created by 27 Hen. VIII (t53B/6) c 27, to administer the property which fell to the crown through the 'first act for the dissolution of monasteries. It bore the name ' Court of the Augmentations of the Revenues of the King's Crown.' The later dissolution acts vested in it the administration of the property of monasteries, colleges, chantries etc. subsequently confiscated.^ 32 Hen. VIII (1540) c 45 called into existence a second court, that of 'First Fruits and Tenths,' for the better management of the sources of revenue mentioned in the title and conferred on the crown by 26 Hen. VIII c 3. By royal letters patent Henry subsequently ordered the abolition of the ' Court of the Augmentations of the Revenues of the King's Crown ' and also of another civil court for the administration of domain lands, the ' Court of the general Surveyors of the King's lands ; "^ he also by letters patejit vested the powers of both in a new authority, ' the Court of Augmentation and Revenues of the King's Crown. '^ Doubt having arisen as to the validity of these let- ters patent, they were expressly confirmed by 7 Ed. VI (1552/3) o 2.* The same act prescribed, for the simplification of administration, that during the lifetime of king Edward there could be effected by letters patent alteration, fusion, abolition etc. of the ' Court of First Fruits and Tenths,' of the ' Court of Augmentation and Revenues ' 31 Hen. VIII (1539) c 13 placed under this court the monastic property which passed to the crown after 4th Teb. 27 Hen. VIII owing to voluntary dissolution (not that owing to forfeiture) — both it and the earlier act are supplemented by 32 Hen. VIII (154.0) c 20, which relates to franchises of former monasteries ; 37 Hen. VIU (1545) c 4 s 7 assigns to its charge the property of various foundations falling to the crown under the act. ^" After preliininary steps in 14 & 15 H&ii. VIII c 15 and 27 Hen. VIII o 62 ■.thivromoting the building of additional Churches in ^populous Parishes. ^ An Act to amend ami render more effectual an Act passed in the last Ses- sion of Parliament, for building and promoting the building of additional ■Churches in popidous Parishes. ^' An Act to makefurtlier Provision, and to amend and render more effectual Three Acts passed in the 58"' and 59"' Years of His late Majesty, and in the iJ'' Year of His present Majesty, for building and promoting the building of .additional Churches in populous Parishes. * Gneiat, Englisches VeruialtimgsrecM 3rd Ed. § 173. — Phillimore, EcclesiasticalLaw 2090 ff. —Oeneral Inde.x> to Orders of Her Majestij in Council ratifying Schemes and Representations ■of the Ecclesiastical Commissioners for England; and also to Instruments for maMng grants id Benefices and Churches. Made up to the 31sf Octoher, 1868. London, 1870 ; Eyre & Spot- •tiswoode; [Cf. also the exti-aots from Orders in Council down to 1842 in Burn, Ecclesiastical Jjaw 9tli Ed. IV, 729 ff.] §32] ECCLESIASTICAL COMMISSIONERS FOR ENGLAND 269 state aid of £500,000. The acts cited and some others empowered the commissioners to propose divisions and re-arrangements of. parishes, which could then be carried into effect by orders in council. The commission was continued from time to time by acts of parlia- ment, until by 19 & 20 Vict. (1856) c 55 Church Building Commis- sionej'S {Transfer of Power) Acf" it was abolished and its rights, privileges and property were vested in the ecclesiastical com- missioners. The ' Ecclesiastical Commissioners for England ' were established and incorporated by 6 & 7 Gul. IV (1836) c 77.* The commission was to consist of the archbishop of Canterbury, archbishop of York and bishop of London for the time being, the holders for the time being of five great offices (specified) of state, all ex officio, and also of two bishops and three laymen ; the five last mentioned members were removable by the crown ; all members had to be of the church of England.^ The composition of the commission was considerably altered by 3 & 4 Vict. (1840) c 113. Ex-officio members are now :^ all the archbishops and bishops, the deans of Canterbury, St. Paul's and Westminster; also, if members of the church of England, a number of the highest judicial functionaries ; power was given to the crown to appoint four and to the archbishop of Canterbury to appoini; two lay commissioners, in addition to the three already appointed.''' For current business 13 & 14 Vict. (1850) c 94 directs * Cf . also in particular- 3 Geo. IV (1822) c 72 An Act to amend and render more effectual- Two Acts, passed in the 58'* and 59" Years of His late Majesty, for building and promoting the building of additional Churches in populous Parishes', ' ' ' , ^ In connexion with the questions of parliamentary reform and the granting- of fullcivibrights' to ^rotestant- dissenters and- Roman catholics, the un- equal distribution of property among the various ofiScers of the church was the object of vigorous attacks during the thirties and forties. Thus a royal com- mission was appointed (23rd June, 1831) ' to inquire into the revenues and patronage of the Established Church.' This commission was continued in 1833 and again, with an extended field of investigation, in 1834. A new commission for the same purpose was appointed after the change of ministry in 1835. Its powers became extinct in 1837 with the death of the king. These royal com- missions of investigation were entitled ' Commissioners of ecclesiastical Duties and Eevenues.' They made four reports (1835 and 1836). The draft of a fifth report, incomplete owing to the extinction of powers mentioned, was neverthe- less laid before parliament. It is on the proposals of these commissions that the most important reforming laws of that time rest (the first being 6 & 7 Gul. IV c 77), as also rests the establishment of a permanent commission, which was, above all, 'to prepare and lay before her majesty in council such schemes as shall appear to them to be best adapted for carrying into effect ' the recommen- dations made. See here Perry, Hist, of Engl. Ch. Ill, 170 ff. cc 10, 11, especially p. 202. " 6 & 7 Gul. ir c n ss 1-6. ' Si & 4 Vict, c 113 s 78: . . . That in addition to the Commissioner's named in . . . 6 & 7 Gul. IV ell . . . the following Persons shall be Ecclesiastical Comm,issioners . . . ; that is to say, all the Bishops of Eng- land and Wales for the Time being respectively, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of Her Majesty'^ Court of Common Pleas, the Lord Chief Baron of Her Majesty's Court of Ex- chequer, the Judge of the Prerogative Court of the Archbishop of Canterbury, the Judge of the High Court of Admiralty for the Timebeing respectively {such 270 CIVIL AUTHORITIES OF THE PRESENT TIME [V- 2b the formation of an ' Estates Committee.' It consists of two lay- men to be appointed by the crown, one of whom is salaried, and one salaried official to be appointed by the archbishop of Canterbury ; all three are removable by their appointers ; whilst in office they are ecclesiastical commissioners. Any ecclesiastical commissioner, not being such ex officio, may be appointed a church estates commis- sioner. The ecclesiastical commissioners may add annually to the estates committee two members, at least one being a layman not sitting as a commissioner in virtue of any office.* The ecclesiastical commissioners may only manage their property through the estates committee or with the co-operation of two of the members of that committee.^ The general rules which the ecclesiastical commis- sioners make for the estates committee are to be laid before both houses of parliament.^" The ecclesiastical commissioners have to make an annual report to one of the secretaries of state, and the report is to be laid before parliament, ^^ as also are copies of all orders in council. According to the older laws the ecclesiastical commissioners had only power to prepare and submit to her Majesty in council such schemes as might seem best calculated for giving effect to certain recommendations. But by degrees there have been conferred on the commission numerous rights , to be exercised independently. Its functions may be grouped under six heads : — 1. Altering the boundaries of ecclesiastical districts and the in- comes of the clergy.i^ 2. Carrying out the provisions of recent reforming enactments, various estates being in this connexion vested in them and the proceeds administered by them.'^ Chief Justices, Master of the Bolls, Chief Baron, and Judges being respectively Members of the United Church of England and Ireland), the Deans of the Cathedral Churches of Canterbury and Saint Paul in London, and of the Col- legiate Church of Saint Peter Westminster for the Time being respectively ; and also Four such Lay Persons {being Members of the said United Church) as shall be duly appointed by Her Majesty . . . and such other Two Lay Persons (being Members of the said United Church) as shall be duly appoint^ by the Lord Archbishop of Canterbury for theTimebeinq, . . . Cf. ss 79 ff. » 13 & 14 Vict, c 94 ss 1, 2, 7. " 13 & 14 Vict, c 94 s 8. 1° 13 & 14 Vict, c 94 s 12. " 13 & 14 Vict, c 94 s 26. " Altering boundaries of bishoprics, archdeaconries and rural deaneries under 6 & 7 Gul. IV c 77 and later acts. Transferring peculiars to the jurisdiction of the bishop, suppression of commendams and sinecvira rectories, equalizing the incomes of bishops, of archdeacons, of holders of livings belonging to the same patron under 6 & 7 Gul. IV ell and B & 4 Vict, c 113. Regulating the incomes of chapters, canons, archdeacons etc. under '31 & 32 Vict. (1868) cc 19 and 114. Consolidating or separating parishes divided between two or more incumbents under 8 & 4 Vict, c 113 s 72. Altering parish boundaries in definite places under local acts, and generally in connexion with the Church Building and New Parishes Acts. Compare e.g. 47 & 48 Vict. (1884) c 65. Ejschanging be- tween ecclesiastical corporations and the commissioners under 29 & 30 ViCt. o 111 s 4. Apportioning of income of benefices belonging to one patron under 3&4 F«c«. cll3s74. " Estates o.f bishoprics vested in commissioners under 6 &.7 Gul. IV. c 77; ■§32] ECCLESIASTICAL COMMISSIONERS FOR ENGLAND 271 3. MaTiagement of the lands etc. of bishoprics. Accepting the transference of the property of chapters, canons, archdeacons and minor canons, on application of the holders, for the pur- pose of otherwise settling the property or income of such bodies or persons." 4. Superintendence of the otherwise independent management of property by holders of benefices and by ecclesiastical cor- porations, especially in respect of the granting of leases. ^^ 13 & 14 Vict, c 94 s 17 ; 23 & 24 Vict, c 124 s 2 ; estates of canonries etc., the separate estates of deaneries and cailonries, the estates of newly endowed arch- deaconries under 3 & 4 Vict, c 113 and other acts. Co-operation in the sale of jidvowsons etc. by corporations under 5 & 6 Gul. 7F 76 ; 6 & 7 Gul. IV c 77 s 26 ; in the sale of part of the lord chancellor's patronage under 26 & 27 Vict. c 120 and of the patronage of universities and endowed schools under 3 & 4 Vict. ■c 113 s 69 ; 23 & 24 Vict, c B9. " Touching bishoprics, 23 & 24 Vict. (1860) c 124 s 11 ; touching minor canons, 27 & 28 Vict. (1864) c 70 ; touching chapters, canons, archdeacons etc., 31 & 32 Vict. (1868) c 19 and c 114 ; touching estates of newly endowed arch- deaconries, 3 & 4 Vict, c 113 s 56 ; 2i & 25 Vict, c 131 ; 29 & 30 Vict, c 111 ss 15, 16 ; touching the library etc. of Lambeth Palace, 29 & 30 Vict, c 111 ss 7, 8. The details which follow are derived from the Church Year-Book for 1891, pp. 542 ff. The commissioners had the management of the estates forming the perma- nent endowment of Canterbury, York, Durham, "Winchester, Carlisle, Chester, Ely, Gloucester and Bristol, Hereford, Lincoln, Norwich, Oxford, Peterborough, Worcester (23 & 24 Vict, c 124 s 11). Vested in the commissioners under 23 & 24 Vict, c 124 s 2, the income derived therefrom being included in the rental of the commissioners' estates, are the estates of the -following sees : London, Bangor, Bath and Wells, Chichester, Exeter, Lichfield, Llandaff, Eippn, Rochester, St. Asaph, St. David's, Salishurj'. Manchester had no estates ; Sodor and Man was not included in the commis- sioners' operations. There have been gradually vested in the commissioners in exchange for annual payments under the various acts the estates of the following bodies :— Wholly: Chichester, vicars choral, Lichfield, vicars choral, St. David's, chapter and vicars choral, London, minor canonries and vicars choral, Wells, vicars choral, "Westminster, chapter, Windsor, S. George, York, vicars choral ■ so from the outset the estates of the chapter of Southwell. Pa,rtly: Bristol, chapter, Ely, chapter, Exeter, chapter and vicars choral, Lichfifeld, chapter; Lincoln, chapter, Llandafi', chapter, 'Ripon, chapter, London, chapter, Salisbury, vicars choral, Wells, chapter, Worcester, chapter. • At Bangor, as also at St. Asaph, the incomes of the dean and four canons are provided, by the ecclesiastical commissioners. The sum annually paid over by the commissioners to bishops, chapters, arch- deacons, etc. is £950,000. '^ Compare 5 & 6 Vict, c 108 and 21 & 22 Vict, c 57 The Ecclesiastical Leasing Act, 1858^ further, 23 & 24 Vict, c 124 s 8 (bishoprics), 31 St, 32 Vict, c 114 s 9 (chapters). Premiums etc, are to be paid over to the commissioners. In trans- fers under 31 & 32 Vict, c 114 s 4 the commissioners may set apart a capital sum for repair of fabric. Commissioners assent to measures for procuring and maintaining official residences for bishops, members of chapters and incum- bents of livings augmSnted by the commissioners, and to loans for such pur- poses (1. & 2 Vict, c 23, 3 & 4 Vict, c 113 s 59, 5 & 6 Vict, c 26). They approve loans and advance anoney for permanent improvements on lands assigned as an ■ endowment for a see (23 & 24 Vict, c 124 s 10) ; also the sale of securities held by chapters, the sale, exchange arid purchase of lands, tithes etc. for chapters or bishoprics in the interest of the chapters 3 & 4 Vict, c 113 s 68. When land is to b3 enfranchised under 21 & 22 Vict, c 94 and belongs to a manor belonging 272 ARCHBISHOPS AND BISHOPS [V, 3a 5. Establishing and endowing new offices for the cure of souls or supervision in thickly populated districts.^^ 6. Accepting private benefactions for certain spiritual purposes."^ In the three .last mentioned departments of their work the func- tions of the ecclesiastical commissioners approximate closely to those of the governors of queen Anne's bounty. 3. ARCHBISHOPS AND BISHOPS. § 33. A. OEIGIN OF THE VAEIOTJS AROHBISHOPEICS AND BISHOPEICS. In the period before the Anglo-Saxon settlement, and even later in Keltic districts, the existence of metropolitans cannot be demon- strated with any degree of certainty.^ When Augustine in the spring of 697 came to Britain and took up his abode at Canterbury, he was not yet a bishop. In the August .of the same year he crossed over to France again and was there consecrated bishop (or archbishop ? ^) by the archbishop of Aries, permission having been previously obtained from pope Gregory I.* to the commissioners, notice must be given to them (s 19). The commissioners approve sales etc. by ecclesiastical corporations under 14 & 15 Vict, o 104 (sup- plemented by 17 & 18 Vict, c 116 and later acts). They further see to the insurance of residences of bishops, deans, canons etc. built under the acts recited in 5 & 6 Vict, c 26 ( see s 11 of that act). '"..In the various acts which relate to new foundations of bishoprics and chapters, the collection and the determination of the endowments are entrusted • to the commissioners. The surplus in the hands of the commissioners, derived from the sources indicated above, is devoted to the augmentation of benefices. The three classes of grants made are given in Phillimore, Eccles. Law 2106, 77 Statistics will be found in the Church Year-Book, which appears annually. {E.g. for. 1880-90 and for 1891 in the vol. for 1893, p. 528.) " By 6 & 7 Vict, c 87 s 22, and 7 & 8 Vict, a 104 s 11, for new churches and augmenting benefices ; by 19 & 20 Vict, o 104 s 27, for new parsonages etc. ' For more on this point and the probable non-existence of archbishops in "Wales see Haddan and Stubbs, Councils 1, 142, 148. Cf. also Wilkins, Concilia I, 7. Welsh bishops are in several documents designated archbishops without there being, apparently, any right implied to govern other bishops. On the archiepis'copal sees alleged to' have been in existence before Augustine's time, viz. those of London, York and Menevia (St. David's) see Wilkins IV, 699. On Scotland see § 10, note 5 ; on Ireland, § 11, note 6. Cf. also § 1, note 3. '■' A special right of superintendence over ordinary bishops was recognized as belonging to metropolitan bishops even before the first council of Nicaea. (325) and that of Antiochia (341); nevertheless for several centuries to come the position of the metropolitan was not exactly defined. Eichter, Kirchmrecht § 18, note 1, § 24, note 15. According to Haddan and Stubbs III, 3 the follow- ing designations of Augustine occur : Archiepiscopus gmiti Anglorum' (Beda Book I c 27) and Britanniarum (Beda Book II c 3) — Episcopus or Frater et coepiscopus and once Episcopus Anglorum (Gregor. Epistol.) — Episcopus Can- tuariorum ecclesiae (Augustin. Quaest. in Beda Book I c 27) — Doruvernensis Arehiepiscoj)us (epitaph of Augustine in Beda Book II c 3). ° Beda, Hist. Eccles. Book I c 27 § 58 : Interea vir Domini Augustinus venit Arelas, et ab archiepiscopo ejusdem civitatis Aetlierio, juxta quod jussa sancti §33] ORIGIN OF ARCHBISHOPRICS AND BISHOPRICS 273 Gregory subsequently (601), in reply to a question by Augustine, directed that the latter should have supreme control over all bishops in Britain.* At the same time he sent Augustine a pallium and gave instructions for further developing the constitution of the church. Augustine was to consecrate pe?" singula loca twelve bishops who after his death were to be subject to a metropolitan of London, invested with a pallium by the pope ; further, he was to send a bishop to York, who also was to be afterwards invested as metro- politan with a pallium and was to consecrate in his turn twelve bishops to be subject to himself; after the death of Augustine the metropolitans of London and of York were to be, in principle, equal, formal precedence being given to the one consecrated earlier.^ The selection of the towns of London and York is explained by the fact that they were the most notable towns in the country and the capitals of former Roman provinces. The directions of Augustine were never completely carried out. For London, it is true, Mellitus was consecrated bishop by Augustine (604). But when soon afterwards the latter died (604?), the position of a metropolitan passed to Laurentius, whom Augustine had conse- crated as his successor and who kept Canterbury as his see. This deviation from the instructions of Gregory may have been partly due to the fact that at this time Essex and London were politically dependencies of Kent. In 617 or 618 Mellitus was driven from London ; at the ensuing vacancies in the see of Canterbury at the deaths of archbishops Laurentius (619), Mellitus (6'24), Justus (627?) patris Gregorii acceperant, archiepiseopus genti Anglorum ordinatus est; . . . —Greg. Epist. VII, 30 (Haddan and Stubbs III,' 12) : Qui (Aiigustinus) data a me licentia a Germaniarum Episcopis {i.e. by the Frankish bishops) Episcopus f actus est . . . * Answer of Gregory to the seventh question of Augustine, Qualiter debemus cum Galliaruin Britanniarumque Episcopis agere? . . . Britanniarum vera omnes Episcopos tuae fraternitati committiTnus, ut indocti doceantur, infinni persuasione roborentiir, perversi auctoritate corrigantur. (Haddan and Stubbs III, 22.) This would also imply supremacy over the bishops of the Britons, but these were but slightly connected with Home and certainly not in subjection to the pope. Compare also another letter about the same time by Gregory to Augustine (Haddan and Stubbs III, 29) : . . . Ttia vera frater- nitas noil solum eos Episcopos quos ordinaverit, neque hos tantummodo qui per Eburacae Episcopum fuerint ordinati, sed etiam omnes Brittaniae sacer- dotes habeat . . . subjectos . . . ^ Second letter of Gregory to Augustine, 601 (Haddan and Stubbs III, 29) : . . . usum tibi pallii . . . concedimus : ita ut per loca singida duodecim Episcopos ordines, qui tuae subjaceant ditioni, quatenus Lundoniensis civitatis Episcopus .semper in posterum a synodo propria debeat consecrari, atque honoris pallium, db liac sancta et Apostolica . . . sede percipiat. Ad Eburacam vero civitatem te volumus Episcopum m,ittere, qtteTn ipse judi- caveris ordinare; ita duntaxat, ut si eadem, civitas cutn finitimis locis verbu^n Dei receperit, ipse quoque duodecim Episcopos ordinet, et m,etropolitani honore perfruatur ; quia ei quoque, si vita comes fuerit, pallium tribuere . . . disponimus, quern tanien tuae fraternitatis volumus dispositioni subjacere : post obitum vero tuum ita Episcopis quos ordinaverit praesit, ut Lundoniensis Episcopi nullo modo ditioni subjaceat. Sit vero inter Lundoniae et Eburacae civitatis Episcopos in posterum honoris ita distinctio, ut ipse prior habsatur qui prius fuerit ordinatus: . . . H.C. T 274 ARCHBISHOPS AND BISHOPS [V, 3a and Honorius (653), London was not an episcopal see. A bishop for .London was indeed consecrated in 654, but he followed the Keltic use. Not until after the conference of Streoneshalch (664) was this difficulty removed, the bishop of London accommodating him- self to the Roman use. But Canterbury had now been so long the archiepiscopal seat, that the possibility of a change was not contem- plated. Although it sank afterwards to the rank of an unimpor- tant provincial town, it remained the seat of the archbishop of the southern province.*^ Gregory's proposal of an archbishopric of York had also diffi- culties in the way of its realization. Not until 625 was a bishop, Paulinus, sent there ; in 627 Eadwine, king of Northumbria, gave the church a permanent endowment so that thenceforth the exist- ence of a bishopric at York was secured. It was probably in the same year that Justus, archbishop of Canterbury, died. Honorius, chosen by the clergy of Canterbury as his successor, begged consecration of Paulinus, then the sole bishop in England following the Roman use,''' and the latter granted his request. Palliums were sent for both from Rome by pope Honorius I, who gave authority that if one of them died the other was to consecrate a siiccessor to the deceased ; for the distance for- ' bade any waiting for the pope's intervention.** But in 633 Paulinus had to flee from York,^ so that it was after his expulsion that the pallium came into his hands. When during the reign of king Oswald, Keltic Christianity became dominant in Northumbria, the see of 'York remained for the time being vacant- Bishop Aidan, summoned from lona, settled in the island of Lin- disfarne (635) i" near the northern boundary of the Anglo-Saxon domain ; it was from Lindisfarne that he and his successors exercised superintendence over the church in Northumbria. In consequence of the issue of the conference of Streoneshalch, Colman, the then bishop of Lindisfarne, who refused to submit to the decision reached, left the country. His successor Tuda died a short time afterwards (664). Wilfrid was now elected and repaired to Gaul to seek consecration. In his absence Ceadda was chosen to " As London became more and more definitely the seat of government, it was felt that the head of the ecclesiastical administration should also be located there or in the immediate neighbourhood. For the steps by which the manor of Lambeth came to be held by the archbishops of Canterbury (twelfth cen- tury) see Stubbs in Introduction to Kpistolae Cantiiarienses (Rer. Brit. Scr. No. 38) vol. II pp. xcii and xciv. ' Haddan and Stubbs III, 82, note a, * Letter of pope Honorius I to archbishop Honorius, 634 (Haddan and Stubbs III, 84) : Et tarn juxta vestram petitionem qtiani filiorum nostrorum regum vobis per praesentem nostram praeceptionem, vice beati Petri apostoloritm principis, auctoritatem trihuimus, ut quando ununi ex vobis Divina ad se jusserit gratia vocari, is qui superstes fuerit, alterum in loco defuncti debeat Episcopum ordinare. Pro qua etiam re singula vestrae dilectioni pallia . . . direximus ... A letter to the like effect written at the same time to Eadwine of Northumbria will be found I.e. Ill, 83. " Cf. § 1, near note 7. '" Haddan and Stubbs HI, 91. §33] ORIGIN OF ARCHBISHOPRICS AND BISHOPRICS 275 the bishopric (also in G64). On "Wilfrid's return, Ceadda retired into a monastery, and afterwards bscame bishop in Mercia. "Wilfrid undertook the administration of the diocese of Northumbria, and removed the seat of the bishopric once more to York {circ. 669).'^ None of the bishops here mentioned of Lindisfarne or York, in- cluding "Wilfrid, received the pallium.'^ It was first bestowed after the interval on Egbert, bishop of York (734), and from his time onward regularly on the archbishops of York. In the eighth century the hegemony passed to the kingdom of Mercia. Hence arose a wish to make that kingdom ecclesiastically independent of the neighbouring countries. King Offa of Mercia induced the pope to consent to a division of the archiepiscopal district of Canterbury and the elevation of Lichfield, the oldest bishopric of Mercia, to an archbishopric. A resolution' accepting the scheme was passed by the assembly, at which papal legates were present, of temporal and spiritual magnates at Celchyth (787). The archbishop of Lichfield received the pallium as a third archbishop in England. About the year 796 disorder broke out in Kent, the agitation being directed against the supremacy of the kings of Mercia ; even the archbishop of Canterbury was compelled to take flight. The rising was, it is true, suppressed ; yet it was possibly in connexion with this outbreak that Coenwulf, the then king of Mercia, became disposed toward the abolition of the separate archbishopric of Lich- field. By his desire the pope approved the rejoining of the divided parts, *^ and in 802 ordered a reversion to the old state of affairs.^* The union of the archiepiscopal sees received the formal assent of the king and his temporal magnates, and was subsequently ratified at the synod of Clovesho (803) by the ecclesiastical members thereof.^^ Canterbury was again made the head of the whole southern province, and Lichfield became, as it had been before, an ordinary episcopal see. From that time there have been only two archbishoprics in Eng- " Beda, Hint. Eccles. Book IV, 3 § 259. — In 678 tlie diocese of Northumbria was divided, Lindisfarne and Hexham being chosen as the seat of the northern bishopric, York of the soutliern. Beda, Book IV c 12 § 238. Haddan and Stuhbs m, 12B. '■^ A document, professing to be of the year 660, in which is the signature of Wilfrid as ' archbishop of Yorli,' is not genuine. (Wilkins I, 50 ; Haddan and Stuhbs, Counc. Ill, 160.) " Letter of Coenwulf to pope Leo III and answer of the latter (both in 78fc) printed in Haddan and Stuhbs III, 521 ff. " Annulling of the division by hull of Leo, in virtue solely of his right as pope, and his announcement thereof to Coenwulf (both in 802), Haddan and Stubbs III, 536 ff. '* Resolution at Clovesho in Haddan and Stuhbs III, 542. In the introduc- tion thereto we read of preceding resolutions : . . . Papa . . . in Britanniam misit et praecipit ut honor Sancti Augustini sedis cum omnibus Suis parochiis redintegraretur . . . et honorabili AvcMepiscopo Aethel- heardo in patriam pervenienti per omnia redderetur, et Coemclfus Bex pius Merciorum, ita complevit cum senator ibus suis. 2/6 ARCHBISHOPS AND BISHOPS [V, 3a land, Canterbury and York.'"' The boundaries of the provinces have, however, undergone changes. The outer limits were extended in accordance with the advance of Christianity of the Eoman use in its struggle with paganism and Christianity of the Keltic use. The progress of Roman Christianity in Cornwall, "Wales and, temporarily, in parts of Ireland was to the gain of the province of Canterbury,''' progress in the border lands of Scotland, to that of the province of York.^^ An attempt made by Ethelnot, archbishop of Canterbury (1020-38), who lived during the reign of Knut, to arrogate to himself supremacy over bishops of the Scandinavian church, was thwarted by the resistance of the arch- bishop of Hamburg.^' In 1152 the three Irish bishops of Dublin, Waterford and Limerick acknowledged the primate of Armagh, thus repudiating allegiance to Canterbury; in 1188 the final severance of Scotland from York took place. As to internal boundaries, from the end of the eleventh and on into the twelfth century, Canterbury and York were at variance with one another. This dispute was complicated with that to be discussed presently as to the precedence of Canterbury. The arch- bishop of York raised a claim to the districts of the ' bishops of Lincoln (Dorchester), Worcester and Lichfield.-" The assemblies of Winchester and Windsor (1072) ^^ decided against York and fixed as the boundary between the two provinces the river Humber and the northern limit of the diocese of Lichfield,-^ thus practically ^^ See also Kadulf de Diceto, Ahhrev. Chron. {Ber. Brit. JScr. No. 68) I, 255, year 1142 : Lucius papa pallium inisit Henrico Wintoniensi episcopo, cui 2}rop>osuerat assignare sejJtem episcopos. Matth. Paris, Chron. Maj. {Ber. Brit. Scr. No. 57) II, 176 borrows this and adds : volen.s apud Wintoniam 7ioi'um arcliiepiscopum constitiiere. Cf. Ann. de Wintonia (Rer. Brit. Scr. No. 36) II, 53. — On fruitless endeavours to raise St. David's to an archbishopric see § 1, note 25. ^' For the older history of the various episcopal sees of Wales, see Haddan and Stubbs I, 142 ff. '' For an enumeration of the older sees in the province of York see a letter of 1120 in Haddan and Stubbs II, 204. '" Lappenberg, Geschichte von England, Hamburg, 1834, 1, 470. 2° William of Malmesb., Gest. Pont. [Ber. Brit. Scr. No. 52) p. 40, year 1071 : In cuius (pope Alexander's) praesentia Tlwmas caliimniam movit de primatu Dorobernensis ecclesiae, et de svbjectione trium episcoporiiin Dorcensis sive Lincoliensis, Wigorniensis, Licitfeldensis qui nunc est Cestrensis' . . . Similarly Mile Crispinus (died circ. 1114), Vita Lanfranci (ed. Giles) p. 302. On thfe condition of the province of York from the tenth to the twelfth centurj^ cf. Stubbs in Hoveden {Ber. Brit. Scr. No. 51), preface pp. xxxiv ff. to vol. IV; on the connexion of Worcester with York from the end of the tenth to the begin- ning of the twelfth century I.e. p. xxxv, note 1. " Cf. § 34, note 5. "^ The document is printed in § 34, note 6. But see there the contention of Hugo Cantor that the document professing to give the resolutions of these ^ assemblies is forged. — At any rate the archbishops of York maintained their claim to Lincoln after this date. Henry of Huntingdon, under the year 1087 {Ber. Brit. Scr. No. 74) 212: Provinciam tamen Lindisse archiepiscopus Eboracensis calumpniabatur ex antiqua temporum serie. Florent. Wigor- niensis, year 1092 (ed. Thorpe II, 30) : Antistes etiam Bemigius, qui licentia regis Willelmi senioris, e2nsco2Mle'm sedem de Dorcaceastra mutaverat ad Lindicolinam; constructam in ea ecclesiam 2)ontfficaU cathedra dignam § 33] ORIGIN OF ARCHBISHOPRICS AND BISHOPRICS 277 assigning tlie earlier kingdom of ISTorthumbria and its extensions to the province of York, the territory of the six other Anglo-Saxon kingdoms and their extensions to the province of Canterbury. In spite of this delimitation, York, in 1175, renewed and enlarged its claims at the council of Landoa (also called the council of "West- minster), but without success.^' Small adjustments have from time to time been made. Of more considerable changes may be men- tioned the assignation of the' newly founded see of Chester-* and the diocese of the bishop of Man^" to the province of York by dedicare volebat . . . ; sed Thomas Eboracemis archiepiscojius illi con- tradicendo resintebcd, qfflnnanx earn in sua parochia esse const ructam . . . Hugo Cantor (The Historians of the Church of York, Ber. Brit. Scr. No. 71) II, 105: In crastinum (5th Dec. 1093) Tliomas archiepiscopus Cantuaria recessurus, loquens cum Anselmo archiepiscopo . . . interdixit ei . . . ne liobertum Eloeth, Lincolniensis ecclesiae electuni, Lincolniensein ordinaret episcopum . . . Lincolinum oppidum, et magna-nt ]jartem provinciac Lindissi dicebat fuisse et jure esse debere parochiam Eboracensis ecclesiae, et injuria illi ereptam esse cum -tribus villis, scilicet Stou, et Loudham et Niuwerca, . . . The document of "William II relating to the renunciation of this claim- hy the archbishop of York (about 1093-94) is printed in Her. Brit. Scr. No. 71, III, 21. In the year 1123 there were discussions as to the handing over of St. Asaph, Bangor arid Chester to the province of York. Haddan and Stubbs, Counc. I, BIG. '" Benedict of Peterborough (Rer. Brit. Scr. No. 49) I, 89 : In hoc aiitem concilia clerici liogeri Eboracensis archiepiscopi . . . calumniati sunt . . . ex parte Eboracensis archiepiscopi, episcopatum Lincolniensem, et episcopatum Cestrensem, et episcopatum IVigornensem, et episcopatum He- refordensem, de jure jyertinere debere ad inetropolitanam Eboracensium ecclesiam. ''* The king had previously by letters patent of IGtli Julj-, 33 Hen. VIII, established the bishopric of Chester assigning to it, in particular, the monastery of St. Werbsrge at Chester and the arclideaconr\' of Richmond, which until then had belonged to the diocese of York, and subjecting it to tlie archbishop of Canterbury. ^* On the ecclesiastical and political history of Man cf. Joseph Ti-ain, An Historical and Statistical Account of the Isle of Man, from the earliest times to the present date, 2 vols., Douglas, 1845, and William Prynne, Animadver.tions to the Fourth part of Coke's Institides pp. 201, 384. On the history of the bishopric compare, further, William Harrison, An Account of the Diocese of Sodor and Man in Publications of the Manx Society, 1879, vol. XXIX, A. W. . Moore, Sodor and Man, London, 1893, and Twiss' report in Warren, Synodalia, 1853, p. 315. Lists of the bishops in Joseph George Gumming, The I.ile of Man, London, 1848, appendix P, Robert Keith, Hist. Catalogue of the Scottish Bishops'Ei].. 1824, pp. 293 ff., Le Neve, Fa-iti Ecdes. Anglic.YA. 1854, III. 82.1 fF. and (from the end of the eleventh century) in Stubbs, llegistrum Sacrum Anglicanum pp. 150, 183. The island was perliaps for a time occupied by the Romans. 'After their tleparture it was subject at one time to the Irish or Scotch Scoti, at another to ihe Welih, and temporarily to king Eadwino of Northumbria. With the hsginning of the tenth century it fell into the hands of the Northmen, who joined Man and the western isles of Scotland into one kingdom, the limits of ■which were, however, subject to constant change. For a time the kings of Man were also kings of the Northmen in Ireland. In 11C6 the kingdom of Man was divided, its sovereign ceding the greater part of the Scottish isles to the prince of Argyle. Some years later a usxirper Reginald supported the re- bellious barons in Ulster. In punishment for which king John of England compelled him to do homage (1211-12). Reginald also did homage to Henry III of England and conveyed (probably at the same time) his kingdom to the pope 278 ARCHBISHOPS AND BISHOPS [V, 3a 33 Hen. F/// (1541/2) c 31. At the present time the province of as a fief (21st Sept. 1219). (Document ia Eymer, Foedera 4th Ed. I, 166 ; cf. 1, 1B7.) Eeginald was overthrown in 1224. In 1230 Olaf, king of Man, did homage to the king of Norway. Magniis, third in succession from Olaf (1252-1265), did homage to Alexander Ilf of Scotland. According to tradition a bishop was instituted [circ. 447?) in Man by Patricius, who converted the islanders ; but he must, at any rate, have quitted the island very soon. In the following centuries several bishops of Man are named ; but little is known about them. Indeed, it is not quite certain whether bishops did actually exist in Man at that time. For the first bishops of whom more definite information has been preserved (from about 1079) see Haddan a-nd Stubbs, Counc. II, pp. 164, 189, Will, of Newburgh {Rer. Brit. Scr. No. 82) I, 72 £f., Eobsrt of Torigni {I.e. No. 82) IV, 167. According to the last-mentioned, "Wimund, consecrated 1109-14, was the first bishop. [Camden, Britannia, first in the edition of 1607, p. 839, asserts without giving proofs that a bishop was instituted in Man by Gregory IV (827-44) and many other writers make the same statement, borrowing, it may be, from him. Whence Camden derives the fact is not evident; perhaps he had in view the bull (probably not genuine) of Gregory IV to the archbishop of Hamburg (Jafie, liegesta No. 2574).] Several bishops of Man were consecrated by the archbishop of York, riot, however, always without opposition from other quarters. In 1154 pope Anastasius IV confirmed the establishment (1148) of an archbishopric inTrondhjem (Norway), to which, among others, the bishop of the ingulae Suthraie was made subject (Haddan and Stubbs, Counc. II, 229 ff.). This bishopric was, it would seem, identical with the bishopric of Man. The designation of the bishop as Sodoriensi.'i is probably derived originally from Sudereys (=southei'n [isles]). [According to Twiss, I c. (without statement of authorities) Honorius IV (1285-87) placed the bishop of Man under the archbishop of Dublin. But the bishops consecrated for Man in 1305, 1321, 1828, 1334 were consecrated by the Norwegian bishops. Stubbs, liegistrum. Does a confusion arise from the fact that under Honorius III, in 1219 a bishop of Man was consecrated by an archbishop of Dublin ?] On the manner of electing bishops (varying in difierent cases; concerned were at different times — the monks of Furnessin Lancashire, the people and clergy of Man, the sovereign of Man and the pope) see Stubbs, I.e., Moore, I.e. 59, 67 ; cf. also part of a bull of Coelestin HI, 22nd June, 1194, in W. P. Ward, Zs^c o/il/flK p. 81. By the treaty of Perth in 1266 the isle of Man passed from Magnus, king of Norway, to Alexander III of Scotland, as also did the islands of West Scotland claimed by the Norwegians and the right of advowson of the bishopric of Man. In connexion with the suzerainty over Scotland arrogated by Edward I, both he and Edward II claimed to dispose of the island, the Scotch kings at the same time maintaining their right. Simultaneovxsly, the local roj^al house broke into two lines, each contending for the succession. As a matter of fact, the Scotch obtained possession of the island. The rival lines of succession were united by the marriage of William Montacute, earl of Salisbury, with the heiress of the second line. Montacute, aided by Edward III, conquered the island (1343-4) and was crowned king ; in 1893 he sold the island and the roj'^al title to William le Scrope, afterwards earl of Wiltshire. As owing to the cir- cumstances mentioned Man had come under English influence, the inhabitants of the west Scottish islands who were included in the bishopric of Man refused obedience to that bishop and elected their own spiritual lords (1380 and on- wards). Nevertheless, the bishops of Man continued to designate themselves also as episeopi Sodorienses. In 1348 and 1374 bishops of Man were con- secrated at Avignon, in the former case by the pope, in the latter, on his behalf. William le Scrope was in 1399 condemned in England for high treason. Thus the island fell to the English king, Henry IV, who bestowed it on Henry Percy, earl of Northumberland. (Document dated 19th Oct. in Eymer, Foedera Brd Ed. Ill, pt. IV, 165.) Percy was, in his turn, convicted of high treason (1405) and his lands were forfeited to the crown [7 Hen. IV (1405/6)]. In the same year of his reign the king gave the island una cum Patronatu Epis- § 33] ORIGIN OF ARCHBISHOPRICS AND BISHOPRICS 279 Canterbury embraces twenty-four dioceses,^" the province of York ten,^^ the district immediately subject to the archbishop being in each case included. Moreover the archbishop of Canterbury has under him a number of bishoprics in the colonies and abroad. The establishment of the various episcopal sees in England has been by gradual process. Even in the Roman period British bishops are mentioned. Thus the bishop of London, the bishop of York and a third bishop ^^ were present at the council of Aries (314). The effect, however, of settle- ments of pagan Teutons was to drive the bishops from the eastern parts of the island. In the western parts, which remained Keltic for a longer period, centres of ecclesiastical activity still subsisted and developed by degrees into episcopal seats.^" In the Anglo- Saxon kingdoms there was at first one bishopric for each kingdom, copatuH to sir John Stanley, first for life, tlien in fee to him and his heirs for ever. (Coke, Inst. IV, 283 and preamble to 5 Geo. Ill c 26 ; cf. the document, dated [3rd June] 1405, in Eymer, Foedera 3rd Ed. IV, pt. I, 82.) A descendant of Stanley was raised by Henry VII, 1485, to the earldom of Derby. Whether the bishops of Man, in the time from the fourteenth centiiry to the reforma- tion, were subject to any archbishop at all, and if so to which, cannot be precisely ascertained. [According to Tsviss, I.e., Man was, on the creation of the archbishopric of. St. Andrews, assigned thereto and the attachment to York (by act of 1542) mada bscause St. Andrews was still in the hands of the papists. But this account seems only to rest on an erroneous interpretation of the designation in the bull of 1472 (cf. § 10, note 13) of the assigned bishopric as Sodorensis sivs Insularum by Polydorus Vergilius, Angl. Hist. Book IX : hujus sedes in Mona insula loaata est ; whilst in reality the bishopric, separated from Man since at latest 1330, of the west Scottish isles, whose bishops also retained the title Sodorenses, is meant.] A bull of Calixtus III, dated 21st June, 1458, by which the bishopric of Man (Sodorensis) and the newly appointed bishop were placed under the archbishop of York, is printed from the Register of the then archbishop of York in Publications of the Manx Society IX, 20. Why then an express assignment of the .see of Man to the archbishopric of York was made by act of parliament in 1542, has not been explained. In consequence of dispute during the reigns of Elizabeth and James I as to the inlieritance of Man, a new grant was made by letters patent of the latter sovereign. On the manner of appointment to the bishopric under Henry Vllt and later, see the report of the roj-al officials to the king, 17th Feb. 1634. Rymer, Foedera 3rd Ed. VIII, pt. IV, 54. In 1735 the island fell by inheritance to the duke of Athole. By 6 Geo. HI (1765) c 26, in virtue of a (half-forced) agreement with the duke of Athole, some of his sovereign rights (but not the right of advowson of the bishopric) were conveyed to the English crown, com- pensation being made for their loss. 6 Geo. IV (1825) c 34 empowered to the redemption of further sovereign rights. On the basis of this enactment a con- tract of sale was made by which the crown became possessed of all remaining sovereign rights, including the advowson of the bishopric. ^° St. Alban's, St. Asaph, Bangor, Bath and Wells, Bristol and Gloucester, Canterbury, Chichester, St. David's, Ely, Exeter, Hereford, Llandaff, Lichfield, Lincoln, London, Norwich, Oxford, Peterborough, Rochester, Salisbury, Southwell, Truro, Winchester, Worcester. ^' Carlisle, Chester, Durham, Liverpool, Man, Manchester, Newcastle, Ripon, Wakefield, York. ^' Probably from Caerleon or from Lincoln. Perry, Hist, of Engl. Ch. I, 6, notes and illustrations 1, c 1 § 10. '^ On the origin df the several bishoprics in the British districts see Haddan and Stubbs, Counc. I, 142 ff., 702 ff. 28o ARCHBISHOPS AND BISHOPS [V, 3a except that in Kent a second see was at once created side by side with Canterbury.^" Acting under -the representations of archbishop Theodore the council of Herutford (673) declared itself in favour of multiplying the existing bishoprics. Theodore carried out the work of multiplication on a liberal scale,^' although in doing so he had to overcome opposition, especially from Wilfrid, bishop of York. In the next centuries there were new creations, unions and removals of sees.'^^ About the middle of the twelfth century changes ceased, and the bishoprics then existing continued in the main as they were until the reign of Henry VIII. Wolsey projected the founda- tion of twenty new sees ; but it was not until after his fall and after the breach with the pope that the scheme was realized, and then in a partial form. First, 26 Hen. VIII (1534) c 14 regiilated and extended the system of suffragan bishops ;^^ then, by 31 Hen. VIII (1B39) c 9, the king was empowered himself to establish new (full) sees in such number as he might think fit.^* Henry made use of the powers conferred by this act to create six new bishoprics, of which one became extinct in the next reign.'^^ A new creation was ordered by act of parliament before Edward's death ; but after the accession of Mary the enactment was repealed.^" From that time onward for nearly three hundred years, apart from the abolition of the whole episcopal constitution in the course of the first revolution, the episcopal sees again remained unchanged. On the other hand, ^^ Founded were : for Kent, Canterbury and Eochester (on tlje probably- incorrect assvimption that the division of Kent into two sees was connected with tribal boundaries see Stubbs, Const. Hist. I, 189, note 2 c 7 § 70) ; for Essex, London; for Northumbria, York (temporarily Lindisfarne instead of York); for Wessex, Dorchester (Winchester); for East Anglia, Dunwich; for Mercia, Lichfield. Sussex was not converted until later, about C80.— On the oldest episcopal sees cf. Stubbs, Const. Hist. I, 246 c 8 § 85. ^' Theodore's division of the diocese of Lichfield also followed political boundaries. Stubbs, Const. Hist. I, 123 c 5 § 48 ; I, 189, note 1 c 7 § 70. " A map, .showing the division of England into dioceses at tlie time of Edward the confessor (1042-66) is given in Freeman, History of the Korman Conquest II, 82. ^3 Cf. § 39, note 4. =' Cf. § 37, note 19. ^^ Gloucester, Bristol, Peterborough, Oxford, Chester, Westminster. (Tlio latter was from the dissolution of monasteries a collegiate church; from 1540, a bishopric; from 1550, a collegiate church ; from 1566-1560, a monastery; in accordance with an unprinted act of 1 Eliz. it was by roj'al letters patent of 21st May, 1560, again Iransformed into a collegiate church.) — A map exhibiting the division of England into bishoprics in 26 Hen. VHI and the changes down to 34 Hen. VIHwiW be found in Hunter (Record Commission), An Introduction to the Valor Ecclesiasticus of Kin<) Henry VIII, London, 1834. Cf. also on boundaries of bishoprics and sites of monasteries the map in Ch. H. Pearson, Historical Maps 2nd Ed. London, 1870, p. 68. ^ By 7 IScl. IT (1552/3) c 10 a part of the county palatine and bishopric of Durham bordering on Newcastle was detached and placed under the secular authorities of Newcastle. The unprinted act 7 Ed. VI No. 12 in the Chancery roll. An Actefor the Dissolucion of the By.sshopprick of Durham, and also for the newe erecting of the same Bys.'ihopprike and one other at Netccastell, vested the possessions of the hitherto existing bishopric in the king and mfide pro- visions for the new creation of two sees. But the act, before its execution, was repoaled by 1 ]\Iar. st. 3 (1554) c 3, and the bishopric of Durham left intact. §34] PRECEDENCE OF CANTERBURY AS AGAINST YORK 281 in Scotland tliere were considerable alterations during the period indicated ; moreover, in 1781 began the new creation of Anglican episcopal sees for the (now independent) United States and for the English colonies. In England itself 6 & 7 GmZ. IF (1836) c 77 formed the first legal basis for a number of changes in existing relations. The act granted powers for a new delimitation by order "in council of the dioceses according to certain instructions laid down therein ; ^' thus the dioceses of Gloucester and Bristol, of Carlisle and Man, and of St. Asaph and Bangor were to be united, whilst two new sees, Manchester and Ripon, were to be erected. The two new creations designed were afterwards effected ; the three unions were in part not carried out, in part again dissolved.^^ Lastly, in recent times six new sees have been established : St. Alban's, Truro, Liverpool, Newcastle, Southwell and Wakefield."" §34. B. HISTORY OF THE PRECEDENCE OF THE ARCH- BISHOPS OF CANTERBURY AS AGAINST THE ARCHBISHOPS OF YORK." In the middle ages a conflict raged between the representatives of the sees of Canterbury and York over the question whether the two were independent of each other and had equal rank, or whether the archbishop of York owed obedience to the archbishopric of Canter- bury and had to yield him precedence.^ The dispute has, in many ^' The general instructions contained in the act were afterwards, to a slight extent, amended. Cf. e.g. 10 & 11 Vict. (1847) c 108, 26 & 27 Vict. (1863) 36 s 2. A map, showing the boundaries of the dioceses in 1854, is found in front of the First Report of the Royal Cathedral Commission {Parliamentary Reports, 1864, vol. XXV). "^ The first bishop of Eipon was consecrated in 1836. The creation of Man- chester was in 1848 in accordance with 10 & 11 Vict. (1847) c 108. Cf. Perry, Hist, of Engl. Ch. Ill, 295, notes and illustrations 1 c 16 § 3. Power to unite Carlisle and Man was ftvoked by 1 & 2 Vict. (1838) c 30, to unite St. Asaph and Bangor by 10 & 11 Vict. (1847) c 108; the union, already effected, of Gloucester and Bristol was annulled by 47 & 48 Vict. (1884) c 66, amended but not materially by 57 & 58 Vict. (1894) c 21. As yet, however (1894), the restora- tion of Bristol as a separate see has not been accomplished, the necessary endowment not having been raised. ™ St. Albans was founded in accordancewith 38 & 39 Vict. (1875) c 34 ; Truro by 39 & 40 Vict. (1876) c 54 [of. Truro Chapter Act 41 & 42 Vict. (1878) c 44; 'Truro Bishopric and Chapter Acts Amendment Act 50 Vict. sess. 2 (1887) cl2] ; the four other bishoprics by 41 & 42 Vict. (1878) c 68 [cf. Kewcastle Chapter Act 47 & 48 Vict. (1884) c 83]. The see of Liverpool was established in 1880, Newcastle in 1882, Southwell in 1884, Wakefield in 1888. New creations are contemplated. ^ The position of Canterbury in the dispute is pxliibited in particular by Eadmer, Hist. Nov. {Rer. Brit. SCr. No. 81), by William of Malinesbury, Gesta Pontijic. {Rer. Brit. Scr.-'No. 52) and in a short statement printed in Rer. Brit. JScr. No. 71, III, 10 ; that of York by Hugo Sottovagina, precentor of York (in Rer. Brit. Scr. No. 71). In addition to their statements a large number of " Hinschias, Kirclienrecld I, 61G IT. 282 ARCHBISHOPS AND BISHOPS [V, Si? respects, exercised influence on the development of the constitution of the church in England, and its issue has determined the present position of the two English archbishops towards each other. The contest began in the year 1070, shortly after the Norman conquest.^ "When Thomas I, appointed archbishop of York, ap- proached Lanfranc to obtain consecration, the latter laid down as a condition the taking of an oath of obedience to the see of Canter- bury. This Thomas refused. Lanfranc rested his claim on old usage, the existence of which Thomas denied.^ Ultimately Thomas documents relating to the contest have been preserved. Cf. especially the full account of the points at issue in the letter of Ralph,. archbishop of Canterbury, to pope Calixtus II in the year 1119 (printed in Rer. Brit. Scr. No. 71) II, 228. ' Cf. from earlier times Carta of king Edgar : Vt I'Jcclesia Christi in Doro- bernia aliaruTn Ecclesiarum regni nostri mater sit et Domina, . . . (printed in Spelman, Concilia 1, 432 ' e M. S. Cod. Eccl. Canf and in Wilkins, Concilia IV, 775. The document is dated 958; in it Edgar is entitled Eex Anglorum, Dun- stan archipontifex. But Dunstan only became archbishop in 959, and it is only from that year, after the union 6f the parts of the kingdom held by Eadvii and Edgar, that the latter is designated by writers Bex Anglorum. Spelman I.e.). Osbsrn, Vita Dunstani {Rer. Brit. Scr. No. 63) p. 108 reports: . . . 7'ex Edgarus . . . Dunstanum . . . primae metropolis Anglorum X>rimatem ac patriarcham. instituit. p. 109 : Dunstanus . . . a Romano pontijice . . . universae Anglorum genti necnon et aliis regipnibus Anglo- rum regno suppositis patriarcha destinatus, . . . Similar expressions are, however, not fotind in the older biographies of the writer B and of the monk Adelard {Rer. Brit. Scr. No. 63). The oath of obedience which is said to have been taken in 796 by an arch- bishop of York to an archbishop of Canterbury, was in reality taken not by an archbishop of York, but by a bishop of Lindsey. The word Khoracensis after the name of the bishop in the document is a forgery. (Haddan and Stubbs, Counc. Ill, 506, 507, note b.) — Cf. also below, note 3. ' A full account of the negotiations which took place at the time, with docu- ments cited, is given in William of Malmesbury, Gesta Fontiflcum {Rer. Brit. Scr. No. 52) Book I §§ 25-42. For the documents see also Eadmer, I.e. pp. 261 ff. These documents are: 1, Letter of Boniface IV to king Aethilbert, 610; 2, of Boniface V to archbishop Justus, 624-5 ; 3, of Honorius to archbishop Honorius, 634 ; 4, of Vitalianus to archbishop Theodore, 669 ; 5, of Sei-gius to the kings of England, Aethelred, Aelfrid and Aldulf, 693 ; 6, of Sergius to the English bishops, 693 ; 7, of Gregory III to the English bishof)s, 733 ; 8, of Leo III to archbishop Aethelard, 797 ; 9, of Formosus to the English bishops, 905 ; 10, of John XII to Dunstan, 960. — These were first produced by Lanfranc in support of his claim in 1072. It is probable that they are not, in their present form, genuine, but are alterations of letters actually sent by the popes. See more in Haddan and Stubbs, Counc. Ill, 65, note. The genuineness of the documents was disputed even by contemporaries. Thus in a letter of the chapter of York (1108) in Hugo Cantor {The Historians of York; Rer. Brit. Scr. No. 71) 11, 113 : Denique decanus, quando fuit Romae cum Girardo archiepiscopo, sicut ipse testatur, a cancellario Romanae ecclesiae diligenter perscnttatus est de contentione harum ecclesiarum, quid inde Roma scntiret, et quid in de- cretis suis haberet, at ille dixit, Romam nee aliud sentire, nee habere quam quod in registro Beati Gregorii scriptum est. See also Hugo, I.e. 204. — In the questionable letters compare! especially the express alteration of Gregory's regulations in, what professes the letter of Boniface V to Justus, archbishop of Canterbury (624-5): (Haddan and Stubbs, CoMHC. Ill, 74): . . • firmamus, ut in Dorobernia civitate {i.e. Canterbury) semper in posterum metropolitamis totius Britanniae locus habeatur, om.nesque provinciae regni Anglorum praefati loci metropolitanae Ecclesiae subjiciantur immikzlata perpetuaque stabilitate decernimus. §34] PRECEDENCE OF CANTERBURY AS AGAINST YORK 283 promised obedience to Lanfranc, -vvitli the reservation attached, that he would only obey the successors of Lanfranc if the pope decided to that eflfect.* The two archbishops now journeyed to Rome and appealed for papal determination of the issue. But the pope referred the q^^uestion for solution in England-; and in the year 1072 assem- blies'^ took place in "Winchester and Windsor, which are said to have pronounced in favour of Canterbury." It is doubtful whether the following archbishop of York, Gerard (1101), made any vow of obedience.'' Gerard's successor, Thomas II, after seeking escape in * The words of Tliomas's declaration are in William of Malmesbnry, Gest. Pont. I.e. p. 42, according to a document of Lanfranc, and also in Rer. Brit Scr\ No. 71, III, 13 : . . . tibi quidem sine conditione, sueeessoribus vero tuia eonditionaliter obtemperaturum me esse promisi. According to Hugo Cantor, I.e. 101, the declaration ran : Tibi subjectus ero, quamdlu vixeris, sueeessoribus tuis minime, nisi judicante siimnio pontifice. Compare also the mention of the declaration in the document of 1072, below, note 6. * According to Freeman, Hist, of Norman Conquest IV, 358, the Winchester jneeting was a purely ecclesiastical assembly, the Windsor, a general gemot of the whole nation. < Perrj', Hist, of Engl. Ch. I, 164, note 3 11 § X5 makes the former general, the latter ecclesiastical. " Report of Lanfranc to Alexander in Epist. Lanfranei (ed. Giles) No. B, p. 23. But according to Hugo Cantor, I.e. 101, the document drawn up was only a forgery by the monks of Canterbury.— The document runs (it is printed in Wilkins I, 324, in the report in Rer. Brit. Scr. No. 71, III, 10, in Eadmer,Z.c. p. 252 [according to Eule p. Ivi inserted by Eadmer after the first edition of his >vork] ; the same document is also in Rer. Brit. Scr. No. 85, III, 351 [with a smaller number of signatures and one variation in respect of them] and, de- rived from a document of Lanfranc, in William of Malmesbury, I.e. p. 42 [with- out signatures]) : . . . Et tandem aliquando diversis diversarum scriptu- rarum auetoritatibus probatum atque ostensum est, quod Eboracensis eeclesia Cantuariensi debeat subiacere, eiusque arehiepiseopi, ut primatis totius Britanniae, dispositionibus in lis quae dd Christianam religionem pertinent in omnibus oboedire. Subjectionem vero Dunelmensis, hoc est Lindisfarnensis, episcopi atque omnium regionuin a terminis Licifeldensis episcopi et Humbrae magni fluvii usque ad extremes Scotiae fines, et quicquid ex hac jyarte praedicti flum,inis ad parochiani Eboracensis ecclcsiae jure competit, Cantuariensis' metropolitanus Eboracensi archiepiscopo eju.sque sueeessoribus in perpetuum obtinere concessit. Ita ut si Cantuariensis archiepiscopus concilium cogere voluerit, ubicunque visum eifuerit, Eboracensis archiepiscopus sui praesentiam cum, omiiibus sibi siibjectis ad nutum ejus exhibeat et ejus eanonieis disposi- tionibus obediens existat. Quod autem Eboracensis archieinscopus profes- sionem Cantuariensi archiepiscopo facere etiam cum Sacramento debeat, Lanfrancus Dorobernensis archiepiscopus ex antiqua anteces-iorum con- suetudine ostendit, sed ob amorem regis Thomae Eboracensi archiepiscopo' sacramentum relaxavit, seriptamque tantum professionem recepit ; noii praejudieans sueeessoribus suis, qui sacramentum cum professione a sueees- soribus Thomae exigere voluerint. Si archiepiscopus Cantuariensis vitam finiei'it, Eboracensis archiepiscopus DordberniaTn veniet, et eum qui electus fuerit cum caeteris praefatae ecelesiae episcopis, id; primatem proprium, jure conseerabit. Quod si Eboracensis archiepiscopus obierit, is qui ei successurus eligitur, accepto a rege archiepiscopatus dono, Cantuariam vel ubi Cantuari- ensi archiepiscopo pilacuerit accedet, et ab ipso ordinationem more canonico suscipiet . . . ' At any rate he did not do so at his translation from Hereford to York (1101), for which no consecration . was necessary. According to Hugo Cantor, I.e. 110, 114, G-erard proinised Anselm soon afterwards : se reversurum (from Rome) quicquid juste debebat ei facturum. At the council of Westminster (1102) Gerard, according to the same writer, overturned the raised seat prepared 284 ARCHBISHOPS AND BISHOPS [V, 3b vain, was compelled to yield ; his profession of obedience was drawn up and secured by the king's seal (1109).^ Pope Paschal II had at Anselm's desire given him an undertaking by letter of the 12th of October, 1108, that the pallium should not be bestowed on Thomas II so long as the oath of obedience remained untaken.' The next priest preferred to York, Thurstan, refased the oath even more stubbornly than his predecessor. When the negotiations between the archbishops, the pope and the king had been protracted for five years and Thurstan found himself still unable to obtain consecration, he repaired in 1119 to Eheims, where Calixtus II was holding a synod. There the pope consecrated him, formal reserva- tion being made of right possibly residing in the archbishop of Canterbury.'^ Further negotiations between the pope and the archbishops ensued. MeanAvhile "William of Corbeuil had become archbishop of Canter- bury. "With the end of the year 1125 both archbishops appeared in Ebme in order to press in person for a settlement of the dispute by the pope. It is doubtful whether any final ^decision of the kind was obtained. '^ On the other hand, it is certain that the then for Anselm and succeeded in having seats of equal height placed for the two archbishops. According to Eadmer, I.e. 187, Gerard, however, promised in 1107 iiua manu iniposita manui Anselmi, interposita fide sua . . . , se eandem suhjectionem et ohoedientiam ipsi et successoribus ejii-i in archiepiscopatu exhibiturum, quam Herefordensi ecclesiae ah eo sacrandu.'s antixtes illi pro- miserat. Hvigo Cantor makes no mention of such an occurrence. Cf. also William of Malmesbury, Gent. Pont. 259, and Her. Brit. Scr. No. 71, III, 15. * According to Eadmer, I.e. 210, who gives the words, the only reservation was of allegiance to the king and obedience to the pope. Hugo Cantor, I.e. 124, states that it was expressly declared and put on record through the king that no prejudice was to be done to subsequent archbishops of York. " Anselm's letter to the pope and the latter's answer are printed in Mansi, Concilia XX, 1022, 1023 and in Migne, Patrologiae Cursus vol. 150 p. 184 lib. Ill nu. 152 and vol. 163 p. 245 nu. 240. In the course of " the dispute the popes sided now with Canterbury, now with York, so that the bulls are frequently ■contradictory. '" Eadmer, I.e. 257 : To the protest of the archdeacon of Canterbuvy that only the archbishop of Canterbviry — not the pope — had the right to consecrate Thurstan, the pope replies : Nidlam injuMitiam ecelesiae Cantuariensi faeere volumus, sed, salva jimtitia et dignitate Ulius, quod piropo.suimu.'; exseqiiemiir. Similarly William of Malmesbury, Gesta Pontificum {Her. Brit. Scr. No. 52) p. 262 Book III § 124. According to Hugo Cantor, I.e. 165, tlie pope's utterance ran: Quod facio, semjDcr salca justitia Caiitunriensis eccle.^iae, si qua est, facio. " Undated bull of Honorius II to Thurstan in Wilkins, Cone. I, 407 (ex reg. Grenefeld arch. Ebor. [in the years 1306-15] fol. 46. Wilkins seems to assume that this bull was given to the legate John of Crema in 1125 to bring with him, find that the council of London, held by the legate on 9th Sept. 1125 followed): Antiquam sane Eboraeensis ecclesiae dignitatem integram con.servari auctore Deo cupieiites, auctoritate apo.^tolica prohibemic.i, ne idterius aut Cantuari- ■eiisis archiepiscopios Eboracensis professionein qiiamlibet exigat, aut Ebora- ceiisis Cantuariensi exhiheat; neque, quod j)enitus a beato Gregorio prohibitum •est, tdlo modo Eboracensis Cantuariensis ditioni .Hubjaceat, sed iuxta ejusdem j)atris constitutionem, ista iider eos honoris distinctio in perpetuuiii conser- retur, ut prior habeatur, qui prior fuerit ordinatus ... — According to Hugo Cantor, I.e. 2L4, the presence of the archbishops at Rome led to no final er .i2}sius obitum exspirasse. " Stubbs, Const. Hist. Ill, 308 c 19 § 380. " Compare e.g. above, note 15 in regard to Becket (totius Angliae, excepto episcopaiu Eboracensi) and Richard cf Dover (jprovinciae suae lega- tionem). In the appointment of Hubert declaration is made that it is to hold good in spite of privilege of York conflicting therewith. '* When pope Alexander III refused Henry II the confirmation of the consti- tutions of Clarendon, the king again demanded the confirmation of them and the nomination of the archbishop of York as legate of all England. The pope re- jected the former request ; not to make the king too angrj'', he sent him, however, a legatine appointment for the archbishop of York, but caused the king's envoys to promise him that the appointment should only be delivered to the arch- bishop upon receipt of papal consent. At the same time the pope wrote on 27th February, 1164, to Becket, that if the king should deliver the commission without consent given, he (the pope) would exempt the archbishop of Canter- bury and his province from the scope of the legation. Henry sent ihe commis- sion back to the pope on the ground that it had not been desired by the royal envoys upon the condition specified. The pope — whose position, meanwhile, had been secured by the death of the antipope Octavian (20th April, 1164) — kept the doc^iment and gave no new legatine appointment. Letters of Alex- ander ni to. Becket, Mat. for Hist. Becket, I.e. V, 85 and 87. Eeports of Becket's agent at the papal court, I.e. V, 80 and 94. Letter of the bishop of Poitou to Becket, I.e. V, 112. Eoger de Hoveden {Rer. Brit. Scr, No. 54) 1, 223. Gervasius, Chronic. {Rer. Brit. Scr. No. 73) 1, 181. — It is not quite clear whether Eoger was subsequently, on the ground of the appointment never delivered, regarded, nevertheless bv the pope as legate. He is not designated legate, e.g. in letters of Alexander HI to him in 1166 {Materials, I.e. V, 323) and 16th Sept. 1170 {I.e. VII, 364) ; on the other hand he is for the most part so designated in letters of 1170 and afterwards {e.g. Alexander III to Eoger, 18tli Feb. 1170, Materials VII, 213; Becket to Eoger, 1170, Materials VII, 263, 324 ; Eoger to the bishop of Durham and others, 1171, Materials VII, 504 ; Alexander III to Eoger, 1175-6, Materials VII, 568; Alexander III to Eoger, 1176, Haddan and Stubbs, Counc. II, 244). The legation in Scotland was apparently only conferred on him in 1181 (Haddan and Stubbs II, 254, from Hoveden II, 211 and Benedict I, 263). — In 1188 the pope gave the Scottish bishops the assurance (aimed especially against the archbishop of York) that in future no one but a Scotch- man or a special envoy from the entourage of the pope should be entrusted with the office of legate in Scotland. (Cf. § 10, note II.) — Archbishop Walter de Gray of York (1215-56) is designated apostolicae sedis legatus in a MS. printed in Wilkins, Cone. I, 698. §34] PRECEDENCE OF CANTERBURY AS AGAINST YORK 289 pointed to the office, they almost all held it,^^ so that the claim of the archbishops of Canterbury to superiority lost from this time even such weight as it possessed in virtue of the papal commission. ~ But the archbishops of York were not content with denying that the archbishops of Canterbury were their superiors ; they claimed, positively, equal rank and equal privileges. The archbishops of Canterbury had at the end of the eleventh century assumed the title of primates of Britain. Apparently they could in respect to this title and the precedence implied by it appeal with greater justice to old grants than in respect to the official superiority to which they also pretended. Moreover, their right to the title had been, from the beginning of the twelfth century, repeatedly con- firmed by the popes.'^" As early as Thomas I and Gerard of York opposition had been offered to this claim of the archbishops of Canter bury. ^1 The events of 1126 alluded to above had not settled the question of rank. The dispute turned, in the main, on the right to assist at the coronation of the king, to fill the place of honour at assemblies, and to have the archie piscopal cross borne in front even in the neighbour's province.^^ The controversy '" According to Stubbs, Const. Hist. Ill, 310, note 1 c 19 § 380 the constant conferment from 1352 of the legatine office on the archbishops of York is perhaps connected with the settlement of the dispute then reached (cf. below, note 25). — According to Wilkins, Cone. Ill, 662, Thomas Eotheram and Thomas Savage wei-e not legates. ^0 Letter of Paschal II to Anselm, 15th April, 1102 (Jaffe 5908, Wilkins, Cone. 1, 379f.): . . . Quern [soil, primatum] . . . ita fraternitati tuae plenum et integrum confirmamus, sicut a tuis constat praedeeessoribiis fuisse pos- sessum ; hoc personaliter adjicientes, ut quamdiu regno illi religionem tuam divina misericordia conservaverit, nullius unquam legati, sed nostra tantum debeas svbesse judieio. Paschal II to Anselm, 16th Nov. 1103 (Jaife 5955, Eadmer, Hist. Nov. 164) : . . . Quondam . . . Cantuariensis ecdesiae primatum ita tibi plenum concessimus, sieut a tuis constat praedeeessoribus fuisse possessum. Nunc autem, petitionibus tuis annuentes, tarn tibi quant tuis legitimis successoribus eundem primatum, et quicquid dignitatis- seu potestatis eidem sanetae Cantuariensi seu Dorobernensi eeclesiae pertinere cognoscitur, . . . confirmamus, sicut a temporibus Beati Augustini prae- decessores tuos habuisse apostolieae sedis auctoritate constiterit. — Eugenius III (1145-53) to Theobald in Begistr. Cant. A 34 (quoted Materials, Rer. Brit: Scr. No. 67 V, 324) ; Alexander III to Becket and Eichard of Dover (above,, note 15). " According to Eadmer, Hist. Nov. {Rer. Brit. Scr. No. 81) p. 42, in the docu- ment setting forth the election of archbishop Anselm, the see of Canterbury had been designated totius Britanniae metropolitana; but in consequence of the opposition of archbishop Thomas I of York, this had been changed to totius; Britanniae primas. According to Hugo Cantor, I.e. 104, 113, the phrase origin- ally ran primas totius Britanniae ; but Thomas ultimately consecrated Anselm only as m,etropolita (archiepiscopus) Cantuariensis. — On Gerard see note 7. '■" In connexion with these disputes as to rank the following circumstances- are to be mentioned : — • Immediately after the return from Eome, Christmas, 1126, a dispute arose upon occasion of a royal coronation. Gervasius, Act. Pontiftcum {Rer. Brit, Scr. No. 73) II, 382 : Willelmus archiepiscopus in Angliam reversus in Nativi- tate Domini regem coronavit Henricum apud Windlesore, ubi cum Eboracensis- episcopus aequalitate Cantuariensis archiepiscopi regem vellet coronare, judieio omnium repulsus est, et ad eum coronam regni non pertinere una omnium sententia concorditer promulgatur. Later insuper crucis, quam in H.C. u 290 ARCHBISHOPS AND BISHOPS [V, 3b lasted until tke middle of the fourteenth century. Meanwhile the regis capellam se coram fecit deferri, extra capellam cum cruce ejectus est. In similar words Gervasius, Gesta Begum {Rer. Brit. Ser. No. 73) II, 70. Ac- cording to Hugo Cantor, I.e. 217, the archbishop of York yielded of his own accord. In 1163 the archbishop of York appealed to the pope, because Becket had soilght to prevent him erecting his cross in the southern province. (Letter of Becket to pope Alexander, Materials for Hist. Becket, Rer. Brit. Ser. No. 67, V, 44. Cf. I.e. V, 47, 60, 67, 68, 69, 82, 131.) Th3 question of precedence was discussed without result at the council of London (Westminster) 1175 (Benedict, Rer. Brit. Ser. No. 49, 1, 89. Hoveden, I.e. No. 51, II, 77). The archbishop of York therefore again appealed to the pope against the archbishop of Canterbury. The king, however, arrabged in 1175 at Winchester, the legate Hugo being present, a year's peace between the archbishops, within which time the archbishop of Eouen and the neighbouring French bishops were to arbitrate. (So Benedict 1, 104 in the text approved in the Rer. Brit. Ser. edition. But according to another reading and to Hoveden [Rer. Brit. Ser. No. 51] II, 86 the five years' peace was then concluded; they tiren repeat the same in the next year.) ' Nevertheless, in the following year at the council held at London by legate Hugo, the two archbishops contended for the post of honour. [Violence was used ; the details are given variously. Compare e.g. G-ervasius, Chronic. (Rer. Brit. Ser. No. 73) I, 258, Acta Pont. I.e. II, 398 ; Benedict, I.e. 1. 112 ; Hoveden, I.e. II, 92 ; William of Newburgh (Rer. Brit. Ser. No. 82) I, 203 ; Ead. de Diceto (Rer. Brit Ser. No. 68) I, 405.] There was again an appeal to the pope, but the quarrel was again, for the present, settled by the king, this time at an assembly of clergy and laity at Winchester, 1176, and a five years' peace was concluded between the archbishops until the issue of the decision of the arbiters (Benedict, I.e. I, 118. Hoveden, I.e. II, 99). In March, 1192, GeofFrey of York bore his cross in the southern province ; the bishops of that province threatened, if he should continue to do so, to break the cross, and the bishop of London Novum Templum, in quo archiepiscopuS hospitaius fuerat, a divino suspendit officio et a campanarum sonitu (Benedict, Rer. Brit. Ser. No. 49 ; II, 238) ; in the spring of 1194 the archbishops were at variance, first because the archbishop of Canterbury bore his cross in the northern province, then because the archbishop ' of York bore his in the southern. The archbishop of Canterbury appealed to the pope (Hoveden, Rer. Brit. Ser. No. 51, III, 239, 250, cf. 246). On the papal bulls of the twelfth century, according to which seniority in respect of ordination should determine rank, see notes 11 and 14; on the bulls — hard to reconcile with the preceding — by which primacy was to belong to the archbishops of Canterbury, see note 20. In 1221 Langton received a papal privilege, Annal. de Dunslaplia (Eer. Brit. Ser. No. 36 ; Ann. Monastiei) III, 74: Eodem anno (1221) Stephanus, Cantuari- ensis archiepiscopuS, Romam profeetus, cum gloria et honore reversus est. Kt, ne Eboracensis extra provinciam suam in Anglia erucem portaret, impe-^ travit ; . . . On the dispute as to precedence at the council of London held by legate Otho in 1237, see Matth. Paris (Rer. Brit. Ser. No. 57) III, 416. In 1279, after a long respite, the controversy was revived. Archbishop Wick- wane of York, on his return from Eome, caused his cross to be carried before liim on his progress through the province of Canterbury. The archbishopof Canterbury's servants tore the cross with violence from the bearer and broke it; -the archbishop of Canterbury forbade the sale of provisions to the archbishop ■of York. Annates de Oseneia and Ckron. Thorn. Wykes (Rer. Brit. Ser. No. 36 ; Ann. Monastiei) TV, 281 ; Flores Historiarum (the so-called Matth. Westmonas- ■teriensis ; Rer. Brit. Ser. No. 95) III, 52 in the Merton MSS. ; mandate of the rural dean of Brading (Brathing) to the clergy of his deanery, March, 1280 : upon the authority of the official of Canterbury, if the archbishop of York jpassed through their parish bearing his cross erect, then all such places in the §34] PRECEDENCE OF CANTERBURY AS AGAINST YORK 291 archbishops of York had also taken the title of primas.-^ On the 20th of April, 1352 or 1353,^* the then archbishops, Islip of Canter- bury and Thoresby of York, with the king's mediation concluded an agreement, for themselves and their successors, as to the bearing of the cross in each other's province and as to .precedence. The arctdeaconry of Middlesex were to be placed under eoclasiastio interdict ; no one was to sell to Mm, or communicate with him in any way, or beg his bless- ing or ring the bells to greet him {Her. Brit. Scr. No. 61, p. 59) ; report of Wiokwane to the pope, 1st April, 1280 {Rei: Brit. Ser. No. 61, p. 60). Similar orders of the archbishop of Canterbury, 24th Deo. 1284, to the archdeacon of Canterbury (Her. Brit. Ser. No. 77 ; III, 869), 12th April, 1285, to the official of the bishop of Chichester (Rer. Brit. Scr. Ill, 893), 12th June, 1285, to the arch- deacon of Canterbury and the commissary for the exempt deaneries, also to the commissary of Canterbury {Rer. Brit. Scr. No. 77, III, 906, 908); similar man- dates of 26th March, 6th and 11th April, 1286 {Rer. Brit. Scr. No. 61. pp. 82, 83), of 7th May, 1287, to the bishop of Worcester {Rer. Brit. Scr. No.' 77, III, 945), of 8th March, 1288, to the archdeacons and other ecclesiastical officials of Canterbury, London and Rochester {Rer. Brit. Scr. No. 77, III, 955). ■■ Letter of the archbishop of Canterbury, of the same purport as the above, 25th Jan. 1301, to the bishop of Lincoln, respecting the forthcoming appearance of the archbishop of York at the parliament of Lincoln (Wilkins II, 264) ; letter of similar purport of the archbishop of Canterbury (1300) to his com- missary ("Wilkins II, 284). Compare also letters of Edward I, 3Lst Dec. 1304, to the pope and the cardinals in favour of the claim of York (Rymer, Foedera 4th Ed. I, 969). In 1312 the pope (without settling the dispute in principle) allowed the arch- bishop of York, returning from the council of Vienne, to have his cross carried before him on his way back through the province of Canterbury. Baronius, Annal. 1312, No. 26, Ed. 1864-83, XXIII, 542. In the year 1314 king's order to archbishop of York not to cause difficulties to the archbishop of Canterbury on his way to the parliament of York for erecting his cross ("VVilkins, Cone. II, 448). In 1317 archbishop Melton of York, returning from Rome, proceeded with cross erected through Kent and London. The archbishop of Canterbury laid the town of London under an interdict for the time of the archbishop of York's stay {Annal. Paulini ; Rer. Brit. Scr. No. 77 ; I, 281). In 1325 the archbishop of Canterbury excommunicated the archbishop of York for having caused his cross to be borne before him in the southern province. (Report in Wilkins, Cmic. II, 526, after Wharton, Anglia Sacra I, 365.) Prohibition of Edward III to the archbishop of Canterbury, 18th Aug. 1332, against causing difficulties to the archbishop of York on his way to parliament for erecting the cross, reference being made in the prohibition to an agreement made between the archbishops in the reign of Edward II to the effect, quod praefatus praedecessor vester, et successores sui, ad x>arliamenta et tractatus dicti patris nostri, et haeredum suorum, quae infra dictam Eborum provin- ciam teneri contingeret, et praefatus Eborum archiepiscopus, et ipsius suc- cessores, ad hvjusmodi parliamenta et tractatus, infra dictam Cantuarienseni provinciam tenenda . . . venientes, cruces suas ante se erectas portarent, absque perturbatione inibi facienda (Rymer, Foedera 4th Ed. EE, 844). ^^ Compare e.g. council of Ripon, 1306 (above, note 14), letters of archbishop Grenefeld of York, 1315 ; see also in letter of archbishop of Canterbury to arch- bishop Melton of York, 1324 {Rer. Brit. Scr. No. 61, pp. 238, 246, 326). The bishop of Durham in 1199 claimed for the archbishop of York as totius Angliae priTnas the right of assisting at the king's coronation (Hoveden, Rer. Brit. Scr. No. 51 ; IV, 90). "* On the date compare Raine, Fasti Eboracenses, Lives of the Archbishops of York, London, 1863, 1, 457, note s. 292 ARCHBISHOPS AND BISHOPS [V, 3b compact was ratified by the pope in 1354. By it, -with certain re- strictions, the bearing of the cross was allowed to each in both provinces, and precedence in point of honour was conceded to the archbishop of Canterbury.'^ In spite of this arrangement difficulties again arose in 1514-B, when Wolsey, archbishop of York but not yet cardinal, caused his cross to be borne before him in presence of the cross of Canterbury.^* The effect of the settlement reached as to official position and relative rank was to place both archbishops in dependence on the pope. The conferment of the legation on the archbishops did not protect them from the intrusion of a special legate, during whose stay their own legatine rights were suspended.^'' Moreover, the pope could at any time alter the official position of the archbishops to one another by a withdrawal ^^ or special extension ^' of the lega- tine powers, or their relative ranks by bestowing on one the title of cardinal.^" Use was frequently made of all these openings. As a consequence of the reformation the appointment of ecclesi- astics of the church of England to the legation ceased.^' This put "* The agreement and the bull of confirmation are printed in "Wilkins, Cone. Ill, 31 after reg. Islip. In the former both archbishops entitle themselves papal legates ; moreover, the archbishop of Canterbury designates himself totius Angliae primas, the archbishop of York Angliae primas. Each archbishop allows the other to have the cross borne before him in his neighbour's province ; in return for the privilege accorded him every consecrated archbishop of York, within two months after setting foot in the province of Canterbury, must make a gift worth forty pounds to the shrine of Beoket ; if the cross-bearers of Can- terbury and York come together, in wide streets they are to walk side by side, in narrow ones the cross-bearer of Canterbury is to precede. In parliamentis autem, tractatibus, et consiliis regis, quando Cant, et Ebor. archiepiscopi simul praesentes fuerint, quicunque Cant, archiepiscopus, quia ecdesia Cant, anti- qidor, et jJraeeminentior fore dignoscitur, ad domini regis dextram assidebit, et praefatus Ebor. archiepiscopus existens pro tempore ad sinistram . . . In conciliis vero, convocationibus, seu locis aliis quibuscunque, in quibus Cant, elj Ebor. archiepiscopos convenire continget, dominus Cant, archiepiscopus pro tempore existens, primum locum seu sedem, em,inentiorem ; Ebor. vero alium locum secundum, eminent ior em, obtinere debehunt. '"' Cavendish (contemporary with Wolsey), Life of Wolsey, in "Wordsworth, Ecclesiastical Biography 4th Ed. London, 1853. 1, 481. " Decretals of Gregory IX {Lib. Extra) I, tit. 30 c 8. ^' Pope Martin V, angry because archbishop Chichele had not in accordance with papal desire obtained the abolition of the acts against provisions, with- drew from him (1427) legatine powers and appointed bishop Beaufort of Win- chester legate. (Bull of Martin V to Chichele in Wilkins, Cona. Ill, 484 = ■ • • te a legatione dictae sedis . . . duximus suspendendum. The papal bulls were seized on reaching England, and thus not published. Cf. § 25, note 8 and § 34, note 13.)— On the withdrawal of the legation from archbishop Pole see § 6, note 51 and § 34, note 13. '"' So especially in the case of Wolsey, archbishop of York. '° The precedence of all cardinals before other prelates was, from the council of Lyon, 1245, fixed ; the cardinal bishops sometimes took precedence of the other bishops even in the eleventh century. Hinschius, Kirchenrecht I, 328.— Compare also the bull of Gregory IV, 27th March, 1371 (Wilkins, Com. Ill, 90), forbidding archbishops to have their crosses borne before them in the presence of a papal legate of a cardinal. "' Archbishop Cranmer renounced the further use of the legatine title. Ex- §34] PRECEDENCE OF CANTERBURY AS AGAINST YORK 293 an end to all possibility of changing from time to time the relative positions of the two prelates. As in the two centuries immediately before the reformation the legatine office had customarily been con- ferred on both ai'chbishops, it had become the rule that both had equal rights of jurisdiction; nothing beyond honorary precedence had been left to the archbishop of Canterbury. Such were the re- lations after the reformation and such they are at the present time.''* The archbishop of Canterbury has in respect of jurisdiction only the more prominent position in so far as by 25 Hen. VIII (1533/4) c 21 ss 2 ff. the right is given him, in certain cases especially those in which at an earlier time the pope used to exercise dispensing powers, of granting dispensations, licences, faculties, etc. for both provinces. Further, it is claimed, that he has by long custom come to have the privilege of crowning the kings of England.^^ But by an act of 1689 the archbishop of York or any other bishop of the realm may bo appointed by the sovereign' to administer the corona- tion oath.^* tract from proceedings of southern convocation, November, 1531 (Williins, Cancilid III, 769) : Archiepiscopus . . . voluit et mandavit, quod in omni- bus et singulis procurator iis exhibitis coram eo in hac convocatione . . . et in posteruvi in eadeni convocatione exhibendis inseratur hoc verbum ' metro- politanus ' et deleatur ab iisdem ' apostolicae sedis legatus.' "^ In the state the archbishop of Canterbury takes precedence of all noble- men not of royal blood and of all secular officials, the archbishop of York of all dukes except those of royal blood and of all secular officials except the lord chancellor. — The order in which the officers of the church are to sit in parlia- ment is fixed by 31 Hen. F///(IB39) c 10 An Actefor the placing of the Lordes of the Parliament, and is as follows: the king's vicegerent Thomas Crnmwell and all who shall succeed to this office, the archbishop of Canterbury, the arch- bishop of York, the bishops of London, Durham, Wincliester ; and then all the other Bisshoppes of both provinces of Canterburie and Yorke shall sytt and be placed on the same side after their auncyentes as it hath bene accustomed. '' Phill-imore, Eccl. Law 37. — Coronations of English kings have, for various reasons, often been performed by other prelates than the archbishop of Canter- bury. — Compare from Henry it's time letter of Alexander III to Roger, arch- bishop of York, 13th July, 1162 (printed in Materials for the History of Becket, Iter. Brit. Scr. No. 67, V, 21) in which the pope ratifies to the archbishop of York and his successors the right (not the exclusive right) to crown the king. By letter of 5th April, 116G {Materials, I c. V, 323) Alexander subsequently for- hade the archbishops of York and the rest of the bishops of England to perform a, coronation without the consent of the archbishop of Canterbury. Afterwards Alexander III seems to have again recognized the archbishop of York's right to crown : quoniam . . . hoc ad officium tuum pertinet. (Letter of Alex- ander III to archbishop of York in Materials, I.e. VI, 206. Genuineness and date of letter disputed.) By letter of 4th Nov. 1176 (this is the date in Hardy, Syllabus to Bymer; Jafle, No. 13250, assigns it to 1175-79 ; printed in Rymei-, Foedera 4th Ed. I, 26, under the year 1170) Alexander III confirmed to arch- bishop Richard of Canterbury the right of crowning the king in the soidhern province. ^* 1 Gul. & Mar. sess. 1 c Q An Act for Establishing the Coronation Oath, ss 2, 4. 294 ARCHBISHOPS AND BISHOPS [Y, 3c §35. C. EIGHTS AND DUTIES OF THE ARCHBISHOPS." ' Every archbishop is at the same time bishop of a special diocese, and in so far is like every other bishop in his district. As archbishop he has a general right of supervision within his province. This right was sometimes in the middle ages and more frequently during the sixteenth and seventeenth centuries exercised by means of visitations. In later times it is not known that metro- political visitations have taken place. The archbishop has the right of confirming, those elected to bishoprics ; he may by royal mandate in single cases receive the right of confirming the election of the other archbishop. But in either instance the confirmation cannot be withheld without in- Curring the penalties of praemunire.^ In most dioeeses, sede vacante or Avhen the bishop is permanently hindered, the archbishop in person or by some authorized represen- tative acts as guardian of the spiritualities.^ The archbishop has the right of inflicting ecclesiastical punish- ments — ^including even suspension and deprivation^upon the bishops placed under him. It is, however, usual that in proceedings for that purpose he should call in the aid of several other bishops. Tinder given circumstances {e.g. should the bishop offend against certain rules for the ordination and admission of priests and deacons) the calling in of a bishop is expressly prescribed by the canons of 1604.3 The archbishops appoint, subject to royal confirmation, the judgei of the united provincial court.* Moreover, each archbishop appoints independently the other officials requisite for his central adminis- tration. The archbishop has the right of summoning the convocation of his province, and presides over the assembly ; attached to the presi- dency are extensive powers as to the conduct of the deliberations. But the summoning of convocation can only take place in virtue of a royal writ.^ » 25 Hen. F77/ (1533/4) c 20, in appendix X. ^ Compare § .41, neiar note 10. ' Canons 33 and 35 of 1604 (appendix XII). For judgments and opinions in favour of the archbishop's right to deprive see Phillimbre, liccles. Law 84-93. Modern instances of deprivation by archbishops : bishop Watson of St. David's, 1695 ; bishop of Clogher (Ireland), 1822 ; bisliop Colenso of Natal, 1867. On the proceedings in the last mentioned case see Perry, Hist, of Engl. Ch. Ill, 376 ffi c2i§§7fF; ■ ■ ^ ■ ■ ■ ■ ■• ■ ■ ■ • . * Cf. § 63. — Until 1874 each archbishop appointed independently a judge for the archiepiscopal court of his province. * Compare §§ 55, 56. Pliilliraore, Ecclesiastical Law 21 fF. §36] ■ RIGHTS AND DUTIES OF THE BISHOPS 295 §36. d'. lilGHTS AND DUTIES OF THE BISHOPS." The bishop has a general right of superintendence over the eccle- siastical affairs of his diocese. One of the methods by which he exercises it is by means of visitations. These visitations consisted originally in journeys in person through the several parishes, and were ordered to take place yearly. At a later time this kind of visitation passed, in England as generally in the church of the! middle ages, as a rule, to the archdeacons. But the periodical sum- moning of the clergy and laity of several or of all the parishes in a bishop's district to give him an account of the condition of their parishes remained a fixed institution. These visitation-assemblies, as we may term them, were nearly related to diocesan synods. At the time of the reformation, visitation of the diocese by the bishop every three years had become customary.^ A triennial visitation is still in vogue.* The bishop provides for there being a sufficient number of clergy by ordaining deacons and priests. The various livings are filled by the bishop independently, if they are in his own gift. This is what is strictly termed ' collation.' If there is a patron other than the bishop, then the patron ' presents,' the bishop ' institutes ' and makes a mandate to ' induct ' the clerk. In the appointing of perpetual curates, curates in chapels of ease, lecturers, lay readers of the modern kind and assistant curates, the proper person nominates the clerk to the bishop, the latter gives his approbation b3'^ conferring his licence to officiate. In like manner, other persons require the licence of the bishop to preach or catechize in his diocese.^ Of the officers of cathedral and collegiate churches the bishop fills independently honorary canonries where such exist. The residentiary and non-residentiary canonries are, if in the patron- age of the bishop, filled by collation, if in the gift of some other patron, by presentation and institution ; in both cases installation follows; a few prebends are donative. Deans are now all appointed ' Compare § B7. " 4 & 5 Vict. (1841) c 39 s 28 enacted : . . . that any bishop or archdeacon, raay hold visitations of the clergy within the limits of his diocese or arch- deaconry, and at such visitations may adm,it chur chic ar dens, receive present- ments, and do all other acts, matters, and things by custom- appertaining to the visitations of bishops and archdeacons in the places assigned to their re- spective jurisdiction and authority under or by virtue of the provisions of the said first or secondly recited act (6 & 7 Gul. IV ell; 3 & 4 Vict, c 113) ; and any bishop may consecrate any new church or chapel or any new burial ground within his diocese. The provision has been repealed as obsolete by 37 & 38 Victv (1874) c 96. ... . . - ^ Canon 36 of ^f|$ (appendix XII). For further details see tinder the several offices. ' ■ » Phillimore, Eccles. Law 21 ff. 296 ARCHBISHOPS AND BISHOPS [V, 3d by the sovereign.* In rare instances canonries and lower offices are donative, that is preferment to them is by some third person (fre- quently the king) without any presentation to the bishop. Arch- deacons were commonly appointed independently by the bishop ; but preferment could be in the gift of a layman.'''' 6 & 7 Giil. IV (1836) c 77, in reciting the various recommendations for the carry- ing out of which commissioners are appointed, gives this : ' that all the archdeaconries of England and Wales be in the gift of the bishops of the respective dioceses in which they are situate.' * Rural deans are, as a rule, appointed by the bishops independently ; but in some instances there are other methods of appointment.^ In those of the above cases in which some third person has a right to appoint and in which the bishop must co-operate with this third person in filling the office, the bishop may not refuse institution or licence arbitrarily; but must have definite reasons, such as miscon- duct of the clerk, insufficient knowledge or the utterance of opinions not consonant with the doctrine of the church. The grounds of refusal are not only subject, in their full extent, to review by higher ecclesiastical courts (provincial court and judicial committee of the privy council), but are also subject, to a great extent, to examina- tion by the superior temporal courts.''' Besides his share in filling up the regular offices in his diocese, the bishop has to provide for the maintenance of divine service during the temporary or long-continued absence of the incumbent, or when the latter is otherwise prevented from holding it, or during vacancy. But even in cases of this latter kind, the nomination of a representative is left, as far as is feasible, to the regular occupant of the office, if available and capable of pronouncing an opinion ; the bishop's action is confined to the granting of a licence to officiate.* It is a disputable point how far, in respect of the diocesan (or consistory) courts, that process of development has been continued, whereby the archiepiscopal courts have become independent judicial bodies, pronouncing their decisions in the name of the archbishop who, however, does not personally take part in framing those decisions. The preponderating opinion is that, as a rule, the consistory courts have also become independent judicial bodies, which, the bishop himself excluded, are competent in all cases of contentious jurisdiction ; in various bishoprics, however, in the patent given to the official a different provision is made.^ "The judge (chancellor) is * Cf. § 37, notes 23, 24, 32. '" Cf. Pliillimore, Eccles. Law p. 240. " Cf. § 42, notes 16, 20. « Cf. § 43, near note 25. ' How far the temporal courts may review episcopal decisions is in some respects disputed. The leg:al forms have been developed in connexion with medieval struggles as to the competence of the temporal courts in suits of advowson. Cf. § 60, near notes 162 ff. * Compare § 45. " On this question see Phillimore, Eccl. Law 84, 1210, 1212 c ; cf., however, Gibson, Codex, Introduction 22. The development of clear principles has been hindered by the fact that the bishop's chancellor unites in his own person the offices of the independent § 36] RIGHTS AND DUTIES OF THE BISHOPS 297 an officer appointed by the bishop. In 3 & 4 Vict. (1840) c 86 ' An Act for better enforcing Church Discipline,' and 37 & 38 Vict. (1874) c 85 ' The Public "Worship Regulation Act,' for the forms of pro- cedure there allowed the personal decision of the bishop' (partly alone, partly -with assessors) is in the main required, and only in certain cases is the appointment of a commissary allowed. Subject to this restriction, the old consistory or bishop's court contin\ies with such competence as it before possessed. The ' Clergy Discipline Act,' 55 & 56 Vict. (1892) c 32 prescribes (partly in amendment of 3 & 4 Vict, c 86) that, in all proceedings before the ecclesiastical court against clerks for immorality, the chancellor (alone or calling in assessors) has to give judgment. The bishop has the right of summoning the diocesan synod of his diocese, and he presides therein. The calling together of the diocesan synods had fallen into disuse after the reformation period ; but in some cases they have been summoned in modern times.'" A bishop is generally '^ a member of the house of lords, always a member of the provincial convocation, as also a member of the national synod, should it again be summoned. Bishops are, as a rule, to be present in person at the place where their cathedral churches are situated, at least at the times of high official and of the dependent vicar-general. In 11 Gul. Ill it was decided that both archbishops and bishops might sit personally on the bench instead of their judges. Judgment of the Court of King's Bench, Fasch. 11 Gul. Ill in the case of Bishop of St. David's v. Lucy (motion for a prohibition granted in proceed- ings before the archbishop of Canterbury perisonaUy, to deprive the bishop of St. David's) : The archbishop hath a provincial power over all the bishops of his province, and may hold his court where he pleases ; and he may convene before him,self and sit judge himself ; and so m.ay any other bishop ; for the power of a chancellor or vicar general is only delegated in case of the bishop. (Salkeld, Reports of Cases adjudged in the Court of King^s Bench. 6th Ed. London, 1795, 1, 134.) In the Court of Audience (see § 63) the archbishops could, at all events, sit themselves in judgment. According to Phillimore 448 it is admissible in a jus patronatus (a suit to determine to whom the right of patronage of a church belongs) for the bishop to sit in person as judge. Cf. Stubbs, Hist. App. I, p. 46, No. 3 to Report of Ecclesiastical Courts Commission, 1883, and the report itself, II, 698, note. According to the statements there made, even at the present day, in fifteen bishoprics the right is reserved to the bishop to pronounce judg- ment in person upon certain cases or, generally, to exercise in person the powers entrusted to the official. This reservation is made in the letters patent granted to the official. It is probably occasioned by the rule in the canons of 1640 (validity doubtful ; cf. § 7, note 32) c 11 : . . . that hereafter no bishop .s-hall grant any patent to any chancellor, commissary, or official, for any longer term than the life of the grantee only, nor otherwise than with express reserva- tion to himself and his successors, qf the power to execute the said place, either alone, or with the chancellor, if the bishop shall please to do the same, . . . Appeals from the court of the dean of Guernsey and Jersey (a sort of rural dean ; cf. Dansey, Horae Decanicae I, 195, note 1) are to the ecclesiastical superior, the bishop of Winchester, personally ; if his see is vacant, to the arch- bishop of Canterbury, personally. Phillimore 1202 s. 24 Hen. VIII c 12 s 3 enacted that if a suit was begun before the archdeacon or commissary of an archbishop, appeal lay to the Court of Arches or of Audience of the same province and from it to the archbishop. " Cf. § 57. " Cf. § 21, near notes 50 ff. 298 CHAPTERS [V, 4 festivals, and to hold there divine service on the chief holy days.'* To their ofl&cial duties belong also confirming, ordaining, and con- secrating churches and burial grounds^. §37. 4. CHAPTERS.'' rEOM the very outset of the conversion there gathered at episcopal' seats societies of ecclesiastics who lived together in community with their bishop. These societies assumed in some places a monastic form ; ^ at others monks and secular clergy consorted without any strict division between them. With the middle of the eighth century monks and secular clergy began to be more sharply distinguished.^ About the same time a decay of the monastic system set in. Numerous monasteries were destroyed in the course of the wars with the Northmen during th^ ninth century. When they were refounded, secular clergy fre- quently stepped into the places of the former monks. Thus in the beginning of the tenth century, at all or almost all episcopal seats' there were associations of secular clergy. On the continent the endeavour had made itself felt, also from the middle of the eighth century, to give the clergy at the .episcopal seat a constitution resembling monastic forms. The model for such constitutions was, on the continent, the rule established by arch- bishop Chrodegang of Metz about the year 760. He prescribed that the canons should live together ; but allowed them to retain their private property.''' In England, so far as is known, neither this nor any similar rule found, in the first instance, admission. In the tenth century the monasteries, in consequence of internal reforms, entered on a new career of progress. In connexion there- with attempts were made in England to compel the clergy at the episcopal seats to live more regular lives. But in the majority of cases such attempts took the line of enforcing, not (as in the century before on the continent) a rule for secular canons, but, more than '= Council of Oxford, 1222 (Wilkins, Cone. I, 585) c 1 ; const, of Otho, 1237 {I.e. I, G49) c 22; const. Othobon, 1268 [I.e. II, 1) c 21. ' So Gregory prescribed for Canterbury. (In his instruction in answer to Augustine's first question, 601 ; printed § 44, note 6.) A monastic constitution also arose when the monastery of the place was the older foundation and an, episcopal seat established subsequently. Stubbs, I.e. \ Cf. § 3, note 6. ' Cf.-. Hinschius, Kirchenfecht II, 52 ff. The canons who adopted the rule of Chrodegang remained canoniei saeeulares. ' E. W. Benson, The Uel(>,Unn. nf the Chapter tg the Bisliop.' J). A. Freeraan, The Cathedral Churches af the. 01^ foundation. ■■ BotU in. Essays on. Cathedrals, ei. J. S. Howson, London, 1872. — Reports of the Uoyal Cathedral Commission in Paaiiamentary Papers, 18oi, vol. XXV, 1854-5, vol. XV.— Phillimore, Ecclesiastical Law 147 ff.— For tbe Anglo-Saxon period : Stubbs, Introduction to Epistolae Cantuarieyises (Rer. Brit. ^cr. No. 38, vol. II). ; - . • " § 37] CHAPTERS 299 that, a completely monastic rlile. Bishops Aethelwold of "Win- chester and Oswald of Winchester in particular, supported probably by archbishop Dunstan of Canterbury,* whose policy in genera! favoured the monks, proceeded vigorously against the canons at their episcopal seats, and substituted monks for them.^ In the bishopric of Sherborn (afterwards Old Sarum, Salisbury) the chapter had also, even before the conquest, been transformed into a monastic one. At the time of the conquest the societies of Canterbury and Durham were of a mixed character." Shortly after the same event, •• Cf. Perry, Hist, of Engl. Church I, 110, note 3. ' On the oon.tinent the tendency to do away with private property of canons first became effectual in the middle of the eleventh century. The prohibition_ against holding private property drew the chief distinction between canonici_ regulares (and the monks, wlio differed but little from them) and canonici saeculares. Hinscbius, Kirchenrecht II, 57. , ° According to Stvibbs, I.e. p. xxiii, at the time of the conquest the canons at York, London, Hereford, Selsey, Wells, Exeter, Rochester, Lichfield, Dor-. Chester, Thetford (from 1078 substituted for Elmham) were secular ; whilst Winchester, Worcester and Sherborne were monastic. On the circumstances of Canterbury and Durham see Stubbs as quoted. According to Stubbs, Introduction to the chronicle De Inventione Sanctae Grucis etc. p. vi, it is doubtful whether even at the cathedrals, which were designated monastic, secular canons were, before the conquest, completely excluded. A definite conclusion is rendered more difficult owing to the fact that in these earlier times the terms afterwards used exclusively to denote an office in the monastic convent are often interchanged with those which afterwards imply only an office in a secular chapter. . The earliest mention of canons in England, in the sense of i^riests living in; common without monastic vows, is found in council of Celchyth, 787 c 4; (printed in § 3, note 6). Haddan and Stubbs, Counc. Ill, 461, note i.—' Canons are also mentioned in the laws of Aethelred V, 7 (ordin. of 1008), VI, 2, 4 (' council of Etisham' 1006-11, perhaps, only another version of the ordin. ofi 1008) and Knut (1016-35) I, 6 pr.— In earlier times the secular clergy of the cathedral churches were generally called clerici. The heads of the secular chapters are called in the older period sometimes 'provost ipraepositus),^ sometimes 'prior,' in some cases probably 'abbot. Stubbs, Memorials of Dunstan (lier. Brit. Scr. No. 63) p. xvi. On secular abbots see Stubbs, Introduction to De Invetitione etc. p. v, note 4. York had an abbot in the ninth century. According to Stubbs, 7.C. the first known mentiori of ' prior ' in England dates from the year 821. According to Haddan and Stubbs, Counc. Ill, 601, the title ' prior ' occurs for the first time in a_ contem- porary English document in the report of the council of Clovesho, 825. From earlier times we find adduced in Dugdale's Monasticon Ed. 1817 ff. I, 267, seven alleged priors of Westminster (616-785), and III, 306 an alleged prior of Tinmouth. (Beginning of eighth century, Beda, Hist. Eccles. Book V c 6 : ... monasterio . . . dbbatis jure praee.it.)— On the mention of the archdeacon and of the provost at the head of secular chapters see § 42, note 1. The office of the 'dean' as superintendent of the secular chapter is flrsb mentioned in England in the eleventh century. Deans as monastic officers are found somewhat earlier. For the earliest mentions see Stubb«, Memorials of Dunstan (lier. Brit. Scr. No. 63) p. xv, notes 2, 3 ; add also the mentions m Liebermahn, Anglonormannische Geschichtsquellen pp. 3, 64, and Crispmus^ Vita Herluini (Migne, Patrologiae Cur.ius vol. 150, p. 707 A). Cf. also Haddan and Stubbs,, Counc. 111,611, not&cf, where it is held that the statement of Grervasius that Ceolnoth before his consecration as archbishop of Canterbury (cird. 832) was dean of the church of Canterbury, possibly rests on a confusion of Ceolnoth with Aethelnoth (archbishop of Canterbury 1020-38). According to 300 CHAPTERS [V, 4 endeavours to introduce monks into the chapters received fresh impulse through Lanfranc's reformation of his cathedral. In the course of the eleventh and twelfth centuries, arnid constant struggles, monks took the place of canons at a considerable number of epis- copal seats besides those where monachism had already been established ; but in some places the system was not maintained. The rule of Chrodegang, and similar rules for secular canons, were during the eleventh century introduced at some few cathedral centres ; but held their ground there only for a short time.'' Even without any connexion with episcopal seats there were colleges of secular canons at several places.''" Chapters of regular canons did not exist in England until the opening of the twelfth century. From that time bodies of regular canons began to be founded here, as abroad ; of the chapters at episcopal seats only a single one re- ceived such a constitution.^ Towards the end of the twelfth century the process of develop- ment, in so far as episcopal seats were concerned, had come to a standstill : about half the episcopal chapters of England were monastic ; about half consisted of secular canons; one was composed of regular canons. This distribution lasted until the reformation.* The form of constitution by which there was at the episcopal seat a monastic convent, whose members exercised all the rights of secular chapters {ecclesia conventualis ^°), was in the later middle ages confined almost exclusively to England and occurred extremely Stubbs, Const. Hist. I, 254, note 5 c 8 § 87, the deans of this earlier time were perhaps the executors of the spiritual authority of exempt monasteries, just as the archdeacons executed the sentence of the bishops. The monastic convents of Worcester and Evesham and the outvpardly monastic convent of Canterbury had ' deans ' iintil th3 conquest. Stubbs, Introduction to Da Inventione etc. p. v, note 4. ' Cf. Stubbs, Introduct. to Eplst. Cant. p. xvii and lutroduct. to De In- ventione etc. pp. X, xi. '" For a list of canonical foundations and Benedictine foundations in England at the time of the conquest sse C. H. Pearson, Historical Maps 2nd Ed. London, 1870, p. 69. * According to Stubbs in his edition of Mosheim, Institutes of Eccles. Hist;, translated by Murdock and Soames, London, 1363, II, 48, note, the oldest house of regular canons in England was that of St. Julian and St. Botolt, Colchester, founded about 1105 ; among the oldest wefe to be reckoned also Holy Trinity, London, built and endowed 1107, Merton, 1117. — The only episcopal seat at which regular canons (Austin) were introduced was Carlisle, founded 1133. They remained until the reformation. " At tlie beginning of the reformation there were monastic convents at Canterbury, Durham, Ely, Norwich, Eochester, Winchester, Worcester; chapters of secular canons at Chichester, Exeter, Hereford, Lincoln, London, Salisbury, York ; a chapter of regular canons at Carlisle; In the two sees formed by combinations, viz. Lichfield and Coventry, and Bath aud_ Wells, chapters of secular canons and monastic convents existed side by side, the former being found at Lichfield and Well.'!, the latter at Coventry and Bath. " Cf. however, Nicollis, Praxis Canonica. Salzburg, 1729, I, 854, after Lam- bertinus, de Jure patronatus. In the legal phraseology of the middle ages ecclesia conventualis is frequently used as equivalent to collegiata, not in the common, restricted meaning of Ecclesia Religiosorum Conventualium, id est Fratrum de non observantia. § 37] CHAPTERS 301 seldom in other states.'^ The bishop had as regards the convent the position of an abbot. Und'er him, at the head of the convent stood a prior. 1^ In almost all secular chapters, from the eleventh and twelfth centuries onward the dean became the head.^^ The office of provost (praepositus) survived only in isolated cases, apparently solely in some non-episcopal chapters and colleges (Kollegien). The members of the chapter (' canons ' or ' prebendaries ') resolved themselves by degrees into residentiary and non-residentiary. Some of the canons received special offices in the chapter, and official titles ; ^* frequently the duties of the office dwindled to nothing, and only the title remained. The dean was also a member of the chapter.^^ The arrangements were not uniform in the several chapters. The property of the bishop and of the episcopal chapter or con- vent originally formed a common stock. Gradually a separation in this respect took place at the various episcopal seats, and the chapter or convent was allowed the independent management of its share of the property ; ''^ the consent of the bishop, however, continued to be requisite for the more important dealings therewith. '' Stubbs, Introduction to Epist. Cant. I.e., gives the following as an example : When the abbey of Monreale in Sicily was raised to an archiepiscopal see, Lucius III (1181-85) ordered that the monastic constitution should be main- tained. Cf. Ordericus Vitalis (Ed. of Le Prevost) II, 201 Book IV c 6: Augus- tinus enim ei Laurentius, aliique x>ri7ni praedicatores Anglorum monachi fuerimt, et in episcopiis suis vice canonicoruin (quod vix in aliis terris invenitur) monachos pie constituerunt. Similarly Eobert de Torigni {Her. Brit. Scr. No. 82) lY, 168. ^^ On earlier times see above, note 6. " On earlier times see above, note 6. " The chief titles which occur are sub-dean, precentor (succen tor), chancellor, vicechancellor, treasurer, provost, warden. '* Thus the expression often used in English acts of parliament, ' dean and chapter,' is inaccurate. '° According to Stubbs, Introduct. to Epist. Cantuar. in Canterbury, arch- bishop Lanfranc (1070-89) had either introduced or confirmed the separation ; in Domesday the two properties are put separately ; archbi.shop Anselm (1093-1109) gave the convent the right of managing its share of the property independently. Of. Bracton {circ. 1230-57) Book V, tract. 5 c 32 § 8 {Eer. Brit. Scr. No. 70 ; VI, 494) : . . . , cum canonicus adeo libere teneat praebendaTn suam de ecclesia sicut ipse episcopus haroniam suam,, et canonici sunt quasi unum, corpus per se in ecclesia ; et quamvis episcopus sit caput ecclesiae, tamen canonici habent sua bona a bonis episcopi separata, . . . Const. Otho, 1237 (Wilkins, Cone. 1, 649) c 28 : . . . sigillum habeant . . . archiepiscopi . . . episcopi . . . abbates, priores . . . necnon ecclesiarum cathe- dralium capitula, et caetera quoque collegia, et conventus simul cum suis rectoribus, aut divisim, juxta eorum consuetudinem vel statutum,. 35 Ed. I (1306/7), Statututfi CarlioU c 4: The monastic seal had hitherto been, in case of the Cistercians, praemonstratensians and other monks, in the custody of the abbot, not of the convent . . . decetero habeant sigillum commune, et illud in custodia Prioris Monasterii sive domus et quatuor de dignioribus et dis- crecioribus ejusdem loci Conventus, sub privato sigillo Abbatis ipsius loci custodiendum deponant ; ita quod Abbas, seu Superior domus cut praeest, per se contractum, aliquein, seu obligacionem nullatenus possit firmare, sicut hacienus facere consuevit ... According to Eichter, KirchenrecJit § 311 , the separation of properl:y had been effected on the continent in many cases as early as the tenth century. 302 CHAPTERS . [V, 4 The ctapter was at the bishop's side tp counsel him ; fqr certain •weigMy acts of administration he fteeded the chapter's approval. This was, in particular, the case when he made dispositions of the property of the see which were to be binding on his successor." During vacancy of the see, to the convent ot chapter belonged the care of the spiritualities. Yet this right was lost in almost all English bishoprics, and passed into the hands of the archbishop.^* The chapter and the convent had a right of assisting in the election of the new bishop. This right was frequently exercised, even in the Anglo-Saxon period; in the twelfth and thirteenth centuries it obtained more decided recognition from the sovereign ; but was subsequently much curtailed by the interference of kings and popss, until with the reformation the co-operation of the chapter in. such election became merely nominal. The reformation brought about a change in the constitution of what had hitherto been conventual churches. Upon the dissolution of the monasteries (beginning in 1536) the convents at the episcopal seats were also abolished. By 31 Hen. VIII (1639) c 9 the king was empowered to found new bishoprics and cathedrals and to endow them from the confiscated property of the monasteries.^* Accordingly Henry created six new sees ^^ with secular chapters, as Avell as a number of secular collegiate churches, and in the eight bishoprics, which had until then had convents of monks or regular canons, he substituted secular chapters.^^ In the united sees of " The regulations of canon law here pertinent are collected in Eichter, Kirchenrecht % 135, notes 7, 8. Cf. also Phillimore, Eccles. Law 1195. Bracton (Eer. Brit. Ser. No. 70) I, 94 : Item sunt nonnulli qui dare non possunt sine ■consensu alioruon, nee valet illorum donatio per se, ut si archiepiscopi dona- tionem facerent, episcopi, abbates vel priores ecclesiarum, quae sunt de advoca- tione domini regis, nee dare possunt sine assensu capituli sui, net ipsum <:apitulum sine consensu regis vel alterius patroni, quia omnium illorum consensus, quos res tangit, erit necessarius et requirendus. V, 42 : Si procic- rotor sicut celerarius vel alius, abbas vel prior sine assensu capituli, vel epis- copus, vel capitulum,, sine consensu capituli, episcopi vel alius ciijus assensus fuerit necessarius, dimiserit sine assensu, . . . Similarly V, 4, 56 ; VI, 378 392. "'Cf.'§41, nearnotelO. " 31 Hen. VHI (1589) c 9 An Actefor the King to make Bisshopps. It is re- •quisite to found more Bisshopriches, Collegiat and Gathedrall Churches in place of the monastic houses. King Henry is accordingly empowered, by royal letters patent or other writing under the great seal from time to time to de- ■clare and nominate . . . .mch nomber of Bisshoppes, such nomber of Citties, Seez for Bisshoppes,Cathedr all Churches and Dioceses . . . as may seem to him suitable, to endow them according to his pleasure, and, certain forms observed, to make statutes in regard to them. ^° Cf. § 33, note 35. " All letters patent of Henry VIII, issued after 4th Feb. 27 flere. F/Z/and touching the foundation or endowment of chapters and colleges, are, despite of any defects of form, conQrmed and declared valid by 35 Elis. (1592/3) c 3 s 2. Cf. also Phillimore, Eccles. Law 156. On the question of the validity of the statutes for chapters issued under Henry VIII see Phillimore, Eccles. Law 174-194: The statutes were given, without the form prescribed in 31 Hen. VHI c 9 being observed, to the several chapters through commissaries appointed by Henry. 1 Mar. st. 3 (1554) c 9 § 37] CHAPTERS 303 Lichfield and Coventry, and in the united sees' of Bath and Wells, special acts declared that the convents in Bath and Coventry liaving been abolished, the chapters at Lichfield and Wells were the sole chapters for the bishoprics in question.^^ , The chapters not affected by these transformations still retained their former constitution and were henceforth grou.ped as ' chapters of old foundation,' and so contrasted with the 'chapters of new foundation,' that is, those established in or after Henry's time either in place of episcopal convents or as entirely new creations. , The essential difference between chapters of new foundation and those of old was that in the former the only offices created were for canons residentiary. Furthermore, the several charters of founda- tion for the new chapters laid down that the appointment of the dean should rest with the king ; ^^ in those of old foundation the An Acte touching Ordinances and liules in Catliedrall Churclies and Scooles mentions that these statutes are null owing to defect in form, and extends the power to issue new statutes and amend earlier ones to queen Mary for her life- time. She apparently only availed herself of this power in respect to Durham, ■confirming the statutes of Henry's commissaries but abolishing the supremacy oath prescribed therein. 81 Hen. VIII c 9 was afterwards entirely repealed by 1 & 2 Phil. & Mar. (1654 and 1554/5) c 8 s 4. Elizabeth by 1 Eliz. (1558/9) c 22 An Acte xohereby the Queenes Highnes.'s maye make Ordinaunces and Sides in ■Churches Collegiate Corporaciouns and Scooles received for her lifetime powers analogous to those of her predecessor. In spite of various essays to get rid of "the uncertainties of the position, Elizabeth, in the end, made no use of this Tight. Charles I and Charles II issued statutes on their own authority without any special legislative warrant. In consequence of disputes as to the validity )of the statutes of Henry VIII, 6 Ann. (1707) c 75 was passed, which gave the queen for her lifetime right of altering and amending those statutes, and laid down that those statutes of Henry VIII which had been observed since the restoration of Charles ll, ' whereof the Deans and Prebendaries and other Ministers of the said Churches from the said Time have used to he sworn at their Instalments and Admissions,' should he valid if not contrary to the then constitution of the church and the laws of the land. Accoi'ding to the prevail- ing opinion, observance since the restoration requires to be proved under this act only in respect of the statute as a whole, not in respect of some single, pos- .sibly disputed, provision. ^' 33 Hen. F/// (1541/2) c 30 ^ Bill for the confirmacion of thauctorite of the Dean and Chaptre of Lychefield in maicyng Leasses and other grauntes: Hitherto there has been necessary for the united sees of Lichfield and Coventry in the making of leases etc. the assent of the convent of Coventry and of the chapter of Lichfield. The former is now abolished. Assent of the latter only shall be effectual. 34 & 35 Hen. VIII (1542/8) c 15 An Acte touching the Deane and Chaptre of Welles to be oone sole Chapitre of it self: Hitherto the chapter of Wells and the convent of a monastery in Bath have been the common chapter of the bishopric of Bath and Wells. The convent of Bath having been abol- ished, the chapter of Wells is to be the sole chapter. °^ Compare e.g. the charters of foundation for Carlisle and Gloucester, printed in Phillimore, JEccles. Lauj 175, 180, for Ely and Chester, printed in the First Report of the Cathedral Commission, appendix pp. 59, 78 I.e. 1864 vol. XXV : . . . Salvis nobis, haeredibus et successoribus nostris, titido, jure, et aucto- ritate, decanum, prebendarios, et omnes pauperes, ex liberalitate nostra ibidem viventes, de tempore in tempus nominandi, assignandi et praeficiendi, . . . According to Gibson, Codex 2nd Ed. p. 173, the appointment is made at Canterbury, Winchester, Carlisle, Peterborough, Bristol and probably also in the other chapters of the new foundation by letters patsnt. The bishop then institutes and gives his mandate ioi instalment to the chapter.— Whether the 304 CHAPTERS [V, 4 dean was elected by the chapter upon the king's conge d'eslire, subject to the royal assent and the confirmation of the bishop.^* During the first revolution, by an ordinance of the rump parlia- ment, dated 30th of April, 1649, all chapters and the offices and titles connected therewith were abolished and the property belong- ing to them confiscated.^* At the restoration, the old constitution of the chapters was revived, and the conveyances etc. by which their property had in the interim been disposed of were not recog- nized as valid. ^^ The movement in favour of reform in the nineteenth century (1830-40) brought with it far-reaching changes in regard to the chapters and their estates. The fundamental regulations were set forth in 3 & 4 Vict. (1840) c 113 ; ^^ later, supplementary enactments are found on the statute book. Owing to these legislative measures a large number of residentiary canonries were suspended ; in some of the particularly small chap- ters new canonries were created ; the number of canons residentiary in each chapter was fixed at from six to four ; ^^ some of the canon- ries retained were attached to archdeaconries, a few others to university professorships or rectories ; the refoundation of those suspended,^^ and, at a later date, the transformation of non-residen- oanonries are to bs regarded as donative, or as to be tilled by presentation de- pends in manj'- cases on the validity of the statutes, which in opposition to the charter of foundation, prescribe the latter procedure. Cf. Phillimore, I.e. 186, 187. " Gibson, Codex 2nd Ed. p. 173. '^^ Ordinance of 30th April, 1649 : For the abolishing of Deans, Deans and Chapters, Canons, Prebends and other Offices and Titles of or belonging to any- Cathedral or Collegiate Church or Chappel within England and Wales. As a loan must be issued and the available securities are insufficient, parliament is compelled to sell the possessions of the ' deans and chapters.' That from and after the 2%^^ day of March 1649, the Name, Title, Dignity, Function and Office of Dean, Subdean, Dean and Chapter, Archdeacon, Prior, Chancellor, Chanter, Subchanter, Treasurer, Subtreasurer, Succenter, Sacrist, Prebend, Canon, Canon Besident, or Canon Non-Besident, Petty-Canon, Vicar Choral, Choristers, Old Vicars and New ; and all other Titles and Offices of and belonging to any Cathedral or Collegiate Church or Chappel in England and Wales, Town of Ber- wick upon Tweed, and Isles of Guernsey and Jersey, shall be, and are by the Authority aforesaid, wholly abolished and taken away. In future no person is to be appointed to such offices. The estates are to be invested in certain per- sons as trustees. The ordinance is not applicable to colleges etc. in the univer- sities. Full directions follow for the administration and sale of the property. 2" 12 Car. n (1660) c 11 s 48 (printed in § 7, note 65). ^' An Act to carry into effect with certain Modifications, the Fourth Beport (24th June, 1836) of the Commissioners of Ecclesiastical Duties and Bevenues. ^^ 3&4: Vict. 113 ss 2-19 : In Canterbury, Durham, Ely, Westminster there are to be 6 residentiary canonries, in Winchester and Exeter 5, in all the other episcopal chapters of England proper (excluding Oxford, to which the act does not apply), as also in the collegiate church of Manchester (the creation of the- bishopric was already in contemplation) and in St. George's, Windsor, 4, in St. David's and Llandaff, 2. 6 & 7 Vict, c 77 (relating to Wales) fixes the num- ber for St. David's, Landaff, St. Asaph and Bangor at four. — According to 3 & 4 Vict, c 118 s 3 every dean shall be in residence for at least eight months in the year, every canon for at least three months. 2" 3 & 4 Vict, o 113 s 20. § 37] CHAPTERS 305 tiary into residentiary canonries were under certain conditions allowed, as also was the foundation of entirely new canonries.^" The patronage in respect of canonries already in existence remained in general untouched ; but in isolated cases it was conferred on the king, in others on the bishop.^^ To the king was given the patron- age in regard to the deanery of every cathedral and collegiate church upon the old foundation.^^ It was laid down that no person shall be appointed dean, archdeacon or canon until he has been six years complete in priest's orders, except in the case of a canonry annexed to any professorship, headship or other office in any university .^^ Non-residentiary canons of the chapters of old foundation lost all right to any endowment or emolument before attaching to their office.'* But they did not on that account cease to be members of the chapter, and remained entitled to exercise all other rights which had previously belonged to them.'^ In connexion with the chapters of new foundation, in which there were no non-residentiary pre- bends,^'' twenty-four honorary canonries were founded ; the title of honorary canon is conferred by the bishop on meritorious clergymen and gives no right to any emolument or to membership of the chapter.^''' A chapter is restricted in the exercise of its patronage to spiritual persons who have held office in the diocese, or been public tutors in the universities of Oxford or Cambridge.^* The members of a chap- ter, as such,'' are to derive their income from the interest assigned to them in a general estate.*" The property which attached to the ^ 36 & 37 Vict. (1878) c 39 Cathedral Acts Amendment Act. «' 3 & 4 Vict, c lis ss 17, 25, 26, 41. '^ 3 & 4 Vict, o 113 s 24. «' 3 & 4 Vict, c 113 s 27. ^* 3 & 4 Vict, c 113 s 22. "^ Phillimore, Eccles. Law 222 (in Hereford the close chapter includes only the residentiary, the general chapter all canons), 231, note q. — According to Perry, Hist, of Engl. Ch. Ill, 350, note 1 c 19 § 8, as a rule no difference is known in chapters of old foundation hetween the close and the general chapter. '' 4 & 5 Vict, c 39 s 2 declares, for the removal of douhts, that honorary canonries are and shall be founded in the cathedral churches of Canterbury, Bristol, Carlisle, Chester, Durham, Ely, Gloucester, Norwich, Oxford, Peter- borough, Ripon, Rochester, Winchester and Worcester and in the collegiate church of Manchester; of which Ripon arid Manchester were founded by Henry VIII as collegiate churches ; Bristol, Chester, Gloucester, Oxford, Peter- borough were his five new sees; the other eight the earlier conventual churches. 37 3 & 4 Vict, c 113 s 23. Cf. also 4 & 5 Vict, c 39 s 3, 13 & 14 Vict, c 98 s 11. — The cathedral commission of 1854-6 proposed the formation of a wider chap- ter embracing the honorary canons and the archdeacons. The proposal did not become law. However, for the newly founded bishopric of Truro there is established by 50 Vict. st. 2 (1887) 12 Truro Bishopric and Chapter Acts Am,endment Act a ' general chapter,' which consists of the dean, the regular and the honorary canons. '" For the exact field of choice see 3 & 4 Vict, c 113 s 44; in Durham it is wider. '^ A canonry may, however, be combined with another office. ^° 3 & 4 Vict. 113 s 28. A small portion of land within the precincts of a cathedral, or collegiate church or near a residentiary house may be reserved to such church, or permanently annexed to such residentiary house. H.C. X 306 CHAPTERS [V, 4 suspended and non-residentiary canonries, as also the separate estates appropriated to particular deaneries or canonries — in all cases exclusive of the rights of presentation and nomination — was, with some exceptions, transferred to the ecclesiastical commis- sioners,*' to be subsequently applied to improving parochial cures of souls.*^ The incomes of some particularly largely endowed deaneries and canonries were reduced to augment similar, poorly endowed offices.*^ In the recently founded sees the chapters have received — apart from temporary provisions — the same constitution as the chapters of new foundation have under the various reforming enactments.** Besides the members of the chapter, there are at the chapter churches a number of the clergy*^ who, in subordinate positions, assist in celebrating divine worship. They are grouped together under the name of ' minor canons ' ; some of them have often special titles.*^ Their position also has been newly regulated by 3 & 4 Vict, c 113, and supplementary acts. Thus there are to be at most six, at least two, minor canons at every chapter church ; all are to be appointed by the chapter,*''' but any right enjoyed by . a dean of appointing a minor canon is reserved to him.** Eegulations for fixing the number and emoluments of the minor canons in each cathedral or collegiate church are to be made by orders in council framed in pursuit of the Schemes of the ecclesiastical commis- sioners.*' Later acts have left it open for the chapters and the corporations of minor canons to transfer their estates to the ecclesiastical com- missioners, so that the income therefrom arising may be otherwise regulated.*" " 3 & 4 Vict, c 113 ss 49-51. ^•■^ 3 & 4 Vict, c 113 ss 67, 90. "^ 3&4 Vict.c 113 s 66: The chapters of Westminster, Durham, London, Manchester shall pay over yearly to the ecclesiastical commissioners such sums as shall leave to the dean of Durham an average income of £3000, to the three other deans £2000, and to the canons £1000. The money so paid over is to be applied to giving to the dean of every cathedral and collegiate church in Eng- land an income of £1000, to the deans of St. David's and Llandaff £700 each, to the canons of every cathedral church in England £B00 each, to the canons of St. David's and Llandaff £350 each, and to enabling the chapters of Chester and Ripon to provide for the performance of the duties of their churches and the maiutenance of the fabrics thereof. ** Cf. the acts cited in § 33, note 39. In Truro the bishop occupies the posi- tion of the dean, until a dean is appointed. " Cf. 4 & 5 Vict, c 39 s 15 : in the construction of the same act (3 & 4 Vict: o 113) and of this act, the term ' minor canon ' shall not be construed to extend to or include any other than a spiritual person. " Frequently ^ minor'' or ^ petty ^ canons, in the narrower sense, are distin- guished from vicars choral. According to 3 & 4 Vict, c llS's 93 the term minor canon used therein is to include every ' Vicar, Vicar ChoraL Priest Vicar, Senior Vicar, being a Member of the Choir in any Cathedral or Collegiate Church.' — On the canonici juniores in continental chapters see Eichter, KirchenrecM § 311. " 3 & 4 Vict, c 118 s 45. *« 4 & 5 Viet, o 39 s 15. « 3 & 4 Vict, c 113 s 46. " Cf. § 32, note 14, §38] ASSISTANTS EXERCISING GOVERNING POWERS 307 5. REPRESENTATIVES AND ASSISTANTS OF THE ARCHBISHOPS AND BISHOPS. §38. A. ASSISTANTS IN THE EXERCISE OF GOVERNING POWERS.* In the earlier part of the Anglo-Saxon period the bishop commonly had with him a deacon as his subordinate assistant.' From the beginning of the ninth century, when the number of the ecclesi- astics to be superintended had considerably increased, an archdeacon is sometimes named as the assistant of the bishop in the work of supervision.^ Towards the end of the Anglo-Saxon period there was, as a rule, one archdeacon appointed in every diocese. Simultane- ously, however, the archdeacons began to claim, as their own, rights which they had "hitherto only exercised under authority from their respective bishops. In this way the archdeacon gradually ceased to be a dependent assistant of the bishop and became an independent official. This development was favoured by the circumstance that towards the end of the eleventh and in the course of the twelfth century, in many bishoprics several archdeacons were appointed and separate districts assigned to each. The place which the archdeacon had previously filled was now occupied by officers with new names : the vicar- general, to represent or assist the bishop in matters of ad- ministration proper ; the official, t» represent or assist the bishop in his position as judge of the episcopal court and in other aftairs wherein special legal knowledge was required.^ The two offices were not always sharply marked off. Moreover, instances some- ' Stubbs, Const. Hist. I, 245 c 8 § 85 : The deacon ' acted as his (the bishop's) secretary and companion in travel, and occasionally as interpreter.' ^ Cf. § 42, note 1. ' On the powers of these two officials see Decretals of Boniface VIII (Lfb. Sextus) I, tit. 13 c 2: Licet in offlcialem episcopi, per commissionem, officii, generaliter sibi factam, causarum cognitio transferatur, potestatem tamen in- quirendi, corrigendi aut puniendi aliquorum excessus, seu aliquos a suis beneficiis, officiis veL administrationibus amovendi transferri nolumus in eun- dem,, nisi sibi specialiter haec comTnittantur. c 3 : . . . officialis aut vicarius generalis episcopi beneficia conferre non possunt, nisi beneflciorum collatio ipsis specialiter sit commissa. — John of Actona 24 cites the rule laid down in c ' 2 above, and adds : Vicarius tamen generalis Episcopi haec ornnia facere potest, exceptis Beneficiorum Collationibus. Cf. also Lyndwood Bk. II tit. 4 p. 106. The official was originally only an assistant of the bishop appointing him ; thus his office ceased upon the death or translation of the bishop. The present custom of appointing the official by patent from the bishop with confirmation by the chapter, whereby appointment is for the lifetime of the official, probably began in the seventeenth century. Stubbs, Hist. Appendix to Report of Ecdes. Courts Commission, 1883, I, p. 26. ' A collection of the forms of the letters patent which in the nineteenth century were given to the officials in the several archbishoprics and bishoprics of England, will he found in the Report of the HcclesiasUcal Cov/rts Commission, 1883, II, 659 ff. Farliamenlary Reports vol. XXIV. 308 REPRESENTATIVES AND ASSISTANTS [V, Ba times occur of the existence of several vicar-generals or several officials in the same diocese at the same time.* In both the archiepiscopal sees of England, so far as is manifest, the offices of vicar-general and of judge of the archiepiscopal court ■were sometimes separate and sometimes united. The offices of the supreme judges of ecclesiastical courts in Canterbury and York were in 1874 fused ; and in this way an independent court, the pro- vincial court, was constituted.* The archiepiscopal viear-general [vicar-general's court] has to manage current ecclesiastical business and to grant marriage licences ; as a matter of custom he is also, as well as the judge of the archiepiscopal court, appointed head official of the archbishop within the province (in Canterbury also in respect of the exempt districts) ; but exercises as head official hardly any rights ; lastly, also as a matter of custom, in Canter- bury he is commissioned once for all by the archbishop, to conduct the procedure, in form retained, upon the ground of which the archiepiscopal confirmation of bishops' elections is pronounced [Con- firmation Court].^ In all the non- archiepiscopal sees of England the offices of vicar- general and official have for centuries customarily and with few exceptions been bestowed on the same person, who then is by usage designated the ' bishop's chancellor.' '' * Under William I EI it was the old usage in Llandaff to grant the office of vicar-general to two persons, to hold jointly and severally. Phillimore 1194. In the bishopric of Sodor and Man until recently two vicar-generals were appointed who jointly or singly disposed of the judicial business in all the ecclesiastical courts of the diocese. Now only one vioar-general is appointed. Report of Eccl. Courts ComTnission, 1883, II, 692. ' The documents relatmg to the appointment of the first judge of this court are printed in the Report of Eccles. Courts Com. 1883, II, 663 f. Nos. 7, 8. The archbishops appointed in virtue of the ' Worship Regulation Act and in exer- cise of any other power enabling us in this behalf.' See the Report p. 664-, No.'. 10, 11 for the patent (not necessary), which the archbishop of Canterbury gave to the same judge, when the offices of Dean of the Arches and Master of the Faculties were by a former statute abolished and their powers vested in the judge of the provincial court. ° The patent of the vicar-general of Canterbury, 1872, and of the vicar-general of York, 1877, are in Report II, pp. 666, 667. The office managed by the vicar-; general of the archbishop of Canterbui-y is called ' Vicar-G-eneral's Office for Granting Marriage Licences, and Court of Peculiars.' The court of peculiars is the court for districts exempt from episcopal jurisdiction. ' Gibson, Codex, Introduction p. 22. Phillimore, Eccles. Law 1203, 1208. — The term 'chancellor' is also used in .some acts of parliament. Some of these are cited in Phillimore, I.e. 1207, note 1.— Different from the bishop's chancellor is the cathedral chancellor, the latter being the designation of one of the canons in chapters of the old foundation. (Cf. § 37, note 14.) §39] POWER TO CONFIRM, ORDAIN AND CONSECRATE 309 §39. B. ASSISTANTS IN THE EXERCISE OF POWEE TO CONFIEM, ORDAIN AND CONSECRATE." Certain rights of confirming, ordaining and consecrating being reserved for those in bishop's orders, the diocesan bishop could not be adequately represented, when prevented from discharging his duties, by those in lower orders ; representation by those of episcopal rank was then necessary. The diflficulty was met in various ways at different times. In France in the eighth and towards the middle of the ninth cen- tury the purpose was served by what were called chorepiscopi} But, so far as is known, such bishops were not found in England proper, or were, at most, of exceptional occurrence.^ ' Against these chorepiscopi there are resolutions of the eastern councils dating from as early as the fourth century. The institution became extinct in France about the middle of the ninth century, in Germany in the tenth. Richter, Kirchenrecht § 139. " On the chorepiscopi in the church of St. Martin at Canterbury to the time of Lanfranc (lOTO-Sg) cf. :— Gervasius, Actus Pontificum {Iter. Brit. Scr. No. 73) II, 361 : Habd)at etiam quondam Cantuariensis archiepiscopus corepiscopum quendam qui in ecdesia Sancti Martini extra Cantuariam manebat ; qui adveniente Lanfranco deletus est, sicut ubique terrarum factum esse audivim.us. Fragmentum de Institutione Archidiaconatus Cantuariensis (printed in Wharton, Anglia Sacra I, 150 ; written apparently shortly after the death of archbishop Peckham, 1292) : — A tem,poreB. Augustini primi Archiepiscopi Cantuariensis usque ad tem,pus bonae m,emoriae Lanfranci Archiepiscopi per 462 annos nullum fait Archidia- conus in civitate vel Dioecesi CarUuariensi. (This not correct. Cf. § 42, note 1.) . Sed a tempore B. Theodori Archiepiscopi (668-90) qui sextus erat a B. Augus- tino, usque ad tem,pus praedicti Lanfranci fuit inEcclesia S. Martini siiburb'o Cantuariae quidam Episcopus auctoritate Vitaliani Papae (657-72) a S. Theo- doro ordinatus : Qui in tota civitate et Dioecesi Cantuariensi vices Archiepis- copi gerebat in Ordinibus celebrandis, Eeclesiis consecrandis et pueris confirm,andis et aliis officiis Pontiflcalibus exequsndis ipso absente. Idem, etiam Episcopus omnimodam jurisdictionem in civitate et Dioecesi Cantuari- ensi sede plena auctoritate Archiepiscopi ipso absente, et Sede vacante in tota Provincia auctoritate Capituli exercebat per 399 annos usque ad tempus prae- dicti Lanfranci. Postmodum tempore praedicti Lanfranci Archiepiscopi praedictus Epis- copus in fata decessit. Sed idem Archiepiscopus alium substituere non de- crevit. ... The names of two only of the bishops of St. Martin have been preserved, Eadsige (from 1038 archbishop of Canterbury) and Godwin (d. 1061). Stubbs, Megistrum 142. • Bibliotheca Topographica Britanmca, printed by and for J. Nichols, vol. YI, London, 1790, confains essays printed in 1785 upon suffragan bishops in England, viz. 1. Brett, Letter on Suffragan Bishops; 2, Lewis, An Essay concerning Suffragan Bishops in England, 1738 ; 3, Pegse, Letter on Bishops in Partibus Infidelium, 1781 ; 4, Reprint of a list left behind in MS. by Henry Wha,rton (died 1695) of English suffragan bishops. — Stubbs, appendix V to Regis- trum Saerum Anglicanum, Oxford, 1858. 3IO REPRESENTATIVES AND ASSISTANTS [V,5b From the thirteenth century ^ there appear in England, as simul- taneously on the continent, assistants of episcopal rank, variously designated {episcopi suffraganei, episcopi in partibus infidelium) ; in the following centuries the number of them increased. As the reformation was being carried out, it became requisite to regulate anew the manner of nominating these suffragan bishops and the position they held. The regulation was effected by 26 Hen. VIII (1534) c 14. By this act an archbishop or bishop, desir- ing to have a suffragan, shall present to the king two persons, of whom the king nominates one as suffragan bishop, and presents him for consecration to the archbishop in whose province lies the place whence the suffragan's title is derived. The rights of the suffragan are limited by the commission he receives from the diocesan bishop whom he is to assist. As suffragan bishop he has no independent income ; his stipend consists of revenues specially assigned him by the bishop and of the fruits of the benefices, as a rule, conferred upon him.* " In isolated cases bishops without dioceses (or vrithout English dioceses) are mentioned in England as early as the tenth and eleventh centuries. Such are (Stubbs, Registrum 142) : — ' Siegfried, a Norwegian bishop of the time of Edgar. William of Malmes- bury, De antiquitate Glastoniensis Ecclesiae (ed. Migne vol. 179) 1722 C. (Cf. Historia Eliensis in Wharton, Angl. Sacra I, 603 : Sygidwoldus Episcopus, natione Chraecus.) [Oq Siward, abbot of Abingdon, see § 40, note 1.] Ealph, a cousin of Edward the Confessor, a Norwegian bishop, abbot of Abingdon (1050-1052). Hist. Abingdon. {Rer. Brit. Scr. No. 2) I, 463, II, 281. Osmund, consecrated in Poland. Adam of Bremen {Mon. Germ. Script. VII) 340 and note 16. Christiern, a Danish bishop, came to England with Sweyn in 1070. Anglo- Sax. Chron. {Rer. Brit. Scr. No. 23) I, 845. Cf. also the lists of Wharton in Bibliotheca Topographica, I.e. According to Stubbs, Introduction to Memorials of Dunstan (Rer. Brit. Scr. No. 63) p. xci Dunstan, afterwards archbishop, was perhaps originallly consecrated (957) with- out a definite see. ■* An Acte for nominacion and consecracyon of Suffragans within this Realme. s 1. The following towns : Thetforde, Ippeswiche, Colchester, Dover, Gyl- ford, Southampton, Tawnton, Shaftesbury, Molton, Marleburgh, Bedforde, Leycester, Gloucester, Shrewsbury, Bristowe, Penreth, Bridgewater, Notting- ham, Grauntham, HuUe, Huntyngdon, Cambridge, the towns of Pereth, Ber- wyke, Sayncte Germayns in Cornewell and the Isle of Wight are to be sees of suffragans. An archbishop or bishop, being disposed to have a suffragan, shall and may name, elect, present to the king two persons. Upon such presentation the king may give to one of them the title of one of the sees named, provided it be within the same province whereof the bishop that doth name him is. Then the king by letters patent under the great seal presents the chosen to the arch- bishop of the province in which "the see lies, requiring the said archbishop ' to give all such consecrations, benedictions and ceremonies as to the degree and office of a bishop suffragan shall be requisite.' s 2. The suffragan bishops have the rights given them in the commission of their diocesan bishop, as custom has been. s 3. The archbishop must fulfil the king's request within three months. s 4. The suffragan bishops are to have no profits of their sees nor ' any juris- diction or episcopal power,' except in so far as such profits, jurisdiction etc. are expressly assigned them by their diocesan bishop. Every diocesan bishop may §39] POWER TO CONFIRM, ORDAIN AND CONSECRATE 31I This act was repealed by 1 & 2 Phil. & Mar. (1554 and 1654/5) c 8 s 4, but revived by 1 Eliz. (1668/9) c 1 s 2. By degrees, however, the practice of appointing suffragans was discontinued ; the last nomination before the nineteenth century took place in the year 1592.^ For nearly three centuries no such appointments were made. In 1870 a suffragan bishop was again nominated,* and the institution has since then again won favour, so that these episcopal assistants are now found in a large number of bishoprics.'^ By 51 & 62 Yict. (1888) c 56, the Suffragans Nomination Act, some formal difficulties occasioned by the statute of Henry VIII were removed. The older act named certain towns as the only possible sees of bishops suf- fragan ; the king was now empowered to add new towns to the list by order in council. Before the revival of suffragans proper, from the middle of the nineteenth century onward, it became customary for colonial bishops who had withdrawn temporarily or permanently from their dioceses to officiate as the assistants of English bishops. Such bishops are generally designated 'assistant bishops.' ^ Their posi- tion is in part determined by statute and corresponds to that of saffragans. In particular, colonial bishops like suffragans are con- fined in the exercise of their powers by the terms of the commission wherein the diocesan bishop confers those powers.** make such assignment ia the extent to which it has been customary or to which they think fit. If the suffragan exceeds the jurisdiction assigned him he be- comes liable to the penalties of praemunire according to 16 Ric. II 5. s 5. The diocesan or the suffragan bishop shall provide two bishops or suffragans to assist the archbishop in the consecration and shall bear their reasonable costs. - s 6. The sufTragan must have his residence within the see of his diocesan ; his residence in the diocese shall serve as residence on his benefice. s 7. A suffragan may have two benefices with cure of souls. ^ A suffragan bishop of Colchester. — Charles II in his Declaration concerning ecclesiastical affairs, 25th Oct. 1660 (Card well, Doc. Ann. II, 234 ff.) c 2 contem- ■ plated the nomination of suffragans ; but no such appointment was actually made. ■" Perry, Hist, of Engl. Church III, 515 c 31 § 1. ' According to the Church Year-Book, 1894, pp. 583 ff. there were in 1893 suffragan bishops with the following titles : Dover (diocese of Canterbury) ; Beverley and Hull (York); Marlborough and Bedford (London) ; Guildford (Winchester) ; Barrow-in-Furness (Carlisle) ; Shrewsbury (Lichfield) ; Heading (Oxford) ; Leicester (Peterborough) ; Richmond (Ripon) ; South wark (Roches- ter); Colchester (St. Albans); Swansea (St. David's); Derby (Southwell); Coventry (Worcester). ' According to the Church Year-Book, 1894, pp. 583 ff. there was an assistant bishop in each of the dioceses of London, Durham, Gloucester and Bristol, Liverpool, Manchester and Peterborough. The assistant bishop in London was for British subjects in northern and central Europe. — According to Chronicle of Convocation of Canterbury, 1889, appendix Np. 237 p. 8 in the American church ' assistant bishop ' means a coadjutor with right of succession. ° 15 & 16 Vifit. (1852) c 62 An Act to enable Colonial and other Bishops to perform certain Episcopal Functions, under Commission from Bishops of England and Ireland. Any person who has been bishop of Calcutta, Madras or Bombay or who, in virtue of royal letters patent, is or has been bishop in an English colony, may, at the request and by the commission of any bishop in England or Ireland and with the consent and licence of the archbishop, within the bounds of the see in question, ordain the persons presented to him under 312 REPRESENTATIVES AND ASSISTANTS [V, Be § 40. C. ASSISTANTS IN THE EXERCISE OF GOVERNING POWERS AND ALSO IN THAT OF POWERS OF CONFIRMATION, ORDINATION AND CONSECRA- TION. Coadjutors.* In tlie earlier middle ages it was the custom in England as on the continent to give a representative to a bishop who had become physically or mentally unfit to discharge his duties. The position of such representatives in the older times varied in different cases. For the most part,^ they were only appointed for the duration of the diocesan's incapacity, were not in bishop's orders, and repre- sented the incapacitated prelate only in respect of his powers of jurisdiction and the management of the property attached to the bishopric, or in respect of one of these two departments, whilst his other functions were performed by the bishop of a neighbouring diocese or by a suffragan. In England this older us?,ge seems to have maintained its ground even in the later middle ages.* The representatives given the bishop in case of sickness were, from the thirteenth century, entitled coadjutors. On the continent it be- came more usual as time progressed to appoint, in case of episcopal incapacity, coadjutors of episcopal rank, to give them the power of the direction and authority of the hishop of that see, and perform all other functions peculiar to the order of bishops. All the laws as to English ordina- tions are to be observed. Letters of orders are to be signed by the colonial bishop as commissary of the bishop for whom he officiates, and sealed with the seal of the bishop of the diocese. Colonial bishops commissioned under this act have no jurisdiction in the united kingdom. 16 & 17 Vict. (18B3) c 49. Colonial bishops may also be commissioned in the same way and with the same effect by colonial bishops. [According to f9 & 20 Vict. (1856) c 115 s 4 the rules mentioned were to be applicable to the then bishops of London and Durham after their resignation.] 37 & 38 Vict. (1874) c 77 Colonial Clergy Act. By s 8 ordinations by a bishop acting under commission, if he is in communion with the church of England, are effective even if the commissioned bishop has not been bishop in an English colony or appointed by royal letters patent, s 13 exempts East Indian bishops from the provisions of 63 Geo. Ill c 165 and 3 & 4 Gul. IV c 86 (touching bishops in the East Indies) and from anything in any letters patent issued as mentioned in these acts; they may perform episcopal functions, not extending to the exercise of jurisdiction, in any diocese at the request of the bishop thereof. ' On the nomination of the abbot of Abingdon Siward, as coadjutor of the archbishop of Canterbury (circ. 1043) cf. Hist. Abingdon {Rer. Brit. Scr. No. 2) I, 461 ; William of Malmesbury, Gesta Regum {Rer. Brif. Scr. No. 90) I, 239. * Gibson, Codex 2nd Ed. p. 137. Cf. Regist. Epist. Peckham (Rer. Brit. Scr. No. 77) I, 47, 94, 203, 205, 263, 273, 275, 801, 302; Northern Registers {Rer. Brit. Scr. No. 61) p. 406.— On the appointment of coadjutors for officers of the church other than bishops see Gibson, I.e. pp. 137, 901, Reg. Ep. Peckham I, 67, 11, 654; cf . n, 668. » Phillimore, BccZes. Law 99 ff. §40] COADJUTORS 3 13 representing the diocesan bishop in all respects, and to grant them, at the same time, the right of succeeding to the see in question.^ By an imitation of this latter proceeding the appointment of coadjutors in bishop's orders and with a right to the succession has been introduced by statute to meet the case of permanent mental infirmity of any bishop.* If such infirmity be credibly established, ' Richter, Kirchenrecht § 140. Hinschius, Kirchenrecht II, § 89. * 32 & 33 Vict. (1869) c 111 An Act for the relief of Archbishops and Bishops when incapacitated by infirmity. [According to s 16 the act was only teni- f)orary; its effect was prolonged by 85 & 36 Vict. (1872) c 40; it was made permanent by 38 Vict. (1875) c 19.— By s 15 an earlier act, 6 & 7 Vict. (1843) c 62 is repealed. According to the latter act, in case of incapacity from mental infirmity, a bishop was appointed to perform the episcopal functions and a spiritual person to assist in the administration of the temporalities, but without right of succession to either of those appointed.] s 1. Short title : The Bishops Resignation Act, 1869. s 2. In case it is represented to the sovereign by the archbishop in respect of a bishop subordinate to him or of himself that such bishop or archbishop is desirous of resigning owing to age, or mental or some permanent physical infirmity, then the sovereign, if satisfied of the incapacity and that the arch- bishop or bishop has oanonically resigned, may by order in council declare the see vacant, and the vacancy may thereupon be filled. The retiring archbishop or bishop receives ^ of the income or £2000, whichever may be greater; the sovereign may by order in council assign him any episcopal residence hitherto occupied by him ; the new bishop need not pay fees and charges usually pay- able on accession to an archbishopric or bishopric (other than necessary ex- penses of election and consecration) until the death of the retiring archbishop or bishop. s 3. If an archbishop believes that any bishop in his province is incapaci- tated by permanent mental infirmity from the due performance of his duties, he shall call to his aid two bishops of his province, make inquiry and certify the result of that inquiry under seal to one of the principal secretaries of state. s 4. The king may then grant the chapter licence to eject a bishop coadjutor, the licence being accompanied by letters missive. The election shall then take place in the same way as a bishop's election (cf. append. X). The elected parson shall ha confirmed and consecrated, as if the bishopric were vacant. s 5. The incapacitated bishop and the coadjutor have the following relative positions: (1) The bishop retains his rank, style and privilege. (2) He retains the temporalities exclusive of patronage and of a yearly sum to be paid the coadjutor. (3) The coadjutor shall not be installed or sue the temporalities out of the sovereign's hands ; he has no claim to a seat in the house of lords ; he shall be styled ' bishop coadjutor ' of the diocese, may subscribe himself by his usual signature with the addition of bishop, but not by the name of the diocese. (4) He is not required to pay any fees except the necessary expenses of election and consecration. (5) Immediately on his consecration the spiritualities and the patronage pass to him, as if he were the sole bishop. (6) He receives £2000 a year out of the income of the bishop. (8) On the death of the bishop the coadjutor succeeds with the same ceremonies (except consecration) as if the king had sent licence and letters missive. (9) No vacancy is created in the spiritualities when the bishop dies, but such spiritualities remain vested in the coadjutor if succeeding to the deceased bishop. s 7. If the bishop has been found by due process of law to be of unsound mind, the inquiry by the archbishop may be dispensed with. - s 10. If a coadjutor dies or retires, the king has the same rights as on receipt of a certiQcate that a bishop is incapacitated (see s 3). s 11. The act applies to Sodor and Man. But if the bishop retires his pension is fixed at £1000; the salary of a coadjutor is likewise £1000; the bishop of Sodor and Man shall not be translated to any diocese of which a coadjutor bishop has bsen appointed, 314 REPRESENTATIVES AND ASSISTANTS [V, 5d the sovereign may send to the chapter leave to elect, accompanied by letters missive. The election and consecration of the coadjutor then takes place as in the case of a diocesan bishop. All the official powers and the patronage of the bishop represented pass to the coadjator. But if the represented bishop is an archbishop, the archiepiscopal jurisdiction is exercised not through the coadjutor but- through the bishop of the province who is senior in rank. The incapacitated bishop always remains in possession of the temporali- ties, exclusive of the patronage. On his death the coadjutor be- comes his successor; the sovereign, however, may, if the deceased bishop was an archbishop or the bishop of London, Durham or Winchester, translate another bishop to the vacant see, in which case the coadjutor becomes the successor of the translated bishop. § 41. D. ADMINISTRATION OF AN ARCHBISHOPRIC OR BISHOPRIC DURINa VACANCY." From the time of William 11^ onward, the sole^ interruption being during the reign of Stephen,^ the English kings exercised the right of administering the temporalities during vacancy in an arch- bishopric or bishopric, and receiving for the crown the revenues of s 12. A coadjutor may ba appointed in the case of an archbishop being incapacitated. The provisions of the act then apply with the following ad- ditions and exceptions: (1) At the head of the commission of inquiry is to be a bishop of the province determined by the sovereign under sign manual on its being certified to him by any two bishops that the archbishop is incapaci- tated by permanent mental infirmity from the due performance of his duties. (2) A coadjutor for Canterbury receives £4000 a year, for York £3000. (3) That the archiepiscopal jurisdiction capable of being exercised by the arch- bishop shall be exercised by the bishop of the prooince who is senior in rank. s 13. If the coadjutor was appointed for Canterbury, York, London, Durham or Winchester, the king may exercise the same right of translation as if no bishop coadjutor had been appointed, so that such right be so exercised as to leave an archbishopric or bishopric vacant for the bishop coadjutor. The coadjutor then succeeds to the vacant see as if he had been translated to it. ' Cf. § 4, note 19. On the usage in the time of "William I compare Ordericus Vitalis (Ed. of Le Prevost) 11, 200 Book IV c 6 : Nam dum pastor quilibet completo vitae suae terviino de mundo migraret, et Ecclesia Dei proprio rectore viduata lugeret, sollicitvs princeps prudentes legatos ad orbatam domum mittebat, omnesque res Ecdesiae, ne a profanis tutoribus dissi- parentur, describi faciebat ; on the usage in the Anglo-Saxon period cf. l.c. Ill, 313, Book Vin c 8. " Cf. § 4, note 22 on Henry I's concession. It is perhaps to be takenmerely as a renuntiation of the appropriation of the substance not of the interim fruits. If, however, the words of the charter are to be regarded as a renuncia- tion of the fruits as well as the substance, the concession was not in practice ob Edgaro (after Wilkins, Concilia I, 226 ; circ. 960) c 7 and other documents mention gefiran, gef&rscipe of a clergyman. The reference is perhaps not to some small community, but to the whole of the clergy belong- ing to the bishop's synod. (To be compared is North, priest-law c 1 with can. sub Edgaro c 5.) Similarly is perhaps to be understood the mention of the gildscipe of a clergyman in can. sub Edgaro c 9. A priests' guild in Canterbury is mentioned in Domesday I, 3 as possessing land : In Civitate Cantuaria habet Arehiepiscopus Xllburgenses et XXXIf mansuras quas tenent Clerici de villa in gildam suam. (Compare here Stubbs, Const. Hist. I, 451 c 11 § 131, Soraner^ The Antiquities of Canterbury Ed. 1703, I, 178 f.) On the disputed meaning of the secular guilds mentioned in the Anglo-Saxon laws see Schmid, Ges. d. Angels, s.v.q.e. gegilda. — In other countries rural deans were found from the sixth century onward. Eichter, Kirckenrecht § 138, note 1. §43] RURAL DEANS 323 competence— of the laity of their deaneries, and they probably exer- cised their superintendence by formal visitations ^ as well as in other ways. They inducted parish priests into their benefices,* and administered the benefices when vacant.^ They decided smaller matters in virtue of their own powers, but to an extent which varied with the locality, and perhaps not in all dioceses.^ In more im- portant cases they frequently conducted the necessary inquiries, judgment being pronounced in earlier times by rural chapters and episcopal synods, in later by archidiaconal and consistory courts. They, furthermore, co-operated, as a rule, in raising ecclesiastical and civil taxes,^ and discharged a large number of minor duties differing with the locality.* Lastly, they had the right to convene assemblies (rural chapters) of the clergy subordinated to them, and in these assemblies they presided. "With the middle of the thirteenth century all these rights began to undergo considerable limitations. The restriction arose from the endeavour of episcopal officials and archdeacons, well versed in the new books of canon law, to attract as much business as possible into their own courts ; moreover, the increase, taking place at this time, in the power of the archdeacon as against the bishop weakened the position of the rural dean, who was subject to the archdeacon." The deans by degrees lost almost all independent authority, and some time prior to the reformation their powers extended only as far as commission from bishop or archdeacon allowed. It would also seem ^ Dansey 1, 156 if., 164 ff. On the other hand see Gibson, Codex 972. Council of London, 1200 (taken, it is true, among other regulations from the Lateran council of 1179) : at visitations archbishops shall take with them only five or seven, deans only two horses. Archdeacons onlv are mentioned as visiting in the text (it is otherwise in tlie heading) of an episcopal constitution of Worcester, 1240, where reference is made to the council of London (Wilkins, Cone. I, 671). Cf. also Const. Ben. XII (1335) super procurationibus visitantium (Wilkins, Cone, n, 578.) * Episcopal const, of Worcester^ 1240 (Wilkins, Cone. I, 671) : Decani etiam, pro missionibus clericorum in possessionem ecelesiarum, in quibus fuerint per episcopum instituti, nihil omnino reeipere vel extorquere praesumant. Rescript of Innocent III to archbishop of Canterbury in Dansey I, 372. * Episcopal const, of Worcester^ 1240 (Wilkins, Cone. I, 676) : Terrae ecele- siarum vacantium incultae non jaceant. sed per decanum loei excolantur . . . Council of Exeter, 1287 (Wilkins, Cone. II, 158) o 51. « Cf. Dansey I, 233 ff. ; II, 41 ff. ' First mentioned circ. 1170 (see Dansey I, 415), then at the collection of the first Saladin tithe, 1188. ' For details see Dansev I, 245 ff. » Cf. e.g. council of Oxford, 1222 (Wilk. Cone. I, 585) c 20 : . . . statui- rrms, ut decani rurales nullam eausam, matrim,onialem de eaetero audire prae- sumant, sed et earum, examinatio non nisi viris diseretis cxmvmittaiur, quibus assidentibus, si com,m,ode fieri possit, postmodum sententia pronuneietur. (Const, of Otho c 23 [1237], according to the gloss, of John of Actona p. 59, does not refer to rural deans.) On the displacement in course of the thirteenth century of the rural deans from the presidency, in the rural chapters see § 58, notes 2, 3. Some of their powers were transferred to the churchwardens and testes synodales ; so the management of vacant livings and the reporting of offences of parishioners to the higher ecclesiastical authorities. 324 RURAL DEANS [V,7 that even before the reformation the office was in some places no longer filled up. In the course of the reformation rural deans ceased completely to have their earlier importance. In the assessment list of . 1535 they are only found occurring in a certain number of dioceses. Rural deans continued to be appointed in other places, but this frequently implied nothing more than the conferment of, an honorary title. The first revolution also appears to have brought about the extinc- tion, in some cases, of the office. Eural deans existed at the end of the ssventeenth century in but few bishoprics,^" and it was only in exceptional instances that the institution survived through the eighteenth century.^^ On the other hand, the local division into rural deaneries everywhere remained. Eepeated attempts, begun almost at the reformation, to revive the office, produced in general no result, though in isolated cases they were successful.^^ Only with the Ijeginning of the nineteenth celitury did the movement in favour of once more establishing rural deans grow so strong that in a large number of bishoprics the partly decayed, but mostly extinct institution was resuscitated by the bishops.^^ The develop- ment was promoted by the fact that in 6 & 7 Gul. IV (1836) c 77 power was given to issue orders in council, upon the represen- '° Bishop Gardiner, Advice to the Clergy of the Diocese of Lincoln, 1697, in Dansey II, 471. " So e.g. in the diocese of Exeter; in name, also in the diocese of Chester, where, from the beginning of the 17th century, the archdeacon of Chester and the commissary (equal to an archdeacon) of Richmond, who as such had no jurisdiction, were appointed rural deans at first of most, afterwards of all the deaneries of their districts. Dansey II, 389 if., 368 'ff. '" Reformatio legum: Decanatus quilibet archipresbyterum rusticanum habeat, vel db epincopo, vel ecclesiae ordinario praeficiendum. Munus erit annuum. . . . Resolutions of the provincial synod of London, 1571 (Wilk. Cone. IV, 264) : . . . peracta visitatione, archidiaconus signiflcabit episcopo, quos invenerit in quoque decanatu, ea doctrina, et judicio praeditos, ut digni sint, qui pro condone doceant populum, et praesint aliis. Ex illis episcopus potest delectum facere, quos velit esse decanos rurales. It appears that the Presbyterians contemplated the transformation of the rural chapter into a pres- bytery. Hence their proposal at the Hampton Court conference (1604) to revive the chapters (Wilkins, Cone. IV, 374). James, however, declined. Charles II in his 'Declaration concerning Ecclesiastical Affairs,' c 5 ("Wilkins, Cowc. IV, 862) was for meeting the wishes of the presbyterians. But parliament refused to introduce the projected reforms. (Cf. § 7, near note 66.) Discussions of the convocation in 1710 ff. led to no agreement between the two houses. One of the subjects proposed by the government for deliberation was : 'The establish- ing rural deans, where they are not, and rendering them more useful, where they are ' (Wilkins IV, 638 ff.).— Shortly after 1666 the institution was revived in the diocese of Salisbury ; but by the end of the seventeenth century appoint- ments ceased to be made. Dansey II, 444. Revival of the nearly extinct office was attempted in the eighteenth century in the diocese of Gloucester by bishop Benson (1735-52), in that of Exeter by bishop Keppel {circ. 1770). Dansey II, 405, 390. " As early as 1883 rural deans were again appointed in the sees of Canter- bury, London, Winchester, Bangor, Bath and Wells, Bristol, Exeter, Gloucester, Lincoln, Llandaff, Oxford, Peterborough, St. Asaph, St. David's, Salisbury, and perhaps also in some others. See more in Dansey II, 345-483. § 43] RURAL DEANS 325 tation of tlie ecclesiastical commissioners, to make provision that in future every parish should be within a rural deanery, and every rural deanery within an archdeaconry. '* The official powers of the dean are at present, as a rule, to be measured by the general instructions given to him by the bishop when conferring the office,'^ The dean must solemnly promise ' to execute the said office according to such instructions to the best of his skill and power.' '^ He has accordingly not now in general any independent power to pronounce decisions ; ^^ tut is re- stricted to reporting to higher ecclesiastical authorities the defects he discovers, or current matters connected with administration. It is prescribed that he must visit personally every church etc. in his district. In some dioceses he may, according to the discretion of his superiors, convene meetings of the clergy of his deanery ; during the deliberations he acts as president. In the earliest times rural deans were probably appointed by the bishop.^* But from the thirteenth century in England, as else- where, the regulation *^ made by Innocent III prevailed, that they were to be nominated and dismissed by the bishop and the arch- deacon jointly.^° In some places, however, other modes of appoint- ment grew up ; instances occur, for example, of election by the clergy of the deanery.^^ Appointment was, as a rule, only for a definite time, mostly for one year, it being so arranged that every year a different parish priest of the deanery should fill the office. ^^ In course of time many changes in the method of appointing took place in the various localities concerned. For the province of Can- terbury the provincial council of London (1571) resolved that the archdeacon, after his yearly visitation, should propose suitable " Cf. also 37 & 38 Via. (1874) c 63, in which 6 &■! Gul. IV c 77 and 3 & 4 Vict, c 113 s 32 in reference to new boundaries, new foundations etc. of rural deaneries and archdeaconries are explained. '^ The instruction of 1833 for the rural deans of Canterbury, and the commis- sion now in use in Salisbury ate printed as examples in app. XIII. For other forms see Dansey. '« Dansey I, 139. Cf. 28 & 29 Vict. (1865) c 122 s 9. " Cf., however, the commission for Salisbury (printed in app. XIII) wherein the rural deans are empowered in connexion with their visitation to give cer- tain directions independently. " In proof of this many writers adduce the mention of a decanus episcopi in the leges Ed. Conf. Cf. on this point, note 2, above. — It was at a later time that archdeacons obtained a position of independence as against the bishop. '» Decretals of Gregory IX {Liber Extra) I, 23, c 7. ^^ John of Actona, gloss, to Constit. Othonis p. 10 : salva constietudine loco- rum tarn praefici debent decani tales quam etiam amoveri per episcopum et archidiaconum simul de jure. So Lyndwood : . . . communiter eorum receptio et amotio pertinent ad utrumque . . . "' Details in Dansey I, 117 ff. Cf. also council of Kilmore (Ireland), 1638 (Wilkins, Cone. IV, 538) c 5. "' Const. Otho (1237) de sigillis authenticis in John of Actona p. 69 : illi qui temporale officium suscipiunt, puta, Decani Rurales, . . . Lyndwood. Provinciate L. II tit. 1 p. 85, gloss, omni anno : quolibet anno mutantur decani etfiunt novi. 326 PARISH PRIESTS [V, 8 clergymen from among whom the bishop might nominate the rural dean.''^ As, however, a general revival of the office did not ensue in consequence of the synodal resolutions then passed, so also was their effect small in respect to the mode of appointment. In modern times no universal rule for the appointment of rural deans exists ; the practice varies in different dioceses and is, partly determined by old custom. In most sees the bishop nominates, sometimes on the archdeacon's proposal ; in other districts the arch- deacon exercises under different forms a more considerable influence. Presentation to the bishop as a result of election by the clergy also occurs.-* Appointment is, as a general rule, durante episcopi bene- placito ; but nominations for a year are known as also for life.^* §44. 8. PARISH PRIESTS.'^ Divine service was originally performed within the whole of an episcopal district by the bishop himself and other clergymen making circuits from the episcopal seat and returning thereto.' G-radually at various points in the see fixed stations for individual priests were established. This was due in most cases to grants of land from the king or other landowners for the building of a church, frequently also it was connected with the foundation of new monasteries. At the more important places the bishop left behind a 'mass-priest,'^ "' Cf. above, note 12. '■* Details in Dansey I, 125 if. *^ Dansey I, 153. ' Proofs in Kemble, The Saxons in England Book II, c 9 ; Ed. 1876 II, 416 note 1.— Cf. Beda, Hist. l£ccl. Book IV, c 27 § 344 : . . . Erat quippe moris eo tempore (middle of 7th cent.) populis Anglorum, ut, veniente in villam clerico vel presbytero, cuncti ad ejus imperium verbum audituri conjluer- 'ent; . . . * ' Mass- priest ' seems to be, for the most part, equivalent to 'priest'; the mass-priest is, in particular, also authorized to baptize. Compare e.g. Edward and Guthrum o 3 § 2, [The difference which for a time prevailed on the con- tinent between the larger churches in which baptism might be performed and the smaller in which mass only might be read (Richter, Kirchenrecht § 41) is, so far as is apparent, not found in England as a difference in respect of the " Blunt, John Henry, The Boole of Ohv/rch Law, 7th Ed., London, 1884, Book V c 2 § 2.— Kennet, White, Parochial Antiquities attempted in the History of Anibrosden, Burcester and other adjacent parts of the Counties of Oxford and Bucks, Oxford, 1695 (with glossary), 2nd Edition (prepared with the aid of manfiscript notes of the author), Oxford, 1818, 2 vols. — Kennet, White, The Case of Impropriations and of Augmentations of Ticarages and other insvfficient Ov/res, stated liy History and Law from, the first Usurpation of the Popes and Monks to Queen Anne's Bounty, London, 1704. — Pegge, Samuel, Of Parochial Vicarages, their Origin amd Progress (append. VII to Ha Life of Orosseteste, London, 1793).— Phillitnore, Hccles. Law 262 ff. — Steer, John, Parish Law, being a Digest of the Law relating to the Civil and Ecclesiastical Government of Parishes, London, 1830, 5th Ed. (by W. H. Maonatnara), London, 1887.— On the works of Degge and Stillingfleet see app. XIV, III.— On the older history of advowson in England and the mode of appointing parish priests in the llth and 12th etnts. see also Twiss, pp. ix flf. of Introduction to Braoton IV {Ber. Brit, Scr. No. 70). § 44] PARISH PRIESTS 327 at less significant ones often only deacons seem to have been employed. As the number of these churches scattered over the country grew, it became requisite to mark off the districts within which the several clergymen might officiate. According to the statement of a chronicler of the fifteenth century, the appointment of parish priests with a fixed seat and the delimitation of parochial districts was much encouraged by Theodore (668-90).* However that may be, the establishment of separate parishes became fully developed in the course of the eighth century.* At the same time place. (Cf., however, balow, note 8.) The admissibility of different official acts was in England only dependent on the orders in which the holder of the baneflce was.] In other cases a distinction is drawn between mass-priest and priest, according to which the former seems to occupy the higher position, though it is not plain in what the superiority consists. Of this tendency is e.g. the report of the council of ClovesTio, 824 (Haddan and Stubbs III, 594) : . . . Statuta est . . . , ut Episcopus . . . cum juramemto Dei servorum presbyterorum, diaconorum et plurimorum monachorum, sibi in propriaTn possessionem, terram illam cum adjuratione adjurasset . . . Aet Sam, a}>e woes aet Westm,ynstre efen fiftig m,aessepreosta and X. diaconas, and ealre o}ira preosta sixtig and hund teontig. Her sindon Sara maesse- preosta nam,an <5e on }>am, ajje stodon and on waeron. ("At the oath in West- minster were fifty mass-priests and ten deacons, and of all other priests one hundred and sixty. Here are the names of the mass-priests which stood and were at the oath.") There follow the names of 3 persons designated abbas; il, presbiter ; G. diaconus.—hetter oi Aelfric to bishop Wulfsin (the so-called canones Aelfrici, 992-1001, printed in Thorpe [Record Commission], Ancient Laws etc. 441 ff.) c 16 (of the deacon) : . . . Se sacerd }je bits wunigende butan diacone, se hafaS Jjone naman andnaej^ Jiajiinunga. (" The priest who lives without a deacon, he has the name, but not the services.") c 17 : Fresbiter is maesse-preost . . . '(" Presbyter is mass-priest.") ' Thomas de Elmham, Historia Monasterii S. Augustini Cantuariensis (written about 1414; Ber. Brit. Scr. No. 8) 285: . . . Theodorus . . . excitabat fidelium devotionem et voluntatem,, in quarum,libet provinciarum civitatibus, necnon villis ecelesias fabricandi, parochias distinguendi assensus eisdem regies procurando, ut, si qui sufficientes essent, et ad Dei honorem, pro vote haberent super proprium fundum ecelesias construere, earundem, perpetuo patronatu gauderent ... — ' Mere tradition or inven- tion,' Stubbs, Const. Hist. I, 247, note 2 c 8 § 85. On the way in which parishes followed the lines of civil divisions, cf. C. H. Pearson, Historical Maps 2nd Ed. London, 1870, pp. 55 ff. Against his views it is however to be observed that the civil ' tithings ' probably had not in the Anglo-Saxon period the meaning of a local division (§ 43, note 2). * Letter of Beda to archbishop Egbert of York (734 ; printed in Haddan and Stubbs III, 314) c 3: necessarium, satis est, ut plures tibi sacri operis adju- tores adsciscas, presbyteros videlicet ordinando, atque instituendo doctores, qui in singulis viculis praedicando Dei verba, et consecrandis mysteriis codestibus, ac m,axime peragendis sacri baptismatis offlciis, ubi opportunitas ingruerit, insistant. Councils of Pincahala and Celchyth, 787 (Haddan and Stubbs III, 449) c 1 : . . . omni anno in synodalibus conventibus ab Epis- copis singularum, ecclesiarum presbyteri . . . exam,inentur. Council of Celchyth, 816 (Haddan and Stubbs III, 579) c 10 : . . . ut statim per singulas parrochias [= diocese] singulis quibusque eeclesiis, pulsato signo, om,nis farmdorum Dei coetus ad basUicam, conveniat . . . c 11 : . . . idipsuTn presbyteriis praecipimus, ut nullu,s m,ajorem negotiam, ad se desi- derat, quam, a propria Episcopo concedatur, nisi in solo baptisms et aegritu- dine inflrmorum tantum . . . 328 PARISH PRIESTS [V, 8 tlie ministrations customarily performed hitherto by priests who made journeys from the episcopal seat, were discontinued.* Soon after the formation of independent parishes it became usual^ not, as before, to deliver over intact to the bishop all gifts collected in the diocese, but to retain a part for parochial objects, at first, as a rule, three-fourths (one-fourth each for the priest, for the poor and for the maintenance of the fabric and of divine service), afterwards all except a tax to be paid to the bishop.^ '' In the case of churches newly founded by land-owners on their own ground, if the church ^ According to Dansey, Horae Decanicae I, 76 the last mention of itinerant priests is at the council of Clovesho, 747 (Haddan and Stuhbs III, 362) c 9 : (It presbyteri per loca et regiones laicorum, quae sibi ab episcopis prouinciae insinuata et iniuncta sunt, evangelicae atque apostoUcae praedicationis officium in baptizando, et docendo, ac visit ando . . . studeant explere, . . . It is doubtful whether this passage is to be referred to priests who made circuits from the episcopal seat, or to such as were permanently assigned to a small district within the diocese and who then visited the various places within this district. ° The original arrangement in this respect in the English church is to be seen from the instruction of Gregory (601) in answer to the first question of Augustin (Haddan and Stubbs III, 18) : . . . Mos autem sedis apostoUcae est, ordinatis Episcopis praecepta tradere, ut in omni stipendio quod accedit, quatuor debeant fieri portiones ; una videlicet Episcopo et familiue propter hospitalitatem, atque susceptionem ; alia clero ; tertia pauperibus ; quarta ecdesiis reparandis. Sed quia tua fraternitas monasterii regulis erudita, seorsumfisri non debet a clericis suis, in ecclesia Anglorum, quae auctore Deo nuper adfiuc adfidem adducta est, hanc debet conversationem instituere, quae initio nascentis ecclesiae fuit patribus nostris ; in quibus nullus eorum ex his quae possidebant, aliquid suum esse dicebat, sed erant eis omnia communia. Si qui vera sunt clerici extra sacros or dines constituti, qui secontinere non possunt, sortiri uxores debent et stipendia situ exterius accipere . . . Com- muni autem vita viventibus jam de faciendis portionibus, vel exhibenda hos- pitalitate, et adimplenda misericordia, nobis quid erit loquendum? Cum omne quod superest, in causis piis ac religiosis erogandum, est ; . . . From the time after the lapsing of the bishop's share cf. e.g. letter of Aelfric to bishop Wulfsin (the so-called canones Aelfrici, 992-1001, printed in Thorpe [Record Commission], Ancient Laws etc. 441 ff.) c 24: )>a halgan faederas gesetton eac pact menn syllon heora teopunga into Godes cyrcan. And gange se sacerd to, and daele hy on Jjreo, aenne duel to cyrc-bOte, and olS'erne ^earfum, pone priddan pam Godes peowum }>e paere cyrcan begymaS. ("The holy fathers appointed also that men pay their tithes into God's church. And let the priest go thither and divide them into three : one part for repair of the church, and the second for the poor, the third for God's servants who attend the church.") Similarly law of 1014, Aethelred VIII, 6 : And be te6?!unge se cyning and his witan habba& gecoren and gecweden, ealswd hit riht is, poet priddan ddel pdre tedSunge, pe t6 circan gebyrige, gd td ciric-bdte, and otfer ddd pdm Godes pedwum,, pridde Godes pearfum and earman pedwetlingan. ("' And re- specting tithe ; the king and his witan have chosen and decreed, as is just, that one third part of the tithe which belongs to the church go to the reparation of the church, and a second part to the servants of God ; the third to God's poor and to needy ones in thraldom.") Compare also the triple division of the tax voted in the assembly of Haba, apparently an extraordinary tax, composed of the thanes' tithes and one penny from every plough of the 'hyremen.' [Aethel- red VI[ c 1 § 2 and append, to council of Haba (in Schmid, Ges. der Angels.) §§ 2, 4, 5.] — According to Eichter, Kirchenrecht § 308, the quadruple division of the gifts first appears in Italy (475) ; in France during the sixth century various customs prevailed ; in Spain in the sixth century there pertained to the bishop one-third of the incomes of the churches ; it was, however, to be applied, in the § 44] PARISH PRIESTS 329 had a burial place, one-third of the owner's tithe might be retained, whilst two-thirds was in any event to go to the old parish church.* From tithes, church-scots and other current sources of income, as also from land and movables gradually accruing, there grew to be in every parish a body of property, which was administered by the parish priest. One-third of the fruits he might apply to his own use. The property passed to each succeeding holder of the office.' A parish priest in this independent position, entitled as against the outside world to dispose of the whole income of his benefice, was designated rector {ecclesiae) or persona?^ With the increased strength of monasticism in the eleventh and twelfth centuries, the custom of appropriations began in England as elsewhere. ^^ Appropriation was the annexing of a benefice, upon various titles, by a monastery, a cathedral chapter or cathedral con- vent, or, in some cases, by other spiritual corporations, so that the monastery or chapter etc. now became the rector. The appropriat- ing corporation acquired a permanent claim to the income of the benefice, and became the possessor of the land attaching thereto and of the other accumulated property. On the other hand, the corporation was bound to provide for the cure of souls in the appro- priated parish. It did so by delegating for the purpose its monks or canons, or by appointing other clergymen, called without dis- tinction capellani, vicarii or curati, and receiving a salary agreed. This salary was, as the now ' rector ' was concerned to keep some- thing for his own uses, considerably smaller than the average in- come of the rectory. Within three hundred years from the con- quest more than a third, and among them the richest, of all the parishes of England, were appropriated.^^ On the one side monasteries and chapters were striving — often supported by the pope — to obtain a position as independent of the first instance, to repair of fabric. On the division of the tithes see Richter § 309 sia)fin. ' This tax {cathedraticum or synodatieum) is still in vogue in England. Phillimore, Ecdes. Law 162. According to Eichter, Kirchenrecht § 234, it first arose in Spain (mentioned, council of Bracara, B72). « Edgar (959-75) 11, c^. Similarly Knut (1016-35) T, o 11 pr. and § 1. ' The succession was afterwards developed into an universal succession, "the holder of the beneflce becoming regarded as corpora tion'sole (Stephen's Comm. Ed. 1890, III, 4). According to Bracton the parson holds ratione ecclesiae. Cf. also the distinctions in Bracton, Book IV, tract. 5 cc 1, 2 (IV, 366, 372, 374). On the successor's right of action against a third person in a particular new case it is laid down by 13 Ed. I (1285) Stat. Westminster /Z c 24 : Ebdem modo sicut persona alicujus ecclesie recuperate potest communiam pasture per breve Wove disseisine, eodem modo decetero recuperet successor super disseisitorem vel ejus heredem per breve quod permittat, licet hujusmodi breve prius a Can- cdlarianonjfuit concessum. ,Cf. Bracton, Book IV, tract. 1 c 88 § 13 (III, 520) on the several oases in which the successor sues for possession on the ground of his predecessor's possession. '" The two designations also occur side by side in the books of canon law. See Eichter, Kirchenrecht § 142, note 1. " On the continent from the 13.th cent, termed as a rule tneorporatio ot unio. Hinschius, Kirchenrecht II, 445. " Kennet, Impropriations p. 25 after Defence of Pluralities p. 113. 330 PARISH PRIESTS [V, 8 bishops as possible ; on the other side the bishops set themselves to prevent the undermining of the constitution of the church or to undo the mischief already caused. As a result of the struggle there arose two main kinds of appropriation, the essential difference between them lying in the extent to which the bishop's right of supervision over the appropriated parishes was restricted. These are the ap- propriato quoad spiritualia et temporalia or unio mensae episcopali vel abbatiali, and the appropriatio quoad temporalia}^ In the former the religious house received the right to dispose freely of the benefice. It instituted, inducted, recalled, performed the duties of the church through its own members or through stipendiary clergy. Never- theless, even in such parishes the supreme superintending powers of the bishop were not annulled. In the second, more limited kind of appropriation, the religious house acquired, it is true, the whole property and full income of the parish ; but in respect of action upon the ecclesiastical affairs o'f the parish and, in particular, in respect of presentation to the cure of souls, it practically stood only in the relation of a patron. Accordingly it had the right to present a suitable person to the bishop ; but the latter instituted the clerk, and caused him to be inducted, and it was to the bishop immedi- ately and exclusively that the clerk admitted owed obedience. The two positions of vicar -sniA perpetual curate have, in course of time, developed from the two positions of those having cures of souls under the differing forms of appropriation, though the existence of a vicar or of a perpetual curate does not necessarily imply an earlier appropriation. In the cases of less extensive apj)ropriation, that quoad temporalia, the mere fact that the bishop made good his right of institution rendered the cure of souls a perpetual one. The monastery or chapter, simply presenting, could not by itself revoke the appoint- ment ; the bishop who had acquired or retained authority to put the clerk in ofEce had also necessarily the sole power to pronounce sentence of deprivation, wherein he was bound by the rules which governed deprivation of rectors. The right of playing a part in filling such cures of souls enabled the bi&hops, further, to obtain recognition of the principle that the cure must be permanently endowed by the appropriator, and thaf; to them belonged the right' of determining the adequacy of the endowment and of varying it according to change of circumstances." *^ " Side by side with these occurs in rare instance wh"at was called incarpo- ratio plenissima (in the decretals termed incorporatio 'plena jure ' ; Hinschius II, 442, 453), in which episcopal jurisdiction over the parish was quite excluded. " Of regulations which arose out of the struggle against appropriations im- portant are the following: council of London, 1102, c 22; Westminster, 1127, c 9; under archbishop Eichard (1173?) c 2; London, 1200, c 14; Oxford, 1222, cc 14-16; const, of Otho, 1237, c 10, of Othobon, 1268 cc 9, 22; the -acts of par- liament 15 Ric. II (1391) c 6, 4 Ifen. IV (1402) c 12 ; concordat of Constance, 1418, arts. 3, 4 (Wilkins III, 391). These regulations have a double object in view : 1. To tolerate only the less extensive form of appropriation and so to obtain 'perpetual' ministers; 2. In cases of the less extensive form to bring about a permanent endowment of the cure and otherwise to raise the position of § 44] PARISH PRIESTS 33 1 It was to these ministers of endowed benefices in appropriated parishes that the designation ' vicars ' was confined. The addition ' perpetual,' which also occurs, was generally dropped as being super- fluous, inasmuch as non-perpetual ' vicars,' in the now limited sense of the term, did not exist.^^ This position has been retained by vicars even to the present day. They are, accordingly, parish priests appointed for life, hold- ing independently endowed benefices in parishes which were, as a rule, formerly appropriated. They do not draw all the income originally raised in the parish in virtue of ecclesiastical right, bub only such part thereof as serves for tbe separate endowment of the vicarage. The rest of the church income, in so far as not in process of time alienated to other persons, belongs to the rector of the parish, who is not necessarily a spiritual person and who exercises in respect to the ecclesiastical administration of the vicar- age the rights of a patron,'^ unless for some reason the right of patronage has been detached from the rectory and become vested in otber persons.'^ In the cases in which the more extensive form of appropria- tion, viz. that quoad spiritudlia et temporalia, permanently held its ground, the development ascribed above to perpetually endowed cures did not take place. The ministrations were in part performed as before by members of the appropriating monastery or chapter ; or, the benefice was indeed bestowed by the appropriator on some clerk, but the remuneration to be given was settled by special agreement. None the less, the payment to be made had the holder. The carrying out of the regulations, particularly in the former direction, was, however, often haffled owing to papal dispensations. '' As to how far the right to vary is still recognized see Phillimore, Eccles. Law 272, 288-291. '° Vicarii perpetui a.r6 raeationed. as early as the council under archhishop Eichard (1173? Wilkins I, 474). But it is doubtful whether vicars with a fixed income were here in question. The independent endowment of several vicarii perpetui is mentioned in a deed (1180-86) of bishop Hugo of Durham, whereby in founding a hospital he appropriated to it a number of parishes (printed in Collections relating to Sherbum Hospital, ed. G. Allan, 1771, pp. 43 if.). The establishment on a large scale of perpetual vicarages did not take place until the first half of the 13th century. From the Liber Antiquus de Ordi- nationibus Vicariorum tempore Hugonis Wells Lincolniensis Episcopi (for the most part probably written before 1218, ed. A. Gibbons, Lincoln, 1888, with in- troduction by G. G. Periy) we see that the bishop (consecrated 1209) established some 300 perpetual vicarages. From his predecessor's time the establishment of a perpetual vicarage before 1200 is recorded, of another shortly af oer 1208. For an example, 20th July, 1212, see Rotuli Litterarum Patentium, ed. Hardy {Record Commission), 1835, p. 93 ; five examples in 1220 in Annates de Dun- staplia (Rer. Brit. Scr. No. 86) III, 59 ; a large number of other examples in Pegge, I.e. pp. 325 ff.— Cf. also 1 Ed. F/(1547) c 14 s 8 in which the creation of new vicarages from the confiscated property of religious foundations is con- templated. " Cf ., for example, the petition of the clergy in 1280 and 1300 (printed in § 60, note 154). — At the dissolution of the monasteries the rights exercised by them in both kinds of appropriation passed to the king. Cf. 1 & 2 Phil. & Mar. (1554 and 1654/5) c 8 s 21. " Cf. Phillimore, Eccles. Law 338. 332 PARISH PRIESTS [V, 8 a tendency to become fixed by a usage at a definite rate. The holders of cures of this kind came by degrees to have the designa- tion ' curate ' confined to them. Approbation of such curates by the bishop was apparently before the reformation not, as a rule, required in England.^^ After the reformation it was, however, laid down that the curate needed the episcopal licence to officiate.^" In so far as such co-operation of the bishop was requisite at appoint- ment, so far also was his judgment decisive in questions of dis- missal. The guarantee thus provided against arbitrary dismissal transformed these offices also into perpetual ones. Thus perpetual curates have now the position of parish priests appointed for life, in parishes which were, as a ruJe,^^ formerly appropriated. They are 'nominated' by the patron, they do not require episcopal institution or induction, but are subject to the necessity of obtaining the bishop's licence. In principle the owners of the whole property of a benefice held by a perpetual curate, are held to be the successors of those persons as whose substitutes the curates ox'iginally officiated, commonly, then, the nominal ' rectors ' of the parish. The successive perpetual curates, taken collectively, are not regarded as a corporation, which is the case in respect of rectors and vicars. We have exhibited the usual position of rectors, vicars and perpetual curates. But there are many deviations «Tusage, and cases occur in which the holders of the benefices in part are like- wise to be regarded as full parish priests, in part occupy a position at least resembling that of such priests : — - ' 1. Sinecure rectors and their deputies.^^ The position of rectors without cure of souls and of their officiating deputies had arisen out of the relation of full parish priests to the assistants appointed by them with the consent of the bishop. In some particular cases it , became usual permanently to relieve the rector for the time being of the personal discharge of his official duties. As time went on, the actual cui-e passed more and more exclusively to deputies. These deputies were likewise termed vicars or perpetual curates according as the benefice was on,ce for all permanently endowed or not. Both cases occurred. 3 & 4 Vict. (1840) c 113 s 48 abolished at the next vacancy all ecclesiastical rectories without cure of souls '° Gibson, Codex 819. — Cf. also John of Actona (shortly after 1382), gloss, to constitution of Othobon, De Institutione Vicariorum p. 24: Quidam sunt Vicarii mercenarii, et sic Convicarii Bectorum, qui ad tempus assumuntur temporales ad placitum Bectorum, et sine licentia Episcopi . . . ''" Cf. canon 48 of 1604 (app. XII). " The statement that the position has arisen from that of those with cure of soul in parishes appropriated quoad spiritualia et temporalia is subject to exceptions. The appointment of curates or the performance of the duties of a cure by monks was allowed instead of the appointment of perpetual and en- dowed vicars for various reasons, such as the poverty of the monastery or the near proximity of the church. See Gibson, Codex 819, who cites Segistr. Courtney, 72 6, Stafford, 18 6, Warham, 356 6. Such circumstances also led to perpetual curacies on the dissolution of the monasteries. " Cf. Gibson, Codex 719. Cf. also 3 Geo. IV (1822) o 72 s 14. §44] PARISH PRIESTS 333 which were in the patronage of the crown or of any spiritual corpor- ation, and where there was a vicar endowed or a perpetual curate ■ the act also empowered the ecclesiastical commissioners, where the patronage belonged to other persons or bodies corporate, to purchase the advowson of rectories without cure and on the next avoidance to suppress the same. Hence sinecure rectories are at present wholly or almost wholly extinct. 2. Titular vicars. 31 & 32 Vict. (1868) c 117 s 2 enacts that the incumbent of a parish, not being a rector, who is authorized to publish banns and to solemnize marriages, churchings and baptisms in his church, and who is entitled to take for his own sole use the fees arising from such offices, may bear, but only for the purpose of style and designation, the title of vicar, and his benefice may like- wise be called vicarage. 3. Clergy of chapels of ease. Chapels of ease, so called as making attendance at church easier for the inhabitants, are not seldom founded, especially in those parts of large parishes which lie remote from the principal church. The unity of the parish is not in this way disturbed. For the founding of such a chapel the joint Con- sent of the diocesan, the patron and the incumbent of the parish church was required. A separate minister was appointed to the chapel, who, as a rule, was called ' curate ' and who was not pre- sented to the bishop for institution, but only designated by the person appointing him as fit to hold the episcopal licence to officiate. In some cases the curacy has a permanent and inde- pendent endowment ; but, for the most part, the holder of it is paid a salary by the incumbent of the mother church. To whom the right of conferring the curacy belongs is determined mainly by the agreements entered into at the foundation of the chapel or by immemorial custom. Whether, in case of doubt, it belongs to the incumbent of the mother church or to the founders has been disputed .^^ 4. Augmented curates. If the living of a clergyman which is not a rectory or a vicarage, and which is therefore unable to possess property independently, is augmented by the governors of Queen Anne's Bounty, it becomes a benefice, receives corporate rights and is reckoned, even if not hitherto such, as a perpetual curacy.^'* This 25 PMllimore, Eccles. Law 305, 306. '* 1 Geo. 7 St. 2 (1714) o 10 s 4 : . . . That all such churches, curacies, or chapels, which shall at any time hereafter be augmented by the governors of the bounty . . . , shall be, and are hereby declared and established to be, from the time of such augmentations, perpetual cures arid benefices, and the ministers duly nominated and licensed thereunto, and their successors respect- ively, shall be, and be esteemed in law, bodies politick and corporate, and shall have perpetual succession . . .; and that the impropriators or patrons of any augmented churches or donatives, for the time' being, and their heirs, and the rectors and vicars of the mother-churches whereto any such augmented curacy or chapel doth appertain . . . shall . . . pay and allow to the ministers officiating in any such augmented church and chapel respectively, such annual and other pensions, salaries, and allowances, which by antient custom, or otherwise, of right, and not of bounty, ought to be by them respect- 334 PARISH PRIESTS [V, 8 is also the case, though the augmentation takes place not out of the funds of the bounty, but out of private benefactions, if a lasting agreement touching the patronage is entered into by the agency of the governors with the benefactor.^^ Peculiar is that the aug- mented posts, if not already perpetual curacies, become equivalent to such only in name, whilst, on the other hand, in respect of the cure, they do not become independent parishes, but the existing rights of the incumbent of the mother church continue unim- paired ^* until a separate district is assigned to the church or chapel.^'' The term 'parish priest' (German Pfarrer) is not of frequent occurrence in documents. The meanings attached to the words 'rector,' 'vicar' and ' curate ' will, in part, be seen bj' what has preceded ; they are here brought together. For a proper understanding of English statutes and books of law, it is necessary to know the exact meaning of certain other names which are used as collective designations of certain special kinds of parish priests or which have some similar meaning. We give, then, the following conspectus : — I. Rector. 1. The representative in law (layman or clerk, individual or corporation) of the earlier appropriator. He draw.5 28 & 29 Vict. (1885) c 122 Clerical Subscription Act. ss 8 and 6 require the stipendiary curate's declaration, s 8 the declaration of assent, s 12 leaves the necessity of the oath of obedience untouched. ' According to Phillimore, Eccles. Law 590, the office is historically con- nected with that of lector, the lowest but one of the orders in the Koman catholic church. ■ Phillimore, Ecclesiastical Law 590 ff. §46] READERS 34 1 cure.. The position of these readers was regulated by a resolution of the bishops (dating, it would seem, from 1563 ; perhaps only in confirmation of an order of 1559). According thereto the reader is not to preach and not to administer the sacraments, but to read that which is fixed by public authority, to bury the dead and to purify women after their childbirth. He is also bound to give place as soon as the circumstances allow a clergyman to be appointed.^ By degrees it was found feasible everywhere to occupy even the poorer parishes with clergymen, and in consequence the office of reader, in the sense in which it had been conferred at the time of the reformation, became almost wholly extinct. Only in recent times was the office revived, and readers have since then been appointed in considerable numbers,* not, howeverj ' Injunctions to be confessed and subscribed by them that shall be admitted readers (printed in Strype, Annals Ed. 1824, 1, B14, and with the date 1561 in Wilkins IV, 22B; also after Wilkins in Card well, Doc. Ann. I, 268, signed by both archbisbops and nine bishops. The more important articles run : — Inprimis, I shall not preache or interprete, but only read that, which is ap- pointed by publick authoritie. I shall not m.inister the sacraments, nor other publick rites af the church, but burie the dead, and purifle women after their childbirthe. I shall give place upon convenient warning, so thought by the ordinarie, if any learned minister shall be placed there, at the sute of the patrone of the parishe. I shall not read, but in poorer parishes destitute of incumbents, excepte in the tyme of sickness, or for other good considerations to be allowed by the ordinary. ' Statistics in the Church Year-Book, 1891, p. 101 show that in all the bishoprics of England taken together there were in 1890 some IBOO readers. On the relations in the several dioceses down to the year 1884, ses committee report No. 161, pp. 6 ff. in appendix to Chronicle of Convocation of Canterbury, 1884. According thereto the readers were generally unpaid, but sometimes paid. — The main lines on which the office was to be restored were traced at a meeting of archbishops and bishops at Lambeth. Perry, Hist, of Engl. Ch. Ill, B39 c 33 § 7. Phillimore, I.e. 592.— Cf. the concurrent resolutions (not binding owing to non-observance of submission act) of the upper and lower house of Canterbury, 16th May, 1884 {Chron. of Conv. Cant. 1884, Summary p. xxvii) : — 1. That no layman be admitted to the office of a Reader who has not been confirmed, and is not a communicant in the Church of England, and that the Bishop should satisfy himself of his personal fitness, know- ledge of Scripture, and soundness in the Faith. That the Reader should also be required to sign a Declaration expressive of his acceptance of the, doctrine of the Church of England as contained in the, Book of Comm,on Prayer and of the Ordering of Bishops, Priests, and Deacons, and of obedience to the Incurnbent and the other properly constituted authorities, subject always to the control of the Bishop of the diocese. 2. That in unconsecrated places the Reader may expound the Holy Scriptures, may give Addresses, may read such parts of the Morning and Evening Prayer and use such other Services as may have been approved by the Bishop ; and generally act under the Incum,bent in visiting the sick and in other duties. 8. That in all cases the Reader shall hold the licence of the Bishop of the diocese and shall be admittejZ to his office by the delivery of a copy of the New Testament to him, by the Bishop. 4. That this House recommends that steps should be taken in each diocese to bring the subject of Lay-Readers before the clergy and laity of the Church in such a manner as m,ay approve itself to the Bishop of the diocese. 342 REPRESENTATIVES AND ASSISTANTS [V, 9b as before, in substitution for parochial ministers, but to assist them and to perform special official duties under their guidance. A distinction is now drawn between diocesan readers and parochial readers.* The former are less confined to of&ciation in a particular parish than the latter.^ The form of appointing a parochial reader is as follows : the vicar, rector or other parish priest nominates a suitable person to the bishop, the latter approves the appointment and grants his licence,^ which holds good until revoked or until a new parish priest is appointed. In the second case a renewal may be given upon application. The extent and character of the ecclesiastical duties of the reader are determined by the commission given him by bishop and parish priest ; the chief are to read passages from the Scriptures or from the book of common prayer and such edifying homilies or discourses as the parish priest may think fit, and to read and explain the Bible to the aged, sick etc. ; power may also be granted him to expound in public.'' The ecclesiastical authorities require that the reader should, before his admission, subscribe a declaration of assent to the thirty- * The Church Year-Book, 1891, p. 95 contains rules for botlj kinds of readers in the diocese of London. ^ According to the rules for the diocese of London, those who wish to become diocesan readers are,, at the discretion of the ' Readers' Board for the Dioceses,' presented to the bishop. The latter gives them (after optional examination) a licence for a given parish, such licence being subject to revocation ; they may, however, upon occasion oifioiate in other parishes of the diocese with the consent of the incumbent in question. ^ The bishop may make his approval depend on an examination in belief and Scripture knowledge, held by himself or his chaplain. ' See the form for the admission of readers as agreed by the bishops (printed in Phillimore 592) : — Christopher, by divine permission, Bishop of Lincoln, to our well-beloved and approved in Christ, A.B., greeting. We do by these presents grantimt-o you our commission to execute the office of a reader in the parish of C, within our diocese and jurisdiction, on the nomination of the reverend D.E., rector {or vicar) of the said parish ; and we do hereby authorize you to read the Holy Scriptures, and to explain the same to the aged, sick, and such other persons in the said parish, as the incumbent thereof shall direct ; (to read the ap- pointed lessons in the parish church, and also) to read publicly in [the hamlet of P) {or in the school room or other place approved by us) such portions of the morning or evening service in the Book of Common Prayer as we may appoint, and after such service {to expound some portion of Holy Scripture to those assembled, or) to read such godly homily or discourse as by the incum- bent m,ay be. judged most suitable and edifying to their immortal souls. And we do hereby notify and declare that this our co'mmission shall remain valid and have full force and authority until either it shall be revoked by us or our successors, or a fresh institution to the benefice shall have been made and com- pleted, at and after which last-mentioned time it shall be competent for an application to be made to us or our successors for a renewal and continuance of this our present commission and authority. And so we commend you to 4,lmighty God, whose blessing and favour we humbly pray may rest upon you and. your work. Given under our hand and seal this . . ■ day of • . • etc. Ct. also resolutions of 16th May, 1884, 2 (above, note 3). ... § 47] DEACONESSES' INSTITUTIONS AND SISTERHOODS 343 nine articles and to the book of common prayer and of the ordaining of priests and deacons. If he is empowered to preach, such sub- scription is requisite according to law.^ Admission to office is through the bishop by delivery of a Bible, not by imposition of hands.* The observance of this form, however, appears to be un- essential from a legal point of view. In several dioceses lay helpers' associations have been formed. These are voluntary unions whose members place themselves at the service of the parish priests for ecclesiastical and beneficent purposes.'" §47. C. DEACONESSES' INSTITUTIONS, SISTEEHOODS, BROTHERHOODS. Since the middle of the nineteenth century various deaconesses' institutions and sisterhoods * have been formed, as also, somewhat later, brotherhoods. In 1891 the convocation of Canterbury laid down certain forms — the resolutions passed in one case by both houses, in the other by the upper only are not binding owing to non-observance of the submission act — to regulate the constitution of these associations and their place in the organization of the church.^ » Canon 36 of 1865 (app. XII). Cf. resolutions of 16tli May, 1884, 1 (above, note 3).— 28 & 29 Vict. (1865) c 122 Clerical Subscription Act relates to preachers ; it does not expressly name readers. ' This usage rests on the agreement of the bishops and on the resolutions of 16th May, 1884, 3 (above, note 3). On the practice as to the ordinary lectors in the early centuries of the Christian era see Phillimore 590. '" A list of lay helpers' associations will be found in the Church Year-Book, 1894^ pp. 91 ff. ' On the origin of such bodies (from 1847 onwards) see Perry, Hist, of Engl. Ch. Ill, 270 o 14 § 12. For a conspectus of the sisterhoods existing in 1892 and of the deaconesses' institutions (diocesan organizations) see Church Year-Book, 1893, pp. 132 ff., pp. 143 ff. * A. Upper and lower house of convocation aereed (1891) in the following — not binding — resolution as to brotherhoods {Chronicle of Conv. Cant. 1891, Summary p. xvi) :— 1. That . . . the time has come when the Church can, with advantage, avail herself of the voluntary self-devotion of Brotherhoods, both clerical and lay, the members of which are unlling to labour in the service of the Church without appealing for funds or any form of public support. 2. That a wide elasticity is desirable as to the rules and system, of such Brotherhoods as m,ay be formed in the several dioceses. 3. That such Brotherhoods should work in strict subordination to the authority of the Bishop of each diocese in which they are estab- lished or employed, and only on the invitation and under the sanction of the Incumbent or Curate-in-Charge of the parish. 4. That those who. enter a Brotherhood should be perrnitted, after an ade- quate term, of probation, and being not less than thirty years of age, to undertake lifelong engagements to the life and work of the com- 344 REPRESENTATIVES AND ASSISTANTS [V, 9c The activity of the deaconesses is intended to be the same as that munity, provided that such engagements te subject, on cause shown, to release by the Bishop of the diocese in which the Brotherhood is established. 5. That the statutes of the community should be sanctioned by the Bishop under his hand, and not be changed without his approval signified in like manner. 6. In every body of Statutes it is desirable that provision should be made for the exclusion of unworthy or inefficient members by the Brotherhood with the assent of the Bishop. B. With regard to deaconesses' institutions and sisterhoods the resolution (not binding) of the upper house in 1891 was as follows (Chron. of Conv. Cant. 1891, Sum.mary p. iii) : — • That this House, recognising the value of Sisterhoods and Deaconesses and the importance of their work, considers that the Church ought definitely to extend to them, her care and guidance. I. Sisterhoods. 1. That those who enter a Sisterhood should be perm,itted, after an ade- quate term of probation, and being not less than thirty years of age, to undertake life-long engagem,ents to the life and work of the commMnity, provided that such engagements be subject, oncause shown, to release by the Bishop of the diocese in which the Sisterhood is established. 2. That the form of such engagem^ents should be a promise m,ade at the tim,e of adm,ission, before the Bishop or his commissary. 3. That the statutes of the community should be sanctioned by the Bishop under his hand, and not be changed without his approval signified in like manner. 4. That no statutes should contain any provision which would inter- fere with the freedom of any individual Sister to dispose of her property as she thinks fit. 5. That no branch house of a Sisterhood should be established, or any branch work undertaken in any diocese, without the written consent of the Bishop of such diocese. 6. That no work external to the community should be undertaken by the Sisters in any parish without the written consent of the Incumbent or Curate-in-Charge of such parish, subject, if that be refused,to an appeal to the Bishop. II. Deaconesses. 1. That Deaconesses having, according to the best authorities, formed an order of ministry in the early Church, and having proved their efficiency in the Anglican Church, it is desirable to encourage the forma- tion of Deaconesses'' Institutions, and the work of Deaconesses in our dioceses and parishes. 2. That a Deaconess should be admitted in solemn form by the Bishop, with Benediction by laying on of hands. 3. That there should be an adequate term of preparation and probation. 4. That aDeaconess so admitted may be released from her obligations by the Bishop of the diocese in which she was admitted, if he thinkfit, on cause shown. 5. That no Deaconess should be admitted to serve in any parish without licence from the Bishop of the diocese given at the request of the Incumbent or Curate-in-Charge. 6. That the dress of a Deaconess should be simple, but distinctive. 7. That a Deaconess .should not pass from one diocese to another without the written perm,ission of both Bishops. 8. That special care should be taken to provide for every Deaconess sufficient time and opportunity for the strengthening of her own spiritual Ufe. §48] CHURCHWARDENS 345 of deacons in early Christian times, except that they are not to assist in celebrating divine worship. They devote themselves especially to the instruction of poor children and the tending of the sick. According to the resolutions quoted below, admission of deaconesses to office is to be by the bishop with benediction by laying on of hands. Before admission there is to be a period of probation. A deaconess may be released from her obligations by the bishop who admitted her. She shall exercise her office in a single parish under licence from the bishop, given at the request of the parish priest ; in order to pass from one diocese to another, the permission of both bishops is required. The sisterhoods and brotherhoods likewise devote themselves, in particular, to works of charity. The endeavour recently has been to give these associations more and more of a monastic character or at least the character of the Roman catholic ' congregations.' The resolutions would seem to sanction such endeavour. By them it is to be permissible for the brethren or the sisters, after the lapse of a due period of probation and after the attainment of thirty years of age, to undertake lifelong engagements from which they can only be freed by the bishop at his discretion.* The individual sisters are to be allowed to dispose of their property as they please. Sister- hoods and brotherhoods are to work in the several dioceses only by consent of the bishops and in subordination to them. To work in the parish outside of their own communities the approval of the parish priest is needed, appeal to the bishop being, however, open if that approval is refused ; brotherhoods must be invited by the parish priest to begin work in his parish, and must have his sanction to continue it. §48. 10. CHURCHWARDENS." The office of churchwardens ^ is first mentioned in the fourteenth century.^ These officers were laymen who were appointed in the ° Civil courts would presumably not enforce tte keeping of such, life-long obligations, wbich are not reconcilable with modern notions of personal liberty. ^ The Latin designation is oeconomi. ' On the earliest mentions see Smith, The Parish 2nd Ed. p. 69. According to Blunt, I.e. p. 255, note, the origin of the office dates from then because it was at that time (cf. e.g. const, of archbishop Gray of York, 1250, Wilkins I, 698 ; const, of Peckham, 1280, Wilkins II, 49 [on readings v. Martin, Regist. Epist. Peck., Rer. Brit. Scr. No. 77, vol. Ill pp. cxxxix ff.] ; counc. of Merton, 1305, Wilkins II, 280) that the duty of repairing the nave and of furnishing the utensils for divine service finally settled on the parishioners. As far as inves- tigation has hitherto been pursued the office of churchwardens is distinct in origin from that of synodsmen, the witnesses summoned to episcopal or arohi- diaconal visitation meetings ; yet the two offices soon became closely connected • Blunt, The Booh of Ohwrch Law Book XV, chap. 1.— PhilHmore, Ecdes. Law 1873 ff.— Prid- eaux. Humphrey, Directions to Ch/wrchwardens for the faithful discharge of their duty. 1701. 9th Ed. Loudon, 1833, by Robert Philip Tyrwhitt.— Smith, Toulmin, The Parish 2nd Ed> pp. 68 ff.— Steer, Pao'ish Law 5th Ed. pp. 96 ff. 34^ CHURCHWARDENS [V, 10 several parishes ^ by their fellow parishioners * to represent them in the duties of repairing the church and delivering the various objects required for divine service, and to exercise custody or guardianship of the church property. By degrees many other rights and duties became vested in them. In particular, owing to the legislation of the reformation period, they were engaged in such secular functions as the administration of outdoor relief ; to them (with others) was conveyed the office of overseers of the poor. Their position subsequently received attention in the canons of 1604,^ ' All churchwardens or questmen in every parish shall be chosen by the joint consent of the minister and the parishioners, if it may be : but if they cannot agree upon such a choice, then the minister shall choose one, and the parishioners another.' The latter mode of appointment is now customary in most places ; it or an analogous mode of procedure is statutably established in the case of new ecclesiastical parishes or districts.^ The canons of 1604 have not interfered with local customs fixing a different usage.'' After nomination churchwardens need formal admission by the bishop or the archdeacon.* But such admission cannot, as a rule, be re- fused.^ and ultimately became fused. Smith, I.e. 69 ff. ; Kennet, Parochial Antiquities Ed. 1818, II, 363 f. ; Ayliffe, Parergon 515 f.; Gibson, Of Visitations 59 ff.; Gibson, Codex 2nd Ed. p. 960. On sidemen of. end of this §. — In the Latin canons of 1604 (of. app. XII) in the heading of VI and in that of c 90 inquisitores and assistentes are identical, whilst in the text of cc 89 and 90 inquisitores=oeconomi. In the English translation which appeared at the same time {Ca,rAwell, Synodalia I, 245ff.) on the one hand churchwardens and questmen, on the other sidemen and assistants are treated as identical. ' The civil parish and the eocleiiastical parish coincided for administrative purposes. Cf. § 9 '". * Smith, I.e. 71 ff. 5 c 89 (append. XII). * 58 Geo. Ill c 45 s 73 (one churchwarden to be chosen by the householders, resident in the new district, who are entitled to vote in the election of church- wardens) ; 1 & 2 Gul. /F c 38 s 16 (renters of pews), s 25 (vestry) ; 6 & 7 Vict.. c 37 s 17 (inhabitants) ; 8 & 9 Vict, c 70 s 6 (householders), s 7 (renters of pews). ' According to Blunt, I.e. 259, the following are the principal customs of the kind : 1. In some large parishes in the north of England a churchwarden is chosen for each township of the parish ; 2. In old London parishes both church- wardens are appointed by the parishioners ; 3. They are sometimes appointed by the select vestry ; 4. Sometimes by the lord of the manor ; 5. In some few cases the incoming dhurchwardens are chosen by the outgoing ones. — By ordi- nance of the long parliament, 9th Feb. 1648, four, three, two or one substantial inhabitant or inhabitants are to be chosen yearly as churchwardens by the. inhabitants of the parish, and are within one month after their choice to be allowed and approved by two of the nearest justices of peace. These church- wardens and the overseers of the poor are entitled to levy rates. " 5 & 6 Gul. IV (1835) c 62 s 9 enacts that churchwardens and sidemen are no longer required to take the oath which they formerly took ' on entering or quitting office, but before beginning to discharge their duties must make and subscribe, before the ordinary or other competent person, a declaration that they will faithfully and diligently perform the duties of their office. ' Blunt, I.e. 261 f.. Smith, I.e. 91. On the question whether acts done before declaration made are valid see the latter, as quoted. 48] CH UR CH WA RDENS 347 The duty of churchwardens is to attend to the maintenance of the church fabric and of the churchyard, in so far as the mainte- nance devolves on the parishioners ; they have the care of the movables belonging to the church and ought to provide the neces- saries _ for divine service. It is incumbent on them to preserve order in the church and in the churchyard during the time of wor- ship; and it is they who assign seats to the parishioners, respect, however, being paid to private rights. For the necessary funds, they are chiefly dependent on the rate granted by the vestry and collected from those who are willing to pay. 31 & 32 Vict. (1868) c 109 deprived the rate of its compulsory character without chang- ing the mode of granting and levying it. No person who refuses to pay is entitled ' to inquire into, or object to, or vote ' in respect to the expenditure of the money collected. The act also empowers the appointment in any parish of ' Church Trustees,' i" to accept and hold contributions for ecclesiastical purposes ; these trustees may from time to time pay over to the churchwardens sums to defray necessary expenses. During divine service alms are collected, generally by the church- wardens. The service over, the money given at the offertory is disposed of to such pious and charitable uses as the minister and churchwardens shall agree upon. If they differ, the ordinary decides as to its application.^^ The churchwardens have^ furthermore, the duty of reporting to the ordinary offences committed by the clergy or the laitj' of the parish in respect of matters cognizable by the ecclesiastical courts.^^ This authority to present is a survival of the medieval procedure in holding episcopal synods and archidiaconal visitations. At the be- ginning of the first revolution an act of 1641 *^ forbade ecclesiastical authorities to bind any person by oath to make presentments of any crime or offence. This provision was repealed by act of 1661.^* But a large number of the cases in which presentment might have been made have, owing to greater religious toleration, ceased to be punishable; presentments for offences against morality have become almost wholly obsolete, as, indeed, has ecclesiastical jurisdiction in general in regard to moral questions ; ^* in other cases they are still made, but are infrequent. Lastly, in sequestration'® during vacancy (sometimes in sequestra- tion for other causes) the churchwardens are generally appointed sequestrators, in which capacity, they have to manage the profits of the living and control the expenditure.- '" The church trustees shall consist of the incumbent and of two house- holders or owners or occupiers of land in the parish to be chosen one by the patron, one by the bishop of the diocese. ^' See rubric in communion service, and Blunt's note in Annotated Book of Common Prayer Ed. 1884, p. 899. " Can,. 113 ff. of 1604 (append. XII). " 16 sq. Car. Jc 11 s 2 (cfi § 7, note 36). " 13 Car. 7/ St. 1 c 12 s 2 ; see, however, also s 4 (cf. § 7, note 69). Cf . further Bhillimore, Eccl. Law 1849.— On 6 & 6 Gul. IV (1835) o 62, cf. above, note 8. '• Cf. § 61, note 35. '" Cf. § 45, note 9. 348 MINOR OFFICERS [V, llA . From the beginning of the seventeenth century, churchwardens in most parishes gradually became the chief officials for temporal business. Those, however, who in consequence of the Church Building and New Parishes Acts of the nineteenth century were chosen for newly divided ecclesiastical parishes and districts, were confined to ecclesiastical affairs. By the Local Government Act of 1894, 66 & 67 Vict, c 73, the churchwardens in all rural parishes have -lost their positions as overseers of the poor ; their other powers in temporal affairs have also been taken from them in all rural 'parishes which have received a parish council, and have been vested in the council ; in smaller parishes which receive no coun- cil, these powers may, on the proposal of the parish meeting, be vested in it, by the county council. Analogous arrangements may be made under certain circumstances for urban districts through the local government board. ^^° With the churchwardens are mentioned in the canons of 1604 sidemen ^^ or assistants.** To the latter belong essentially the same rights as to the churchwardens. According to the canons just mentioned they are to be appointed by the parish priest and the parishioners jointly ; or in case of disagreement, by the bishop. They are now only found in a few large parishes, and act as deputies of the churchwardens in outlying townships.'' 11. MINOR OFFICERS.* §49. A. PARISH CLERKS. The office of parish clerk * corresponds tolerably closely to that of Kantor in a German congregation. He has, in particular, the duty "*" s 5 : . . . the churchwardens of every rural parish shall cease to he overseers . . . ; s 6 : upon the parish council of a rural parish coming into office, there shall be transferred to that council : . . . (&) the powers, duties and liabilities of the churchwardens of the parish, except so far as they relate to the affairs of the church or to charities, or are powers and duties of overseers, . . . (then follows a special regulation as to the maintenance of closed churchyards) . . . (c) similarly, all rights which now belong to over- seers and churchwardens jointly. sl%: In a rural parish not having a sepa- rate parish council, . . . (10) on the application of the parish meeting the county council m,ay confer on that meeting any of the powers conferred on a parish council by this Act. . . . s 33 : Possible application to urban dis- tricts. " The form sidesmen is also in use. The name is said to be corrupted from synodsmen. — According to Gibson, Codex 2nd Ed., shortly before the reforma- tion it became usual that, instead of the testes synodales, the churchwardens, with two, three or more parishioners should present ; these assistant parish- ioners were the origin of sidemen or sidesmen. '" Cf. above, note 2. — Lat. text of canons in app. XII. " Blunt, I.e. 255, note 1. ' Cf. the titles church clerk, chapel clerk. ■ Blnnfc, The Book of Ckv/rch Law Book IV c 8. — Phillimore, Ecclesiastical Law 1900 if. — Toulmin Smith, The Fa/rish 2nd Ed. pp. 197 ff.— Steer, Parish Law 6th Ed. pp. 116 f. §49] PARISH CLERKS 349 of acting as leader of the congregation in regard to the responses and singing. In small parishes his office is frequently combined with that of sexton.^ The parish clerk is, as a rule, a layman. His position is mainly determined by canon 91 of 1604,^ which, however, being issued without the consent of parliament is not binding as against laymen. The canon gives the appointment to the ' parson, or vicar, or . . . the minister of the place for the time being.' * Any variation in the mode of appointment holds good, if based on old custom ; thus in a few places the parishioners can appoint. The clerk is usually licensed by the ordinary, but this does not seem to be absolutely necessary.^ He must be at least twenty years old.^ He must take an oath to obey the minister.'' Appointment is for life, and his office is his freehold. Thus he cannot be dismissed arbitrarily, but only for sufficient reason, the sufficiency being subject to examina- tion in the courts.* 7 & 8 Vict. (1844) c 59 s 5 provides a general method of procedure in dismissing parish clerks who are laymen, the ' archdeacon or other ordinary ' adjudicating upon the case.^ The income of a parish clerk is derived from a salary, payable out of the church rate, from fees and Easter offerings. He has the right of causing his duties to be performed by a suitable deputy. By 7 & 8 Vict, c 59 it is enacted that those entitled to appoint or elect parish clerks may fix upon persons in priest's or deacon's orders to fill the office. The parish clerk in orders must perform ' all such spiritual and ecclesiastical Duties ... as the . . . Rector or other Incumbent, with the Sanction of the Bishop of the Diocese, may from Time to Time require.' He must be licensed by the bishop, and when appointed by any other than the parish priest, his appointment is subject to the approval of the latter. His office is not his freehold ; on the contrary, he may be dismissed under the same circumstances and by the same method as a stipendiary curate.^" ^ On the earlier history of the office cf. Blunt, I.e. p. 288, note 1.. Smith, I.e. p. 197, note 1. The heading of can. 91 of 1604 identifies clericus parochialis with the ostiarius. ^ Printed in app. XII. ■• Smith, I.e., contends that this was an innovation. ° Peak V. Bourne, 6 Geo. II, Strange, Reports 942 ; Smith, I.e. 202 ; Philli- Djore 1902, 1905.- « Canon 91 of 1604. ' Phillimore 1902. ^ To make him more easily removable 59 Geo. Ill c 134 s 29 directs that the clerk in every church or chapel built etc. under that act or under 58 Geo. HI c 45 (which it amends) is to be appointed annually hy the minister. By 19 & 20 Vict, c 104 s 9, ' The parish clerk and sexton of the church of any parish con.sti- tufeed under ' 6 & 7 Vict, o 37, and 7 & 8 Vict, c 94, ' or this act shall and may be appointed by the incumbent for the time being of such church, and be by him removable, with the consent of the bishop of the diocese, for any miscon- duct.' Blunt, 7.C. " An Act for better regulating the Offices of Lecturers and Parish Clerks. " ss 2, 3 of act cited. 350 MINOR OFFICERS [V, 11b, c, d §50. B. SEXTONS." The official duties of tlie sexton ^ vary at different places and are for the most part determined by custom. As a rule he has to attend to the cleaning of the church and to the churchyard, as also to the instrumenta of worship ; he has to ring the bells ^ and to make, himself or by deputy, the necessary preparations for burials. Women may fill the office. The appointment of the sexton is regulated very much by custom. It may rest with the parish priest or the churchwardens or with the parish priest and churchwardens jointly. The income accrues, according to the usage existing in the several parishes, from a variety of sources. Commonly the sexton receives a salary paid by the churchwardens out of the church rate, as well as fees for burials. The office of the sexton, like that of the parish clerk, is his free- hold.* So that arbitrary dismissal is not allowable.* § 51. a BEADLES." The beadle is the messenger of the parish. His duties relate mainly to its temporal concerns ; but in many places it is usual for him to be present at diAdne service to assist in the maintenance of order. He is the attendant of the officers of the parish, particularly of the churchwardens, and is appointed by the vestry, generally from year to year. His salary is paid out of the church rate. § 52. D. OEGANISTS." The office of organist exists in chapter and in most parochial churches, although in the course of this century puritanical opposi- tion was raised to the introduction of organ-playing.* It is now recognized that every incumbent has the right of deciding whether ^ Sexton : the word is a corruption of sacristan. ^ Or, he is the superintendent of the bell-ringers. These bell-ringers form themselves into unions ; for a list of them see Church Year-Book, 1891, pp. 452 ff. ' For a different opinion see Smith, I.e. p. 194, note. ■• On the appointment and dismissal of the sexton in new parishes under 19 & 20 Vict, c 104, cf. § 49, note 8. ' Cf. also parliamentary ordinance of 9th May, 1644 : . . . ; And that all Organs, an the Frames or Cases wherein they stand in all Churches and Chappels dforesaid, shall be taken away, and utterly defaced, and none other hereafter set up in their places ; . . . ■ Blant, The Book of Chv/rch Law Boole IV o 3. — Phillimore, Ecclesiastical Law 1911. — Tonlmin Smith, The Parish 2nd Ed. pp. 193 ff.— Steer, Parish Law 5th Ed. pp. 115 f. "• Blunt, The Book of Church Law Book IV chap. 3. — Toulmin Smith, The Parish 2nd Ed. pp. 193 ff. " Blunt, The Book of Church Law Book IV chap. 3. —Phillimore, Ecclesiastical Law 927-929, 1914, Addenda II, 18. §53] LECTURERS 351 and when the organ may be played ; but the parish cannot without consent be charged for erecting and repairing it. The methods of appointing the organist and of obtaining his salary are various. § 53. 12. LECTURERS." The lecturer is an assistant clergyman, priest or deacon, attached to the parish priest or, in chapter churches, to the regular clergy of the chapter.^ The office is found especially in the churches of London and other cities. The lecturer is distinguished from the reader by the fact that he must be in holy orders ; he is distin- guished from the stipendiary curate in that his income is not derived from the benefice or parish funds, but arises from endow- ment or from special voluntary contributions. The form of the lecturer's appointment depends on the provisions of the deed by which the lectureship was founded ; otherwise, on old custom. Election is, as a rule, by the vestry. The lecturer needs approval and licence from the archbishop of the province or the bishop of the diocese.^ The licence is not conferred until the oaths are taken and the declarations made which are prescribed for persons about to be instituted or collated to a benefice.^ Lastly, the parish priest may forbid the use of his pulpit to the lecturer, unless immemorial usage or some other reason intervene.* The lecturer has no cure of souls ; he has only to deliver lectures or sermons. But the ordinary service must be held in connexion with his discourse.^ By 7 & 8 Vict. (1844) c 59 the bishop is em- powered, with the assent of the incumbent, to require the lecturer to perform other clerical or ministerial duties, as assistant curate or otherwise of the place in which the lectureship is.^ * Prebendaries are sometimes bound by appointment of the founders to read .lectures, and may thence be called lecturers. Phillimore 134. " 14 Car. II (1662) c 3 Act of Uniformity, s 15 : . . . that no person shall he or be received as a Lecturer or permitted suffered or allowed to preach as a Lecturer or to preach or read any Sermon or Lecture in any Church Chappell or other place of Publique Worshipp . . . unlesse he he first approved and thereunto licensed hy the Archbishopp of the Province or Bishopp of the Diocese or {in case the See be void) hy the Guardian of the Spiritualties under his Scale, . . . Can. 36 of iff f (append. XII). " 28 & 29 Vict. (1866) c 122 Clerical Subscription Act, s 5 ; 31 & 32 Vict. (1868) c 72. ■* Phillimore, Ecdes. Law 585. * The object of this rule was to make it difficult for puritans to hold lecture- ships. According to Charles I's instructions (1633 ; in Cardwell, Doc. Ann. 177) V, 2, the lecturers were to read divine service according to the liturgy printed by authority, in their surplices and hoods, before the lecture. Now 14 Car. it (1662) c 4 Act of Uniformity s 18 prescribes that the ordinary service shall be read by some deacon or priest in the church, before the sermon or lecture and in the presence of the lecturer. This does not apply to the university sermon or lecture (s 19). ^ si: . ■ ■ to perform such other clerical or ministerial duties, as assistant curate or otherwise . . . , as the said bishop, with the assent of such incumbent as aforesaid, shall think proper . '. . » Phillimore, Eccles. Law 584 ff. 352 NATIONAL AND PROVINCIAL SYNODS [V, 13a 13. ECCLESIASTICAL ASSEMBLIES. A. NATIONAL AND PROVINCIAL SYNODS. § 54. a. Historical.* Until the conference of Streoneshalcli ( = Whitby), 664, there were in the Anglo-Saxon kingdoms two schools of believers, the adherents of which had no communion with each other.' Thus up to that time no church council could be held embracing all Anglo-Saxon Christians. The first great ecclesiastical assembly of the Anglo-Saxons of ' Cf. § 1, notes 13 £f. » 1. Sources : The Schedules of Contimuition and protaWy other documents relating to the convocations of older times were destroyed in a fire in 1666. Reports of some of the early debates of the convocations will be found in the collections cited in append. XIV, I, 1. For a conspectus of proceedings preserved see Card well, Introduction to Gibson's Synod. Anglic. Ed. 1851, pp. Iv ff. The proceedings since the middle of the nineteenth century have been published by private persons, but with the co-operation of the prolocutors etc. : — For the pi'ovinces of Canterbury and York : From Nov. 1852 to June 1853, Synndalia, a Jov/rnal of Convocation, ed. Charles Warren, London, 1852, 53 ; from Aug. 1854 to Feb. 1857, The Joui-nal of Convocation, by same editor (contains also many essays respecting convocatioa etc.). For the province of Canterbury : In 1888, 9 there was printed by convocation a collection (by Joyce) of reports from the public iournals on the proceedings in 1852 (1847) to 1857. Cf. Chron. of Com. Cwnt. 1888, pp. 129, 180, 185; 1889, p. 123.— From 1858 onwards The Chronicle of Convocation, ieing a Record of the Proceedings of the Convocation of Canterbury, has appeared in numbers, each covering a session (3 or 4 days at most). With the year 1880 began the practice of prefixing a summary, containiug the resolutions passed. Committee reports etc. are appended. For the province of York : From 1859 to March, 1862 The York Journal of Convoca'- tion, containing the acts and debates of both Houses of the Convocation of the Province of York, edited from authorized sources by George Trevor. York, Durham, London, 1861. — Since 1874 in 1-2 yearly numbers under the title: The York Journal of Convocation, containing the Acts and Debates of the Convocation of the Province of York. London, York. 2. Treatises, histories etc. : — Atterbnry, Fr. The Rights, Powers a/nd Priviledges of an English Convocation. London, 1700. With Addenda. Gibson, Edmund. Synodus Anglicana, or The Constitution and Proceedings of an English Convocation shown from the Acts and Registers thereof . . . (Appendix contains reprint from the registers of upper house, 1 562, 1640, 1661, and the Journals of lower house, 1586 and 1588, 1702, New Ed. Oxford, 1854, by Edward Cardwell.)— Hefele, Karl Joseph. Konziliengeschichte, 1st Ed. 7 vols. Freiburg i. Breisg. 1855 ff. Vol. 8 etc. continued by Hergenrother. 2nd Ed. 1873 ff.— Hody, Humphrey. A History of English Councils and Convocations and of the Clergy's Sitting in Parliarrtent . . . London, 1701. 3 parts. — Joyce, James Wayland. England's Sacred Synods. A Constitutional History of the Convocations of the Clergy from the earliest records to 1862. London, 1855. — Same author. Handbook of the Convocations or Provincial Synods of the Chu/rch of England. London, 1887. — Kenuet, White. Ecclesiastical Synods and Parliamentary ConvocaUons in the Church of England. Historically Stated . . . London, 1701. — Lalhbury, Thomas. History of the Convocation of the Church of England from the earliest period to 1742. 2nd edition, London, 1853. (Rather, general church history in connexion with the proceedings of convocation.) — Pearce, Robert R. The Law relating to Convocations of the Clergy, with forms of pro- ceeding in the Provinces of Canterbury and York, etc. London, 1848.— Trevor, Gi=orge. The Convocations of the two Provinces, their origin, constitution, and forms of proceeding . . . London, 1852. (Relates especially to convocation of northero province.) — Wake, William. The State of the Church and Clergy of England in their Convocations . . . historically deduced with a large appendiss of original writs and other instruments. London, 1703. For the Anglo-Saxon period compare Stnbbs, Const. Hist. I, 251 ff. c 8 § 87- On provincial councils iu the Anglo-Saxon period see Hinschius, Eirchenrecht III, 478, note 3; on the mixed ecclesiastical. and secular councils of the petty kingdoms and of the united Aiigl'j-Saxon kingdom. I.e. Ill, 5^6, note: on the primatial, legatine and provincial synods from William I to John, l.c. Ill, 572 ff. § 54] HISTORICAL 353 which a record has survived, is the council of Herutford ( = Hert- ford), held by archbishop Theodore in 673. Bishops from five kingdoms were present or represented at it.* The council of Haethfelth, equally representative, followed in 680.* At Herutford it had been resolved that a great council should be held annually ; * but the resolution was not, so far as is known, regularly carried into effect. Nevertheless, down to the time of the wars- with the Danes great church councils are mentioned with comparative fre- quency.^ Afterwards, until the Norman conquest, such meetings fell into disuse.® To a fixed, consistent form these Anglo-Saxon councils did not attain. At them appeared sometimes representatives from one or more kingdoms, sometimes representatives from one archiepis- copal province ; they were seldom national councils of the whole Anglo-Saxon church. Moreover, no strict division was drawn between temporal and ecclesiastical assemblies. The general Witenagemot, at which the bishops, abbots of larger monasteries, and sometimes the inferior clergy, also assisted, discussed alike secular and spiritual matters, and passed resolutions thereon. But side by side with the Witenagemot, after the councils, just men- tioned, of Herutford and Haethfelth there were meetings at which ecclesiastical matters formed the sole subject of deliberation, whilst the majority of those who attended were of the clergy. Yet even such assemblies were not called by the archbishop independently : at least the co-operation of the king was required.'' As a rule, the ^ Haddan and Stvibbs, Councils III, 118 if. On smaller councils alleged to date from 605 see Hefele, Konziliengeschichte 2nd Ed. Ill, 64, and Hinschius III, 478, note 3. » Haddan and Stubbs III, 141. ^ Older church law, especially the resolutions of councils in the fourth and fifth centuries, reqiiired the holding of two provincial synods in the year. The various regulations to this effect are cited in Hinschius, KircTienrecht % 173, III, 478, note 6. In and after the sixth century, once a year was the rule frequently laid down. Hinschius, I.e. Ill, 474, note 3. Eichter, KircTienrecht % 149, note 8. Council of Herutford, 673, c 7 : it was the rule of the old canons ut his in anno synodus congregetur : sed quia diversae causae impediunt, placuit omnibus in commune, ut Kalendis Augusti.'s in loco, qui appellatur Clofeshoch semel in anno congregemur (Haddan and Stubbs III, 118). Perhaps a resolu- tion of the synods of Pincahala.&nA Celchyth, 787, c8, is to be understood as meaning that in future two provincial synods are to take place annually. (Of. § 67, note 1.) " Stubbs, Const. Hist. I, 252 c 8 § 87. ° Stubbs, Const. Hist. 1, 263 c 8 § 89. Eaport of the resolutions of the national synod at London, 1075 (Wilkins I, 363) : Et quia multis retro annis, in Anglico regno usus conciliorum obsoleverat ; ... So Consiliatio Cnuti (law-book, first half of 12th cent.), introduct. o 4 : ecclesiastice vero institutiones sinodorurnque conventus apud Anglos inusitati adhucfuerant, . . . ' In rpgard to the council of Herutford, 673. Beda, it is true, says: Theo- dorus cogit concilium, (Haddan and Stubbs III, 118) ; see, however, the text given by Beda of the resolutions of Haethfelth. The introduction runs: In nomine Domini nostri Jesu Christi . . . , imperantibus dom,inis piissimis nostris Ecgfrido rege Hynibronensium . . . , , et Aedilredo rege Mercinensium . . . et Alduulfo rege Estranglorum . . . et Hlothario rege Cantuariorum . . . praesidente Theodora, gratia Dei H.C. A A 354 NATIONAL AND PROVINCIAL SYNODS [V, 13a archbishop presided ; but kings and the magnates of the land were frequently present as members of the councils.* As the constitution of the Witenagemot in those days varied very considerably, so it appears that the officers of the church invited to ecclesiastical councils were not always the same. Bishops we find constantly present, and when the monasteries had gained in import- ance, abbots also; not always,' it would seem, lower dignitaries, Archiepiscopo Britanniae insulae . . . fidem rectam exposuimus (Had- dan and Stubbs III, 141). — Report by papal legates of council of Pincdhala (l&l) : . . . quia . . . Rex (of Northumbria) longe in Borealibus com- morabatur, misit . . . Archiepiscopus (of York) missos suos ad regem, qui continuo omni gauAio statuit diem concilii . . . (Haddan and Stubbs III, 447). Council of Clovesho, 798 : . . . Ego Athelhardus . . . Dordberniensis ecclesiae metropolitanus, cum . . . rege nostra Cenulfo, convocans universos provinciales Episcopos nostras, duces et abbates et cujus- cunque dignitatis viros, ad synodale concilium, .... (Haddan and Stubbs III, 512). On a council under Edgar (959-97B) cf. Regularis Cancordia [end of 10th century; Latin and Anglo-Saxon text in Selien, Notae ad Eadmerum, ■London, 1623, p. 145; the literature on the Beg. Cane, is brought together in Archivfiir das Studium der neueren Sprachen vol. 84 (year 1890) p. 1 and in H. Logeman (Early English Text Society), The Bute of St. Benet (London, 1888)]. Prooeinium: Bex . . . Synodale Cancilium Wintoniae fieri decrevit . . . ; present were . . . Episcop^^ . . . Abbates et Abbatissae ... — On an ecclesiastical council held circ, 710-16 in Wessex without the co-opera- tion of the archbishop of Canterbury see Willibald, Vita Bonifacii (written soon after 754) : . . . statim, synodale a primatibus ecdesiarum (i.e. by the .bishops) cum consilio praedictiTegis (Ineof Wesses) servorum Dei factum est concilium (Manumenta Germaniae II, 338 ; Haddan and Stubbs III, 295). * Thus at the council of Clovesho, 747, there was present iing Aedilbald of Mercia cum, suis principibus ac ducibus (Haddan and Stubbs" III, 362) ; report of the legates on the council of Pincahala, 111 (Haddan and Stubbs III. 459, 460) : Haec decreta, beatissime Papa Hadriane, in concilia publico coram, Bege Aelfuualdo, et Archiepiscopo Eanbalda, et omnibus Episcopis et abbatibus regionis, seu senataribus, et ducibus, et populo terrae proposuimus . . . Then there also sign judices optimates et ndbiles. At the legatine council of Celchyth, 787, there was present Offa cum, senataribus terrae (Had- dan and Stubbs III, 460). So we read of a council of Celchyth (almost certainly in 801) : ... in synodali canciliabulo . . . coram, rege [Cenulf] Merci- anum et praesulibus Ecdesiarum Dei, necnon et ducibus seu principibus . . . (Kemh\B,Cod. Dipl.'Ho.llQ; Haddan and Stubbs III, 531, note.) At the council of Celchyth in 816 archbishop Wulfred presided and bishops are mentioned as assessors, as also king Cenulf cum suis principibus, ducibus et optimatibus (I.e. Ill, 579). From the fact that kings and temporal magnates were generally present even at councils at which legates or archbishops pre- sided, and subscribed the resolutions, their assent was inferred. But such assent was apparently not necessary to the validity of the resolutions. So Stubbs, Canst. Hist. I, 252 o 8 § 87 and Hinschius, Kirchenrecht IH, 478, note 8 ; a contrary view is maintained by Philipps, Engl. Rechtsgesch. 1, 105. The addition corifirmo sometimes joined to the king's signature is also found with the signatures of other persons, and only attests the correctness of the report of proceedings. " They were present e.g. at Herutford, 673 (Theodoras cogit concilium epis- coparum, una cum eis, qui cananica patrum statuta et diligerent et nossent, magistris ecclesiae pluribus. Haddan and Stubbs III, 118), Haethfelth, 680 (collecta venerabilium sacendotum dactorumque plurimorum coetu: Haddan and Stubbs III, 141), Pincahala, 787 (His quoque saluberrimis admonitionibus presbyteri, diacbni ecdesiarum, et abbates monasteriorum, judices optimates et ndbiles, unopere, una ore cansentimus et subscripsimus. Haddan and Stubbs § 54] HISTORICAL 355 priests and deacons. However, as a general rule, spiritual persons of these classes did take part in the councils.'" Not until the twelfth or thirteenth century did the provincial and national councils gradually gain a definite constitution by the ex- clusion of laymen from membership, by a new regulation of the mode of summons and by a development of internal organization. The complete and fundamental detachment of the ecclesiastical assembly from the temporal is made clear by the sitting, frequent under Henry I, of the two bodies separately at the same place.'' But the prelates remained members of the general national council though they sometimes, even in the thirteenth and fourteenth centuries, deliberated apart from the laity.'^ Moreover, both in the reign of Henry I and later, down to the middle of the thirteenth century, meetings of the clergy and the laity jointly are recorded under various names. Therewith are to be connected the efforts of the kings (1254, 1283, 1296 if.) to bring about, mainly for the pur- pose of granting taxes, a combined gathering of the two bodies.'^ Just, however, as the attendance of laymen at ecclesiastical councils had gradually ceased, so now the lower clergy opposed the endea- vour to compel their presence at national assemblies composed on the basis of temporal property. They did, indeed, appear in parlia- ment in answer to the king's summons, but immediately detached themselves from the rest. These separate assemblies of the clergy apparently became fused, at latest with the reign of Edward III, with the church councils, which meanwhile had continued in their old form. Or perhaps there was not so much a fusion as a gradual decay of the parliamentary church gatherings, whilst part of their rights passed to the ecclesiastical councils.'* In any case we have in, 460), Cdchyth, 816 {undiqtu. sacri ordines [ordinis ?] praesules cum abbati- bus, presbiteriis [presbiferis P] diaconibus pariter, tractantes . . . Haddan and Stubbs III, 579). '" The resolutions of the council of Clovesho (803), for instance (in some of the resolutions king and nobles were also concerned ; Haddan and Stubbs III, 542), are subscribed by one archbishop, twelve bishops, twenty-five abbots, forty-four priests, one archdeacon, four deacons (Haddan and Stubbs III, 546). "We can hardly assume — with Stubbs, Const. Hist. I, 264 c 8 § 87— that the constitution of this council was an extraordinary one ; for in many other cases the presence of the inferior clergy also is mentioned (cf. note 9) ; though it is true they may not always have subscribed. But their influence in shaping the resolutions adopted was probably small.— Cf. below, note 28. " See more in Stubbs, Const. Hist. I, 404 c 11 § 126. From the transition period cf. the report in Chronicon Saxon, anno 1086 {Ber. Brit. Scr. No. 23) I, 352 : f)a to /}am midewintre waes se cyng on Gleauceeeastre mid Ms witan, and heold Jjoer his hired V. dagos, and siSSan ^e arcebisceop and gehadode men haefden sinotf fireo dagos . . . After }>isum haefde.se cyng mycel getSeaht and svyitSe deope spaece wid his witan . . . (" At midwinter was the king at Gloucester with his Witan and held there his court five days, and then the archbishop and clergy Iiad a synod three days . . _. After this the king had a great deliberation and very deep discnssion with his Witan.") " Cf. § 21, note 30. " Cf. § 21, near notes 13 ff. " The prevalent opinion now is that the convocations of the present day are to be regarded solely as the successors of the earlier church councils, and that the parliamentary assemblies of the inferior clergy simply became by degrees 356 NATIONAL AND PROVINCIAL SYNODS [V, 13a here the final failure of the attempt to unite, if only, in the first instance, for a limited purpose, representatives of the clergy and the laity in one deliberative assembly. The king, who in the twelfth century had still often assisted at the meetings of the clergy, now took no further part therein. If he wished to negotiate with convocation he despatched one or more persons with full powers to act for him in the special case. These agents did not by virtue of such powers become members of the body to which they were commissioned. After the passing of the supremacy act of Henry VIII in 1B36, representatives of the king, who were empowered to exercise the rights involved in the supre- macy, appeared at the convocation of Canterbury. On their demand they were allowed, although laymen, to preside,'^ and thus the extinct. This opinion was last argued at length by Joyce, Sacred Synods. In its favour is the fact that in early times, for the most part, separate represen- tatives were chosen for parliament and for convocation. Cf. § 21, note 23. Stubbs, Const. Hist. II, 210 c 15 § 200, advocates tlie same view. As proofs that the parliamentary representation of the clergy and convocation remained per- fectly distinct bodies Stubbs urges: 1, the parliamentary representatives were one element of the general parliament and met in the same place, whilst the convocations were two provincial councils meeting generally at different places (London and York) ; [no case, however, is demonstrable in which a parliamen- tary assembly coji^wcd to the lower clergy met; on the other hand sometimes in the middle ages and more frequently after the reformation bishops of the northern province are mentioned as taking part in the deliberations of the southern convocation ; it is thus not probable that in the transition period the chance presence of clergy of the northern province should be regarded as decisive of the parliamentary character of the assembly] ; 2, the convocations contained the abbots and priors ; these are not included in the praemunientes- elause ; [but abbots and priors appeared in parliament in virtue of special sum- monse.s and could therefore attend, no less than the bishops, the separate meetings of the clergy. Cf. further e.g. the summons of 8th Oct. 1312 in § 21, note 25] ; 8, the convocations were called by the archbishop's writ, the parlia- mentary proctors by the king's ; (but summons was afterwards in both forms ab once]. — In the transition psriod the archbishop summons sometimes 'to parliament,' sometimes to appear 'before himself,' without, it would appear, any real difference. (It is, indeed, to be observed that until about the begin- ning of Edward Ill's reign neither the term parliamemtum nor the term con- vocatio was used with strict limitation to any particular kind of assembly.) That the assemblies meeting under presidency of the archbishop but in obedi- ence to royal ordinance were still for some time regarded as part of the repre- sentation of the nation (as temporarily the merchant assemblies were regarded; cf. Stubbs, Const. Hist. II, 201 c 15 § 196) is supported by the fact that it was usual to summon th'e convocations at the same time as parliament, and by the retention of the praemunientes- clause in the writs summoning bishops to parliament. At no time, moi-eover, have the English kings expressed in favour of provincial synods a renunciation of the right to impose taxes not granted. Edward I expressed such renunciation in 1297 only as regards the national representative body {par commun assent de tut le roiaume. Cf. § 4, note 97) ; nevertheless, the money grants of the clergy were afterwards made in convo- cation. (But grants of money had already taken place at the beginning of Edward's reign at the, then purely ecclesiastical, provincial synods.) — Cf. also § 21, notes 20 ff. " In Wilkins,CWc?7?a III, 803 ('eas registr. convoc. et Excerpt. Heylin') it is expressly stated that the presidency was given to Petre, Crumwell's deputy, at his (Petre's) request. According to Collier, Eccles. Hist. IV, 336 and Burnet, Hist, of Reform, pt. Ill, p. 123, Orumwell himself .presided at one of the follow- § 54] HISTORICAL 357 king's right to the presidency was in principle again acknowledged. But this right was not afterwards, so far as is known, exercised by the sovereign either in person or by deputy. The summoning of church councils was, as in the Anglo-Saxon period, so under the first Norman rulers, subject to the king's co- operation.^® The summons was indeed issued by the archbishop, but he might not convene without the sovereign's orders. The pope in Henry I's reign and afterwards put forward the claim urged elsewhere from early times, that before the summoning of a national or provincial church council, he must be approached for his assent, and that whatever was resolved needed ratification by him.^^ It is not, however, known that this claim was in England, at any time, ing sessions. In Wilkins I.e. this is not mentioned. Crumwell signs first in several records of the resolutions of convocation. (Wilkins III, 809. Collier IV, 356.) ^* The contrary is often maintained. In defence of the view in th&text the following passages may be cited : — William of Malmesbury, Gesta Pontificum (Eer. Brit. Scr. No. 52) Book I § 42 Willelmus (I) rex in omnibus ei [archbishop Lanf ranc] assurgebai, aggau- debatque et aliis, quos in bono fervore audisset, pertnisitque ei concilia congregare, . . . Eadmer, Hist. Nov. (Rer. Brit. Scr. No. 81) p. 43, year 1094. Anselm says to William II: Jube, si placet, concilia ex antiquo usu renovari . . . Generate nempe concilium episcoporum ex quo rex foetus fuisti non- fuit in Anglia celebratum, nee retroactis pluribus annis. The king answers: cuTn mihi visum fuerit de his agam, non ad tuam sed ad m,eam, v»luntatem. — (Of an occurrence in 1095 Eadmer reports, I.e. p. 53: . . . ex regia sanctione ferm,e totius regni nobilitas . . pro ventilatione istius causae (whether adherence to Drban was reconcilable with loyalty to the king) in unum apud Roehingeham coit. Fit itaque conventus omnium Dom,inico die in eeclesia . . . , rege et suis secretius in Anselmum consilia sua studiose texentibus. Anselm,us autem, episcopis, abbatibus, et prineipibus ad se a regio secreto vocatis, eos et assistentem m,onaehorum, clericorum, laicorum numerosam m,ultitudin£.m . . . alloquitur. From this meet- ing the bishops convey his declarations to the king and bear answer back. (The separate meeting of the clergy held by Anselm in this case cannot be regarded as a regular church council. Thus the passage is not, as is sometimes assumed, decisive either way.) Letter of Anselm, 1099-1100: Concilium non permisit celebrari inr&gno suo ex quo rex factus jam per tredeeim annos. (Printed more fullj"- in § 4, note 17.) William of Newburgh {Rer. Brit. Scr. No. 82) I, 133, year 1166 : Rex vere nolens eos (the heretics seized) indiscussos vet dimittere vel punire, episco- pate praecepit Oxoniae concilium, eongregari. Benedict {Rer. Brit. Scr. No. 49) I, 112, year 1176 : Interim rediit ad curiam domini rkgis praedictus Hughezun eardinalis ille, quern summus pontifex in Angliam, miserat ; et per consilium, domini regis submonuit omnes epis- copos et abbates et priores totius Angliae, quod essent . . . apud Lundonias ad audiendum mdndata et praecepta summi pontificis. For further proofs see Hinschius, Kirehenreeht III, 573, note 10. On the councils (Winchester, 1139 and 1141, and Westminster, 1141) summoned in Stephen's reign by Henry of Winchester, papal legate, see Hinschius, I.e. Ill, 574, note 1. " On the papal claim see Deeretum Gratiani lib. I dist. XVII. Letter of Pa,ichal II to Henry VIII and the English bishops in Eadmer, Bist. Nov. {Rer. Brit. Scr. No. 81), year 1115 : Vos praeter conscientiam nostram concilia synodalia celebratis . . . 358 NATIONAL AND PROVINCIAL SYNODS [V, 13a long 18 made good. With the end of the twelfth century, not before, the archbishops began to convene their councils without the king's order previously given, or indeed sometimes in defiance of his pro- hibition to hold them.i" At the end of the thirteenth the innova- tion had gained such ground that the archbishops disputed ail right on the king's part to demand the summoning of a council.^" About this time, however, Edward I had resumed the practice of instruct- ing the archbishops to call ecclesiastical assemblies. This be did oa several occasions, nor is any instance known in which an archbishop rejected a request to this effect, given by Edward or his successors. Nay, Edward I and after him Edward II, on their own initiative and without the agency of the archbishop, summoned in- various forms ecclesiastical councils. This was in connexion with their endeavour to bring about the representation of the lower clergy in parliament. The clergj' based their resistance, which rested in fact on material considerations, on the form of the writs of summons and especially on the co-operation of the king, alleged to be inadmissible. Hence many slight alterations in the form of writ were made in this transition period. ^^ It was only in the beginning of Edward Ill's reign that the legal position was established that the king might instruct the archbishops to summon, whereupon the latter, must obey the instruction, but that the archbishops were also entitled to call convocation together on their own initiative without royal permission first obtained. The usage down to the reformation followed these lines. Ratification by the king of the resolutions of councils had not been a fundamental requisite in the Anglo-Saxon period, even if it '' In regard to the council of London, 1102, of. Eadmer, Hist. Nov. (Rer. Brit. Ser. No. 81) 141 : . . . praexedit Anselmus . . . In hoc concilio multa ecclesiasticae disciplinae necessaria servari Anselmus instituit, quae post- modum sedis apostolicae pontifex sua auctoritate confirmavit. '' In the year 1200 archbishop Hubert (the king's chancellor) held a council of the clergy of both provinces at Westminster in spite of the express prohibi- tion of the chief justiciar, who represented the absent king. — In 1257 a council summoned by archbishop Boniface met in defiance of the king's prohibition. Annal. de Burton {Rer. Brit. Scr. No. 36 ; Ann. Monast.) I, 403 ; the archbishop laid several .subjects before the convocation for discussion, among them this: Item, cum dominus rex prohibuerit praelatis Ecclesiae, sub forisfactura om,nium teihrarum suarum quas de eo tenent, ne venirent ad hujusmodi con- vocationem auctoritate domini archiepiscopi factam, an liceat et deceat et expediat tractare in hujusmodi convocatione de negotiis Ecclesiae a praelatis ; vel potiuis, quod absit, prohibitioni regiae parere; . . . '" Wilkins, Cone. II, 236 (30th April, 1298). The summons of archbishop Winohelsey begins : Exigunt nonnunquum etiam contra animi destinationem, licet cum, fastidio, petita concedi nan tam dignitatis, quam, instantia postulantis (of the king) . . . On that account he summoned. "' Although there is a whole literature on the forms of summons in this transition period, the development is nowhere quite clearly traced. Cf. the collection in Joyce, Sacred Synods pp. 259 if., which, however, is also not quite complete and not quite accurate. — The difficulty lies in the fact that it can hardly ever be certainly determined in a given case whether a summons to parliament or to a church council is meant; contemporary writers did not make a sharp distinction. § 54] HISTORICAL 359 generally ensued.^* "William I had reserved to himself the right of causing all proposals to be previously submitted to his approval.^'' William II did not suffer church councils to meet.^* At the begin- ning of the reign of Henry I Anselm, on a particular occasion (1102), begged that the laity might take part in a gathering of churchmen, in order to give their assent to the resolutions framed.^* In 1108 the presence of the king and the assent of the temporal magnates is laid stress on in the heading to the resolutions of the bishops.^^" In 1127 Henry I confirmed the resolutions of a council by special deed.^® Passing to later times, we do not learn that the sovereign claimed the right of confirmation. At any rate, from the end of the twelfth century (at latest), no such right was exercised. In the thirteenth century the internal organization of convocation was perfected.^'' Along with the bishops there generally took part in ecclesiastical synods, even during the Norman period, abbots, deans of cathedrals, conventual priors as also archdeacons.^* Besides these officials, proctors of the chapters were invited, probably for the first time, to the synod of the southern province in 1225.^' As early as the " Cf. above, note 8. ^^ Cf. § 4, note 12. ^* Cf. § 4, note 16. ^^ See the account drawn up by Anselm of the proceedings of the council of ' London, 1102, in Eadmer, Hist. Nov. {Ber. Brit. Scr. No. 81) p. 141 : . . . ipso (Henr. I) annuerite, communi consensu episcoporum ft abbatum et principum totius regni, celebratum est concilium . . . In quo praesedit Anselmus . . . Huic conventui affuerunt, Anselmo archiepisoopo petente a rege, primates regni, quatenus quicquid ejusdem concilii auctoritate decemeretur, utriusque ordinis concordi cura et sollicitudine ratum servaretur. ^^^ Cf. § 22, note 13. ^^ Eymer, Foedera 4th Ed. I, 8 : Sciatis quod auctoritate regia et potestate concedo et conflrmo statuta concilii a Willelmo Cantuariensi archiepiscopo, et sanctae Bomanae ecclesiae legato, apud Westmonasterium celebrati, et inter- dicta interdico. Si quis vero horum decretorum violator vel contemptor extiterit, si ecclesiasticae disciplinae humiliter nan satisfecerit, noverit se regia potestate graviter cohercendum ; quia divinae dispositioni resistere praesumpsit. This is the only known example of such mode of confirmation. Stubbs, Const. Hist. I, 404 c 11 § 125, surmises that this confirmation is con- nected with the investment of the archbishop of Canterbury (in 1126 ; cf. § 34, note 12) with legatine powers. " The most important of the documents relevant hereto are brought together in Stubbs, Select Charters 4th Ed. 1881, pp. 452 ff. Cf. also the conspectus of changes in the constitution of convocation in the Chronicle of Convocation of Canterbury, 1885, append. No. 189, p. 28. A history of the course of develop- ment is given iii Stubbs, Const. Hist. II, 296 c 15 § 199.— The account in the text is mainly from these sources. ^* For proofs see Joyce, Sacred Synods 224 ff. "Whether parish priests were present in the early Norman period is doubtful. See Joyce, as quoted. Eadmer, Hist. Nov. (Rer. Brit. /Scr., No. 81) p. 9, speaking of "William I's time, mentions only a generate episcoporum concilium. The passage is printed In § 4, note 12. Council of London, 1075 ( Wilkins, Concilia I, 363) : Ad comprimendam quorundam indiscretorum insolentiam, ex communi decreto sancitum, est, ne quis in concilia loquatur, praeter licentiam a metropolitano sumptam, ex- ceptis episcopis et abbatibus. 29 . . . et significetis singulis capitulis ut m,ittant procuratores tarn videlicet ecclesiarum cathedralium quam praebendalium et monasteriorum et aliarum domorum religiosarum ac collegiatarum . . . Stubbs, Sel. Ch. 453. In the same year such representatives were ordered to attend the Scotch synod. (Cf. § 10, note 12.) 36o NATIONAL AND PROVINCIAL SYNODS [V, 13a middle of the thirteenth century the archdeacons were regarded as the representatives of the clergy subordinate to them.^" Special representatives of the inferior beneficed clergy at a provincial church assembly ^' are first mentioned on the occasion of a synod of the province of Canterbury in 1256.^" In the years 1257 and 1258 no special representatives of the inferior beneficed clergy were summoned; the archdeacons, however, were to obtain full powers to represent those subordinate to them.^* But how little at *" Matthaeus Parisiensis, Chronica Major {Ber. Brit. Ser. No. 57) IV, 37, year 1240. The papal legate summons the bishops that they may grant a tax to the pope. The bishops answer : Habemus archidiaconos nobis svtbjectos, qui norunt beneficiatorum sibi subjectorum facultates, nos autem ignoramus. Omnes tangit hoc negotium, omnes igitur sunt conveniendi, sine ipsis nee decet nee expedit respondere. " On the appearance of representatives of the lower clergy at civil assemblies in 12,54 and 125B see § 21, notes 13 and 14. *^ Summons of the bishop of Lincoln to an assembly to be held on 18th Jan. 1256, printed in Matthaeus Parisiensis, Chronica Major, Additamenta (Ber, Brit. Scr. No. 57) VI, 314 :— H[enricus] permissione divina, etc., archidiacono Huntingdunensi, etc. . . . Broinde cum salubriter ut creditur sit provisum, quod majores praelati religiosi, tarn, abbates quam priores necnon cathedralium ecdesiarum decani, personaliter cum quibusdam, discretis canonicis suis, confratrum suorum, procuratoribus, et singuli archidiaconi per se cum, tribus aut quatuor discretioribus de suis archidiaconatibus pro se et cum m,andato procuratorio consbrtum suorum,, die Martis proximo post festum Sancti Hillarii apud Novum Templum Londoniis, cum, coepiscopis nostris et nobis ibidem, per Dei gratiam conventuris compareant, faduri in praemissis et consilium, suum im,pensuri, prout ad utilitatem, status ecdesiae et domini regis ac regni visum fuerit m,eliu,s expedire. Vobis mandamics, firmiter injungentes, quatinus dictos praelatos et clericos in archidiaconatu vestro constitutos secundum, discretionem, vobis desuper datam prudenter sollicitetis interim, atque caute, quod dicti praelati et vos personaliter, eaeteri quoque per idoneos procuratores, dictis die et loco-modis omnilms concurratis, congruum, in hoc parte consilium im,pensuri. 8" Ann. de Burton (Eer. Brit. Sor. No. 86) I, 389. In 1256 resolution is passed : quod decani, praelati, regulares, ac archidiaconi tractabunt cum suis capitulis et clericis . . . , ita quod ad mensem post Bascha redeant Lon- donias per procuratores instructos ad plene respondendum, seu componendum. Summons of the archbishop of Canterbury to the bishop of Lichfield and Coventry, 1257 (I.e. 402) : . . . citetis decanum Lichfddensis et priorem Coventrensis cathedralium ecdesiarum, necnon abbates et alios priores qui non suhsunt abbatibus, archidiaconos .,.,... praecipiendo, ut praedicti decanus et prior . . . , abbates et alii priores cum. Uteris procuratoriis nom,ine congregationum suarum confectis, ac dicti archidiaconi cum. Uteris similibus factis ex parte clericorum qui subsunt eisdem . . . debeant interesse . . . Summons of 1258 {I.e. 412) : Vocetis etiam deeanos cathedra- lium, ac aliarum, ecdesiarum, necnon etiam abbates, priores majores, insuper et archidiaconos vestrae dioeeesis universos, ut cum Uteris suoruin subditorum procuratoriis . . . compareant. Probably the same form of representa- tion was in use at the council of Lambeth, 1261 , for in the document (Wilkins I, 755) it is mentioned that the resolutions were framed by the bishops de consensu et approbatione inferiorum, praelatorum, capitulorum cathedralium et conventualium, necnon universitatis totius eleri Angliae. — The procuratores present at the provincial council of London apud Novum, Templum, 1269 (Wilkins, Concilia II, 19) seem to have been only representative of the chapters. Before the addition : abbatum, priorum, rectorum, et vieariorum earundem dioecesium a comma should be placed. §64] HISTORICAL 36 1 this time any particular persons were entitled to be summoned or any particular bodies to be represented, is shown by the summons to a convocation in 1273, wherein the bishops are invited in general terms to bring with them three or four of the most esteemed and most prudent in their church or diocese.^* In 1277, besides chapter clergy and archdeacons, there were summoned independent plenipo- tentiaries of the whole of the lower clergy of each diocese.^^ At the provincial assembly called, by the king's command, at Northampton in 1283,^^ it was resolved that proctors of the lower clergy should be summoned to the next meeting. At this assembly of North- ampton the clergy refused to grant subsidies because representa- tives of the lower clergy had not been summoned.^'' Thereupon '* • . . mandamus, quatenus omnes ecclesiae nostras Cantuariensis suffraganeos auctoritate nostra vocetis . . . Et . . . injungatis . . . ut quilibet eorum vocet et ducat secum ad praedictam, congregationem tres vel quatuor personas de m,aJoribus, discretioribus et prudentioribus suae ecclesiae et dioceseos. Stubbs, Set. Ch. 455. '* . . . coepiscopos . . . faciatis . . . evocari . . . quatenus nobiscum . . . in propriis personis conveniant una cum aliquibus' per- sonis majoribus de suis capitulis, et locorum archidiaconis, et proeuratoribus totius cleri diocesium singularum. Stubbs, Set. Ch. Abb. ^^ So Stubbs, iSel. Ch. 462 and at full length Stubbs, Const. Hist. II, 207, note 1 16 § 199.— Perry, Hist, of Engl. Ch. I, 381, note 1 c 19 § 8 (in agreement with Hody III, 138), on the other hand, assumes — for insufficient reasons — that the resolution in question originated at the council of Reading in 1279. That some resolution of this sort was passed at the council of Northampton in 1283 is clear from the summons, printed below in note 38, to the ensuing council of London, 1283. But, besides that, the following ordinance of archbishop Peckham has bsen handed down and sometimes appsnded to the resolutions of the council of Reading, 1279 : Item praecipim.us, ut in proximo congregatione nostra tempore parliamenti proximi post festum Sancti Michaelis ad tres hebdomadas per Dei gratiam futura, praeter personas episcoporum, et pro- cur atores absentium., veniant duo aut unus a clero episcopatuum singu- lorum,, qui auctoritatem habeant una nobiscum tractare de his, quae ecclesiae et com,muni utilitati expediunt Anglicanae, etiamsi de contributione aliqua vel expensis oportet fieri mentionem, etc. (Wilkins, Concilia U, 49. On the MSS. in which the ordinances of Peckham are recorded see Martin, Registr. Epist. Peckham, {Rer. Brit. Ser. No. 77] III, p. cxxxix.) This ordinance is not identical with the resolution mentioned in note 38, as there the time at which the next convocation is to be held is different ; moreover in the summons to the council of London in 1283 two proctors of the clergy are specified, here one or two. Between the council of Reading and that of Northampton several were held in which the parochial clergy were not represented or were represented in another form. — On one of these councils (London, 1279) see Wilkins, Concilia II, 37 : Convocatur . . . , ut regi suhsidium a (Aero praestetur. Soli epis- copi hie summonentur ab archiepiscopo ; inferiores vero clerici consilium suum, de auxilio regi faciendo dioecesanis suis episcopis communicare^ aut procuratores ea de re tractaturos constituere jubentur. As to a second cf. the archiepisoopal summons of 30th July, 1281, to the council of Lambath, 1281, in Regist. Epist. Peckham {Rer. Brit. Scr. No. 77) I, 211 and in Wilkins, Concilia II, 50: . . . m,andamus, quatenics . . . coepis- copos . . . nostras universos, nee non abbates, priores electivos, exemptos et non exemptos, decanas cathedralium et collegiatarum ecclesiarum, archi- diaconos et capitulorum procuratores, citetis . . . Peckham by summons dated 28th Dec. [1281], Beg. Ep. Peckham I, 256, invited only the bishops to a s.ynod. " On the assembly of Northampton cf. § 21, note 17. The king's commission 362 NATIONAL AND PROVINCIAL SYNODS [V, 13a the archbishop, on the 21st January, 1283, invited a new provincial council to meet at London and summoned to it for the first time expressly two proctors to represent the inferior clergy of each diocese."^ The constitution of the council as contemplated in the summons to the council of London in 1283, and also in the royal summonses for the national council of 1294 and the parliament of 13th November, 1295,^' has been preserved in the main — apart from the later extinction of monastic representatives — in the pro- vincial council of Canterbury down to the present time. The convocation of the province of York attained to fixed form about the end of the thirteenth century. Membership was governed as in the convocation of Canterbury, with the difference, however, that in York for each archdeaconry two representatives of the parochial clergy were summoned to convocation.*" *^ to each of the archbishops had been : . . . suffraganeos vestro.i et abbates, priores et alios singulos domibus religiosis praefectos, necnon et procuratores decanorum ei capitulorum ecclesiarum collegiatarum . . . venire faciatis coram nobis . . . Stubbs, Set. Ch. 466. — Similar refusals to grant taxes of the property of those not represented had already occurred in 1240 (of. above, note 80) and 1254 (cf. § 21, note 13). ^' Quoniam in congregatione . . . habita Northamptoniae . . . turn propter absentiam maximae partis cleri tunc temporis modo debito nonvocati, turn propter alia diver sa, ad plenum non potuit responderi; de communi omnium, tunc praesentium, consilio extitit ordinatum, . . . quod clems totus Cantuariensis provinciae . . . congregetur. Quocirca . . . man- damus, quatenus . . . episcopos Cantuariensis ecclesiae suffraganeos omnes et singulos, necnon abbates, priores ae alios quoscunque domibus religiosis praefectos, exemptos et non exemptos, decanos ecclesiarum, cathe- drcdium et collegiatarum,, ac archidiaconos universos per Cantuariensem provinciam constitutos citetis, . . . quod com,pareant coram, nobis . . . seu conveniant . . , Londoniis a die Paschae in tres septimanas ._ . . Singuli insuper episcopi, sicut in dicta congregatione provisum fuerat, citra diem praedictum elerum, suae dioecesis in aliquo loco certo con- gregari faciant, et eidern quae ex parte regis nobis propositafuerant diligerder exponi procurent, ita quod ad dictos diem, et locum Londoniis de quMibet dioecese duo procuratores nomine cleri, et de singulis capitulis ecclesiarum,^ cathedralium et collegiatarum, singuli procuratores sufficienter instructi m,ittantur, . . . Registrum Epist. Peckham {Rer. Brit. Scr. No. 77) II, 508; cf. also II, 523, 536, 594. '' Stubbs, Sel. Ch. 480 and above, § 21, note 19. To the intervening parlia- ment, which met on the 15th August, 1296, deputies from the counties and of the inferior clergy were not summoned. Stubbs, Const. Hist. II, 133 c 14 § 180. — In 1297 the archbishop summoned, besides the usual members, the precentors, chancellors and treasurers of the cathedral chapters. Stubbs, Sel. Ch. 488.— In other cases also, for as long as a century after this time, minor irregularities occur. ^ *" The summoning of two representatives from each archdeaconry has a precedent in 1279. Summons of the archbishop of York to an archdeacon, 1279 (Wilkins, Concilia II, 41) : ... quod quilibet archidiaconus pro subsidio domino regi faciendo suos subditos convocabit, vota et liberalitates super hoc attentis et votivis inductionibus scrutaturus ; ita quod die Veneris prox. ante festum sanctae Scholasticae virginis, quilibet archidiaconus cum duobus dignae eminentiae viris, et unico ipsius archidiaconatus decano, nobis apud Pmdemfract. vbi personaliter erimus, Deo dante, responsum pro communitate totius archidiaconatus facial; . . . — In the northern province deviations § 54] HISTORICAL 363 Almost simultaneously began the separation of convocation, which hitherto had been one body, into different deliberative houses."*^ A precedent for such division is found at the legatine council of Win- chester, 7th of April, 1141, where the legate consulted separately the bishops, the abbots and the archdeacons.** The clergy invited to the parliament of 1296 resolved themselves for the purpose of deliberation into four parties : the bishops, the monastic representa- tives, dignitaries [omnes in dignitatibus constituti, deans, archdeacons and so forth), chosen representatives of the clergy {omnes pro- curatores communitatis cleri).^ The same division was observed in the synod at St. Paul's, 14th of January, 1297.*^ But even in the ensuing period the general rule was deliberation in common ; it was not from the first but by gradual process and for particular subjects of discussion that separation took place ; moreover, the deliberative body to which the various kinds of members belonged was only determined by degrees.*^ Not until the beginning of the thirteenth from the normal constitution of the synod occur down to the time of the reformation. *' Cf. § 55 for the present constitution of the provincial councils of Canterbury and York. A list of those summoned in the fifteenth and eighteenth centuries to the convocation of Canterbury, in the fifteenth, sixteenth and seventeenth to the convocation of York, will be found in Wilkins, Cone. I {Dissertatio de veteri et modema Synodi Anglicanae, Constitutione) pp. xi ff., of those in the prov. synod of Canterbury after the dissolution of abbeys, in Joyce, Sacred Synods 450. Eural deans are not mentioned as members of the provincial synods. (Contrary opinion, without proofs, in Kennet, Paroch. Antiq. Ed. 1818, II, 364 ) The archipresbyteri sometimes mentioned probably signify here the deans of cathedral or collegiate churches. Joyce 290. — On the chapters of the monastic orders cf . Stubbs, Const. Hist. II, 203 f . c IB § 198. *'^ For what follows compare Joyce, Sacred Synods 294 ff., 807. ■" Narrative of William of Malmesbury, who was present, Hist. Nov. {Ser. Brit. Scr. No. 90) Book III § 492^ . . . sevocavit in partem legatus epis- copos, habuitque cum eis arcanum, consilii sui ; post mox abbates, postremo archidiaconi convocati; . . . ** Bartholomaeus de Cotton, De Bege Edwardo I (Rer. Brit. Scr. No. 16) 814. ■" Barth. de Cotton, I.e. 317. Cf. also answer of the clerus and prelates of Canterbury to four articula a rege petita in the year 1298 (Wilkins, Concilia IF, 286) : . . . E nous mentenant sour cestesprieres par chescun degre du clerge par eux, si come costom est, estreytement counseillames . . . <" For example, at the council of London, 1370, by desire of the archbishop the inferior clergy twice withdrew to deliberate apart : 11 Kal. Febr. Eogavit (the archbishop) dictos Religiosos, quod se insimul traherent ad aliquam partem Ecdesiae et Clerum suae Dioeceseos et Provinciae quod ad aliam partem eiusdem. Ecdesiae se traherent, tractarent et deliberarent. 4 Kal. Febr. Iniunxit hoc modo Procuratoribus Cleri et religiosorum exhortando eosdem quod se ad partes . . . transferrent (Wilkins III, 82) ; 1376, on two days dominus cum confratribus suis, exdusis omnibus aliis personis secrete deliberavit (Gibson, Synodus 79, Ed. 1854 p. 60); 1379: Praecepit (the arch- bishop) quod procuratores praedicti exirent (Gibson, I.e. 80, Ed. 1854 p. 61) ; at the council of London, 1399 : tractabant ipse dominus et reyerendi patres, episcopi antedicti, per se de negotiis omnibus ecdesiae ; aliis praelatis et procuratoribus cleri seorsim separatis (Wilkins III, 239) ; and similar cases. In 1428 we find, as an exceptional case, the separation of the bishops from the lower prelates : Aliis Praelatis ad tunc ibidem in myltitudine copiosa 364 NATIONAL AND PROVINCIAL SYNODS [V, 13a century did the development alike in the provincial synod of Canterbury and in that of York culminate in the arrangement that, after the joint session at opening, only bishops and abbots should, remain behind as an ' upper house ' whilst all the rest who had appeared withdrew to deliberate and resolve apart as a ' lower house ' of convocation. But in particular and suitable cases joint discussion took place even at a later time {e.g. in proceedings before the synod sitting ag a heresy court), and a survival of this usage has remained down to the present day.*'' As the councils of the church gradually succeeded in excluding the laity from all participation, there grew up, in connexion with that exclusion and with the severance of the clergy and the laity in other domains, the idea that the church synods were a separate representation of the clergy and could as such claim equal rank with parliament, the representation of the laity. The idea was novel ; at an earlier time both the temporal assembly and the spiritual council had been regarded as representative of the whole people (clergy and laity) ; only, the spiritual council had had its particular field of competence. The development of the new view was much assisted by the introduction of elective representation of the inferior clergy and the temporary admission of this element to parliament. The endeavour to occupy a position on a level with that of parliament also found expression in the synod's resolution of itself into two houses, an upper and a lower, and in similar external imitations of the national assembly.*^ Full equality with parliament the church councils at no time attained. This was prevented by the fact that the prelates remained members of the house of lords. Another impediment may possibly be found in the circumstance that, as against the one parliamentary body, there were as a rule two separate church provincial councils, whilst a national church council could not often be called owing to the jealousy of the archbishops and the disputes which arose there- from."" Nevertheless, from the new view as to the nature of church existentibus, de mandato Praesidentiutn se interim retrahentibus . . . (Gibson, Synodus 79, Ed. 1854 p. 60) ; so on 15th and 17tli Nov. 1529 (Wilkins II[, 717).— For York cf. council in 1426 (Wilkins III, 487) ; joint deliberation as heresy court; resolution into two houses when discussing other suhjects; mandavit, ut praelati et clerus seorsim se diverterent et . . . contractarent. According to Joyce, Sacred Synods 304, in York the bishops alone, as ' presi- dents,' formed the upper house, the whole of the rest of the clergy the lower house. ■" Cf. § 55, near note 16. ** Gibson, Synodus 79 (Ed. 1854 p. 60), denies that the separation into upper and lower house is bisedon an imitation of parliament, for this separation only assumed a fixed form by degrees and had practical considerations to recommend it. — Yet, it must be supposed that the parliamentary model had considerable influence. ■•^ Stubbs, Const. Hist. II, 208 o 15 § 199.— For a list of instances of non- legatine national councils see Joyce, Handbook of Convocations pp. 112 ff. He mentions five under Lanfranc, also councils in 1100, 1102, 1127, 1129, 1139,1161, 1166, 1182, 1184, 1186, 1189, 1206, 1241, 1258, 1291, 1294, 1537, 1540 (1563), (1661). But some of these cannot be regarded as ecclesiastical national councils. § 54] HISTORICAL 365 councils inferences -were drawn whicli, to a certain extent, have their effect upon law at the present day. These inferences were that the church councils had the right to grant taxes on the property of the clergy ,50 that the latter could not elect or be elected to the house of commons,^' and lastly that the resolutions of church councils, even if confirmed by the king, bound the clergy only, not the laity also.^^ The convocations in the period from the thirteenth century to the. reformation exercised, owing to the spiritual powers united in them, a very considerable influence on the whole state: they were able by a liberal employment of ecclesiastical methods of coercion to procure obedience to their resolutions — which they did not submit to the king for ratification — even from the laity ; in virtue of their right to determine the taxes to be paid from the ecclesiastical property of the clergy to the state,^^ they were in a position to exert constant pressure on the government ; with the revival of religious controversies they joined issue with the champions of the new doctrines and took part in the prosecution of the innovators, clerical or lay.^* The reformation diminished the powers of the Convocations more or less in all the directions indicated. The first and most material diminution was caused by the act touching the submission of the clergy, 25 Hen. VIII (1533/4) c 19. This statute laid down, in essential agreement with a resolution of the convocation of Canterbury,^^ that the royal command was requisite before a convocation could meet, and that constitutions, canons etc. of what sort so ever could be made or executed only * with the king's assent and licence. ^^ It was repealed by 1 & 2 PhU. & Mar. (1554 and 1554/5) c 8 s 3 ; but revived by 1 Miz. (1558/9) c 1 s 2. It is still in force. =" Cf. § 4, near notes 72 ff. " Cf. § 21, near notes 42 ff. ^^ Cf. § 14, note 16. *■' The clergy at that time paid nearly one-third of all the direct taxes of the country. Stubbs, Const. Hist. Ill, 378 cl9 § 405. " Cf. § 19, note 17. - == See more in § 6, note 10. '° An Acte for the submission of the Clergie to the Kynges Majestie. The enacting part runs: si . . . be it therfore now enacted by auctoritie of this present parliament aceordyng to the seid submyssyon and peticion of the seid Clergie, that they ne any of theym from hensforth shall presume to attempte allege clayme or put in ure any constitucions or ordynances pro- vynciall or Synodalles or any other canons, nor shall enacte pi'omulge or execute any suche canons constitucions or ordynaunce provynciall, by what SOD ever name or nam,es they be called' in theire convocacions in tyme. com/myng, which alway shalbe assembled by auctorytie of the Kynges wrythe, onles the sam,e Clergie may have the Kynges most Royal assent and lycence to make promulge and execute suche canons consti- tucions and ordynaunees provynciall or Synodalt . . . The provision is not quite accurately framed; it varies in some details from the declaration of submission made by the southern convocation, and, compared with that declaration, leaves it in particular doubtful whether the restrictions are also to 'apply to diocesan synods and whether, besides precedent licence, subsequent assent was also to be required. In regard to the former of the two doubtful points, previous royal command 366 NATIONAL AND PROVINCIAL SYNODS [V, 13a The submission act destroyed the independence of convocation as a legislative body. In the two other chief fields of its activity the restrictions imposed were at the outset less considerable : — In the years 1540, 1542 and 1B45 we find, for the first time, that grants of taxes by convocation were confirmed by parliament." was surely not required for the summoning of diocesan synods (the sense necessitates a comma at the place where the* is); from the wording of the act it i^ to be assumed that assent and licence were also not required for any proceedings at a diocesan synod, but only for the further pursuance of resolu- tions of a diocesan synod (' any other canons') in convocation. As to the second point, the declaration of submission by convocation runs as follows: only your highness hy your royall assent shall lycence us . . . to make, promulge, and execute . . . , and thereto give your . . . assent and authorite. The preamble of the act gives as the purport of the declaration: . . . unless the Kynges . . . assente and lycence may to them, be had, to m,aJce, prom,ulge, and execute . . . , and that hys Majestic doo geve hys . . . assente and auctorytie in that behalf. Comparing this with the act as quoted, we must infer that the enacting part of the statute does not require subsequent assent on the part of the king. The •view here taken is also maintained in a report of the Com,mittee of Privileges of the lower house of Canterbury in 1873, printed in appendix to Chron. of Conv. Cant. 1873. — Independent hereof are the questions whether the crown can generally in virtue of the supremacy act require canons to be submitted to it for approval, whether it may give precedent licence as a licence conditioned by reservation of a right to subsequent assent, lastly, whether it may in virtue of the original declaration of submission by the southern convocation, wherein subsequent assent is expressly conceded, demand and enforce the obtaining of such assent. Practice in the last centuries with regard to the administration of the law has rested on an opinion given by a committee of judges at the request of the house of lords in Trin. 8 Jac. I (1610). According thereto the sense of the act should be (Coke, Reports XIII, 72) : — 1. Thai a Convocation cannot assemble at their Convocation withovi the assent of the King. 2. That after their assembly they cannot confer to constitute any Cannons without license del Roy. 8. When they upon conference conclude any Cannons, yet they cannot execute any of their Cannons without Royall assent. 4. They cannot execute any after Royall assent, but with these four limita- tions : — 1. That they be not against the Prerogative of the King. 2. Nor against the Common Law. 3. Nor against any Statute Law. 4. Nor against any Custome of the Realm. According to Joyce, Handbook of the Convocation p. 174, a special royal ' assent ' to canons after their enactment (see No. 3 in opinion of judges) was firsit issued in 1598. (On the 25th Jan. 1698, the archbishop laid the deed of ratifi- cation before convocation. Card well, Synodalia 580.) According to Trevor, Convocations pp. 161 ff. a special ' licence ' (see No. 2 in opinion of judges) was first granted in 1604. (For the southern province C&vAineW, Synodalia 584; for the northern province document of 18th Feb. 1606, in Wilkins, Cowi. IV, 426.)— On the procedure observed in 1865, 1887-88 and 1892 cf. § 56, note 25. . _ " Journal of Lords 1, 156 (relates to 1540), 218 (1542), 277 (1545) ; cf. Philli- more, Eccles. Law 1930".— A precedent from earlier times is furnished by 18 Ed. in (1344; St. 8, which, however, only mentions a grant by the clergy as one of the considerations for certain concessions made by the king to them.— On further attempts of parliament in the fourteenth and fifteenth centuries to influence the clergy in their grants see Stubbs, Const. Hist. Ill, 349 c 19 § 396, II, 470 c 16 § 263, II, 489 f. c 16 § 265, III, 147. 271 o 18 §§ 344, 370. § 54] HISTORICAL 367 The particular circumstances which caused the innovation are not known. The new practice continued to be the rule ^* until the year 1640. From the beginning of the first revolution the clergy were called upon by parliament to contribute to poll-taxes and to land- taxes on ecclesiastical possessions.^' After the restoration in a single *' The following are the acts printed in Statutes of the liealm touching ratifica- tion by parliament of subsidies granted by convocation : 32 Hen Vlll (1540) c 23 ; 34 & 35 Hen. VIlI (1542/8) c 28 ; 37 Hen. VIII (15^5) c 24 ; 2 & S Ed. VI (1548) c 35 ; 7 Ed. VI (1552/3) c 13 ; 2 & 3 Phil. & Mar. (1555) c 22 ; 4 & 5 Phil. & Mar. (1557/8) c 10 ; 5 Elis. (1562/3) c 29 ; 8 Eliz. (1566) c 17 ; 13 Eliz. (1571) c 26; 18 Eliz. (1575/6) c 22; 23 Eliz. (1580/1) c 14; 27 Eliz. (1584/5) c 28; 2'^ Eliz. (1586) o7; 31 Sies. '(1588/9) c 14 ; 35 Eliz. (1592/3) c 12; 39 Eliz. (1597/8) c26; 43 Elis. (1601) c 17; 3 Jac. I (1605/6) c 25 ; 7 Jac. 7(1609/10) c22; [18 & 19 Jac. I (1620/1 and 1621/2) c 2, text not preserved] ; 21 Jac. I (1623/4) c 34 ; 1 Car. I (1625) 5 ; 3 Car. I (1627) c 7 ; 15 Car. II (1663) c 10. The only known exceptions are: — 1. In 1587 the southern (on 4th March ; Wilkins, Cone. IV, 322 ; document in Cardwell, Synodalia 566) and the northern convocation (on 9th March ; docu- ment in "Wilkins, Cone. IV, 823 f.) granted a benevolentia. Cf. the following confirmation by the queen, dated 9th March, 1587, and having reference to the province of Canterbury (in Rymer, Foedera 3rd Ed. VII, Pt. I p. 4) : — Regina, etc. Omnibus ad. quos, etc. Salutem. Cum Praelati et Clerics Cantuariensis Provinciae, tiostra Authoritate in Synodo suo sen Convocatione congregati, ex intim.a et propensa Animorum suorum, affectione quam erga nos gerunt, ultra et praeter Subsidium sex Soli- dorum, singularum, Librarum annuarum, etiam quandam benevolam Contri- butionem,trium, Solidorum. pro singulis Libris annuis, omnium, et singulorum, Beneficiorum, suorum Eeclesiasticorum et Prom,otionum Spiritualium, qziorum- cum/jue, ac omnium Possessionum, et Reventionum, eisdem annexarum seu quovism.odo spectantium et pertinentium. dederint et concesserint, ... . ; Sciatis igitur quod nos . . . praefatam, benevolae Contributionis Con- eessionem, acceptam,us, approbam,us, ac eandem, conJirm,amus, ratificamus et, stabilimus, ... A similar confirmation in reference to the province of York is found in Wilkins, Concilia IV, 824. 2. In 1640 the southern (22nd to 24th April, Wilkins, Cone. IV, 583) and the northern (8th June, "Wilkins, Cone. IV, 553) convocation granted a benevolentia. 3. Accordiiig to Carwithen, Hist, of Ch. of England III, 110, note, Charles II received from the clergy in 1661 a free gift of £33,743. *^ So even in acts promulgated by the king: 16 sq. Car. 7(1640 if.) c 9 for the speedy provision of money for disbanding the armies and settling the peace of the two kingdoms. A poll-tax graduated according to rank is imposed. (On earlier instances of poll-taxes cf. Vocke, Geschichte der Stevern des britischen Meichs, Leipzig, 1866, pp. 605 ff.) In s 2 the amounts are specified which fall on the various classes of the clergy. 16 sq. Car. I (1640 ff.) c 32 An Act for the raising and leavying of Moneys for the necessary defence and great affaires of the kingdomes of England and Ireland, and, for the payment of debts under- taken by the Parliament, specifies in s 4 the lands etc. from which the tax is to be raised. The limitation contained in previous acts (e.g. 29 Eliz. c 8 s 5, 3 Car. I c 8 s 2) touching parliamentary subsidies, ' Landes and Tenementes chargeable to the Dismes of the Clergie . . . excepted,' is omitted. But the condition is retained which in the earlier acts accompanied that limitation, as to the non- taxing of all goods chattels and Ornaments of Churches and Chappels whiche have been ordained and used in Churches and Chappells for the honour and service of Almighty God. In s 10 it is then enacted : . . . that every spiri- tuall person . . . shall be rated . . . according to the rate abovesaid of and for every pound that the same spirituall person . . . hath in any Mannors Lands Tenements Rents Services Offices Fees Corodies Annuities Tithes and Hereditaments ecclesiasticall or temporall as well in right of theire 368 NATIONAL AND PROVINCIAL SYNODS [V, 13a instance (1663) we again iind the granting of a tax by convocation with confirmation by parliament.^" In 1665 the clergy, by verbal agreement between the then lord chancellor and the archbishop, practically surrendered their claim to be taxed by convocation. From that time ecclesiastical property was taxed by parliament. But, in form, respect was paid in the various money acts to the ancient rights of the lords spiritual and the clergy.*^ Since the year specified convocation has never exercised any taxing powers. Churches as otherwise. . . . The marginal note thereto in (S'^af. q/'^^e ifeaZwi runs: Spiritual Fersons how rated for Temporal Possessions. The limita- tion so made seems, however, erroneous. The corresponding passage in the earlier acts (e.^. 29 Eliz. o 8 s 10, 3 Jac. / c 26 s 10, 3 Car. 7c 8 s 11) runs : . . . that every Spirituall person . . . shalbe rated . . . for every pound that the same spirituall person . . . hath by discent bargaine or purchase in Fee simple or Fee taile terme of life terme of yeres by execution wardshipp or coppie of Court Roll in any Manners landes tenementes rentes services offices fee'< corrodies annuities and Hereditamentes, . . . "" 12 Car. II (1660) c 9 contains the grant of a graduated poll-tax. s 2 pre- scribes the' amount to be paid by vicars and rectors vyith benefices worth £100 annually. — 12 Car. 77 c 28 s 1 : . . . and also that every person and persons ecclesiasticall and teTnporall . . . shall pay for their estates both reall and personall 50 sh.p. £l(X),andfor every £100 personall estate after the rate of £6 per annum. . . . Special exemption of ecclesiastical possessions is not made in the act.— 12 Car. II c 29 grants £70,000. s 3 enacts: . . . that noe Manners Landes Tenements and Hereditam,ents which were formerly assessed and taxed for and towardes former assessments and Land taxes and are iiow in the possession or holding of his Majestie . . . or of any ecclesiasticall person . . . shall be exempted from the payment of the severall summes of money in this Act comprised, . , .—13 Car. II (1661) st. 2 o 3 contains a grant of £1,260,000 {the ancient . . . course of raising moneyes . . . hathe beene by way of subsidies which wee desire may bee observed in future times; . . . the way of subsidies hath for many yeares last past been dis- used). According to s 5 the sum is to be raised by assessments of all lands etc. in each parish. 'I'he act makes no exception as to ecclesiastical possessions, but in s 28 is the reservation Provided alsoe That nothing herein contained shall be drawn into example to the prejudice of the ancient rights belonging unto the Lords Spiritual and Temporal or Clergy of this Realm. . . .—14 Car. II (1662) c 10 imposes a hearth-tax without exempting ecclesiastical possessions.^ 15 Car. 77(1663) c 9 contains the grant of four temporal subsidies witb the clauses customary before the revolution in respect to church property, c 10 contains the confirmation of four subsidies by the clergy. " 16 & 17 Car. 77(1664/5) c 1 contains a grant of £2,477,500, to be raised in three years. According to s 5 all ' Estates reall and personall ' within the several parisbes are to be assessed. There is no general exemption of ecclesiastical possessions. By s 21 the universities and some schools and hospitals ai-e re- lieved from the necessity of contributing, s 30 runs : Provided alwayes and be. it enacted . . . That all Spirituall Promotions and all Lands Pos.^es- sions or Revenues annexed to and all Goods and Chattels growing or renewed upon the same or elsewhere appertaining to the Oivners of the said Spirituall Promotions or any of them which are or shall be charged or made contributory by this Act towards the Payments aforesaid dureingihe time therein appointed shall be absolutely freed and discharged from the two last of the fower Sub.ii- dyes granted by the Clergy to His Majestie . . . by Ih Car. II e 10. The reservation is contained in s 86 : Provided alwayes That noe thing herein con- tained shall be drawne into example to the prejudice of the Auntient Rights belonging unto the Lords Spirituall and Temporall or Clergy of this Realms, or unto either of the Universityes or unto any Colledges Sehooles Almeshouses HospUalls or Cinque Ports.- (Cf. 13 Car. II (1661) st. 2 c 3 s 28, in note 60.) S 54] HISTORICAL 369 The powers of the convocations to co-operate in the prosecution of heretics were, in their legal scope, left unaffected by the reforma- tion. But in practice, from the reign of Elizabeth onward such prosecutions took place but seldom. Moreover, doubts soon arose as to the kind of co-operation convocation was entitled to exercise. It is, at any rate, not known that after 1534 it ever pronounced sen- tence on the person of a heretic. In 1711 the convocation of Canter- bury desired to proceed against Whiston, a professor of mathematics in Cambridge ; whether it was capable of doing so was a question npon which the opinions of the highest judges and the crown lawyers was taken. The minority answered in the negative on the ground that convocation by citing the accused before it would be arrogating to itself the functions assigned by statute to the bishops' courts ; the majority, on the other hand, pronounced in favour of convocation.''^ As, however, further doubts arose whether the lower house of Canterbury had the right to co-operate and whether the convocation of York should be invited to assist, convocation ab- stained from proceeding against the person, and contented itself (in accordance with procedure in similar cases since the reformation ^^) with condemning certain doctrines in "Whiston's book as heretical. No attempt on the part of convocation to proceed against a person for heresy has been made since "Whiston's case ; ^ on the other hand, a book was again in 1864 condemned by the upper and the lower house of Canterbury as containing heretical doctrines.^" "^ The opinions are printed in Wilkins, Cone. IV, 648. ^' For a collection of these cases see the report of a committee of the lower house of Canterbury, 1865. Chron. of Conv. Canterbury p. 211L ^ For judgments which touch the question whether the right so to proceed still exists see Phillimore, Eccles. Lawl^QO'. He denies its existence and holds that now the Church Discipline Act of 1840 (3 & 4 Vict, c 86) s 23 would have to be taken into account. That act only regulates procedure against clergymen for offences against ecclesiastical laws. "^ On the_ 21st June, 1861, the lower house of Canterbury resolved : That in the opinion of this house there are sufficient grounds for proceeding to a Syno- dical judgment upon the book called 'Essays and Reviews.'' The upper house on the 9th July, 1861, voted a postponement of further measures, because pro- ceedings were pending against some of the authors before the ecclesiastical courts. These proceedings having ended in acquittal, convocation returned to the subject, and the upper house, the lower concurring, declared : That this Synod, having appointed committees of the Upper and Lower Houses to ex- amine and report upon the volume entitled Essays and Reviews, and the said committees having severally reported thereon, doth hereby synodically condemn the said volume, as containing teaching contrary to the doctrine received by the United Church of England and Ireland, in common, with the whole Catholic Church of Christ. (Resolution of upper house, 22nd June, of lower house, 24th June, 1864. Chronicle of Convocation of Canterbury pp. 1683, 1830.)_ The resolutions were not signed by the archbishop as president, and ratification by the crown was not requested. In view of this it was in some quarters con- tended that they could not be regarded as the valid judgment of the synod. {Chron. of Conv. Cant. 1865, pp. 1915 etc.— Cf. also I.e. pp. 2324 f.)— Meanwhile convocation had also proceeded against bishop Colenso's book, published in London, The Pentateuch and the Book of Joshua critically examined. Upper house and- lower house declared : That the said book does . . . involve H.O. B B 370 NATIONAL AND PROVINCIAL SYNODS [V, 13a Apart from the limitations indicated, the convocations under Henry VIII and the succeeding sovereigns continued their activity in the accustomed manner. During , the first revolution (1640-60) their sessions could not be held, but were resumed immediately after the restoration of the monarchy. James II summoned in 1685 the convocations of Canterbury and York ; fearing, however, opposition to his measures in favour of the papists, he prorogued the convocation several times and in 1687 dis- solved it. "Whether the convocation of York actually met or not, is unknown.^^ In 1689, contrary to usage, no convocation assembled when parliament met. The government of William and Mary laid before parliament a toleration bill and a bill which aimed at concili- ating the protestant dissenters by means of certain modifications in the arrangements of the established church. The toleration act was passed ; on the other hand the house of commons decliaed to dis- cuss the second bill, and voted an address to the crown praying that, in accordance with old custom when parliament was sitting, convocation might be summoned to advise the crown in ecclesiastical matters.^' The prayer was granted. The attempt, however, to effect changes acceptable to the dissenters broke down in conse- quence of the attitude of the lower house of Canterbury. The opposition shown had the result that the latitudinarian archbishop Tillotson (1691-4) and at first archbishop Tenison (1695-1715), who belonged to the same school, did not allow their convocations to de- liberate but prorogued them immediately after their meeting. The same thing happened in the province of York.®^ Such a course had been rendered possible by the fact that the power of granting taxes had passed to parliament. The dissatisfaction excited by the con- tinued prorogations led to a controversy upon the rights of the convocations, particularly of the lower house. One party was headed by Atterbury, the other by "Wake, afterwards archbishop of Canterbury (1716-37). Atterbury championed the equality of con- errors of the gravest and most dangerous character, subversive of faith in the Bible as the Word of God, and warned those who were unable to read the answers thereto of its dangerous character. A formal judgment of the synod was not taken, as proceedings were contemplated in the ecclesiastical court. (Eesolutions of the upper and lower house, 20th May, 1863. Chron. of Conv. Cant. pp. 1204, 1237. Of. also the report of the committee of the lower house, I.e. p. 1181, in which the reservation is made that in spite of the reprobation of the book then concerned, in principle, the application of the scientific method to the study of the Bible appeared desirable.) — In 1868 convocation deliberated on proceeding agaiiist Voysey's book. Chron. of Conv. Cant. 1868, pp. 1418 etc. — In 1891 the lower house of Canterbury rejected a motion to appoint a com- mittee to prepare the condemnation of Lux Mundi. Chron. of Conv. Cant. 1891, pp. 7, 77. <"' Wilkins, Concil. IV, 612. °' The upper house concurred in this address : We likewise humbly pray that, according to the ancient practice and usage of this kingdom, in time of parlia- ment, your majesty will ^e graciously pleased to issue forth your turits, as soon as conveniently may be, for calling a convocation of the clergy to be advised with in ecclesiastical matters. (Printed in Lathbury, Convoc. 821.) "» More in "Wilkins IV, 619, 621, 625. § 54] HISTORICAL 37 1 vocation with parliament, claiming, in particular, for the lower house an independence of the archbishop and the upper house cor- responding to the independence of the house of commons ; Wake opposed these pretensions. In 1701 the convocation of Canterbury- was again allowed to deliberated^ But disputes at once broke out between the lower and the upper house, the former endeavouring to act in accordance with Atterbury's theories. These disputes recurred at all the meetings in the following years. They turned mainly on questions as to the ordering of business, the lower house systemati- cally endeavouring to set at nought the archbishop's directions to adjourn. Nevertheless, long prorogations were repeatedly enforced. The quarrel, beginning about formalities, was accentuated by the fact that the majority in the upper house was liberal in politics and religion, whilst the lower house was orthodox and tory. In 1717, Hoadly, bishop of Bangor, preached before the king a sermon which evoked the hostility of the high church party. The lower house of Canterbury thereupon voted a ' Representation ' to be transmitted to the upper house, attacking the doctrines of Hoadly. The answer of the "Whig ministry to this decision was to order the pro- rogation of convocation. Both the government and the bishops being weary of the difficul- ties constantly raised by the lower house, proposals ceased to be laid before convocation by the ministry, licence to debate new canons, was not granted, and by repeated prorogations its discussions were almost entirely stifled. Only in 1741 and 174'2 were attempts once- more made in the convocation of Canterbury to consider certain subjects.™ Subsequently no real deliberations took place for more than a hundred years. During all that time simultaneously with the summoning of parliament went forth the royal instruction tO' the archbishops to call the convocations together ; the archbishops called them ; proctors of the beneficed clergy were chosen ; the con- vocations met — for the most part, indeed, the attendance was sparse — passed complimentary addresses, couched in formal language, to the crown, aad were at once prorogued.'^ The steady maintenance of the old form rendered it possible,, without any new legislation being requisite, to restore really active church synods when, towards the middle of the nineteenth century, a not inconsiderable part of the people judged such restoration de- sirable. All that was needed in the first instance was to abandon the practice of immediate prorogation. Eeanimation ensued by "' The last convocation mentioned in the York archives met in 1698. Wil- kins IV, 625. '» See more in Lathbury, Hist, of Convoc. 464 ff. " Warren, Synodalia, A Journal of Convocation, 1853 p. 2, effectively- describes the state of affairs in the first half of the 19th cent. : . . . church- men, excepting only a few antiquarians, knew only of this Synod that it had once been active ; but that of late a few clergymen, chosen they knew not how, met two or three bishops they knew not when, and presented an address to the Croion, for what purpose they could not tell. 372 NATIONAL AND PROVINCIAL SYNODS [V, 18a slow degreesJ^ In 1847 the first important discussion in tiie revived convocation of Canterbury was held, and that in connexion with motions upon the address ; in 1852 committees were appointed to consider various questions, and since then, with gradual increase in the scope of its activity, the convocation of Canterbury has again become a regular deliberative assembly. The convocation of York began in 1859 to follow the example set it. In 1861, for" the first time after the interval, the crown again conferred on the convo- cation of Canterbury permission to make canons, and shortly after- wards gave the same licence to the convocation of York.'^-' The canons then contemplated were not passed ; but in 1865, 1887 and 1892 the first by the revived assembly were agreed.''* § 55. The provincial convocations of the present day. Each of the two convocations, that of Canterbury and that of York, falls into an upper and a lower house. In the upper house the archbishop acts as president whilst the diocesan ^ bishops sit as assessors. The archbishop is also president of convocation.^ The lower house consists of the deans of the cathedral churches (in Can- terbury also of the deans of the collegiate church of Westminster and of the royal free chapel of St. George's, Windsor), the archdeacons,^ a proctor for each chapter * and proctors for the inferior clergy. In the province of York, as the assembly would, other wise be too small, two representatives (in some cases one ®) of the inferior clergy are chosen for each archdeaconry ; in the province of Canterbury only two proctors are returned for each diocese.^- Only the beneficed " See more, e.g. in Perry, Hist, of Engl. Ch. Ill, 292 ff., 325 ff. cc 16 and 18. The resumption of deliberations was for long prevented by the wide-spread view that the royal licence was requisite for all forms of deliberation, not solely for the making of canons. '' Cf. the royal licence and the correspondence in connexion therewith in Chron. ofConv. Cant. 1865, pp. 2403 ff., also I.e. 1867, pp. 906, 977. " The royal licence of 1866 is printed in Chron. of Conv. Cant. 1865, p. 2353. On the new canons cf. appendix XII, note 1. ' Suffragan bishops as such are not summoned to convocation ; bvit if they are also deans of cathedral churches or (as frequently in recent times) arch- deacons, they have taken their seats in the lower house. Phillimore, Ecdes. Law 1988. Warren, Synodalia, 1853, p. 310. Chron. of Ccmv. Cant. 1870, p. 44. ^ Exceptionally, other persons may also preside ; so in the province of Can- terbury, if the archbishop's see is vacant the bishop of London will preside (ex. : convocation of 1604) ; the king or his representative appears to be entitled to the presidency (cf. § 54, note 15). ^ On the summons of the (titular) archdeacon of Westminster see Journal of Conv. (ed. Warren) 1857, p. 195. * According to Joyce, Synods 720, the chapter of Eochester sends two proc- tors, that of Windsor, none. ^ Joyce, Synods 733. ° Phillimore, Ecdes. Law 1942. In some dioceses of the province of Canter- §55] PROVINCIAL CONVOCATIONS OF THE PRESENT DAY 373 clergy,' rectors and vicars, have been electors from ancient times. It seems, however, that by custom perpetual curates have been nearly everywhere admitted to vote.* The lower house chooses as its agent in communicating with the upper house a prolocutor,^ who also presides in the lower house. He is presented to the archbishop and bishops for confirmation.'" The convocations are summoned by the archbishops in virtue of a royal instruction or authorization," issued, in accordance with old usage, concurrently with the writs for assembling parliament. The sovereign has also the right to give mandate to the archbishop to dissolve '^ convocation or to prorogue it. The archbishop is bound to obey the order ; but as in summoning, so in dissolving, in form he gives the declaration in his own name though with mention of the royal writ.'^ Even without such authorization the archbishop has as against the lower house the right of proroguing the convocation;'* but it is disputed whether in proroguing on his own authority bury the two proctors are chosen by the assembled inferior clergy of the whole diocese; in others the election is indirect, the clergy of each archdeaconry choosing two persons, the persons so chosen meeting at the chief place in the diocese and sending two of their number as representatives of the diocese. In some places there is a third mode of election. Reports of Committees of the lower house, Chron. of Conv. Cant. 1865, p. 1860. Chron. of Conv. Cant. July, 1875, appendix. ' Opinion of vicar-general of Canterbury (Deane), 3rd March, 1883 in Chron. of Conv. Cant. 1884, appendix No. 154, p. 11. ' Journ. of Conv. (ed. "Warren) 1857, p. 207. — The stipendiary curates are not entitled to vote. Eeport of a committee of the upper house in 1853 {Journ. of Conv. Cant. 1854, p. 14) : . . . there is no evidence to show that the votes of stipendiary Curates have ever been received at the election of Proctors to the Convocation in the Province of Canterbury. Cf. further Journ. of Conv. 1S57 p. 350. ° Tirst mentioned in 1415. Phillimore, Eccles. Law 1943, after Hody, History of Conv. 3rd Part, p. 256. ^^ Private note of archbishop Parker, 1563 : Forma eligendi et praesentandi prolocutorem (printed in Warren, Synodalia p. 16). Eeport of Committee of Privileges of lower house of Canterbury (No. 9 of the report. Journ. of Conv. Cant. 1854 pp. 24 ff.). " In the southern province the archbishop avails himself by custom of the agency of the bishop of London as 'dean of the province.' The latter commu- nicates the archbishop's orders to the bishops ; each bishop in turn directs mandates to the clergy of the diocese. Examples of relevant documents from ancient and later times in Joyce, Handbook of Convocations pp. 121 ff. '^ Whether the dissolution of parliament involved the dissolution of convo- cation was in 1640 disputed. The question was then answered in the negative by the lawyers. Cf. § 7, note 29. It is now accepted that convocation is dis- solved by the death of the sovereign, as the commission given by the king acts only for his lifetime. The usage was otherwise before the submission act made royal authority absolutely necessary for the convening of a provincial synod. Phillimore, I.e. 1941. 13 Phillimore, I.e. 1948. Wilkins, Cone. I, Introduct. p. 26. A writ to dis- solve convocation, dated 26th Jan. 1874, is printed in Chron. of Conv. Cant. 1874. p. 2. A royal writ of prorogation and a royal writ of dissolution, both of 28th' June, 1892,"?.c. 1892, appendix. , ^ ,,_ ^ ... . t, ■ ■, " This is now also recognized in the repart of the Committee ot Privileges ot the lower house of Canterbury (No. 8 of the report. Journ. of Conv. Cant. 1851, pp.24ff). 374 NATIONAL AND PROVINCIAL SYNODS [V, 13a lie must act cum consensu frcdrum, with the consent of th'e upper house.^^ Deliberation and voting are separate in the two houses. As a survival, however, of the earlier practice of joint discussion, the custom is still observed of sitting together at the formal opening session, whilst, in special cases, resolutions to the same effect by both houses are subsequently and finally adopted by them both sitting in common.** Every resolution of convocation needs for its validity the confir- mation of the archbishop.*'' In cases which fall under the submis- sion act, when, that is, the resolution presents itself as in execution of any ecclesiastical law (or minor regulation) or a new ecclesiastical law (or minor regulation) is to be established by it, precedent royal licence is necessary for a resolution to be discussed or to become operative. Furthermore, the king may reserve to himself subsequent approval of the resolutions ; it is doubtful whether, even if no special reservation has been made, the subsequent approval of the king must be sought.** The king has also, apart from this, the right of assigning to convocation definite subjects for discussion.*^ The privileges of the lower house of convocation are considerably more limited than those of the lower house of parliament. The right of decision in the case of disputed elections is vested in the archbishop ; it is, however, a moot-point whether the lower house has also a concurrent and independent right of decision.^" Again, it is the prevalent opinion that the lower house may not, on its own initiative, present to the upper house proposals for joint resolutions, but must wait until the archbishop or the upper house requires it to deliberate and frame resolutions on certain questions.^* Neverthe- " Of. Perry, Hist, of Engl. Ch. Ill, 301, 307 c 16 §§ 8, 13. Phillimore, I.e. 1939, 1947. Warren, Synodalia 42 ff. Cardwell, Introduction, pp. xli ff. to Gibson, Syn. Angl. Ed. 1854. "* Phillimore, Eccles. Law 1987, 1946. — The external forms of the course of business have come to be regulated in many respects by the private note of archbishop Parker, 1563: Forma sive descriptio convocationis celebrandae, prout ab antique observari consuevit, printed in Warren, Synodalia p. 11. " Phillimore, Eccles. Law 1946. '8 Cf. § 54, note 56. '° This is. done by means of 'letters of business.' The first business laid be- fore the revived convocation in this way was in 1872. On the letters of busi- ness since the reformation and on their text cf. Keport of the ' Committee of Privileges ' of the lower house of Canterbury, 1873, printed in append, to Chron. of Conv. Cant. 1873. See there also on the recent granting of a royal licence to deliberate on the business assigned, side by side with the letter of business. — Letter of business and royal licence of 1874 are printed in Chron. of Conv. Cant. 1874, p. 298. A letter of business was given in 1887. (Cf. below, note 26.) "" The report of the committee of privileges of the lower house of Canterbury (No. 1 of the report, Journ. of Conv. Cant. 1854, pp. 24 ff.) negatives this. Cf . also Phillimore, Eccles. Law 1943. "^ Report of the committee of privileges of the lower house of Canterbury (Nos. 4 and 5 of the report, Journal of Conv. Cant. 1854, pp. 24 ff.). Besolution of the lower house of Canterbury, 14th May, 1889 (Chron. of Conv. Cant. p. xii). —At the beginning of the 18th cent, the lower house several times attempted such framing of resolutions on its own initiative. Cf. Perry, Hist, of Engl. Ch. II, 559, 568 c 37 § 15 c 38 § 12. §55] PROVINCIAL CONVOCATIONS OF THE PRESENT DAY 375 less, the lower house may deliberate and resolve upon petitions pre- sented to it ; it may, furthermore, on its own initiative, send up to the archbishop or the upper house or through them to other authorities gravamina or reformanda, and it may request that special matters may be laid before it.^^ A representation of this kind, whether it be addressed to the upper house or conveyed, when the tipper house has declared its concurrence, to some other authority, is called by the general name articulus cleri.^^ The convocation as a whole has a right to discuss ecclesiastical affairs and to pass non-binding ** resolutions. Subject to the limita- tions of the submission act, it is also empowered to frame resolutions which, to a certain extent, are binding.^* By 24 Hen. VIII (1532/3) ^^ Phillimore 1944 and the report and resolution cited in note 21. ^' Phillimore 1944. Hence the name of the ArticuU Cleri, 9 Ed. II st, 1 (1315/6), wherein the several complaints made by the clergy are adduced ver- batim, and the king's answer attached to each. ^* If the forms prescribed by the submission act are not observed, the resolu- tions passed are to be regarded merely as expressions of opinion by the majority and not binding even on the clergy. ^^ On the interpretation of the act of submission cf. § 54, note 56. — The canons of 1865 were brought about thus : convocation in an address to the queen sug- gested the granting of a licence to alter the canons. The royal licence was issued with the reservation that subsequent approval under the great seal must be given to the alterations (licence in Chron. of Conv. Cant. 1866, p. 2353) ; the convocation passed the new canons {I.e. p. 2400) ; then approval was granted and promulgation effected by royal letters patent (not printed in Chron. of Conv. Cant.).— The genesis of the canons of 1887-8 was as follows : the queen sent a letter of business and a licence authorizing convocation to amend the canons and, as in the previous case, to submit the proposed alterations for approval {Chron. of Conv. Cant. 1887, p. 63) ; the convocation determined the wording of the new canons (6th-8th July, 1887) and begged the queen by an address dated 8th July, 1887, to grant them ' Eoyal Assent and Licence ' to make, promulge and execute the canons according to the form annexed {Chron. of Conv. Cant. 1887, Summary pp. xix ff.). By letters patent of 16th Sept. 1887 (printed in Chron. of Conv. Cant. 1888, behind p. 2), the queen gave ' assent' and ' licence' in the following terms : — Now know ye that We by virtue of Our Prerogative Royal and Su- preme authority in causes Ecclesiastical Do hereby of our especial Grace give Our Royal Assent to such new and amended Canons so exhibited as aforesaid and We do allow the same and Do hereby grant unto . . . Edward White Archbishop of Canterbury President of the Convocation of the Province of Canterbury and to the rest of the Bishops and Clergy thereof Our Royal Licence to make promulge and execute the said neiv and amended Canons so exhibited as aforesaid ... Next the archbishop at an assembly of both houses of convocation read (' read, promulged and published,' Chron. 1888, p. 2) the canons as amended. At the same time a document (28th Feb. 1888 ; printed I.e. behind p. 2) was drawn up and signed by the members of both houses. It contains no express statement that it is a document touching the publication of the resolutions, but is worded : — Constitutions and Canons Ecclesiastical treated upon . . . tn . . . Synod . . . which Canons received the Assent of the Queen's Majesty . . . Whereby the 62"* Canon and the 102"" Canon . . . of 1603 are amended . . and the said new Canons are as follows : — (text follows). We whose names are hereunder written being lawfully assembled together m Synod . . . do hereby declare and testify our consent to the said Canons . . . 376 NATIONAL AND PROVINCIAL SYNODS [V, 13a c 12 s 4 supreme ecclesiastical jurisdiction with regard to testa- ments, marriages, tithes or church dues in which the king had an interest was vested in the upper house of convocation. It has been decided that this power of jurisdiction was revoked by the provisions of 25 Hen. VIII (1533/4). The same jurisdiction now belongs to the judicial committee of the privy comicil.^** A claim is sometimes raised that, before the passing of acts of parliament touching ecclesiastical affairs, convocation should be heard in respect thereto.^^ But the necessity is not acknowledged in existing law or in existing usage.^* In 1892 a new canon was discussed by the convocations and the draft adopted. Then the queen was begged to grant tbe ' Royal Assent and Licence,' and the same forms were followed as in 1887, without convocation's again dis- cussing and adopting the canon. Eoyal letters patent of 13th June, 1892, and the document relating to subscription of the canon by the clergy on 14tli June, 1892 in Chron. of Conv. Cant. 1892, at back of p. 230. The document of 14th June cannot make amends for the absence of subsequent acceptance of the canon by convocation ; for it only shows who agreed and not who (e.g. archdeacon Kaye; cf. I.e. p. 232) did not agree, and thus does not make it evident whether the assenting members in each of the two houses were in the majority. So far as can be seen, this time neither letter of business nor precedent licence to frame a resolution was granted. This mode of procedure observed in 1892, according to which the sovereign is confined to giving subsequent assent to a canon already discussed and resolved, appears in conflict with the declaration of sub- mission and the submission act (cf. also No. 2 of the opinion of the judges in 1610, printed § 54, note 56). 2" Cf . § 62. ''' Prom the reformation period cf. the resolution of the lower house of the convocation of Canterbury, 22nd Nov. 1547 (see § 21, note 29). From later times we may mention in particular : — Eesolution of lower house of Canterbury, 9th Feb. 1859 (Chron. of Conv. Cant. 40 ff., 32 ff.) in connexion with a protest against the insuflScient regard for ecclesiastical law respecting marriage and divorce shown in 20 & 21 Vict, c 85 ; This house, also, fully recognising the supreme power .of the Imperial Par- liament to legislate for all estates of m,en within the realm, is of opinion that when changes in the law are proposed which would affect the doctrines of the Articles of the Church, or the duties required of the clergy, it is desirable that the advice of the clergy should be sought before the enactment of such changes. In the upper house speeches were made on both sides, but no resolution was passed. The lower house on 22nd June, 1859, repeated its resolution in almost the same terms. Chronicle 43. In the upper house again no resolution was come to. The lower house on 8th June, 1860, rejected a motion to repeat tha resolution once more in almost the same language as before. Chronicle 314, 269. Eesolution of lower house of Canterbury, 26th June, 1879 (Chron. of Conv. Cant. 1879, pp. 177 ff.) :— 1. TTiat in the opinion of this House it is desirable, and in accordance with constitutional precedent, that, when any legislative measures are proposed affecting the doctrine, worship, discipline, or government of the Church of England, Her Majesty should issue Boyal Letters of Business commanding the Convocations to consider and report upon the proposed measures. 2. That in the opinion of this House, in cases directly affecting doctrine and ritual, and in cases of discipline for correction of offences arising out of doctrine and ritual, action- taken by Parliament alone, without refereiice'to the Convocations, cannot be regarded as in accordance with the spirit of the Constitution. '* In the endeavour to establish for convocation such a right by precedents §56] THE HOUSES OF LAYMEN 377 § 56. The houses of laymen. From the year 1886 there has existed in close connexion with the convocation of Canterbury, but not as a part of it, a house of lay- men. The members are elected by the lay members of the diocesan conferences,^ whilst the archbishop of Canterbury may further name at most ten members. The summoning of a house of laymen was the result of a series of deliberations and resolutions of convocation,* culminating in the resolution of 7th and 8th July,"1885.^ Accord- stress is laid on the following : the declaration made on behalf of Elizabeth in the house of commons on 22nd May, 1572 : Her Highness' Pleasure is, that from henceforth no Bills concerning Religion shall be preferred or received into this House, unless the same should be first considered and liked by the Clergy. (D'Ewes, The Journals of all the ParUaments during the Reign of . . . Elizabeth, London, 1862, p. 213) ; the attempted recurrence in 1661 of the house of commons to the second prayer-book of Edward VI, which had been accepted both by the commons and by convocation, instead of to the later book of Elizabeth, accepted only by parliament (cf. Perry, Hist, of Engl. Ch. II, 496, note 1, c 32 § 16) ; the parliamentary resolution (mentioned in § 64, note 67) of 1689 ; a resolution of the house of commons in 1710 to pay all regard to the house of convocation in matters ecclesiastical (cf. Perry II, 577 c 89 § 1 ; Phillimore 1932) ; lastly, the express mention in the preambles to a number of statutes (recently, for instance, in 85 & 36 Vict, c 35 An Act far the Amendment of the Act of Uniformity; not, however, in 34 & 35 Vict, c 37 Prayer-Book, Tables of Lessons, Act) of previous disovission by convocation. The Public Worship Regulation Act of 1874 (37 & 38 Vict, c 85) was adopted without consultation of the convocations and in spite of the fact that the lower house of Canterbury had expressly declared its disapproval. of the bill (Citron, of Conv. Cant. 1874, pp. 125, 126, 199, 228). Opposition to the provisions of the act when passed was offered by some of the cleif'gy. Perry, Hist, of Engl. Ch. Ill, 482 ff. c 28 §§ 12 f: ■ 1 Cf. §57, near notes 12 ff. ^ Proposals of lower house of Canterbury ' on Lay Co-operation ' in append, to Chron. of Conv. Cant. 1872. Resolution of lower house of Canterbury, 27th April 1877, in Chron. of Conv. Cant. 1877, pp. 157, 165. Amending resolution of upper house of Canterbury, 4th July, 1884 in Chron. of Conv. Cant. 1884, Sum- mary xlvi. ^ Upper house and lower house of Canterbury in agreement passed on 7th and 8th July, 1885, the following (not binding, cf. § 55, note 24) resoluT;ion {Chron. of Conv. Cant. 1885, Summary pp. xxx f.): — 1. Tliat it is desirdble that a Ifouse of Laymen, being communicants of the Church of England, beform,edfor the Province of Canterbury, to confer with the members of Convocation. 2. That the Members of the House of Laymen be appointed by the Lay Members of the Diocesan Conferences of the Province, and that they continue to hold their seats until the dissolution of Convocation next ensuing. 8. Thai ten Members be appointed for the diocese of London; six for each of the dioceses of Winchester, Rochester, Lichfwld, and Worcester; and four for each of the remaining dioceses. 4. That additional Members, not exceeding ten, be appointed by ids Grace the President (i.e. the archbishop of Canterbury), if he see fit. 5. That the House of Laymen be in all cases convened by his Grace the President. 6. That the said House be convened only and sit only during the time that Convocation is in Session, and be opened by his Grace the President. 378 DIOCESAN SYNODS AND DIOCESAN CONFERENCES [V, 13b ing to this resolution the house of laymen should be an assembly to assist the archbishop in questions on which he may desire its counsel. All matters usually disciissed in convocation, excepting only ' the definition or interpretation of the faith and doctrine of the Church,' are to be in its province. It is, however, to be observed that the resolution, the provisions of the submission act not having been complied with, is not a canon, and is thus not binding on any one, and, in particular, neither on the archbishop nor on the house of laymen. In the province of York a house of laymen met first in 1892.* § 57. B. DIOCESAN SYNODS AND DIOCESAN CONFERENCES." In the Anglo-Saxon period the holding of a diocesan synod once in the year is apparently required, and sometimes taken for granted.^ 7. That the said House may be requested by his Grace the Presi- dent to meet in conference the Members of the Upper and Lower Houses of Convocation upon such occasions and at such place as his Grace the President may think fit. 8. 27iat the subjects on which the House of Laymen may be consulted shall be all subjects which ordinarily occupy the attention of Convocation^ saving only the definition or interpretation of the faith and doctrine of the Church. 9. That his Grace the President, in opening the House of Laymen, or at any other time in their Session may lay before them any sidyect (with the limitation provided in Resolution 8) on tohich he desires their counsel, and that the residts of all the deliberations of the said House on any subjects, whether thus referred to them, or originated by themselves, be communicated to the President. 10. That if the above Resolutions be adopted by Convocation a Joint Com- mittee of both Houses be appointed to confer toith any Committee that may hereafter be appointed by the House of Laymen, in order to frame such rules and orders as may be found necessary. Provided that nothing in this Scheme shall beheld to prejudice the duties, rights, and privileges of this Sacred Synod according to the laws and usages of this Church and realm. * Journ. ofConv. Yorlc, 1892, p. 79; Church Year-Book, 1893, p. 367. ' One diocesan synod in the year is mentioned in can. sub Edgaro {circ. 960 ; Wilkins, Cone. I, 225) c 3 : And we laeraj} fiaet hi to aelcon sino^e habba aelce geare becc and reaf to godcundre J^enunge, and blaec and bocfel to heora geraednessum, and hreoro daga biwiste. (" And we teach that they [the ser- vants of God] should have for every synod each year books, and clothes for God's service and ink and parchment for their resolutions and provisions for three days.") Councils of Pincahala and Celchyth, 787 (Haddan and Stubhs, Counc. Ill, 449) c 3: . . . perstrinximus, omni anno secundum canonicas institutiones,^ duo concilia . . , , et unusquisque Episcopus parochiam suam, omni anno semel circumeat ; diligenter conventicula per loca congrua constituendo, ' Of. the works cited in § 54, note o II.— Gibson, Of Visitations Pwrochial and General. London, 1717, pp. 57 ff. — Pound, William. The a/ncient practice and proposed revival of diocesan synods in England s a Paper . . ., London, 1851. § 57] DIOCESAN SYNODS AND DIOCESAN CONFERENCES 379 Nevertheless, in the face of the few accounts of such synods pre- ssrved, it would seem doubtful that they were held so regularly. At the diocesan synod presented themselves, apparently without any sharp separation, all the clergy who laboured in the diocese under the bishop, especially after the establishment of numerous ministers in fixed parishes, the parish priests.'' Besides holding diocesan synods, it was the duty of the bishops to traverse their districts annually in order to administer their sees, hold divine ser- vice and visit offences by the imposition of ecclesiastical penances.' In the later middle age as a rule we find mention in England of yearly diocesan synods ; * the constant visitations by the bishop of quo cuncti convenire possint ad audiendum verbum Dei . . . [of. c 1 . . . omni anno in synodalibus conventibus ab Episcopis singularum ecde- siarum presbyteri . . , de ipsa fide diligentissime examinentur]. The duo concilia mentioned in c 3 are frequently referred to diocesan synods. But on comparison witli the regulation in c 1 it seems more prohahle that in c 3 provincial synods are meant. The heading of c 3 : Ut Episcopus bis in anno synodum cogat was added by Spelman. On the continent diocesan synods are first mentioned at the end of the sixth century ; there yearly session was at that time prescribed. They subsequently fell into decay in the empire of the Pranks ; in the ninth century, however, attempts were made to revive them and the holding of two annual gatherings was now sometimes prescribed. From the eleventh century onward now one, now two diocesan synods have been ordained. Hinschius, Kirchenrecht III, 583 &. A reference to the canons such as is found in counc. of Pincahala and Celchyth c 3 occurs in the cone. Tolosan. 844, where the allusion is without doubt to diocesan synods : Ut episcopi synodos a presbyteris, nisi sicut docet auctoritas canonum, duos scilicet et per tempora constituta, non exigant. " Cf. Poenitentiale Theodori (probably end of 7th cent., Haddan and Stubbs, Counc. Ill, 173 ff.) lib. II c 2 § 8 : Episcopus non debet abbatem cogere ad synodum ire, nisi etiam aliqua rationabilis causa sit. — Council of Clovesho, 747 (Haddan and Stubbs III, 363) c 25 : Ut Episcopi a synodo (the archiepis- oopal synod) venientes in propria parochia cum presbyteris, et abbatibus, et praepositis conventum habentes, praecepta synodi servare insinuanda praeci- piant, . . . — Nor&hymbra predsta lagu (probably about 10th cent.) _c 44: Gifpredst sindtS forbiXge, gebete paet. (" If a priest evades a synod let him do penance for that.") ^ Annual visitation of the diocese is, for example, prescribed in the council of Clovesho, lil (Haddan and Stubbs, Counc. Ill, 863) c 3 : . . . ut singulis annis unusquisque episcopus parocfiiam suam pertransiendo, et circumeundo, speculandoque visitare non praesideat, populumque diversae conditionis ac sexus per competentia ad se convocet loca, aperteque doceat, utpote eos qui raro audiunt verbum Dei, prohibens, et inter caetera peccamina, paganas observa- tiones . . . Councils of Pincahala and Celchyth, 787, C 3 (see note 1) ; constit. of arch- bishop Odo, 943 (Wilkins I, 212) c 3: episcopi • _. . • suas parochias omni anno cum, omni vigilantia praedicdndo verbum Dei circumeant. Cf. from later times (1433) Lyndwood, Book I, tit. 14, p. 68 [to const. Bonif. episcopi in suis synodis et aliis convocationibus], gloss to aliis convocationibus : Quas ex variis causis facere potest Episcopus, viz. propter subsidium Charita- tivum exhibendum ; propter visitationem exercendam; item propter prae- dicationem verbi Dei; et in aliis quae variis de causis possunt occurrere. * Wilkins, Concilia I, 365 gives from different MSS. two separate series of capituld ascribed to the council of Winchester, 1076, one of them (according to MS. C.C.C. Cambridge 190) perhaps rather belonging to a council of Windsor. In one series c 4 runs : Quod episcopi bis concilia celebrent per annum. In the other c 13 runs : Quod quisque episcopus omni anno synodum- celebret. 38o DIOCESAN SYNODS AND DIOCESAN CONFERENCES [V, 13b his diocese and the meetings held by him on such occasions in the several parishes gradually ceased, probably owing to the fact that about the time of the Norman conquest the division of the bishoprics into archdeaconries and rural deaneries called into existence super- visors resident in the districts so formed.^ The annual visitation now became the duty of the archdeacons, probably also, in part, of the rural deans." But in so far as the bishop still retained compe- tence, the business of the old visitations was transacted at the diocesan synod. As the latter in this way served the purpose of an united visitation assembly, it also became entitled a ' general visita- tion.' The development which took place in England in this respect seems to have corresponded closely with that on the continent.''' At this period, too, all the clergy of the diocese were obliged to appear at the diocesan synod.^ "With them attended also lay representatives from the parishes, testes synodales or synodsmen, whose duty it was Lyndwood, Book I, tit. 14, p. 68 [to const. Bonif. ejnscojn in suis synodis et- aliis convocationibus], gloss to synodis : Hae dicuntur conventus sive congre- gationes senum et Preshyterorum, et (with reference to Decretals of Greg. IX [lib. Extra] V tit. 1 c 2.5) debent fieri per Episcopos annuatim. Const, of archbishop Peokham, 1281 : quod jurent decani {rurales) se fideliter facturos in episcopali synodo omni anno. (Wilkins, CowaZe'a II, 67.) Two diocesan synods were to be held, e.g. in the diocese of Durham according to the constitutions of the bishop of Durham, 1812 (Wilkins, Concilia II, 416) c 3: . . . decrevimus, quod bis in anno de caetero, proximis videlicet diebus Lunae post festum sancti Michaelis, et octabis Paschae, synodus annis singulis in dicta nostra ecclesia perpetuis temporibus celebretur . . . ^ In the 13th cent._ the kings sometimes forbade the bishops to summon the laity to visitation assemblies. Cf. the answer of the king to the complaint of the clergy (circ. 1245 ? Cole, Documents 356) Art. 13 : Si fuerint aliqui specialiter nominati quorum testimonio indigeat judex ecclesiastictis ad hoc ut inforo ecclesiastico justicia vel correctio fiat, noii impediuntur Prelati per Begem neqite per alios auctoritate ipsius, verumptamen si ad conventicula magna vocantur liberi vel servi non videtur Regi aut procerilms hoc esse tolerandum cum ad eos et non ad alios pertineat hujusmodi convocacio laico- rum, velidi ad Frelatos convocacio Clericorum.- Et insuper Rex et proceres tempore hujusmodi convocacionum. servicio et dbsequio tarn liberarum person- arum quam servilium carerent, quod eis invitis auferre non possunt Prelati . . . Prohibition of a certain king Edward, time unknown (§ 60, note 79). Cf. also const, of archbishop Bonif ace at the council of Lambeth, 1261 (Wilkins, ^c. I, 751): Evenit etiam interdum, quod cum, praelati ecclesiastici, ex officii sui debito, de morum disciplina, peccatis, et excessibus subditorum inquirunt, domimis rex, caeterique magnates et aliae potestates seculares et milites officia impediunt eorundem, personis laieis inhibendo, ne ad mandaturh patrum et praelatorum spiritualium . . . de veritate dicenda sidteant juramentum ; . . . statuimus, quod laid ad praestandum hujiismodi jur amentum . . . per exconimunicationis sententiam comr)ellantur . . . " Cf. § 42, note 11 and § 43, note 3. ' Cf. on the continental development Riohter, KirchenrecM §§ 150, 173. ^ According to Wilkins, Concilia, vol. I, Introduct. p. 7 there were present at the diocesan synod all holders of bfenefices tarn regulares quam, ahbates et monachi, archdeacons, priests, vicars and chaplains. Const, of 1)ishop of Dur- ham, 1312 (Wilkins, Cone. II, 416) c 8: . . . Quodque omnes abbates, priores, archidiaconi, praepositi, rectores, vicarii, et capellani parochiales civitatis et dioecesis Dunelm. et alii, qui tenentur synodo Imjusmodi interes.ie de consuetudine, vel de jure, . . . ivfersint synolo personaliter, . . . § B7] DIOCESAN SYNODS AND DIOCESAN CONFERENCES 38 1 to make presentments of offenders, clerical or lay, in their parishes.^ There grew up in England even before the reformation the custom that the bishop should make personal visitation of his diocese every three years." With the reformation the holding of diocesan synods fell almost wholly into disuse ; only in isolated cases did such meetings take place.^^ In the nineteenth century likewise, the summoning of diocesan synods- was at first of exceptional occurrence."' When, however, the convocations had resumed their activity, development took a new direction. The idea of reviving the old diocesan synods, which, as the earlier practice of inviting the laity had become obsolete, had represented only the clergy, was abandoned ; but an effort was made to establish regular meetings of the clergy and laity in each diocese. The first such assembly was at Ely in 1864. Since then the institution has been gradually adopted in almost all the bishoprics, under the name - of diocesan conferences. Their statutes are not quite uniform. For the most part the con- ferences are voluntary undertakings, for which the countenance of the heads of the church is sought, but which are in a legal sense independent of them ; on the other hand, in some cases the dioce- san conferences have Ijeen founded by the competent ecclesiastical power 1^ and are consequently, in the eye of the law, authorities of the established church. In addition to the diocesan conferences ° Lyndwood (above, note 4) congregationes senum et Presbyterorum. On the testes synodales cf . § 48, note 2. — On tlie appointing of special laymen in the several rural deaneries or parishes to make reports to the ecclesiastical authorities cf. constitutions of archbishop Edmund of Canterbury, 1236 (Wilkins, CoMC. I, 635) c 21: Sint autem in quolibet decanatu duo vel tres viri . . . , qui excessus publicos p7'aelafiorum,et cdiorum clericorum, ad mandatum archiepiscopi, vel ejus offlcialis, ipsis denuneient— Const, of arch- bishop Chichele, 1416 (Wilkins, I.e. Ill, 378) : . . . singuli confratres nostri suffraganei, singulique archidiaconi . . . per se aut suos officiates siye commissarios . . . inquirant^ ac in singulis decanatibus . . . , sin- gulisque parochiis, in quibus fama est haereticos habitare, tres vel plures boni testimonii vivos, ad sacra Dei evangelia jurare faciant, ut . . . hae- reticos . . . in scriptis denuneient, . . . " Legatine council under Pole (Wilkins IV, 121 ; promulgation in Feb. 1556) c 12 : . . . placuit, ut episcopi et alii locorum ordinarii dioeceses et loca sibi commissa juxta antiquam hujus regni consuetndinem saltern singulis triennis per seipsos, sin autem legitimo aliquo impedimenta detine- antur, per idoneos substitutos . . . visitent.—Ca.n. 60 of 1604 (appendix XII) lays down that the bishop should hold a confirmation at his triennial Yisitation, as was already the custom. x-i. i. • xi. " Prideaux, Churchwardens 9th Ed. p. 178, for instance states that m the diocese of Norwich since 1641 there had been held annually assemblies which he terms diocesan synods, the clergy of Suffolk meeting at Ipswich, those of Nor- folk at Norwich —It is sometimes maintained that the cessation of diocesan svnods was connected with the act of submission So Kennett, Eccles. Synods 201, who adds that after the repeal of the_ act m Mary's reign several bishops again held diocesan synods. On the question whether the act applies to such '^"1;V one w4''summoned at Exeter, 1851 (Perry, Hist, of Engl. Ch. Ill, 285 ff. c IB § li), a^ Lincoln, 1871 (Perry, Z.c III 421 c 24 § 6). " So, e.g. in Lincoln. Perry, I.e. Ill, 421 c 24 § 6. 382 RURAL CHAPTERS [V, 13c there are instances of diocesan synods again deliberating.^* The conferences have since 1881 found a common centre in the ' Council of Diocesan Conferences.' " This also is legally independent of the church system. It consists of clerical and lay members chosen at the diocesan conferences. , It draws up summaries of the diocesan resolutions, and itself discusses subjects which fall within the scope of the diocesan conferences."' §58. C. RUEAL CHAPTERS." Rural chapters are assemblies of the clergy of a smaller area within a bishopric. When regular gatherings of this kind became customary is not known. Probably their origin is connected with the establishment of fixed decanal districts.^ '■' In the Church Year-Book, 1891, the diocesan synods mentioned as having met are those of Lichfield and Salisbtiry. In addition to the former there was a Lichfield diocesan conference. The synod of Salisbury seems to belong to the association of conferences. On the diocesan conferences in 1872 and the repre- sentation of the laity in diocesan synods see appendix B in the report of the committee of the lower house of Canterbury on lay co-operation, append, to Chron. of Conv. Cant. 1872. In 1880 the only dioceses in the southern province in which, there were not conferences were Salisbury, Gloucester and Bristol, London, Llandaff and Worcester. In Salisbury there was however the synod, in Gloucester and Bristol a council, in London the establishment of a diocesan conference was pending. There were moreover in Ely, Lichfield and elsewhere archidiaconal conferences presided over by the bishop. Report of a committee of the lower house in Chron. of Conv. Cant. 1881, appendix. The diocesan con- ference of London held its first session in 1883. In the northern province there were in 1882 diocesan conferences in York, Carlisle, Chester, Liverpool, Sodor and Man, Durham, Manchester, Eipon, Newcastle. Committee report, 1883, No. 148 in append, to Chron. of Conv. Cant. 1883. In 1883 a diocesan confer- ence was established in Llandaff (Committee report, 1885, No. 180 in append, to Chron. of Conv. Cant. 1885), in 1885 in the newly founded see of Southwell (Committee report, 1886, No. 196 in append, to Chron. of Conv. Cant. 1886), in 1892 in the newly founded see of Wakefield (Church Year-Book, 1893, p. 376). "^ In 1881 the diocesan conferences of Winchester, Bangor, Chichester, Ely, Hereford, Lichfield, Lincoln, Norwich, Oxford, Peterborough, Rochester, St. Alban's, St. Asaph, Truro, Eipon, Chester, Carlisle, Manchester, Sodor and Man combined to send representatives (six laymen and six clergymen from each) to a Central Council. Chronicle of Convocation Cant. 1882 (append. No. 137, p. 14). The principles (agreed 7th July, 1881) which were to govern the central council are printed I.e. p. 42. Later adhesions were Bath and Wells, Canterbury, Durham, Gloucester and Bristol, Llandaff, London, Newcastle, St. Davids etc. The diocesan conference of York in 1883 rejected a proposal to co-operate. " For further particulars as to the constitution and operations of diocesan conferences and the central council and as to the dates of their establishment see Church Year-Book, 1883, p. 380. ' Cf . § 43, note 2. It is perhaps to rural chapters that the reference is in leg. Ed. Conf. (a law-book ; probably dating from the beginning of the twelfth cen- tury), c 2 § 8 : . . . omnibus Christianis ad ecdesiam Dei causa orationis For literature cf . § 43, note a. § 58] RURAL CHAPTERS 383 In the twelfth century these assemblies were called by the rural dean, who presided at them. With the thirteenth, it began to be urged that the frequent presence of the archdeacon was desirable.* As he had higher rank than the rural dean, the general presidency passed by degrees to him. From the end of the thirteenth century it became the practice that, as a rule, the officials of the archdeacons held the chapters, the rural deans doing so only occasionally.^ In consequence of this development the power to determine minor cases at first exercised by the rural chapters became vested in the arch- deacon's court. For several centuries a distinction was drawn between the chief assemblies, held every quarter to discuss more serious business, and less important meetings, attended by fewer persons, which took place every three or four weeks.* The decay of rural chapters, as of the office of rural dean, began even before the reformation. During that period and after it they fell more and more into disuse. As until the commencement of the nineteenth century attempts to revive the office of rural dean re- mained fruitless, so it was not found possible to give vitality to rural chapters. Only in this century have meetings of the clergy of the rural deanery under their rural dean again been allowed in some of the dioceses.^ Such assemblies possess no powers of jurisdiction. pergentibus pax sit in eundo et redeundo ; item ad dedicationes euntibus, et ad synodos et ad capitula, sive summoniti sint, sive per se ibi quid agendum habeant. Abroad rural chapters were known in many places in and after the 9th century ; they, however, never became so general as in England during the twelfth and thirteenth centuries. Eichter, Kirchenrecht p. 138, note 4, Dansey 11, 2 fF. ^ Constit. Otho (1237) c 20 : . . . sint autem solieiti {scil. archidiaconi) frequenter interesse capitulis per singulos decdnatus in quibus diligenter in- struant . . . sacerdotes . . . (Wilkins, Cone. 1, 649.) ^ John of Actona (shortly after 1332), p. 54, gloss cap. rural, to const. Otho : . . . quae hodie tenentur per officiales archidiaconorum et quan- doque per decanos rurales. In the documents of that time the chapters are variously called chapters of the archdeacons and chapters of the deans. Cf . e.g. provincial synod of Oxford, 1222 c 22 (Wilkins, Cmic. I, 585), const, of bishop of Salisbury, 1256 {I.e. I, 715), episcopal synod of Norwich, 1257 {I.e. I, 735), of Exeter, 1287 c 31 {I.e. II, 148), provincial synod of Reading, 1279 o 6 {I.e. II, 36), synod of province of Canterbury, 1341 c 7 (Z.c. II, 675). * Lyndwood, Provinciale (1433), Book I, tit. II p. 14, gloss : horum capitu- lorum quaedam tenentur de tribus hebdomadis in tres ; quaedam semel in quarta anni et haee dicuntur capitula principalia propter majorem con- fluentiam cleri et quia in his de negotiis arduoribus tractari consuevit. Cf. also episcopal synod of Exeter (1287) c 31 : -De mense in mensem capitula cele- brentur (Wilkins II, 148). Syn. of prov. Cant. (1341) c 7 : . . . capitula de tribus in tres septimanas . . . celebrantes (Wilkins II, 675).— The presence of laymen at the deliberations of rural chapters is forbidden in a mandate of archbishop Peckham, 28th March, 1286 {Registr. Ep. Peckham; Rer. Brit. Scr. No. 77 ; ni, 920). ,^ , ,,„„„, ^. .^ 5 Cf. e.g. instruction to the deans in the diocese of London (18drf) c b, in L>an- sey II, 855, also the rural dean's commission as now used in the diocese of Salisbury, printed in append! XIII, 2. , ,. , , , On an example of the reintroduction of rural chapters (m a rural deanery ot Exeter, 1849) see Warren, Synodalia p. 134. 384 ECCLESIASTICAL COURTS [V, 14a 14. ECCLESIASTICAL COURTS. A. HISTOEIOAL. §59. a. To the Norman conquest.* It lias not yet been sufi&ciently elucidated in what way the exercise of jurisdiction during the Anglo-Saxon and Danish periods was divided between the civil and ecclesiastical authorities; nor is it tnown whether in the Anglo-Saxon period the line of division varied even after the complete triumph of Christianity. The ques- tion is considered below. The extent to which ecclesiastical persons took part in civil courts is at the same time examined so far as is necessary to determine precisely the competence of ecclesiastical courts proper. 1. Participation of ecclesiastical persons in temporal COURTS. Erom the reign of Edgar (959-75) at the latest/ a high civil official^ and the bishop presided jointly over the shire-moot.^ ^ From Alfred (871-901) c 38, In case a man fight before an ealdorman in the gemot, we must perhaps infer that in his time the bishop did not as yet preside in ^conjunction with the ealdorman. Similarly it is ordained by Edward (901 to 924^5) II c 8 that every gerefa is to hold a gemot every four weeks. Alfred c 38 § 2 does, it is true, mention fighting ' before the king's ealdorman's junior or the hing'' s priest.'' ^ This was in earlier times {e.g. in Wessex under Ine, 688 to 726-8) until Knut's day, as a rule, the ealdorman. It is, however, to be observed that the dis- trict of the ealdorman (like that of the bishop) for the most part extended over several counties. The sheriff {scireger&fa), whose office is equally old, appears as assisting the ealdorman, but also as an independent magistrate. Knut divided the kingdom into four provinces, over each of which stood an eorl. Probably the smaller, shire-districts presided oyer by a scireger&fa were still retained. Edward the confessor altered Knut's division, and temporarilj' ealdorman and €orl, whose offices seem to have been fused under Knut, again appear side by side. Gneist, Verfassungsgesch. § 4. Stubbs, Const. Hist. I, 125, 132, 176 c B §§ 49, 50 c 6 § 66. ^ Edgar III c 5 : And sBce man hundred- gemOt, . : , and Jiaebbe man firtwa on gedre burh-gemOt, and tuwa scir-gem,6t, and pSer bed cm pdbre scire bisceop and se ealdorman, and JxSer c&g&er tdkcan ge Godes riht ge woruld- riht. (" And let the hundred-gemot be attended as it was before fixed ; and thrice in the year let a burh-gemot be held ; and twice, a shire-gemot ; and let there be present the bishop of the shire and the ealdorman, and there expound both things, as well the law of God as the secular law.") Knut II c 18 : And habbe man priwa on ge&re burh-gemdt, and twd scir- gemdt . . . buton hit oftor nedd s%. And }>d6r bed mi pd&re scire bisceop and se ealdorman, and J>dir 6legtSer tSJRcan ge Godes riht ge woruld-riht. ("And thrice a year let there be a burh-gemot and twice a shire-gemot . . . unless there be need oftener. And let there be present the bishop of the shire and the Stutbs, Const. Hist. I, 253 8 § 87. § 59] TO THE NORMAN CONQUEST 385 Similarly, the hundred- moot seems to have been held by the bishop or his archdeacon in conjunction with the temporal official.* ealdorman ; and there let them expound both things, as well the law of God as the secular law.") Charter of Knut (probably in 1020, at any rate between 1018 and 1021) addressed to his lay and spiritual subjects in England (printed in the edition of Chronicles of Croyland Abbey by "Walter de Gray Birch, p. x ; cf. Stubbs, Sel. Chart. 5th Ed. p. 75) : . . . Nu bidde ic mine arceb. and ealle mine leodb. thaet hy ealle neodfulle beon yrnbe Codes gerihta aelc on his ende the heom betaeht is ; and eac minum ealdormannum ic beode thaet hy fylstan tham biscopum to Codes gerihtum, and to minum kynescipe, and to ealles folces thearfe; Gif hwa siva dyrstig sy, gehadod oththe laewede, Denisc oththe Englisc, thaet ongean Codes lage ga and ongean minne cyneseype, oththe on- gean worold riht, and nelle betan and geswican aefter minra bisceopa taecinge, thonne bidde ic Thurcyl eorl and eac beode thaet he thaene unrihtwisan to rihte gebige gyf he m,aege ; . . . and eac ic beode eallum minum gerefum bi minum, freondscype, and be eallum tham the hi agon, and be heora agenum life, thaet hy aeghwaer min folc rihtlice healdan, and rihte domas deman be thaera scira bisceopa gewitnesse, and surylce m,ildheortnesse thaeron don swylce thaere scire bisceope riht thince, and se man acuman maege ; . . . (" Now I beseech my archbishops and all my suffragan bishops that they all be attentive about God's right and to my royal authority and to the behoof of all the people. If any be so bold, clerk or lay, Dane or English, as to go against God's law and against my royal authority, or against secular law, and be unwilling to make amends and to alter according to my bishops' teaching, then I pray Thurcyl my earl, and also command him, that he bend that unrighteous one to right if he can ; . . . and also I command all my reeves, by my friendship and by all that they own, and by their own life, that they everywhere hold my people rightly and judge right judgments by the shire bishops' witness, and do such mercy therein as the shire bishop thinks right, as a man may attain to ; . . .") Institutes of Polity (printed in Thorpe [liecord Commission], Ancient Laws etc. 422 ff.) c 7: . . ■ , t>y sculon bisceopas mid woruld-deman domas dihtan, fiaet hi ne gepafian, gyf his waldan magan, J>aet tfaer aenig unriht up-aspringe. And sacerdum gebyrep eac on heora scrift-scirum }>aet hi georne to rihte aethwam fylstan, and na gej^aflan, gif hi hit gebetan magan, paet aenig cristen man otSrum derige ealles to swySe, . . . (" . . . there- fore should bishops, with temporal judges, direct judgments so that they never permit, if it be in their power, that any injustice spring up there. And on priests also it is incumbent, in their shrift-districts, that they diligently support every right, and never permit, if they can ameliorate it, that any Chris- tian man too greatly injure another.") Stubbs, Const. Hist. I, 128 o 5 § 50 understands the law under Edgar and Knut to have been that bishop and ealdorman were present, but that the sheriff was the constituting officer. See, on the other side, Gneist, Verfassungsgesch. § 4. Cf. also Twiss, Introduction pp. xviii ff. to Bracton V {Ber. Brit. Scr. No. 70). It can hardly be supposed that the sheriff would conduct the business in the presence of the ealdorman, so long as the dignity of the latter had not sunk to be merely honorary. The words in the ordinance of William I (append. T) ■ ut nullus episcopus vel archidiaconus . . . ampliusinhundretplacita te'neant . . . are also in favour of cow^r-oi of the business by the persons On similar but somewhat earlier developments in the empire of the Franks see Eichter, ffirc;ieJirecM § 206, note 29. , , . ., t , ^^ j, - * So ma.j Edgar III c 5 and Knut II c 18 be understood if we refer fidier beo on not only to scir-gem6t, but in Edgar to all three, in Knut to the two before mentioned kinds of the gemot. Cf. also Alfred c 38% 2 {^ho^e, note 1). Then the mention of the 'hundret' in the ordinance of William I (see append. I) would agree herewith. Why in that ordinance the shire-moots,_ which con- tinued to exist side by side with the hundred-moots, are not mentioned, would H.C. ^ ^ 386 ECCLESIASTICAL COURTS [V, 14a Both Edgar and Knut order that ealdorman and bishop shall expound ' both things, as well the law of God as the secular law.' Thus both persons are to expound the same law, not the ealdorman only the secular law, and the bishop the law of God. Nor is the rule to be understood as implying that in this court owing to the co-operation of ealdorman and bishop secular punishments are to be inflicted for breach of the laws of the state, ecclesiastical pains for violation of ecclesiastical laws. On the contrary, it is to be main- tained that at these judicial assemblies only such penalties could be assigned as were based on the law of the land. This view is sup- ported by remarks in the laws which show that ecclesiastical regu- lations could only be enforced when backed by the secular laws.^ For, if the same authority as prescribed secular punishments, that is the folkmoot, had determined ecclesiastical penalties, it would not be clear why the latter should be harder to enforce than the former. That in the gemot only secular punishments could be assigned, follows, moreover, from the whole constitution of that court. The judges proper (Urteilsfinder) were not the ealdorman and the bishop, but the assembled suitors. According to the fundarmental ideas of the priestly office, it probably was not possible to leave decision as to ecclesiastical pains to other than purely ecclesiastical authori- ties. Thus the statement that ' the law of God ' was to be expounded in the gemot as well as the secular law, must be otherwise conceived. Above all, the reference will be to the church dues enforceable by the state and to the church-grid', which the state defended ; further- more, the provision contains an allusion to those legal relations. indeed be not quite explicable. Gneist, Verfassungsgesch. § 14, note * supposes that ' hundret' here signifies the place of the court (GerecftfesiStte), at which the shire-moots were also held. — Hundreds and then moots are first mentioned in England in Edgar's time (9B0-75), but are doubtless, more ancient. Stubbs, Const. Hist. I, 104 ff. c 5 § 45 ; Henry Adams, The Anglo-Saxon Cowts of Law pp. 13 ff. in Essays in Anglo-Saxon Law, Boston, 1876. Even if we assume that any ecclesiastical ofiicer sat in the hundred-moot, it may still be doubted whether that officer was the bishop, as it is also doubtful (Stubbs, Const. Hist. I, 116 c 5 § 46, Gneist, Verfassungsgesch. § 4 ; on the mention of the gingra or junior as the ealdorman's deputy tif. also the Anglo-Saxon treatise printed by Liebermann in Zeitschrift der Savigny-Stiftung, vol. V, German section, pp. 207 ff.) whether the secular p:;esident (ealdorman or sheriff) ever regularly conducted the hundred-moot or whether the duty devolved on special, subordi- nate officers. ' Edward & Guthrum (probably end of 9th cent.), Introduction § 2 : And hig gesetton woruldUce stedra eac,for kdm J^ingum, /.e hig wistan, }>aet hig elles ne mihton manegum gestedran, ne fela manna nolde t6 godcundre bOte elles gebtV gan, swd hy sceolde ; and woruld-bdte hig gesetton gemdeive Criste and cynge, swd hwdr, swd man nolde godcunde hdte gebtigan mid rihte t6 bisceopa dihte. (" And they established worldly rules also for these reasons, that they knew that else they might not many control, nor would many men else submit to divine 'hot 'as they should; and the worldly 'hot' they established' in com- mon to Christ and to the king, wheresoever a man would not lawfully submit to divine ' hot ' by direction of the bishops.") Of. Aethelred VIII (laws of 1014) c 36 : Be gri&e and be munde (Sohmid, Oes. d. Angelsachsen, append. IV) c 24 • Be hdd-bOte (Schmid, append. IX) c 11. §59] TO THE NORMAN CONQUEST 387 such, for instance, as marriage, in regard to which ecclesiastical influences had recently produced a change in the old folkright.® '' In proceedings before the folk-moot there was no sharp distinc- tion between civil and penal suits. But in cases in which a breach of the public peace was in question, particularly then in more serious offences and where there was non-fulfilment of public duties {e.g. if church dues were not paid), apart from compensation to the injured person, a public penalty was assigned. This was, as a rule, a money-fine, which usually fell to the king ; but if the interests of the church were also involved, the church received a share which varied according to circumstances.^ This again served to secure the ° According to the text of the passages cited in note 3 the ealdorman too is to expound God's law. Similarly it is said in leg. Hen. 7c 8 § 1 (printed § 60, note 13) of the secular aldermannus hundredi : Dei leges et hominum jura . . . studeant promovere. — Only in the limited sense given in the text shall we be able to interpret the ordinance of "William I § 2 (fully printed in append. I), in which the state of affairs until then prevailing is touched on with the words: ut nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundret placita tenearvt nee eausam quae ad regimen anima- rum pertinet ad judicium secularium hominutn adducant. ' The following passages, -frhose scope, hovyever, is doubtful, also apparently relate to the part played by the bishop in the folk-moot : Knut II c 56 : Gif open mortf weortSe, paet man syi dmyrdred, dgife man m,agum, J>one banan, and gif hit tihtle sy and aet Idde misttde d6m,e se bisceop. ("If there be open ' morth '*so that a man be murdered, let the slayer be delivered up to the kinsmen ; and if there be a prosecution and he fail at the 'lad,' let the bishop doom.") So the law-book leg. Hen. 7 c 71 § 1. Similarly in the case of adul- tery, Knut II c 53. — Do these regulations perhaps refer to some special compe- tence of the bishop in cases of mere imputation without proof by witnesses ? This meaning is favoured by Institutes of Polity (a discourse on the various civil and ecclesiastical powers and classes) printed in Thorpe (Record Commis- sion), Monumenta Ecdesiastica c 7 : . . . He (the bishop) seeall georne saca sehtan and frits loyrcan, mid J^am woruld-deman }>e riht lujian. He seeall aet tihtlan ladunge gedihtan, fiaet aenig man o&rum aenig woh beodan ne maege, abor otScSe on athe ofStSe on ordale. . . . ("He shall zealously appease strifes and effect peace with those temporal judges who love right. He shall in accusations direct the ' lad,' so that no man may wrong another, either in oath or in ordeal . . . ")— Perhaps d&me se bisceop is in these cases only another phrase for ' let ordeal take place.' Cf. Dialogus Egberti (universally regarded as genuine ; between 732 and 766 ; printed in Haddan and Stubbs, Counc. Ill, 403) c 3. Cf. further Edward and Guthrum c 10 : " If a limb-maimed man who has been condemned be forsaken, and he after that live three days ; after that, any one who is willing to take care of sore and soul may help him, with the bishop's leave." Cf. also the mention (above, note 3) in Knut's charter of the bishop as deciding on the mercy to be shown. — In Edward and Guthrum c 4 Be siblegeritm (of incestuous persons) the words swd bisceop tSece (as the bishop may teach) do not seem to refer to any judgment by the bishop.— On the co- operation of the bishop in executing the judgment of a secular court whereby the killing of a person for robbery was afterwards, on complaint of the rela- tives of the person killed, declared unjustifiable see the law-book leg. Ed. Conf. a 36 (of. Aethelred III c 7). , ,,^ , ,. , ^ v, -^^ t, ., 8 InstitutaCnuti {SahmiA, append. XX; a law-book, probably written shortly after 1110) III c 53 : Antigua eonsuetudo fuit, ut omnis ecdesiastica et secularis emendatio communis erat regi et episcopo. The contention thus unqualified seems from the substance of the laws to be erroneous. Cf., however, Edward 388 ECCLESIASTICAL COURTS [V, 14a co-operation of the ecclesiastical authorities in the business o£ the temporal courts. Moreover the method of proof in vogue before the folk-moot implied the participation of the clergy. Ordeal was always con- dlioted by a spiritual person.^ 2. Ecclesiastical couets. Purely ecclesiastical courts to determine disputed questions existed even in the Anglo-Saxon period.^" Probably synodal assemblies often acted in this capacity ; " but often too the bishop and Guthrum , Introduct. § 2 . . . woruld-bdte hig gesetton gemdine Criste and cynge . . . (above, note 6), also Aethelstan VIII c 38 : And }>& man getwdSemde paet dbr woes gemdbne Criste and cynincge on tvoroldltcre stedra . . . ("And there they divided what before was common to Christ and the king in worldly Steuer [steQra, Steuer= government or punishment] . . .") See also leg. Hen. I c 11 § 14. — Liebermann in Transactions of the Boyal Historical Society, New Series, VII, 98 calls attention to the fact that, in the above passage of the Instituta Cnuti, ecclesiastica et secularis emendatio must perhaps be taken as conveying one idea, the meaning being ' punishment for offences at once against ecclesiastical and civil laws.' ' Aethelstan II c 23. D6m be hdtan tsene and waetre. Exorcismus (Schmid, append. XVI and XVII). Of. also Instit. of Polity c 7 (above, note 7).— In refer- ence to co-operation at oath-taking see Penitentiale Bedae (probably genuine ; if so, 785 ; in Haddan and Stubbs, Counc. Ill, 326) c 5 § 2 : Qui sciens virtutem juramenti vel perjurii perjurat in manu Episcopi vel presbyteri vel in altari vel in cruce consecrata, III annos poeniteat; also Poenitent. Egberti (almost certainly genuine ; if so, between 732 and 766 ; in Haddan and Stubbs, Counc. Ill, 413) c 6 § 1 : Qui juramentum fecerit in aecclesia aut in evangelio sive in reliquas sanctorum, VII vel XI annos judicant. § 2 : Si vero in manu Episcopi aut presbyteri aut diaconi, sive in cruce consecrata, unum annum peniteat, alii III vel VII judicant ; et in cruce non consecrata, unvm annum vel VII menses ut alii. § 1 : Si quis in manu laid juraverit, apud Grecos nihil est. " NortShymbra preOsta lagu (Schmid, append. II ; about 10th cent.) c 5: Gif preOst ddm t6 Idiwedum sceOte, pe he t6 gehddedum scolde, gilde XX or. (" If a priest refers a judgment to laymen which he should [refer] to consecrated [persons], let him pay twenty pieces.") Cf. also Ine (laws between 688 and 694) o 13 pr. : Gifhwd beforan biscepe his gewitnesse and his wed Sledge, geMte mid CXX scill. (" If anyone before the bishop gives false witness or breaks his bargain, let him pay for it with 120 shillings.") " Cf. the legal formula (Schmid, append. XI ; date uncertain) : . . . J>aei man cwydde o&'&on crafode hine on hundraede, oStSon dhwdr on gemdte, cm cedpstowe o&S'e on cyric-ware ...("... that they addressed him or summoned him before the hundred or anywhere before a court, before a market-place or before a church-gathering . . . ") ; Council of Celchyth, 816 (Haddan and Stubbs, Counc. Ill, 679) c 6 : . . . Ut non frangatur [fran- gantur] judicitcm [judicia] Episcoporum, quae a nobis nostrisque praedeces- soribus synodale [synodali] decreta [decreto] constituta sunt, sed firma et inrefragabilis [irrefragdbilia] ita permaneant; . . . Et iterum, si quis accusatoribus suis invitatur ad synodum, et ei obvianti non tardaverit, semel, secundo, tertia vice paratus rationem ponere, et acvsator renuit, et suam causam m,overe differat ; postea judicdbimus nihil ab eo plus exigatur, sed suo proprio sit contentus. Cf . further the report of the councils of Pincahala and Celchyth, 787 (below, note IB). — Stubbs, Const. Hist. I, 252 c 8 § 87, considers it probable that synods under certain circumstances acted as friendly arbitrators in civil cases. From the early Norman time cf. the following examples : — §B9] TO THE NORMAN CONQUEST 389 in person or his chief officer seems to have been judge. At all events, there was no division between the judicial and the adminis- trative authorities, nor can a sharp line be drawn between the two forms of activity as exercised by one and- the same authority. a. Competence in respect ©/"persons. Spiritual superiors exercised independently disciplinary powers over the clergy subordinate to them,i^ just as the king could, in- dependently of the folk-moot, inflict disciplinary punishments on his officers. Apart from this, the church further required that in all disputes of clergymen with one another, recourse should be had not to the secular court, but to the higher ecclesiastical authorities.^^ The assembly of the bishops officiated under Lanfranc as an ecclesiastical court. Epist. Lanfranci (ed. Giles) p. 51 (printed in § 60, note 83) and p. 76 ; in adulteros sententiam diximus, et juste eos esse excommunicatos communi consensu decrevimus. Document touching a discussion before a diocesan synod in 1092 on a suit between two clerks in Bigelow, Placita Anglo-Normannica, 64. Judgment of a diocesan synod of Llandaff between 1149 and 1156 in Hist. Monast. Gloucestriae {Ber. Brit. Scr. No. 33) II, 52 ff. (cf. here Bigelow, I.e. 184). Documents from the time shortly after 1145 upon the judgment of a synod of the archdeacon of Buckingham in Historia Monast. GloucesMae {Rer. Brit. Scr. No. 33) II, 166 f. (cf . here Bigelow, I.e. 150 ff.). " To this seem to be referable the following provisions in the laws : — 1. Alfred c 21 : Gif preost 6Serne man ofslea, . . . hine biscep onhddige, ]}Onne hine mon ofpdm mynstre dgife, buton se hld/ord pone werfore J^ingian wille. (" If a priest kill another man, ... let the bishop secularize him ; then let him be given up from the minster [apparently to the kinsmen that he may be brought before the secular court ?], unless the lord will compound for his ' wer ' ") ; of. in case of man-slaj'ing or other grave offence Aethelred VIII c 26 ; Knut II c 4i, where the words fiolige ge hddes ge eardes or etsdes (" let him lose class and fatherland ") perhaps likewise signify the double con- demnation.— Ecclesiastical penance has then also to take place, as usual. 2. Edward and Guthrum c 4 § 2 : If a priest commits a crime worthy of death, he shall be seized and kept until the bishop's judgment. Similarly Knut 11 c 43. Apparently here nothing more is meant than the preliminary decision of the bishop on the clerk's deprivation of spiritual rank. 3. Wihtrad c 6 : " If a priest allow of illicit intercourse ; or neglect the -baptism of a sick person, or be drunk to that degree that he cannot do it ; let him abstain from his ministry until the doom of the bishop." " can. sub Edgaro (Wilkins, Concilia I, 225 assigns it to the year 960) c 7 : And we laerafi, J>aet nan sacu &e betweox preostan sy ne beo gescoten to ivorld- mannas dome, ae seman and sibbian heora agenne geferan, ot,pe sceotan to Sam biscope gif man &aet nyde scule. (" And we enjoin, that no dispute that be between priests be referred to the adjustment of secular men ; but let them a,diust among and appease their own companions; or refer to the bishop, if that -he neeiiixl.")— Institutes of Polity (in Thorpe [Record Commissionl Ancient Laws etc.) c 10 : . . . . Bisceopum gebyraS, gyf aenig o^rum abelge, ^cmt man qebyldiqe o& geferena some, butan heom sylfe geweor&anjnaege, ami na sceotan na to laewedum mannum, ne ne sciendan na hy sylfe. Bisceopum aeburatS, ayf-hwylcum hioaet eglige swytSe, fie he ne betan ne maege, cype hit his qeferum and beon sytsSan ealle geome ymbefiabote, and nanegeswican aerhihit qebetan. ("It is incumbent on bishops, if anyone offend another, that he be patient until the arbitration of their associates, unless they can settle between themselves; and let them not refer to laymen nor disgrace themselves It is incumbent on bishops, if aught greatly afflict any one, for 390 ECCLESIASTICAL COURTS [V, 14a Probably even in the Anglo-Saxon period the further claim was raised that the clergy should be wholly freed from secular jurisdic- tion. How far the claim was in practice made good, -is no longer with certainty to be ascertained.^* &. Competence in respect of causes. In the older times an attempt was made to adjudicate in the diocesan synods upon purely temporal causes ; to check it, prohibi- tions were issued by the higher authorities of the church.^^ Never- which he cannot obtain 'hot,' that he make it known to his associates, and that they be then all diligent about the ' bot ' and cease not before they have obtained it.") — See also Dialogus Egberti c 10 in oases of civil claims. — On similar and still greater pretensions of the church in the Roman empire and the empire of the Franks see Richter, Kirchenrecht § 206. '■* The view that clergymen were not subject to the secular court is supported by the passages cited in note 16, 1 and 2, according to which it seems that they could only be condemned by such a court after their expulsion from the priestly class. If we do not assume that even in the Anglo-Saxon period there were the beginnings of an exemption for clergymen from temporal jurisdiction, it is hard to say from when that exemption is to be dated. The ordinance of William I only provides an exclusive competence of ecclesiastical courts in respect of causes. The personal exemption of the clergy from temporal juris- diction is confirmed in Stephen's charter of 1136 as something already existent. — The view that they were subject to the secular court is defended, on the other hand, by numerous provisions in the laws which relate to proceedings against clerks and which from their purport can hardly be referred to process before any other court than the folk-moot, e.g. : WihtrSd cc 16 19 Edward and Guthrum c 3 ; Aethelred VIII, 19-24, 27 ; Knut I c 5, II, c 41 § 1.— Simikrly Dialogus Egberti (universally regarded as genuine and referred to archbishop Egbert of York, between 732 and 766 ; in Haddan and Stubbs, Counc. Ill, 408) oc 1 and 3. From earlier times cf. especially Dialogus Egberti c 8: Interrogatio: Si quis monachoruni sacrilega se contagione miscueriiit, vindicta, quidem sceleris si pertinet ad'laicos, qui sunt eorum propinqui, nunc persequamini ? Responsio (the answers, both in reference to the person and to the case, go beyond the question) : De his qui intra aecclesiam in gravibus vel in levibus commissis delinquunt, nichil vindictae pertinet ad eos qui f oris sunt ; maxime cum apostolus dicat, omnes causas aecclesiae debere apud sacerdotes dijudicari. Si qui vero aecclesiastici crimen aliquod inter laicos (in antithesis to intra aecclesiam, to be understood of ■pla.ce) perpetraverint, homicidium,, vel fornicationem, vel furtum agentes, hos placuit a secularibus in quos peccaverunt omnimodo occupari ; nisi animo fuerit aecclesiae pro talibus satisfacere. Laid vero qui sacrilega .se contagione miscuerint velatis, non eodem modo quo lex publica fornicarios puniri percensuit, sed duplicato XXX siclorum pecunia, hoc est, LX argenteos volumus dare ecclesiae 'adulter antes, quia graves causae graviores et acriores querunt cvras. " Report of the legates on the resolutions of the councils at Pincahala and Celchyth, 181, o 10: . . . Vidimus etiam ibi Episcopos in conciliis suis secularia judicare, prohibuimusque eos voce Apostolica : Nemo militans Deo impUcet se negotiis secularibus, ut Ei militet Cui se probavit . . . (Haddan and Stubbs III, 452). — Cf. herewith the competence ascribed to the bishop in the penitential of Theodore (probably end of 7th cent. ; printed in Haddan and Stxibbs, Counc. Ill, 173) :— Book I c 4 § 5 : Si quis occiderit monachum vel clericum, arma relinquat et Deo serviat vel VII annos peniteat. In judicio Episcopi est. Qui autem Episcopum vel presbiterum. occiderit regis judicium est de eo. Book II c 2 § 4: Episcopus dispensat causas pauperum usque ad L solidos, rex vero si plus est. § 59] TO THE NORMAN CONQUEST 39 1 theless, even after that, the bishop and his officers are sometimes mentioned as judges in property suits. In some instances they seem to have been acting as arbitrators, in others we see the exercise of special judicial powers within church domains. But that any particular kinds of civil actions were in general brought within the cognizance of the ecclesiastical court is not apparent. On the other hand, the church exercised a sort of punitive power, in that the ecclesiastical authorities, in a strictly circumscribed' sphere of competence, imposed various forms of penance upon both clerks and laymen. In principle, indeed, the imposition of penance and the judicial power are two different things. The former, in so far as it is a condition of absolution, is an emanation of the potestas ordinis,'^^ whilst the ' latter is a manifestation of the potestas juris- dictionis. Thus priests as well as bishops had the power to impose penance," whereas the judicial power proper could only be exercised through the bishop, or his officers, or through synods. But in spite of this fundamental difference between the two things, in Anglo- Saxon times they frequently overlapped each other, and to outward observation the imposition of penance appeared to imply a punitive power resident in the church and supplementing the punitive power of the state. For the most part penance was imposed informally and privately as the consequence of statements made in confession ; '* more rarely, for instance at visitations, there was something resembling judicial proceedings to bring home disputed guilt to the offender. The imposition was alike independent of the penalty threatened by the state and the sentence pronounced by it. Ecclesiastical penances were assigned for all more serious offences punishable also by the secular arm. The church assisted in securing the payment of the wergild, in that it reduced the penance when the paj'ment was made.'^ Furthermore, ecclesiastical penances were also threatened in cases {e.g. of sexual extravagance) for which the law of the land contained no penal provisions. This suggests that even in those early days there was the same exclusive competence in ecclesiastical courts as in later times. But the idea is a mistaken one. At a '^ Of., however, Eichter, Kirchenrecht § 257, note 9. " Peaitential of Theodore (Haddan and Stubbs III, 173), Book II c 2 § 15 : Non licet diacono laico penitentiam dare, sed Episcopus aut preshiter dare debent. Book II c 6 § 16 : Nee non Ubertas monasterii est penitentiam secu- laribus judicandam, quia proprie clericorum est. From later times compare one of the two collections of capitula ascribed to the council of Winchester, 1076 (Wilkins, Cone. 1,365) c 11': Quod de criminibus soli episcopi poenitentiam tribuant. ^* Penitential of Theodore (Haddan and Stubbs, Counc. Ill, 173) Book 1 c 14 § 4 : Beconciliatio idea in hac provineia puplice statuta non est, quia et puplice penitentia non est. >» Penitential of Theodore (Haddan and Stubbs III, 173), Book I c 3 § 3 ; c 4 § 1 Canons ascribed to Theodore (Haddan and Stubbs III, 209) c 7. Peniten- tial of Beda (Haddan and Stubbs III, 326) c4§ll; c8§4; clO§6 (anno VI). Dialoqus Egberti (Haddan and Stubbs III, 403) c 12. 392 ECCI.ESIASTICAL COURTS [V, 14a later age the churcli possessed exclusive competence in the sense that in certain domains the state was forbidden to interfere either by legislation or judicially. But in the Anglo-Saxon period the church alone had in some cases set forth commands and prohibi- tions ; whilst the state had been wUling to ignore the state of affairs existing. The church would seem to have desired the co- operation of the state in this department of morality as well as in other parts of the social life. §60. b. From the Norman conquest to the reformation." William I by an ordinance issued probably about 1070 laid the basis of a further development of independent ecclesiastical juris- diction.i In this ordinance it is prescribed that, in future, cases quae ad regimen animarum pertinent are to be tried not in the temporal court but in the bishop's court, and that if .the summoned refuses to obey the call, the secular power has, if need be, to enforce his attendance.* Thus was a basis established for the exclusive competence of the ecclesiastical courts in respect to the matters cognizable. On the other hand, the ordinance contains no regula- tions as to the personal exemption of the clergy from temporal jurisdiction nor as to their exercise of judicis;! functions in temporal courts.^ In these respects then the earlier provisions remained at first in force. But at latest from the accession of Stephen, the principle that clerks were amenable only to ecclesiastical courts was recognized. During the whole of the following period we find the authorities of the church persistently striving by means of the concessions of William I and Stephen to extend the competence of ' The ordinance is printed in append. I. " Cf. the resolutions of the council held by the archbishop of Canterbury at Winchester, 1076, in Matthaeus Parker, De Antiquitate Britannicae Ecdesiae et Privilegiis Ecdesiae Canluariensis, cum Archiepiscopis eiusdem 70. Lambeth, 1672, p. 98. Mc lib. Constitutionum Ecdesiae Wigorn. pag. 101. [Printed also after Parker in Wilkins, Concilia I, 367] : . . . Laid . . . si de crimine suo acciisati fuerint, et Episcopo suo obedire noluerint, vocentur semel, et iterum, et tertio. Si post tertiam vocafionem emendari [Wilkins : emendare] noluerint, excommunicerdur. Si autem post excommunicationem ac [Wilkins : ad] satisfactionem venerint, forisfacturam suam quae Anglice vacatur oferhyrnesse seu lahslite, pro unaquaque vocatione Episcopo suo reddant . . . ^ Both contentions are often made. The words in § 2 : nullus episcopus vd archidiaconus de le gibus episcopalibus amplius in hundret placita teneant must be understood to mean the same as : non causam quae ad regimen animarum pertinet, ad judicium secularium hominum adducant. In § 4 to the words nee aliquis laicus homo alium hominem sine justitia episcopi ad judicium adducat we must supply in causis quae ad regimen animarum pertinent. ' Bigelow, Melville Madison. History of Procedure in England from lose to iso4. London 1880, pp. 25-75.— Friedberg, Emil. De finium inter ecclesiam et cvoitatem regundor'um rudicii quid medii aem doctores et leges statuerint. Leipzig, 1861 § 3.— Gibson, Codex tit "47 and tit. 49.— Beeves, Histm-y of the English Law ; especially co 3 and 25.— Stubbs, don.^t. Hist. § ep] FROM NORMAN CONQUEST TO THE REFORMATION 393 the ecclesiastical courts as far as possible both in respect of persons ■and of causes cognizable. The endeavour is opposed with equal persistency by the state, which seeks to confine the operations of the ■ecclesiastical courts to such limits as would seem compatible with an orderly administration of law.* By degrees the number of points at issue came to be extraordinarily great. The developnient of the law was largely dependent on the usage of the courts. Henry II in the constitutions of Clarendon (1164) essayed legisla- tion in this domain, but did not obtain the recognition of the church. Hence he even had in some measure, in the compromises of 1172 and 1176,* to yield to ecclesiastical pretensions. From the * It is often assvimed that Henry I attempted to undo William's ordinance by a contrary regulation and so to restore the status quo of the later Anglo-Saxon period. But the assumption rests on an erroneous interpretation both of William's ordinance and of Henry's. The latter runs : — Henricus, Bex Anglorum, Samsoni episcopo, et Ursoni de Abetot, et omnibus iaronibus suis, Francis et Anglis de Wirecestrescira salutem. Scidtis quod concede et precipio, ut amodo comitatus mei et hundreda in illis locis et eisdem terminis sedeant, sicut sederunt in tempore Regis Eadwardi, et non aliter. Ego enim, quando voluero,faciam, ea satis summonere propter mea dominica necessaria ad voluntatem meam. Et si am^do exurgat placitum, de divisione terrarum,, si est inter bq,rones meos dom.inicos, tractetur placitum in curia -mea. Et si est inter vavassores duorum dom,inorum, tractetur in comitatu. Et hoc duello fiat, nisi in eis rem,anserit, Et volo et precipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerunt in tempore regis Eadwardi, nee remorent propter aliquam causam pacem meam vel quietudi- nem, qui non sequuntur placita m,ea et judicia mea, sicut. tune temporis fecerunt. (Rymer, Foedera 4th Ed. 1, 12. A somewhat different wording in Cottonian Liber Custumarum {Rer. Brit. Ser. No. 12) II, 649 and [ad omnes Jideles] in the law-book, Quadripartitus, edited by Liebermann (according to whom the ordinance dates from 1109-11), p. 165. This ordinance is referred to by the law-book (probably dating from 1110-18) Leg. Henr. 7 c 7, which then declares the law in regard to the holding of county courts to be : — %2.Iniersint autem episeopi, comites, vicedomini, vicarii, centenxirii, aldermanni, praefecti, praepositi, bar ones, vavasor es, tungrevii et caeteri terrarum, dom,ini, diligenter intendentes, ne m.alorum impunifas, aut graviorum pravitas, vel judicum subversio, solita miseros lacerations con- jiciant. % 3. Agantur itaque prima debita verae christianitatis jura; secundo regis placita; postremo causae singulorum dignis satisfabtionibus fxpleantur ; . . . § 2, as also the previously cited ordinance of Henry I, relates only to the duty of the clergy and of the bishops (as landowners) in particular to assist at temporal court-meetings. This duty had not been annulled by the ordinance «f William I (see above, note 3). In § 3 christianitatis jura signifies not suits in matters quae ad regimen animarum pertinent, but church dues and other claims in which the church was a party concerned or received part of the fine. See the placita christianitatis cited in c 11 of the same book.- Cf . also the law- book (probably written at the beginning of the twelfth century). Leg. Ed. Conf: a 3 : Ubicunque justitia regis vel alia qualeibet justitia, cujuscunque sit, ienuerit placita vel justitiam, si minister episeopi (according to another reading: episcopus) fuerit et ostenderit causam sanctae ecclesiae, ipsa prius ad finem deducatur, ad quemfinem poterit rationabilius eo die . . . ^ See § 4, notes 50 ff. Cf . also the articles passed by the clergy and barons of Normandy, 1190 (pr&ted in Eadulf de Diceto, Ymagines Historiarum, Rer. Brit. Scr. No. 68, II, 86 ff.). 394 ECCLESIASTICAL COURTS [V, 14a middle of the twelfth century onward the heads of the church drew up a whole series of petitions * in which they laid before the king the various points wherein they desired a change in the procedure of the secular courts and of the executive officers. The king gave answer on each point singly, and gradually the church ■ accustomed itself to act in accordance with these answers. A stage in the development was marked by the so-called statute Circumspecte agatis (an instruction of the king to his judges, combined with a clerical petition and the answer to it, probably dating from 13 Ed. I [1286])' and by the ArticuU Cleri, generally called 9 Ed. II st. 1- (royal letters patent of 1316, containing a clerical petition and the answer to it by the king and his consilium).^ The decisions laid down in these documents settled the more important points at issue, But controversy was not wholly stayed and led to several subse- quent determinations of the law, notably the act, 18 Ed. Ill St. 3 (1344),9 and the charter of Edward IV in 1462.io 1. Paeticipation of ecclesiastical peesons in tempoeal COUETS. The two folk-moots, that of the hundred and that of the shire, at first continued to exist in Norman times. The competence of the hundred-moots was frequently limited, even in the Anglo-SaxOn period, by the conferment of local jurisdiction,^"* sometimes for the whole hundred,^'"' on temporal or spiritual landowners. Jurisdiction ^ Relevant here are : — 1. Petition of the English clergy, 1237; printed in Annul. Burton {Rer. Brit. Scr. No. 36 ; Annates Monastici) I, 254. 2. Complaint of the clergy and king's answer {circ. 1245 ?), printed in C!ole, Documents 354. 3. Complaint of the clergy at the council of London, 1257 ; printed in Wilkins, Concilia I, 726. 4. Articles of the clergy, 51 Hen. Ill (1267/8) ; extract in Coke, Inst. II, 599. 5. Petition of the clergy from the years 1279-86 and king's answers ; in His- torical Papers etc. from the Northern Begisters {Rer. Brit. Scr. No. 61) 70 ff. (The document stands among others of the year 1284.) 6. Petitions of the clergy, 1280 and 1300, with the king's answers ; printed (in the petition of 1309) in Wilkins, Cone. II, 316 £F. 7. ArticuU episcoporum, 1285, with king's answer; printed in Wilkins, Cone. II, 115. 8. Petition of the bishops of the province of Canterbury, 1286 ; printed in Wilkins, Cone. II, 117. 9. ArticuU, quibus videtur ecclesiae praejudicari -.per statuta doinini regis ultimo edita in suo parliamento, 1285. Wilkins, Cone. II, 119. 10. Petitions of the clergy, 1309. Wilkins, Cone. II, 314, 315 ff. ' Cf. § 4, note 71. » Cf. § 4, note 107. » Cf. § 4, note 109. " Extract in appendix IX. "" Henry Adams, The Anglo-Saxon Courts of Law, pp. 27 ff. in Essays in Anglo-Saxon Law, Boston, 1876, seeks to show that there is no proof of the express conferment of judicial powers on private persons before the time of Edward the confessor, though the practical exercise of such power's, though not conferred, may have begun earlier. "'■ Cf. the instances collected by F. W. Maitland, Selects Pleas in Seignorial Courts, Introduction p. xxvi ; for the Salden Society, 1889. §60] FROM NORMAN CONQUEST TO THE REFORMATION 395 was also so conferred under the Norman kings. The hundred-moot soon had an offshoot in the turnus vicecomitis, a sort of control assembly, which was held in each hundred twice a year and at which the vicecomes ( = sheriff), besides transacting other business, imposed penalties for breach of the peace. The old hundred-moots fell into decay. The judicial powers of the shire-moots were lost by degrees — except in minor cases — to the royal courts. Except in so far as jurisdiction passed to the king's supreme court, fc^r the old meetings of the shire-moot were substituted the assizes held in the shire by itinerant judges sent there from the court. These assizes became more and more general from Henry II's time onward. Judgment by members of the assembly of the shire was gradually replaced by establishment of the facts and presentment by bodies at first variously constituted but gradually assuming form as juries for civil matters, juries for criminal cases and juries of presentment.' ' Private jurisdiction could belong to either temporal or spiritual persons.'^ '■'■ In the twelfth century there were — apart from urban courts— the following temporal courts : — A. Private courts of the temporal or spiritual lord of manor { = curiae haronum, magnatum, dominorum). [From the end of the thirteenth or beginning of the fourteenth century the following courts of private jurisdiction began to be distinguished : — 1. The court-customary. In this the business of the villenage was transacted. The judge was the lord of tbe manor or bis deputy. 2. The curia barenis (=court baron), in a narrower sense. This was competent to deal with the civil causes of the free dwellers on the manor. 3. The leta (later on called ' oourtleet ' ). This had criminal jurisdiction in minor cases over all inhabitants of the district.] B. People's courts. 1. Curia parva hundredi {=the old hundredffemot). Competent for civil causes in which no private court was competent. Its penal powers passed to the private courts and to the form of the htmdred-moot which was designated turnus vicecomitis. The judges were the suitors. 2. Curia comitatus {=scirgemot). mu ■ j Competent for minor civil and intermediate criminal causes. The judges are the suitoTs. Jurisdiction in more important business was trans- ferred by degrees to the supreme king's court and to the judges of assize. The assizes were at first regarded as a form of the shire assembly. C. King's courts. * ^ , , . , ^ n ^^ 1. Turnus vicecomitis = curia magna hundredi (=great court-Jeet;. 2. Forest courts. 3. Assize courts. 4. The curia regis. „ , . , ■ -j ^ The judges in these courts are royal officers, the vicecomes {=scirgere/a) Cf. on fteibove Gneist, Verfassungsgesch. § 10 § 19 '^""^ ■" ; .F- W. Maitland Introductions to Select Pleas of the Crown and Select Pleas m Manorial and, M^sZZial Courts (Selden Society, 1888 and 1889) ; Stubbs, Const. Hist. I, 114ff,424ff. o5§46, c6§§128, 129. , , , x, ,,, i, ., x. 12 Imtituta Cnuti (Schmid, append. XX; a law-book, probably shortly after 396 ECCLESIASTICAL COURTS [V, 14a At the ordinary courts of the hundred and the shire had to appear the lords of land and all royal and local officials, spiritual and secu- lar alike, among them also bishops. If the lord of land and his deputy was prevented from appearing, then, at latest from the middle of the twelfth century, there had to come to the assembly the reeve, the parish priest and four men of credit in the township;'^ 1110) III c 58: Quid episcopi in saecularibus legibus: Episcopi im- primis ecclesiasticam habeant correctionemet christianam dominatione'fn super omnes, quos debent docere et ante judicium Dei eos ducere et praeire ; in m,ultis tamen loeis secundum, justitiam, in sua propria terra et in suis villis debent habere constitutionem hundredi, quad Angli dicunt '■hundred setene' et preiium latronum intra term.inos eorum proclamatorum et infectam invasionem, quod dieitur 'unworte hamsocne,' toll et team et correctionem latronum, quousque sint condemnati ad mortem.. Leges Henrici I c 20 § 2: Archiepiscopi, episcopi, comites et aliae potestates, in terris propriae potestatis suae, sacam et socnam hdbent, tol et theam et infongentheaf ; in caeteris vera per emptionem,, vel cambitionem, vel quoquo m,odo perquisitis, socam et sacam habent, in causis omnibus et hallemotis pertinentibus, super suos et in suo, et aliquando super alteritis hom,ines . . . Leg. Ed. Conf. (law-book ; probably beginning of 12tli cent.) c 4 : Quicunque de ecdesia tenuerit, vel infeudo ecclesiae m,atiserit, alicubi extra curiam, eccle- siasticam non placitabit, si in aliquo forisfactum habuerit, donee, quod absit, in curia ecelesiastica de recto defecerit. c 21 : Archiepiscopi, episcopi, comites, barones et milites suos et proprios servientes suos, scilicet dapiferos . . . sub suo friSborgo habebant (another MS. : habeant) . . . ; quod si ipsi foris- facerent, et clamor vicinorum insurgeret de eis, ipsi haberent eos ad rectum, in cur ia sua, si haberent sacham et socham, tol et theam et infangenethef. " Leg. Hen. I (law-book ; probably 1110-1118) :— c 7. De generalibus placitis comitatuum, quomodo vel quando fier\ debeant. % 2. Intersint autem, episcopi, comites, vicedomini, vicarii, centenarii, alderm,anni (on the meaning of this wotd see note 15), praefecti, praepositi, barones, vavasores, tungrevii et caeteri terrarum domini, • • • % 7. Si quis baronum regis vel aliorum, com.itatui secundum legem inter- fuerit, totam terram, quam, illic in dominio suo habet, acquietare poterit (the sense seems to be : " then the other inhabitants need not come "). Eodem modo est, si dapifer ejus legitime fuerit. [Somner proposes to read interfuerit. Dapifer = senescallus, steward, the chief domestic officer, court-holder and deputy of baron.] Si uterque necessario desit, praepositus (=timgerefa ?) et sacerdos et quatuor de melioribus villas adsint pro omnibus, qui nominatim non erunt ad placitum sxibmaniti. § 8. Idem in hundredo deerevimus observandum in locis et vicibus et judicum observantiis, de causis singulorum justis exam.inationibus audiendis, de domini et dapiferi, vel sacerdotis et praepositi et meliorum hominum praesentia. c 8. De hundretis tenendis, (The reference is not to the old hundred- moot but to the visus francplegii [view of frankpledge], from which the turnus vicecomitis was developed.) § 1. Speciali tamen plenitudine si opus est, bis in anno conveniant in hundretum suum quicunque liberi, tam hudefest, quam folgarii, ad dinoscendum scilicet inter caetera si decaniae plenae sint, vel qui, quomodo, qua ratione recesserint, vet super accreverint. Praesit autem singulis hominum, novenis decimus, et toti sim,ul hundreto unus de m,elioribus, et vocetur aldremannus, qui Dei leges et hominum jura vigilariti studeat observantia promovere . . . §60] FROM NORMAN CONQUEST TO THE REFORMATION 397 apparently it was not until the end of the twelfth or beginning of the thirteenth century that the reeve and the four representative men invariably attended. In addition to the former probably every free man had access.^* The dignity of ealdorman, in its earlier sense, no longer existed.^* Thus his presence at the county court ceased to be required. Simi- larly the attendance of the bishop is only enjoined if he is a landlord in the county in question. Moreover by special privilege the pre- lates, like the greater barons, were gradually relieved from the duty of appearing at the folk-moot.^^ In the middle of the thirteenth century every free man was allowed to send an agent or representative {attornatus, attorney) either to a private court or to the folk-moot instead of being present in person.^'' « c 31. De capitalibus placiti.s. § 3. Interesse comitatui debent episcopi, comites et caeterae [two MSS. have toT'caeterae, ecdesiae] potestates, quae Dei leges et seculi negotia justa consideratione difflniant. Of. further the ordinance of Henry I (above, note 4) and the Assize of Claren- don, 1166 (Stubbs, Sel. Chart, p. 143) 8 : Vult etiam dominus rex quod omnes veniant ad comitatus ad hoc sacramentum faciendum (the oath of the repre- sentatives of the hundreds and townships to speak the truth in connexion with the inquest of the judges for robbers, murderers and thieves), ita quod nilllus remaneat pro libertate aliqua quam habeat, vel curia vel soca quam habuerit, quin veniant ad hoc sacramentum faciendum. " On the constitution of these assemblies see Stubbs, Const. Hist. I, 128, notes 3, 4 c 5 § 50, I, 651, note 2 c 13 § 163, II, 215, note 1 cl5 § 202. Of. also Eiess, GescMchte des Wdhlrechts pp. 44 ff. The writ of Henry III, 4th Nov. 1217, forms the earliest extant instance of the summoning of a definite number of representatives from the several communities to the county court held by the itinerant judges. {Rotuli Clausarum [Record Comm,ission] I, 380) : Rex Vice- comiti Ebor. salutem. Sum,mone per bonos summonitores omnes jirchiepis- copos Episcopos Abbates Comites et Barones milites et libere tenentes de tota Baillia tua, et de qualibet villa 4 legates hom,ines et praepositum. et de quolibet burgo 12 legates burgenses per totam BailliaTn tuam et omnes alios de Baillia tua qui coram, Justiciis itinerantibus venire solent et debent. . . . Later instances of such summonses in Rot. Claus. I, 403 (year 1218), 473 (year 1220), 476 (year 1221), Royal Letters (Rer. Brit. Scr. No. 27) I, 395 (year 1235). Formularies in Braoton (Rer. Brit. Scr. J<(o. 70) II, 188, 190. '■^ Of. § 59, note 2. The place of the ealdorman had been taken after the con- quest by a comes ( = earl) ; but from the reign of Henry II 'earl ' was a title without an oiEce. See here Stubbs, Const. Hist. I, 132 c 5 § 50. At that time aldermannus often had its original meaning ' the eldest,' which is applicable to many different positions. On a particular kind of alderm,anni, apparently heads of police in the hundreds see leg. Hen. /c 8 § 1 (printed in note 13). '* Example from time of Henry II (perhaps 1159) in Chron. Monast. Abingdon. {Rer. Brit. Scr. No. 2) II, 222 (cf. 545) : Henricus . . . justiciis suis, in quoruTU bailliis abbas de Abbendonia habet terras, salutem. Permitto quod abbas de Abbendonia mittat senescallum suum, vel aliquem, alium, in loco suo,. ad assisas vestras et ad placita. Et ideo praecipio quod recipiatis senescallum. suum, vel alium, quern, ad vos m,iserit loco suo. ' " Letter of Henry III, 1234, Ann. Dunstapliae (Rer. Brit. Scr. No. 36. An- nates Monastici) 111, \^9 : . . . ad . . . hundreda, tvapenthakia, et curias[magnatum\non fiat generalis summonitio,sicut adturnos. . . , 20 Hen. IH (123616) Stat. Merton c 9: Provisum insuper quod quilibet liber homo qui secfam debet ad Comitatum, Trithingam, Hundredum, et Wapen- 398 ECCLESIASTICAL COURTS [V, 14a At the turnus vicecomitis too, spiritual persons had originally to appear as well as laymen. On those in higher station and on monks the duty ceased to be incumbent soon after the middle of the thirteenth century ; but the right to summon them upon occasion was still retained ; soon afterwards the same exemption was also applied to clerks.'* *^ tachium, vel ad curiam domini sui, libere possit facere attornatum suum ad sectas illas pro eo faciendas. Of. also complaints of the clergy at the provincial council of London, 1257 (Wilkins, Concilia I, 726) c 35 : Item ratione hujusmodi possessionum {scil. pee liberam deemasynam), rex et alii magnates nituntur compdlere episcopos, pradatos, et religiosos, et rectores ecclesiarum, facere sectam, ad curiam laica- lem. c 47 : Item,, cum non consueverint pradati, vel viri ecclesiastici am,erciari pro communibus summonitionibus in adventu justitiariorum,, modernis tem- poribus amerciantur passim, indifferenter, et graviter, si non compareant prima die tam coram, justitiariis itinirantibus, quam coram justitiariis de foresta. Similarly council of Merton, 1258 (Wilkins, Cone. I, 739 after Ann. Burton). '* 43 Hen. Ill (1259) c 10 : De Turno Vicecomitis provisum est ut necessarie non habeant ibi venire Archiepiscopi, Episcopi, Abbates, Priores, Comites, Barones, nee aliqui rdigiosi seu m,vlieres, nisi specialiter eorum presencia exigatur ; . . . set teneatur Turnus sicut temporibus predecessorum Dom,ini Regis teneri eonsuevit. Et si qui in hundredis diversis habeant tene- menta, non habeant necessarie ad hujusm,odi turnum venire, nisi in ballivis •ubifuerint corwersantes. Et teneantur Tumi secundum formam Magne Carte Regis et sicut temporibus Regum Johannis et Ricardi teneri consueverunt. Similarly 62 Hen. Ill (1267) Stat, de Marleberge c 10. Britton (circ. 1291/2), Book I c 30 § 2 : .4 queus tours touz les frauncs del hundred et autres terres tenauntz . . . deyvent venir, hors pris clers gentz de religioun et fem,m,es. Cf. also W. Hudson, Introduction p. Ixvii to Leet Jurisdiction in the City of Norwich (for the Selden Society, 1892). *' 1. Th^ development in the case of the royal forest courts resembled that in the case of the turnus vicecomitis. (Cf. Stubbs, Const. Hist. I, 434 ff. c 11 §130.) Assize of Woodstock, 1184 (Hoveden [Rer. Brit. Scr. No. 51] II, 245 ; cf . Intro- duction to Benedict [I.e. No. 49] II p. clxi) c 11 : Item, rex praecepit quod [archiepiscopi, episcopi] comites etbarones et milites et libere tenentes et om,nes hom,ines veniant ad sum,monitionem magistri forestarii sui, sicut se defendi volunt ne incidant in misericordiam, domini regis, ad placitandum placita domini regis deforestis suis, et alia negotia sua facienda in comitatu. (Simi- larly the new form of this assize, promulgated in 1198, o 12 ; Hoveden [Ber. Brit. Scr. No. 51] IV, 64.) Hoveden IV, 62, year 1198 : . . . supervenit aliud genus tormenti ad con- fusionem, Tiominum regni, per justitiarios forestarum, videlicet per Hugonem Nevilla, summum justitiarium omnium forestarum regis in Anglia, qui cog- nominatus est Cuvelu, et per Hugonem Wac, et per Ernisium de Neville. Prae- dictis igitur justitiariis forestarum itinerantibus praeceptum est ex parte regis, ut per singulos comitatus, per quos ipsi ituri essent, eonvenirent coram eis ad placita forestae archiepiscopi, episcopi, comites et barones, et omnes libere tenentes, et de unaquaque villa praepositus et quatuor homines, ad audi- enda praecepta regis. Magna Carta of 1215, art. 44 : Homines qui manent extra f or estam non veni- ant de cetero coram, justiciariis nostris de foresta per communes summonitiones, nisi sint in placito, velpleggii alicujus vel aliquorum, qui attachiati sint pro foresta. Carta de Foresta of 1217, art. 2 almost identical. — Cf. complaints of the clergy in 1257 and 1258, above, note 17. 2. The establishment of justices of the peace was connected with a series of §60] FROM NORMAN CONQUEST TO THE REFORMATION 399 The necessity for a priest to be present at a court meeting in order to conduct the ordeals ^° passed away owing to transformation of the mode of proof and the prohibition of ordeals by ecclesiastical synods.^^ 2. Ecclesiastical courts. a. Competence in respect of persons. In clear and, at the same time, comprehensive terms it was recog- nized for the first time in Stephen's charter of 1136 that spiritual persons, including inferior clerks, should be amenable only to eccle- siastical courts.^^ But the next king, Henry II, did not ratify the concessions that Stephen had made,^^ and they therefore, according to constitutional law as then understood, became deprived of their legal effect. Nevertheless, in criminal suits a considerable immu- nity of the clergy from secular jurisdiction still remained, just as even before Stephen's reign there had been some such immunity, though the measure of it can no longer be clearly ascertained.^* Usage was, occurrences, the first perhaps falling in the reign of Eichard I. The institution first became a permanent one by 34 B^. Ill (1360/1) c 1. Gneist, Verfassungs- gesch. § 19'". Stubbs, Const. Hist. I, 546 c 12 § 150 and preface p. C to Hoveden {Rer. Brit. Scr. No. 51), vol. IV. 2" For the older regulations see § 59, note 9. — Cf. also the law-book (probably beginning of 12th cent.) leg. Ed. Conf. c 9 : Z)e illis, qui judicium faciunt aquae velferri calidi: Assit ad judicium minister episoopi (unother reading: epis- copus) cum clericis suis, et ju^titia regis cum legalibus hom,inibus provinciae illius, ut videant et audiant, quod omnia aequefiant, . . . ^' Cf. Bigelow, Placita, Introduction p. xvii; Magna Carta of 1215 c 38 (append. VII and note 23 there) ; ordinance of Henry III, 26th Jan. 1219, in Eymer, Foedera 4th Ed. I, 154. See also Mirrour aux Justices c 3 s 23. — Trial by combat survived for a considerable time and was not abolished by statute — though it had long been out of use — until the nineteenth century. "' Ecclesiasticarum personarum et omnium clericorum, et rerum eorum justitiam et potestatem et distributionem bonorum ecclesiasti- eorum in manu episcoporum esse perhibeo et confirmo. See full text of charter in appendix II. — Cf. also Henry of Huntingdon {Rer. Brit. Scr. No. 74), Book VIII § 21 p. 276 : Octavo anno (1143) rex Stephanus interfuit coneilio Lundoniae in media Quadragesima. Quad, quia nullus honor vel clericis vet ecclesiae Dei a raptoribus deferebatur, et aeque capiebantur et redimebantur clerici ut laid, tenuit Wintoniensis episcopvs, urbis Romanae legatUs, concilium apud Lundoniam, clericis pro tempore necessarium. In quo sancitum est, ne aliquis qui clerico violenter manus ingesserit ab alio possit absolvi quam ab ipso papa, et in praesentia ipsius ; unde clericis aliquantulum serenitatis vix illuxit. " Cf. § 4, near note 35. ,,,,,,. 2* Cf. § 59, note 14. — The contradictions that the law-book (probably written 1110-18) leges Henrici I contains in this respect are explained partly by the absence at the time of clear, generally recognized, law upon the subject, partly by the fact that the book is compiled by transcription and in many cases by alteration of widely different sources, Frankish and English, ecclesiastical and secular. (Whence each passage is taken is shown in Schmid, Gesetze der Angel- sachsen ■ some of Schmid's indications are to be corrected in accordance with Lieberm'ann in Forschungen zur Deutschen Geschichte, XVI, 582.) It is, fur- thermore, difficult to draw any inferences whatever from the book owing to the fact that it may be doubted whether from c 3 onward the law as it was m 400 ECCLESIASTICAL COURTS [V, 14a furthermore, influenced in no slight degree by the bringing together of ecclesiastical decrees in the collections made in the eleventh and beginning of the twelfth century, and afterwards in the Decretum of Grratian (1141-50). Fixed rule of law upon the question it seems. Edward the confessor's time or as it was in the author's is to be set forth^ Schmid supposes the former, appealing to c 8 § 6 : Sed de Mis omnibus pleni- orem suggerunt ventura notitiam sicut Edwardi beatissimi principis exsti- tisse temporibus certis indiciis et fida relatione cognovimus. Et si quid professoni nostrae congruum praecedentium vel sequentium capitula docue- rint, sive jure naturali, vel legali, vel morali, gaudeant instituto, et hoc licet multa compositorum varietate minus plene peregerim, bonam saltern volunta- tem, ubique praetendo. In spite of this passage we probably must rather hold that the author's intention was to give the law as it was in his own day. This view is favoured by the admission of the special provisions as to Francigenae in cl8 ; 48 § 2; B9 §§ 5, 20 ; 64 § 3 ; 75 § 6 ; 91 § 1 ; 92 §§ 10, 11 and others ; by the admission of a charter of Henry I as cc 1 and 2 ; and by the commencement, of c 7 § 1 : Sicut antiqua fuerat institutioneformatum,salutari regis imperio, vera nuper est recordatione flrmatum (the ordin. on hundred-moots is meant, above, note 4). The reference to Edward in c 8 § 6 is to be explained by the fact that the first Norman kings always . confirm the leges Eduardi to express- that the old law was to remain fundamental. The following passages of leg^ Hen. I are relevant here : — c 5 i?e causarum proprietatibus. §7. Sancitum est in causa fidei vel ecelesiastici alicuius ordinis,, eum judicare debere, qui nee munere impar sit, nee jure dissimilis ; et nihil fiat absque accusatore ... § 8. Sicut autem nee clerici laicos, ita nee laid elericos in suis accusation- ibus vel infamationibus decent recipere. § 22. Qui sacerdotem ante familiarem coTnmonitionemapud suos judices- aliquando, vel apud seculares unquam accusaverit, anathema sit.. [Cf. in Eichter § 206, notes 24 ff. the Frankish regulations to the same effect.] c B2 De proprio placito regis. § 1. Si quis de placito proprio regis implacitetur a justitia ejus, . . . § 2. Clericus per consilium praelati sui vadium dare debet, cum dederit in aceusatione. c 57 De querela vicinorum. § 9. Cum clerico, qui uxorem habeat et firmam teneat laicorum, et rebus- extrinsecis seculariter deditus sit, seculariter est disceptandum. De illis, qui ad sacros ordines pertinent, et eis,qui sacris ordinibus promoti sunt, coram praelatis suis est agendum de omnibus: inculpationibus , maximis vel minoribus. c64. § 2. Infurto et murdro et proditione et incendio, et domus infractione et eis quae ad disfactionem pertinent (=for which the punishment is muti- lation), omnes fracto Sacramento (a solemn form of the oath ; in what it consisted is disputed) jurent in Westsexa, exceptis thainis, et presby- ter is, et eis qui legalitatem suam in nulla diminuerunt. Hii de qua- cunque compellatione, capitali vel communi, plane jurabunt (thesimplest iovui oi oath), congruo nuTnero consacramentalium . . . §3. Missae presbyteri et secularis thaini jusjurandum in Anglorum lege computatur aeque eorum, ; . , . § 8. Sacerdos qui regularem vitam ducat, in simplici aceusatione solus, in triplici cum, duobus ordinis sui juret. Diaconus in simplici compel- latione cum duobus, in triplici eum sex diaconibus se allegiet. Plebejus sacerdos pur get se s 'cut regularis diaconus. Presbyter, a6 episcopo vel archidiacono suo accusatus, se sexto juret sacerdotum legitimorum, sicut ad m,issam paratcmm. §60] FROM NORMAN CONQUEST TO THE REFORMATION 401 there was not, Henry II in 1163 made an attempt by means of negotiations with Becket to arrive at some definite principle. But no agreement was reached.^* In the constitutions of Clarendon (1164) a regulation on the subject was drawn up which is probably to be interpreted as follows : clerks were in all criminal cases to obey the summons to the king's court and there to make answer so far as the court thought fit ; subsequently proceedings before an ecclesiastical court were to take place in the presence of persons sent by the temporal judge to see how the matter was dealt with '* On this negotiation cf. especially: Eoger de Hoveden {Rer. Brit. Scr. No. 51) I, 219 : Eodem anno (1163) gravis discordia orta est inter regem Angliae et Thomam Cantuariensem arcMepiscopum, . . . Hex enim volebat presby- teros, diaaonos, subdiaconos, et alios ecdesiae rectores, si comprehensi fuisseni in latrocinio, vel murdro, vel felonia, vel iniqua combustione, vel in his similibus, ducere ad saeeularia examina, et punire sicut et lai- eum. Contra quod archiepiscopus dicebat, quod si clerieus in sacris ordini- bus constitutus, vel quilibet alius rector ecdesiae, calwmniatus fuerit de aliqua re, per viros ecclesiasticos et in curia ecclesiastica debet judicari ; et si cnnvictus fuerit, ordirues suos amittere; et sic alienatus ab officio etbeneficio ecclesiastico, si postea forisfecerit, secundum voluntatem regis et bailivorum suorum judicetur. — Letter of the bishops of the province of Canterbury friendly to the king, addressed to the pope, June, .1166 (Hoveden I, 266): . . . Qui (the king) cum pacem regni sui, enormi insolentium quorundam clericorum excessu, non mediocriter aliquando turbari cognosceret, clero debitam exhibens reverentiam eorundem, excessus ad ecdesiae judices retulit epis- copos, ut gladius gladio subveniret, et pacem quam regebat et fovebat in populo, spiritualis potestas fundaret et solidaret in olero. ' Qua in re partis utriusque zelus innituit: episcoporum, in hoc stante judicio, ut homi- cidium, et si quid ejusmodi est,exauctoratione sola puniretur in clero: rege vera existimante poenam hanc non condigne respondere flagitio, nee stabiliendae pad bene prospici, si lector aut acolytus perimat quenquam praeclara nitentem virum, religione vel dignitate, ut sola jam, dicti ordmis amissione tutus ea;j.sfai.— G-ervasius, Chronica (Rer. Brit. Scr. No. 73) I, 174 : Rexautem . . . jura ecclesiastica quaerebat conterere, et quoslibet clencos ad saeeularia judicia contorquere. Sed cum vidisset arcMepiscopum Cantuar- iensis ecdesiae suis conatibus velle resistere, occasione cujusdam derici quem archiepiscopus citra canonum auctoritatem sustinere noluit_ in foro saeculari de crimine sibi objecto contendere, nee, si in ecclesiastico judtcto con- vinceretur, voluit quamvis exauctoratum saecularibus potestatibus rehnquere puniendum.—AccorAin^ to Grim, Vita S. Thomae {Materials for the History of Thomas Becket ; Rer. Brit. Scr. No. 67) II, 374, the quarrel began because a sheriff wished to put on trial again a clerk who had been charged with homi- cide and acquitted by the ecclesiastical court. According to Willelmus (^antuar- iensis. Vita S. Thorn. (I.e. 1, 12), theking,/oj-saw zelo justitiae ductus, caused the new proceedings. , ^ , j i ^.i, i. These and similar accounts show that the king from the outset conceded that the preliminary decision lay with the ecclesiastical court; the dispute seems essentially to have turned only on the point, whether in the case ot graver offences after the deposition of the gailty person by the ecclesiastical court there should be a further punishment by the secular court for the same ottence. With this view the substance of the constitutions of Clarendon coincides. J. he proceedings reported by Grim and Willelmus Cantuariensis against a clerk acquitted hy the episcopal court show, it is true, that in that particular case the king endeavoured to make good a more extensive claim; he did not, however, persist, and the clerk was by reque=t at once delivered up again to the arch- bishop, without judgment being pronounced by the secular court. H.C. ^ ^ 402 ECCLESIASTICAL COURTS [V, 14a (the question who was to decide on the extent of the proceedings before the ecclesiastical court was left open) ; if then the clerk was convicted or confessed, he was to be delivered up to the secular court to be by it sentenced and punished.^® However, this provision of the constitutions of Clarendon was rejected by the pope. The treaty of Avranches (1172) contained no specific declaration either way.^'' An agreement upon the question was subsequently made (1176) between the king and legate Hugo. It laid down that, in criminal cases, for the future no clerk should be brought in person before a secular judge except for some offence against the forest laws or in respect of some service due by reason of feudal tenure to the king or some other temporal lord.^^ The principle was thus recognized that in criminal procedure against spiritual persons, so far as it was directed against the per- sons of the offenders, the ecclesiastical court had to give judgment.^' This was frequently afterwards confirmed.^" The concessions on ^^ c 3: 'Clerici retail et accusati de quacumque re, summoniti a justitia regis, venient in curiam ipsius, responsuri ibidem de hoc unde videbitur curiae regis quod sit ibi respondendum, et in curia ecclesiastica unde vide- bitur quod ibidem sit respondendum. Ita quod justitia regis mittet in curiam sanctae ecclesiae ad videndum, qua ratione res ibi tractabitur. Et si clericus convictus vel confessus fuerit, non debet de caetero eum eccle- sia tueri. — Tlie interpretation reproduced in the text is established by F. W. Maitland in The English Historical Beview, 1892, pp. 224 ff. " Of. § 4 notes 50, 51. "^ . . . Videlicet quod clericus de caetero non trahatur ante judicem secu- larem in persona sua de aliquo criminali, neque de aliquo forisfacto (Roger de Wendover translates forisfactum by transgressio ; but compare below, note 47), excepto forisfacto forestae mea, et excepto Idico feodo unde michi vel alii domino seculari laicum debetur servitium, ; . . . (Printed more fully in § 4, note 54; the words criTninali ani forisfacto iniica,te here the opposition between graver and minor offences.) "* The ecclesiastical court had, of course, as in the Anglo-Saxon period, sole competence in disciplinary proceedings against clerks or higher spiritual per- sons. — Cf . also 1 Hen. VII (1485) c 2 : . . . qil soit loiall a toutz erchevesqes et Evesqes et autre Ordinaries aiantz episcopall jurisdiccion, de punier et de ckastiser tiels pr ester s Clerks et hommez religiousez esteantz dedeinz les boundez de lour jurisdiccion quels seront convictez devant eux . . . de advoutrie (=a,dLultery) fornicacion incest ou auscun outer carnall incontinencie, par commiittancede eux agarder all prison illoqes a demurer par tiell temps com,e semblera a lour discrecions conveniant pur la qualite et quantite de lour trespas, . . , °° For example, Articuli episcoporum, 1285, c b : ut clerici incarcerati, quoties et quando requiruntur, restituantur pradatis, sicut alias est conces- sum. Besponsio regis: Cancellarius intdligit, quod clerici capti debent statim episcopis restitui, quotiens regem vel justitiarios requiri contingit. (Wilkins II, 115.) An inference is drawn from this recognition in 52 Hen. Ill {Vi&l) Stat, de Marleberge a 27 : Si clericus aliquis pro crimine aliquo vel recto quod ad core- nam pertineat arrestatus fuerit et postm,odum de precepto Begis in ballium traditus vel replegiatus extiterit, Ita quad hii quibus traditus fuerit in ballium eum, habeant coram, Justiciariis ; non amercientur de cetero illi quibus tradi- tus fuerit in ballium,, vel alii plegii sui, si corpus suum, habeant coram Justi- ciariis, licet coram eis propter privilegium, clericale respondere nolit vel non possit. §60] FROM NORMAN CONQUEST TO THE REFORMATION 403 the part of the state reached their greatest extent in Edward IV's charter of 1462, ratified in 1484 by Richard IIL^i By the usage of the courts the privilege granted to the clergy was in and after the thirteenth century extended to all persons who could read.^^ On the other hand, in accordance with ecclesiastical rulings, those clerks who had married twice or had married a widow were regarded as laymen and therefore not entitled to claim the immunity from lay judgment.^^ Decision on the preliminary question sometimes raised, whether the accused was to be considered ' a clerk, was left, after some uncertainty of usage, to the ecclesias- tical courts.'* By prlvilegium cleri (benefit of clergy) was understood in this and the following period, not only as to procedure, the immunity already indicated, but also as to penalties, exemption from death or mutilation.^* In so far as the clerk was not bound to answer in a '' Extract from the charter oE 1462 in append. IX. ^2 Cf. Reeves, Hist, of Engl. Lmo c 27, Ed. 1869, III, 164 ff. This continued to be the practice even after 26 Ed. Ill st. 6 c 4 (printed below, note 44), indeed as long as the privilege lasted. — Yet judicial decisions to the contrary occur, e g. 26 As.'i. 19 (cited in Reeves, I.e., 3rd Ed. Ill, 139).— The privilege was first extended to women by 21 Jac. I (1623/4) c 6 and 3 Gul. & Mar. (1691) c 9 s 6, when it had come to imply a mere mitigation of punishment, not a special exemption from temporal jurisdiction. '■'' Leg Hen. 7 o 57 § 9 (above, note 24). Liher Sextus I, 12 c 1 Gregorius X in concilio generali Lugdunensi (1274) r Altercationis antiquae duhium prae-. xentis declarationis oraculo dec'dentes, bigamos omni privilegio clericali dealaramus esse nudatos, et ao'ereitioni fori saecularis addictos, consuetudine contraria non obstante. Ipsis quoque sub anathemate prohibemus deferre ton- suram, vel habitum clericalem. 4 Ed. I (1276) Stat, de Bigamis c 5 likewise declares the temporal judge competent. Fleta, Book T c 32 § 84 : Bigami vera et Sacrilegi ab omni Privitegio Cleri- cali sunt interdicti, non obstante in Concilia Lugdun. ejusdem Constitutionis revocatione. Mirrour aux Justices c 3 s 5 : Exception de Clergy est ascun foits encomberable par replication de Bigamy en cest manere : . . . The above axiom of law is also assumed in 18 Ed. 7/1(1344) st. 3 c 2 -.Item qe si nul clerk soit areinez devant noz Justices a notre suyte, ou a la suite de partie, et le clerk se tiegne a sa clergie alleggeant qil ne doit devant eux sur ce respoundre, et si homme lui surme.tte pur no^s, ou pur la partie qil eit espusez deux femmes ou une veue. qe stir ceo les Justicz neient conisance ne poer de trier', par enqu^stes ou en autre manere, la bygamye,einz soit mandez a la Court Cristiene, come ad estefait en cas de bastardie ; et tantqe. la certification soit mande par lordinarie, demoerge la persone, en quele bigamie est alegge par les paroles susditz ou en autre manere en garde ; sil ne soit mempemable. •'•* Mirrour aux Justice.s c 8 s 5 : . . . Et pur ceo que appent a dire, en quelle point Clerke est Biqame, si que la Bigamy soit triable en Laic Court, .si juries, nequidant dient que ils ne scavoient ; adonques appent celle certifica- tion venir del Ordinary al maundement le Roy si com^ en case de matrimony dUit —18 Ed. Ill (1344) st. 8 c 2 (note 83).— Charter of Edward IV in 1462 (append. IX).— Similarly the ecclesiastical courts decided in cases where the Question arose, whether a person had taken the monastic vow or not. Bracton, Book IV tract. 6 c 7 § 1 (IV, 492), Book V tract. 5 c 20 § 6 (VI, 828) Fleta, Book VI c 19. For an instance in 1101 see Bigelow, Placita Anglo-Norman- ^'9 Ed list 1(1315/6) Art. Cleri c 15: Item licet dericus coram seculari Judicejudicari non debeat, nee aliquid contra ipsum fieri, per quod ad peri- culum mortis vel mutilacionem membri valeat pervemri . . . 404 ECCLESIASTICAL COURTS [V, 14a secular court, this exemption from death or mutilation was a matter of course, in that ecclesiastical courts never inflicted these punish- ments. Beyond that, the limitation of the forms of punishment -was ^ever in principle recognized by the state, though in particular cases, especially if the higher clergy were concerned, the authorities generally abstained from imposing the penalty of death, or at least from carrying the sentence into execution.^^ Attempts substantially to limit the immunity of the clergy begin again with the reign of Henry VII.^' It is, however, to be observed that in the whole period from Henry II to Henry VII that immunity was, indeed, a recognized principle, but a principle subject to excep- tions which rendered it possible for the royal officers to intervene in securing from the clergy respect for civil enactments or for the injunctions of temporal authorities.^^ In' this connexion the following matters are to be considered : — 1. The preliminary proceedings in the secular court. It was not the oflSoe of the secular judge to consider whether the accused was a clerk or not, unless the ordinary, or during certain periods perhaps also if the accused,*' demanded to be delivered up to the ecclesiastical court. This demand could, it seems, originally be put forward at any stage, alike before examina- tion and after condemnation. If it was not put forward — which for various causes frequently happened — then judgment was passed, and for the most part sentence carried out by the secular powers upon clerks no less than laymen. Usage, however, seems in all these respects to have varied in the thirteenth century.*" Under Henry VI the practice of the courts finally caused the further '® Cf., however, the passages cited in note 40 below from Bracton and that in note 80 from Fleta. — Archbishop le Scrope of York was executed in 1405 after being found guilty of high treason. Stubbs, Const. Hist. Ill, B2 c 18 § 312, seems to be of opinion that the execution was illegal, on what grounds is not quite clear. Some examples of executions of inferior clergy after condemnation in the secular court will be found in Eeeves, Hist, of Engl. Law c IG, 3rd Ed. HI, 138 ; cf. further e.g. Annates Paulini (Eer. Brit. Scr. No. 76) I, 355, year 1332. " Cf. below, near notes 69 ff. ** A restriction on these exceptions is contained in 18 Ed. Ill (1344) st. 3 o 1 : qe nul Ercevesqe ne Evesque ne soit empeschez devant noz Justices par cause de crime, si nous ne le comandons especialment, tantqe autre remedie ent soit ordeignez. Cf. here the order of Henry IV, 28th Jan. 1400 (Eymer, Foedera 3rd Ed. Ill Pt. IV p. 176). '° That the accused could also demand to be delivered up to the bishop, is several times expressly admitted; espscially in the charter of Edward IV, 1462 (in appendix IX). Cf. further e.g. 18 Ed. Ill (1844) st. 3 c 2. But in other plaoas wa find the necessity of application by the bishop referred to. Cf. Gib- son, Codex 1124; Eeeves, as quoted, III, 138; Letters of archbishop Peckham (13th and 29th March, 1284), in Rer. Brit. Scr. No. 77, II, 690, 699. Eobert de Marisco (below, note 43), on the other hand, declares that only a generate, not a speciale, mandatum of the bishop was required. — See also Bracton, Book V, tract. 5 c 13 § 6 (VI, 240) :_ Et secundum quod dicitur, quod laicus non poterit renunciare foro seculari in praejudicium regiae dignitatis, eodem modo videtur quod nee clericus, si velit in causa criminali vet alia cujus cognitio pertineat ad ecctesiasticam dignitatem et ordinem clericalem, . . . Simi- larly Mirrour aux Justices o 3 s 4. " Cf. Stubbs, Const. Hist. Ill, 355 c 19 § 399.— Complaint of the clergy at the synod of London, 1257 (Wilkins, Cone. I, 726) c 15 : Item clerici sic capti [super §60] FROM NORMAN CONQUEST TO THE REFORMATION 405 limitation that neither bishop nor accused could demand surrender before any examination had been held, but that condemnation by the secular court — which,' however, was not binding for the ecclesiastical court ^' — must precede surrender.''* The introduction of preliminary civil proceedings was a later realization of the relevant part of the provision in the constitutions of Clar- endon.*^' The first arrest of the criminous clerk could, at all times, be effected by the civil authorities.''^ aliquo crimine, furto vel homicidio, vel aliqua alia, fdonia] plerumque in habitu clerieali, inventi, antequam ab ordinariis ecclesiastieis repetantur, seu repeti possint, suspenduntur ; et quandoque capita eorum raduntur, ut clerici non appareant et sicut laid judicantur. Quandoque cum repetuntur, differtur eorum, liberatio ad tem,pus, et interim, suspenduntur de node, vel liora prandii, ne ad notitiam ordinariorum, valeat pervenire. It is probably to the case mentioned in the text, where no surrender was de- manded, that we must refer the following statements (not otherwise reconcil- able with the passage cited below, note 44) of Bracton {circ. 1230-57), in which he denies to the secular court the right of enforcing a penalty against clerks in criminal cases : Book V, tract. 5 c 2 § 6 (VI, 164) : . . . quamvis sunt qui dicant, quod de nullo placito tenentur (the clerks) respondere, nee ratione rei, contractus vel delicti coram judice seculari, et salva pace eorum, videtur quod fit in omnibus actionibus et placitis civilibus et criminalibus, praeterquam in executione judicii in causa criminali, ubi laicus condemnandus esset ad amissionem vitae vel membrorum,, et quo casu, quamvis judex secularis habet cognitionem ut cognoscat de crimine, tamen non habet potestatem exequendi judicium sicut in causis civilibus, non enim possit degradare clericum, . . . ; c 9 § 3 (VI, 206) : Si autem criminaliter (in contrast to civiliter) agatur et super crimine, judex ecdesiasticus non habebit jurisdictionem, licet habere debeat judicii executionem. In casu enim sanguinis judicare non potest nee debet, ne committat ir regular itatem. Pertinet igitur {ut videtur) ad judicem secularem cognitio, et ad judicem ecclesiasticum judicii ease- Cf. also complaint of the clergy and king's answer, 1279-85 {Northern Begis- ters ; Her. Brit. Scr. No. 61, p. 70) c 15: Item clerici incarcerati ex qua- cumque causa, civili vel criminali, sive delicto, non liberantur ordinariis, nisi primo per laicos, prolato judicio contra eos. Ad quintum decimum articulum respondetur sic: Rex deliberabit. Letter of Peckham of 10th March, 1286 {Rer. Brit. Scr. No. 77; III, 919): coram justiciariis . . . convictus, nobisque ordinario suo ipsorum justiciariorum judicio, ut maris est, liberatus carcerali custodiae mancipandus ... " Cf . the contention of the clergy in 9 Ed. II st. 1 (1316/6) Art. Clem c 16 : . . quamquam confessio, coram illo qui non est judex confitentis, non teneat nee sufflciat ad faciendum processum, vel sentenciam prof erendum . . . *^ Hobart 289 and Keling 100, cited in Gibson, Codex 1124. These authori- ties are at variance whether in earlier times clergy might be prayed either be- fore or after conviction (so Hobart), or only before conviction (so Keling, m Lisle's case). They agree in saying that in Henry VI's reign the practice had been introduced of requiring an offender to answer for his felony and then, after conviction, of allovsring him, on demand, his clergy. See also Eeeves, Ihst.qf Enql. Law o 22 ; 3rd Ed. Ill, 421. In regard to clerks in holy orders (that is : ordines majores) the contrary is laid down in Edward IV s charter of 1462 (append. IX). Cf. further preamble to 23 Hm. VIII 1 (in note 44). «» Cf. above, note 26. .' , ■ ■ a j " Treatise of Eobert de Marisco on the privilegtum clencorum in Ann. de Burton {Rer. Brit. Scr. No. 36 ; Ann. Monastici) I, 425, year 1258 : Nullus laicus debet dericum in custodia publico vel privata, dtam sine violentta et laesione detinere, nee in publicam sive privatum custodiam aut carcerem detrudere; quod si quis facere praesumpserit, in canonem mcidtt latae sen- tentiae nisi clericus in graviori, puta furto, homicidio, incendio, et szmihbua 406 ECCLESIASTICAL COURTS [V, 14a Preliminary civil proceedings were of importance because they led to the demand that a person convicted in the civil (secular) court should not be allowed by the ecclesiastical court to escape unpunished. That demand was, indeed, raised ; but never completely realized in practice.'*'' deprehensus fuerit : deprehensi eniTn in delictis gravioribus comprehendi possunt et detineri in custodia, dummodo interveniat mandatum praelatorum quorum jurisdictioni sunt subjecti. Consuetudo tamen regni Angliae est, quae revera corruptela est, quod suspecti de gravioribus criminibus comprehendi possunt per ballivos regios, et in custodia publica detineri, donee episcopis fuerint liberati ; nee requiritur speciale mandatum praelatorum, sed generate . . . Cf. complaint of clergy and king's answer {ciro. 1245? Cole, Docum,ents 336) art. 11 : Item, gravantur eo quod aliquando contingit quod Clerici sins delectu personarum, quamquam in facto deprehensi non fuerint, tanquam facinorosi vel suspecti de crim,ine vel injuria personali capiuntur per potentiam laicalem et in carcere detinentur nee redduntur ordinariis suis eos petentibus secundum, canones judieandi. Besponsio : Clerici propter hom,ieidiaet alia hujusmodi flagicia in facto deprehensi aut alii appellati seu puplice de hujus- modi notati et accusati, arestantur per potestatem secularem, cum de subtraatione vel fuga ipsorum, timeiur, et suis Prelatis ad eorum, requisi- cionem judieandi postea liberantur. Writ of Edward I, 18th March, 1297 (Lib. Custum., Rer. Brit. Scr. No. 12, II, 213) : cum . . . Ecclesia . . . hanc libertatem habuerit ab antiquo, videlicet, quod nulli laid {? laico) liceat presbyteros seu clericos eapere nee iTnprisonare, sine mandato nostra .speciali, nisi fuerit pro aliquo quod contra pacem nostrum, seu prohibitionem nostrum, fuerit perpe- tratum, ... In this writ it is prohibited that the night watchmen in London should arrest chaplains and other ecclesiastics for fornication and iadultery and confine them in the Tun; quorum, sc. eriminum correetio ad Forum Ecclesiastieum, et non ad Forum Laieum, manifeste dinoseitur per- tinere. The restriction contained in this writ was at the end of the fourteenth and in the first half of the fifteenth century no longer observed. (Eiley, I.e. p. xxix, note 1 and glossary p. 831 s.v.q.e. Tonellum.) The provisional arrest of clerks in holy orders is forbidden in Edward IV's charter of 1462 (append. IX). " Bracton, De Legibus etc. (circ. 1230-57) lib. Ill, tract. 2 c 9 (Rer. Brit. Scr. No. 70, n, 298 ff.): § 1. . . . Cum . . . elericus eujuscunque ordinis vel dignitatis, captus fuerit pro morte hominis, vel alio crimine et imprisona- tus, et de eo petatur curia Christianitatis ab ordinario loci sicut archiepiscopo v$l episcopo vel eorum offleiali, vel aliis literas praedietorum deferentibus, imprisonatus ille statim eis deliberetur, sine aliqua inquisitione inde facienda, non tamen ut omnino deliberetur ut vagans sit per patriarn, sed salvo custodiatur, vel in prisona ipsius episeopi vel tpsius regis, si ordinarius hoc voluerit, donee a crimine sibi im- posito se purgaverit eompetenter, vel in purgatione defecerit, propter quae debeat degradari. ... § 2. Cum autem elericus sic de crimine eonvictus degradetur, non sequitur alia poena pro uno delicto, vel pluribus ante degra- dationem perpetratis. Satis enim sujjicit ei pro poena deqradatio quae est magna capitis diminutio, nisi forte eonvictus fuerit de apostasia, . . . Si autem sit aliquis ordinarius qui in euria Christianitatis, derico sic ei liberato, purgationem indicere (sine aceusatore coram eo de novo aceusante) noluerit, tunc flat ei breve ex parte domini regis in hae forma. § 3. Rex tali ordinario salutern. Audivimus qiM, cum quidam elericus de morte hominis reetatus. vel appellatus vel indietatus coram justitiariis nostris productus esset, et ibi vobis sicut elericus liberatus, ut se coram vobis purgaret, et se inde redderet irinoeentem si posset, non vultis (ut dieitur) ad purgationem proeedere, nisi sit aliquis, qui de novo coram vobis in foro ecclesiastico versus eum, prose- quatur, et instituat accusationem. Et qumiiam per aceusatimiem factam in euria nostra, de morte ilia satis habetur suspectus, et per talem diffamationem §60] FROM NORMAN CONQUEST TO THE REFORMATION 407 2. The several kinds of punishable acts. It was not in respect of all punishable acts that exemption from temporal jurisdiction could be claimed. et indictamentum, nihil aliud restat nisi quod ecrram vobis admittatur pur- gatio, quae quidem fieri deberet, si laicus esset in curia nostra, si ordo impedi- mentum non daret, et licet nullus sequeretur, nos pro pace nostra sequi deberemus. Vobis mandamus, quod secundum, quae idem, talis se purgaverit coram, vobis, vel non, quod vestrum, fuerit exequam,ini. Teste etc. 3 Ed. I (1275), Stat. Westminster 7, c 2 : Porveu est ensement, que kaunt Clerk est pris por ret (= charge) de felonie, e il seit demaunde per le Ordi- naire, il lui seit livere solum le privilege de Seient Eglise, en tiel peril com, il iapent (=y append), solum, les custumes avaunt ses oures usees ; et le Rey amoneste les prelatz e lour enjoynt en lafei qil li deivent, e por le comun profit e la pees de la tere, que ceaux que sunt enditez (=indicted) de tiel ret par solempne enqueste des prodes homes fete en la Court le Rey, en nule manere ne les delivrent saunz duwe purgacion; issi qe le Rey neit mester { = mdtier) de metre i autre remedie. Petition of the clergy in 1280 and 1300 and the king's answer at the time (contained in the petition of the clergy in 1309, y^Wkvas, Concilia 11,318): Item clerici capti pro suspicione criminis per potentiam laicalem, non statim, sicut de jure fieri debet, suis ordinariis, ipsis petentibus, liberantur, sed diu detinentur in carcere contra clericalem, et ecclesiasticam libertatem. Ad istum articulum respondet rex et decrevit, ut clerici capti pro quocunque reatu per ballivos seculares, praelatis eorum requirentibus, liberentur ; repraesentandi tamen ab eis in seeulari judicio, cum fuerint requisiti, pronunciandi rei vel innocentes per justitiar, regis sub testimonio laicorum, ut hactenus fieri con- suevit. Quodsi praelatus clericum hujusmodi non repraesentaverit, centrum libr. sterling, domino regi solvere compellatur. Item tales clerici, qui, postquam inquisitio laicorum ex officio tantum recepta, contra ipsos in foro seeulari deponitur, suo ordinario, ut et justum, finaliter liberantur; . . . , non libere, sed sub poena centum libr. pro evasione traduntur ordinariis memoratis. Ad istum articulum nihil respondetur, . . . Britton {circ. 1291-2) Book 1 ah %?,: Et si le clerk encoupil=inculp6) de felonie alegge clergie, et il soit tel trovi et par ordinarie demaundi, si soit enquis coment il est mescreu {=malecreditus). Et s'ilne soit mescru par certeyns resouns, qe les presentours ount puis de luy enquis, si soit ajuge tut quites. Et si il en soit mescru, si soynt ses chateus taxez, et ses terres prises en nostre meyn et soen cors deliveri al ordinarie. Et si le ordinarie ly delivere hors de sa prisoun avaunt due aquitaunce solom purgacioun des clers, ou si il le face si negligaument garder qe il eschape, ou si maliciousement le fet detener qe il ne peuse a sa purgacioun vener, et ceo soit atteynt, en chescun poynt soit le ordinarie en nostre merci ; et solum ceo qe le ordinarie nous fra a saver de aquitaunce de tels clers, lour from nous fere restitucioun de lour biens, si ilneeynt defuyz nostre pes (=paix). ■ ^ o a Mirrour aux Justices (end of 13th or beginning of 14th cent.) o 3 s 4 : . . . si Clerke ordeine entre en Court devant Laic Judge pur respondre de persmall trespas et nosmement en case criminal et mortel die que il est Clerke, le Judge ne poit pluis avant conustre, car le Esglise est cy en franchise que nul Judge ne poit aver conusance de Clerke tout le voilet Clarke conuster pur son Judge, en tiel case est sans delay deliverable a son Ordinaire. Pur doner neqmdant actions al actors, vers les acces.^ories en appeles et enditements, appent que le Judqe tantost enquire de son office per serment de probes homes en la presence del Clerke lequel que il .wit coulpable ou non. Et sHl en soit coulpable adonque est liverable a son Ordinarie, ... , , . . ^ 2.5 Ed III (1351/2) St. 6 c 4: Item come les ditz Prelatz eient grevousement , pleint enpriant ent remedie, de ce qe clercs seculers, auxi bien Chapelleins come autres, Moignes et autres gentz de religion, eient ^este treinez et penduz 4o8 ECCLESIASTICAL COURTS [V, 14a a. Treason/' By the agreement of 1176" the immunity from lay jurisdic- tion had been granted in respect of all punishable acts apart from offences against the forest laws and non-fulfilment of feudal obligations. Nevertheless, as is plain from several occurrences, the royal eauxts continued even after that agreement to sentence clerks in the gravest cases, particularly for the crime, then not precisely defined, of high treason.*' How the secular courts based par agard {=a,w&rd.) de.s Justices seculers . . . , si est accorde et gravtb par le Boi, en son dit parlement, qe touz maneres des clercs, auxi bien secu- lers come religiouses, qi seront desore convictz devant les Justicei- - seculers por qecomqes felonies ou tresons touchantes autres per- sones qe le Roi meismes ou sa roialemajeste, eient et enjoient franche- ment desore privilege de seinte eglise et soient saunz nule empeschement ou delai liverez a les Ordinaries eux demandantz. Et por ce grant le dit Ercevesqe promist au Roi, qe sur le punissement et sauve gard de tieux clercs meffesours, qe seront ency as Ordenares liverez, il enferroit ordenance.conven- abie, par la quelle tieux clercs enserroierd salvement gardez et duement puniz, ensi qe nul clerc emprendreit mes baudure {= courage) de ensi meffaire par defaute de chastiement. 4 Hen. IV (1402) c 3 confirms the liberties of the church and clergy and refers to the fact that the archbishop of Canterbury for himself ■ and- the bishops of his province has promised that a constitution provincial shall be made, based on the constitution of archbishop Simon Islip (dated 12th March, 1351) according to which if, in future, ascun derk seculer ou religious qi soit convict de treson qe ne louche le Roy mesmes ne sa roiale majeste, ou qi soit commune laron . . . shall be delivered to the bishop, the latter gardera (the offender) sauvement et seurement. With the foregoing provisions of 3 Ed. 7 c 2 and 4 Hen. IV c 3 is to be con- nected 23 Hen. VIII (1531/2) c 1, in that it points out that the constitution to be made has never been notefeyed ne shewed by the Prelates. In this act earlier procedure is shown thus : — . . . manyfest thevys and m,urderers indyted and founde gyltye of theyr mysdedes by good and svhstancyall inquestes upon playne and profeable evydence before the Kynges Justices, and afterward by the usages of the comm,on lawes of the londe delyvered to the Ordenaryes as Clerkes convycte ... *' In the twelfth and thirteenth centuries a special crimen laesae majestatis or crimen proditionis was classed with homicidium,, furtum etc. All these graver offences were comprehended in the term felonia. (So, for example. Ley. Hen. 7 c 46 § 3 compared with c 47, c 48 § 1, Bracton I, 96 ; even in 25 Ed. Ill st. 6 c 2 we have in one place treson ou autre felonie.) The crimen laesae majestatis embraced not only high treason proper, but every violation of the king's rights ; the idea was conceived sometimes in a wide, sometimes in a narrow sense, and in some writers includes a very large number of actions. On the development of the idea in the twelfth, thirteenth and fourteenth centuries see Stubbs, Const. Hist. Ill, 535 ff. c 21 § 463, Beeves, Hist, of Eng. Law, 3rd Ed. II, 8, 273, 349, 462 ff. Gradually felony became opposed to treason, the former term being limited to offences, other than treason, threat- ened with confiscation of property. The first more precise determination of treason is contained in 25 Ed. Ill (1351/2) st. 5 c 2. By it the following offences are to he adjudged to be treason : compassing or imagining the death of the king, his queen or his eldest son ; violating the king's companion (= consort) or his eldest daughter unmarried or his eldest son's wife ; levying war against the king in his realm ; counterfeiting the king's seal or his money ; bringing false money into the realm ; slaying the king's chancellor or treasurer or any of the judges being in their places and doing their ofifioes. Petit treason, by the same act, is when a servant slay eth his master, or a wife her husband, or quant homme seculer ou de religion tue son Prelat, a qui il doitfoi et obedience. '" Cf. § 4, .note 54, § 60, note 28. " In the acts passed in the end of the 13th and in the 14th century surrender §60] FROM NORMAN CONQUEST TO THE REFORMATION 409 their right to adjudicate in such cases is not determinahle. A more exact limitation in this direction was brought about by 25 Ed. Ill (1331/2) st. 6 c 4/* The act granted privilege of clergy in all cases of ' felony ' and ' treason ' in ■which the ofifence was committed against other persons than the king himself to the ecclesiastical courts is only mentioned in case of ' felony.' It would seem as if the antithesis intended were rather to the lighter transgressio than to treason, in respect of the former of which the agreement reached in 1176 (after some vacillation in the practice of the courts about the middle of the thirteenth century) seems to have ceased to be considered applicable from the end of the thirteenth century. [Cf. the contrast of felonia and transgressio in Bracton, Rer. Brit. Scr. No. 70, II, 266, 312. The actions of transgressio (=trespass) probably grew originally out of the 'appeal of felony' by the omission of the words in felonia from the writ. The first actions of this nature before the royal courts of law that we can record date from the end of the twelfth century, their number increased slowly during the thirteenth cen- tury and only became considerable after the middle of the thirteenth century. At that time the ' action of trespass ' was still treated as a criminal proceeding, and it was not till much later that it assumed the nature of a civil action. Maitland, ITie History of the Register of Original Writs, in Harvard Law Review III, 177 tf., 219, Nov., Dec. 1889.— Concerning the substitution of ' transgressio ' for '■ forisf actum ' by Roger de Wendover in his account of the agreement of 1176 see § 4, note 54. See also Bracton VI, 492 : . . . wee debet dominus rex manus in eos (clerks) mittere, et cum in eos coertionem non habeat, maxime in delict is et trans gressionitius sicut in majoribus criminibus, ... To the contrary : Prohibition (by Edward I ? ; printed below, note 79) : . . . cum cognitiones placitorum super . . . trans- gressionibus contra pacem nostram factis . . . ad coronam et digni- tatem nostram pertineant. Letter of Edward III, 12th May, 1348, to the pope with regard to proceedings before the papal court against the bishop of Chichester (Rymer, Foedera 4th Ed. II, 1228) : . . . licet . . . placita trans gressionum et incarcerationum ibidem in curia nostra, et non alibi, tractari debeant et finiri . . . .] Mention of surrender in cases of felony is made particularly in 3 £ Magna Carta of 1215 c 22 (append. VII). °' Bracton, Book V tract. 5 c 2 § 6 (VI, 164) : ... si dericus conveni- endus, quia laicum feodum non habet. summonitionem suscipere noluerit, nee plegios invenire, m,andabitur episcopo vel ordinario loci quod faciat talem, venire coram rege vel justiciariis suis, ad respondendum, et satisfaciendum de quocunque placito ad intentionem, petentis vel qrierentis ; . . . See also c 32 §§ 8 ff. (VI, 492 if) ; further, the answer of the king to the complaint of the clergy, 1279-85 {Northern Hegisters ; Rer. Brit. Scr. No. 61 ; p. 70) c 11. In the second half of the thirteenth century the bishops frequently complained, but fruitlessly, that they were punished when they did not comply with a man- date of the kind. Cf. also 13 Ed. I (1285) Stat. Westminster 11 c 48. The cm- servatores privilegiorum of the hospitallers of St. John and the templars are therein forbidden to have cases brought before them which belong to the king's cognizance. As, however, the conservatores are monks, who own nothing and are therefore bold against the king, it is the duty of the prelates, their superiors, to see that they do not encroach ; failing in which duty, the prelates are to be mulcted in their temporals. — For instances of the imposition and collection of fines from the baronies of the bishops for non-observance' of royal commands see Madox, I.e. II, 249. ""■ Gneist, I.e. ^ . . . be it enacted . . . , that every persone not being within orders, whiche onys (=once) hath ben admytted to the benefice of his Clergie, §60] FROM NORMAN CONQUEST TO THE REFORMATION 415 withdrew the privilege entirely from all clerks, of whatsoever order, guilty of desertion when serving as soldiers at sea or on land beyond the seas. A further act, 12 Hen. VII (1496/7) c 7, in connexion with a special occurrence, abolished for the lower orders of clerks all benefit of clergy in case of the murder of a master (a form of petty treason).'?*' Next came 4 Hen. VIII (1512) c 2, which, in murder and robbery under heinous circumstances, likewise cancelled the privi- lege for those below the order of subdeacon.''^ This last enactment had, it is true, only validity until the meeting of the next parlia- ment. But in the first years of the Eeformation these provisions were renewed, with some additions.''^ The struggle by the clergy to obtain immunity from temporal jurisdiction in civil causes took a different course from that, just traced, for privilege in criminal matters. Stephen, in his charter (1136), conceded that the property of all ecclesiastical persons and eftsonys (= after soon) arayned of eny suche q fence ('murdre rape robbery thefte and all othre myschevous dedys '), be not admitted to have the benefice or privilege of his Clergie ; And that every suche persone so convicted for murdre, to be marked with a M. upon the brawne of the lefte thumbe, and if he be for eny othre felony, the same persone to be m,arked ivith a T. in the same place of the thumbe, and theis m,arkes to be made by the Gaillour openly in the Courte before the Jugge, er that suche persone be delivered to the Ordinary. Provided alwey that if any persone at the .second tyme of asking his Clergie, bicause he is within orders, hath not than and there redy his lettres of his orders or a certiflcat of his Ordinary witnessing the same, that than the Justice afore whom he is so arayned shall gyve him a day by his discrecion to bring in his seid lettres or certificat ; And if he fayle and bring not in at such day his seid lettres nor certificat, than the same persone to lose the benefice of his Clergie as he shall doo that is without orders. By orders are to ba understood ordines sacri or majores (priest, deacon and subdeacon ; cf. § 22, note 2). The discrimination in respect of privilege of clergy between clerks of the higher and those of the lower orders appears for the first time, it would seem, in the charter of Edward IV in 1462 (appendix IX), which makes regulations only for those in higher orders. Similar distinctions appear also to have been mooted as early as the negotiations of 1168 (cf. above, note 25). — The pope, by letter of 7th May, 1495 (Spelman, Concilia II, 722), called on the king to annul this act. ''" s 1. One Grame has, in the hope of beiieflt of clergy, murdered his niaster, Richard Tracy, Gentilm^n. He is, therefore, atteynted as felon that hath offendid in pety treason. s 2: Also be it ordeyned . . . that if any laie persone hereaftir pur- pensidly murder their Lord Maister or Sovereign immediate, that they hereaftir be not admytted to their Clergie; and aftir conviccion or atteynder of any suche persone, soe hereaftir offending, had aftir the Course of the Lawe, that the same persone be putte in execucion as though he were noe Clerk. " 4 Hen. F///(1512) c 2 Pro murdris etfelonibus. s 1: . . . all . . . persons hereafter comrhyttyng murder or felonye in eny Church Chapell or halowed place or of and apon malice prepensed robbe or murder any person in hishowse the owner or dweller of the howse his WyffChilde or servaunt then beyng theryn and put in fere or drede by the same. That such . . . persons so qfinding be not from hensforth admytted to . . . their clergy, .suche as ben within holy orders only excepte. ■ s 2 • . . . And this acte to endure to the nexte parliament. " 23 Hen. VIII (1531/2) c 1. Cf. below, § 61, note 5. 4l6 ECCLESIASTICAL COURTS [V, 14a clerks should be under ecclesiastical jurisdiction.''* This was going far towards acknowledging special amenability of the clergy in civil causes. But in contrast therewith, by the constitutions of Claren- don (1164) suits for debt are referred unconditionally to the king's court/* and in respect of two other kinds (suits touching patronage and right of presentation, and suits touching a lay holding) stress is laid on the fact that cognizance belongs to the secular court, even if the defendant is a clerk.''* In the thirteenth and fourteenth centuries the clergy frequently renewed their claim to a recognition of their right to answer to civil suits in ecclesiastical courts.'* But they did not make good their claim ; on the contrary, the secular courts intervened with prohi- bitions when attempt was made to try such actions in an ecclesias- tical court.'"' " Ecclesiasticarum personarum et omnium dericorum. et rerum eorum justitiam et potestateTn et distributionem bonorum eeclesiasticorum in manu episcoporum esse perhibeo et confirm,o. See full text of the charter in appen- dix II. '* o 15 (appendix IV). — For an instance of an action at law touching a debt between two clerks before an ecclesiastical court see letter of Foliot, bishop of London, to archbishop Becket, 1163. Materials for Hist, of Becket (Her. Brit. Scr. No. 67) V, 65. " CO 1, 9 (append. IV). '^ Petition of the English clergy in 1287 (Ann. Burton ; Ber. Brit. Scr. No. 36 ; Annates Monastici I, 254) : . . . Item petunt, quod clerici nan conveni- antur in actione personali quae non sit super re im.mobili, coram, judice saeculari, sed coram, judice eoelesiastico ; et quod prohibitio regis non currat quo minus hoc fieri non possit. Complaint of the clergj' at the council of London, 1257 ("Wilkins, Concilia I, 726) c 21 : Item, per eandem, districtionem attachiantur et coguntur clerici in actionibus personalibus, et in Ms, quae ex contractibus oriuritur in foro secu- lari ; et etiam, delictis re.ipondere querelantibus. Council of Merton, 1258 (Wilkins, Cone. I, 738, after Annal. Burton) : . . . saepe contingit, archiepiscopos, episcopos, et alios praelatos inferiores per literas domini regis ad seeulare judicium evocari, ut ibi respcmdeant super his, quae mere ad ipsorum officio, et forum, ecclesiasticum, pertinere noscuntur; ut . . . si inter clericos suos cognoscant. vel inter laicos conquerentes, et - clericos defendentes, in personalibus actionibus super contractibus vel de- bitis ; . . . Const, of archbishop Boniface at the council of Lambeth, 1261 (Wilkins, Con- cilia I, 746) c 1 : . . . Item, si vocetur praelatus ad judicium seeulare, pro eo quod cognovit inter clericos suos, vel inter laicos conquerentes, et clericos defendentes in personalibus actionibus super contractibus aut delictis, vel quasi ; ■. . _. pro_ talibus, inquam, et his similibus, praelati ad judicium seeulare vocati, ut ibidem pro his judicium subeant, nullatenu,s venire praesur mant . . . In regard to Wales see Begist. Epist. Beckham (Ber. Brit. Scr. No. 77), I, 249-251. Diocesan council of Exeter, 1287 (Wilkins, Concilia II, 129) c 30 : . . . in- hibemus ne dericus clericum super re spirituali, aut quacunque actione per- sonali . . . trahat in causam coram judice sectdari . . . Si quis vera laicus clericum cujuscunque gradus duxerit esse pulsandum, coram ecclesias- tico judice eas proponat, quas se habere existimat actiones. " Complaint of clergy and kind's answer [circ. 1245? Cole, Documents 364 _fi.) : art. 6 : Item si inter Clericos vertantur questianes coram suo Episcopo, inhibetur ne in dictis questionibus procedatur. Besponsio. Si Clerici coram §60] FROM NORMAN CONQUEST TO THE REFORMATION 417 6. Competence in respect of causes. The competence of ecclesiastical courts in respect of causes, in the sense of exclusive competence, rested on the above mentioned ordi- nance of William I, whereby matters which belonged to the guidance of souls {quae ad regimen animarum pertinent) were referred to the sole cognizance of such courts. In virtue of this general rule certain civil causes passed perma- nently to the ecclesiastical courts : those touching testaments, inheritance or marriage, disputes in regard to church dues (tithes, church rates etc.), matters relating to church buildings or church- yards and other less important cases. But even in these departments the temporal power intervened in various ways. Particularly useful as a basis for such intervention was the practice of the secular courts to draw before them all suits pending before an ecclesiastical court in so far as there was a disputable issue only to be decided by the law of the land.'* Attempts by Henry III and Edward I to re- strict the competence of ecclesiastical courts either generally, or in civil causes to questions of marriage and testamentary law, pro- duced no permanent effect.'^ On the other hand, the church for suo Episcopo de personali delicto aut mere spiritualibus inter se hdbuerint questiones, Rex inde se non intromittit. Si autem de contractibus aut catallis quorum CO gnitio odRegein pertinet, arguere solet Princepn semper tam con- tendentes quam cognoscentes. art. 6 : Item si laicus convenit Clericum coram Episcopo suo similiter inhibetur, cum inter istos cognitio adeo ad judicium ecclesiasticum pertineat quad eciam Clerici voluntarie renunciare non possunt, foro ecclesiastico. Besponsio. Si laicus conveniat Clericum coram suo Episcopo, tunc eciam racione contractuum et catallorum cognicio pertinet ad Begem, si inde sit questio, intromittit se Bex ut prius. art. 17 : Item si Cleri- cus laicum convenire velit vel inter Clericos seu inter laicum et clericum de feodo iaicali agatur, scire volumus quid de consuetudine super Mis observetur. Besponsio. Omnes questiones inter quascumque personas de feodo laicali, ad Regis pertinent cognicionem,. Complaint of clergy and king's answer, 1279-85 (Northern Registers ; Rer. Brit. Scr. No. 61 ; p. 70) c 19 : Item coguntur clerici in actionibus personalibus quae ex delictis vel contractibus nascuntur in foro saeculari respondere.—Ad nonum et decimum nondum respondetur, sed rex deliberdbit. Complaint of clergy in 1280 and 1300 and king's answer at the time (in the petition of 1809, Wilkins, Concilia II, 319) : Item si clericus coram ecclesiastico judice in judicio recognoscdt se debere alteri clerico debitum quodcunque, et per ecclesiasticum judicem condemnetur ad solvendum debitum hujusmodi, prout hactenus fieri consuevit; judex tamen ipse, quo minus id exequi valeat, per prohibitionem regiam impeditur. Ad istum articulum respondet rex : Quod sive clericus agat contra clericum, sive contra laicum, sive laicus contra clericum in hujusmodi actionibus, scilicet in foro regio, respoTidere debet, et taliter usi sunt justitiarii regis a tempore cujus con- trarii memoria non existat. ^■ , ., 3 '^ Sometimes, however, this rule was deviated from. Cf. e.g. the ruling (cited in Godolphin 157) 11 Jac, May v. Gilbart : The Court (from which prohibition was sought) answered : As for the Title (alleged was : Prescription) we are not here to meddle with it, this (the suit in the ecclesiastical court) being for a Seat in the Church. , ., . . . c j t.-^ ^ x n " The earliest known mention of a prohibition in case ot deoita et catalla ' nisi sint de testamento vel matrimonio' is found in a collection of Brevia de cursu dating probably from about 1227, MS. Cambridge Ti. VI, 18, No. 30 of ■ H.C. ^ = "418 ECCLESIASTICAL COURTS [V, 14a long claimed other fields, tlie ecclesiastical courts trying disputes on contracts ratified by vow or oath and disputes touching right of the collection (Maitland, The History of the Begister of Original Writs in Harvard Law Review III, 114, October 1889).— Cf. also the form of prohibition in Bracton, Book V, tract. 6 c 3 § 2 (VI, 170) : . . . quia placita de laico feodo et de debitis et catallis quae non sunt de testamento et matri- monio speetant ad eoronam et dignitatem nostram. Complaint of the clergy, 1237 {Ann. de Burton ; Rer. Brit. Scr. No. 86 ; Annates Monastici I, 2.56) : Item, laid faciunt clamare Londoniae voce prae- conia, ne quis tractet causam in foro ecclesiae sive de perjurio, sive de fide laesa, de usura vel simonia, vel defamatione, nisi tantum super testa- mento vel matrimonio. et prosequsntes hujusm,odi causas incarcerant. Matthaeus Parisiensis, Chronica Majora {Rer. Brit. Scr. No. 57) IV, 579, year 1246 : . . . cum episcopus Lincolniensis supra quam deceret vel expe- diret, in subjectos suos . . . desaeviret ; ita scilicet utfaceret inquisitiones districtas per archidiaconos et decanos suos in episcopatu suo de continentia et m,oribus tarn, nobilium quam ignobiliuon, . . . quod nunquam, fieri eon- sueverat ; dom,inus rex . . . consilio curiae suae scripsit vicecomiti Hert- fordiae in haec verba : Henricus Dei gratia rex Angliae, etc. Fraecipimus tibi, quod sicut teipsum. et omnia tua diligis, non permittas quod aliqui laid de balliva tua ad voluntatem episeopi Lincolniensis archidiaconorum, vel offici- alium seu decanorum ruralium in aliquo loco conveniant de caetero, ad recog- nitiones per sacraTnentum eorum vel attestationes aliquas faciendas, nisi in causis matrimonialibus vel testam-entariis. According to Matthaeus Parisiensis, I.e. IV, 614 the king in 1247 issued a mandate on the following points : Lites defldei laesione et perjurio prohiben- tur a rege, quando super his conveniuntur laid coram judice ecclesiastieo. Prohibetur ecclesiasticus judex tractare omnes causas contra lai- cos, nisi sint de matrimonio vel testam.ento. Item,, de novo prae- scribit rex certam formam, episcopis de bastardia ; utrum, scilicet ante m,atrim,onium contractwm vel post nati sint. Prohibentur clerici per breve regis instituere actiones suas coram, judice ecclesiastieo super decimis; et appellatur illud breve, ' Indicavit.' De sacramentis quae exiguntur a clericis coram justitiariis regis praestandis, quia dicuntur processisse in causis contra prohibitionem, regiam, cum, jurare non teneantur clerici, nisi coram judice ecclesiastieo, maxime in causis spiritualibus. Item, de clericis quos ministri regis capiunt, propter famam, quae a laicis eis imponitur. Prohibitio, time unknown (printed in Stat, of Realm I, 209 under the name Prohibitio formata de Statufo Articuli Cleri ; Coke, Inst. II, 600 supposes, without giving reasons, that it was issued at the beginning of Edward I's reign) : Edwardus etc. . . . Cum, cognitiows pladtorum super feodalibus et libertatibus feodalium, districtionibus, officiis ministrorum, executionibus judiciorum corone nostre, trans gressionibus contra pacem nostram factis, felonum negationibus ,consuetudinibus secularibvs, attachiamentis vi laica, Tnalefactoribus rectatis, roberiis, arestacionibus, maneriis, advocaiionibus ecclesiarum, conventionibus, sufficierttibus assisis, juratis, recognitionibus laicwm feodum, contingentibus, S rebus aliis, ac causis pecuniarum et de aliis catallis et debitis, que non de testamento vel matrimonio, ad coronavi et dignitatem nostram, pertineant, eisdem regno de consuetudine ejxisdemi regni approbata et hactenus dbservata, but as ecclesiastical courts in Norfolk and Suifolk draw such causes to themselves, this is forbidden. Et quod non per- mittant [vicecomites] quod aliqui laid in balliva sua in aliquibvs lods conveni- ant ad aliquas recognitiones per sacram,enta sua faciendas, nisi in causis mMrimonialibus et testam,entariis . . . Articuli episcoporum 1285, o 10: Quod laid litigantes coram judicibv^ ecclesiastids, propter hoc non graventur, donee regia prohibitio sit porrecta, et sciatur, an hujusrnodi causa ad forum, ecclesiasticum debeat pertinere. Be- ■ sponsio Regis: Curia intendit, quod praelati bene sciant cognoscere, §60] FROM NORMAN CONQUEST TO THE REFORMATION 419 patronage. But in all these points the claim, in spite of continued efforts, was not made good.*° quae placita sint de testamento, et quae de matrimonio, et super aliis non cognoscant. (Wilkins, Gone. II, IIB.) Prohibition of Edward II to the archbishop of Canterbury, 14th March, 1319 (Eyraer, Foedera 4th Ed. II, 388) : Cwm placita de catallis et debitis in regno nostra, que non sunt de testamento vel matrimonio, ad coronam et dignitatem nostram specialiter pertineant . . . — (Cf. instruction of Edward II to the archbishopof York, 16th Feb., 1318, in Ber. Brit. Scr. No. 61, p 271.) In the expression quae non sunt de testamento vel matrim,onio the opposition is to ordinary actions for debt ; there is not apparently any intention of deny- ing the competence of the ecclesiastical courts in other departments where it was admitted, e.g. in suits for tithes. *" From the law-books compare especially the following passages : — Glanvilla (circ. 1180-90) Book I c 3 in reference to civil causes, de Recto : In Curia dom,ini Regis (in opposition to county cqurt) hdbent ista tractari et ter- minari : . . .' placitumdeAdvocationibus kcclesiarum,, . . . placitum de Dotibui unde mulieres ipsae nil penitus perceperunt, . . . placitum, de Debitis laicorum. Book XIII c 1 : Nunc vera ea quae super Seisinis solummodo usitata sunt, restant prosequenda: quae quia ex beneficio constitutionis regni, quae Assisa nominatur, in majori parte transigi solent per Recognitio- nem,, de diver sis Recognitionibus restat tractandum. c 2: Est autem, quaedam Ilecognitio, quae vacatur de morte antecessoris (it rests on the assize of North- ampton, 1176, c 4) ; quaedam autem est de ultimis praesentationibus Person- arum in Ecdesiis (it rests probably on a loststatute; cf. also const, of Clarendon, 1164, c 1) ; quaedam, utrum aliquod tenementum sit Feodum ecclesiasticum vel laicum Feodum (rests on const, of Clarendon, 1164,0 9); . . . Quaedam autem Recognitio est quae dicitur de Nova Disseisina (rests on assize of Northampton, 1176, c B) . . . Cf. here Bracton (Rer. Brit. Scr. No. 70) II, 162. Bracton (circ. 1230-57) Book V, tract. 5 c 10 § 1 (VI, 206) : Quando et tn qui- bus lacum non hdbeat prohibitio dicendum. Et sciendum quod locum non hahebit prohibitio in curia Christianitatis de aliquo spirituali vel spirituali- tati annexo, sive agatur inter clericos sive inter clericum et laicum, vel ubi agatur ex causa testamentaria vel matrimoniali, vel de aliquo de quo sit paenitentia injungenda pro peccato. Item . . . si . . . aga- tur de aliquo tenemento quod sit sacrum, et per pontiflces Deo dedicatum, sicut suntabbatiae, prioratus, et monasteria, et horum caemiteria. Item quasi sacra, quia spiritualitati annexa, sicut sunt terrae datae ecdesiis tempore dedicatianis, . . . ,quod quidem non est intelligendum de libera elee- mosyna quamvis sit pura. Nota quod non jacet prohibitio in dote ecclesiae, jacet tamen in libera et pura eleemosyna . . . Item nee locum habebit pro- hibitio si in foro ecclesiastico agatur, et hoc ratione personarum, sicut de catallis clericorum eis vialenter ablatis, . . . Item . . . won si de decimis agatur . . . Sed contra . . . , si decimae petantur, vel earum precium si vendantnr ex venditione . . . Item tecum non habebit prohibitio . . . de promissionibus factis depeeunia danda ob causam matrimanii in initio contractus nomine maritagii. Secus autem si tenementum promittatur ... See also 16 § 1 (VI, 2.B2). FZeta (cjVc. 1290) Book VI c 14 § 3 : . . . Decimae autem tn quantum decimae et res testatae in possessione testatoris tempore obiius sui existentes et catalla data ob causam m-atrimanii et plura aha m Foro Ecclesiastico debent intentari ; . . . % h : Nullum enim primlegium Juris- dictionem Regiam in hac parte mutare poterit, similiter nee fldei tnterpositio neaue Sacramentum praestitum, neque partium spontanea renunciatio ; Et hac idem did poterit de catallis et debitis quae non sunt de testamento vel matri- manio et earum sequela. Et eodem modo de injuriis personalibus tam m actionibus criminalibus quam dvilibus, dum tamen civiltter agatur; et si criminaliter agatur versus clericum quamvis clericus respandere noluerd in 420 ECCLESIASTICAL COURTS [V, 14a Of causal competence in civil causes tlie following particulars are to be noted : ^^ — 1. Matrimonial causes. As early as the Norman conquest it was the prevailing doctrine in the church that marriage is a sacrament proper.^" Thus there could be no hesitation about regarding matrimonial causes as matters which belonged to the guidance of souls, and leaving them, in pursuance of the ordinance of William I, to the ecclesiastical courts.*' The principle was not subsequently challenged in the period we are now considering ; on the contrary it was repeatedly con- firmed.*^ 2. Questions of legitimation and bastardy. Probably from the time when William's ordinance was issued, it was recognized that the ecclesiastical court, as a corollary to its competence in Foro seculari, Judex tamen Ecclesiasticus cognitionem habere nan poterit nee Begiam auferre jurisdictionem, licet habere debeat Judicii execuiionem. § 6 : In causa enim sanguinis non poterit Ecclesiasticus Judex cognoscere neque judicare neque irregularitatem comTnittere, et quamvis neminem valeat morti condempnare, degradare tamen poterit crimine convictos vel perpetua carceris inclusione custodire. § 1 : In causis vera testamentariis vd matri- m,onialibus non habebit locum Regio Prohibitio, et eodem m.odo in lite sus- cepfa de rebus defuncti specialiter non dispositis, quamvis dispositio earum arbitrio relinquatur executorum. Britten {circ. 1291-2) Book I c 22 {Soit enquis des viscountes) %9: Et queus ount suffert pleder en Court Cristiene autres pletz qe de testament ou de m,atrimonie, ou de pure espiritualti sauntz dener prendre de lay homme, ou suffert lay homme jurer devaunt ordinarie. Book I c 5 § 4: Car nous volums qe Sainte Eglise eyt ses fraunchi.onne Tie ted se hldford nd mdre on his dishte, butan his rihtan here-geate. Ac bed be his dihte se6 (Seht gescyft smtcfe rihte wife and cildan and n€h-magon, aelcum, be fxSere mdeSe }>e him td-gebyrige. (" And if any one depart this life intestate, be it through his neglect, be it through sudden death ; then let not the lord draw more from his property than his lawful heriot. And, according to his direction, let the property be distributed very justly to the wife, and children, and relations ; to every one according to the degree that belongs to him ") ; c 78 : And se man }>e aet }>dm, fyrdunge aetforan his hldforde fealle, s^ hit innan lande s^ hit ut of lande, beOn }>d here-geata forgyfene and fdn }>d yrfe-numan t6 lande, and td dehtan and scyftan hit swtSe rihte. ('' And if a man fall bafore his lord in the ' fyrdung,' be it within the land, be it without the land, let the heriots be forgiven ; and let the heirs succeed to the land and the property, and divide it very justly.") '" Si quis episcopus vel abbas vel alia ecdesiastica persona ante mortem suam, rationabiliter sua distribuerit vel distribuenda statuerit,firmum, manere concedo. Si vero morte praeoccupatus fuerit, pro salute animae ejus eccle- siae consilio eademfiat distributio. (Append. II.) ""* Glan villa, Book VII c 16:" . . . Cum quis vero intestatus decesserit, omnia Catalla sua sui Domini esse intelliguntur ... Cf. also Rotulus Magnus 18 Hen. II rot. 9 dorso ' Abbatia de Bello ' (quoted by Prynne, Episf. Dedic. to Records III): Petrus de Bello red. Comp. de XXXIV lib. et XIV sol. de Catallis Pelokini Ballivi de Abbatia, qui obiit Intestatus. In thesauro liberavit, et quietus e.it. Rad. de Dicato {Rer. Brit. Scr. No. 68) II, 68 : . . ■ Qui {Qalfridus Hdiemtis episcopus) quoniam intestatus decessit (21st Aug. 1189, after Henry II's death, before coronation of Richard I), ejus bona con- fiscata sunt universa. §60] FROM NORMAN CONQUEST TO THE REFORMATION 429 be concerned in the division."' All the provisions mentioned of Magna Carta were omitted in the confirmation of 1216, and never reinserted. Nevertheless the church now remained — with occasional disturbances'^^ — in possession of the right once conceded her,'^* and even extended it so far as to claim the adminis- tration of the estate for the bishop alone, and to leave it to him to. determine the measure in which he should consult the kinsmen or friends of the deceased.'^^ In the second half of the thirteenth century the view was in isolated "cases upheld that to the bishop belonged not only the administration but the free dis- posal of the estate, that he could retain a part for himself, and that he was not even bound to discharge first the debts of the dead man. It is apparently against this view that a constitution of legate Othobon is directed.'^' The '^' Magna Carta of 1215 c 27 : Si aliquis liber homo intestatus decesserit, cat all a sua per manus propifiquorum parentum et amicorum suorum,per visum ecclesiae distribuantur, salvis unicuique debitis quae defunctus ei debebat. (Cf. also c 11 ; append. VII). '*' Complaint of the clergy at the council of London, 1257 ("Welkins, Concilia I, 726) c 25 : Item, m,ortuo laico intestate, dom,inus rex et caeteri domini feodorum, bona defuncti sibi applicantes, non perrnittunt de ipsis debita solvi, nee residuum in usus liberorum et proxiTnorum suorum, et alios pios usus per loci ordinarium, quorum interest, aliqua converti. Similarly council of Merton, 1258 (Wilkins, Cone. I, 740, after Ann. Burton), Const, of archbishop Boniface at council of Lambeth, 1261 (Wilkins, Concilia I, 746 ff.), complaint of . the clergy and king's answer in 1279-85 [Northern Registers, Rer. Brit. Scr. No. 61, p. 70) c 7, and the constitution, to be connected with that of 1261, of archbishop Stratford at the council of London, 1342 (Wilkins, Cone. II, 702) c 7. Letter of archbishop Peckham to the Welsh prince Llewellyn, 20th Oct. [1279], Regist. Epist. Peckham (Rer. Brit. Scr. No. 77) I, 77. Cf. also letter of pope Alexander IV, 25th August, 1256 (Rymer, Foedera 4th Ed. I, 345) :— Alexander . . . dilecto filio Tnagistro Rostanno, c^pellano et nuncio nostro in Anglia, salutem et apostolicam benedictionem,. Volemus et praesentium tibi auctoritate mandamus, quatinus omnia bona mobilia ab intestato decedentium, sive de regno Angliae, sive de aliis terris cari.ssimi in Christofllii nostri . . . illustris Regis Angliae fuerint, pro ilia portione, quae juxta patriae consuetudinem decedentes con- tingit (local usage, varying as to details, regarded part of the estate as be- longing to the wife and children, and only part as belonging to the deceased that is subject to his free disposal). Cf. Glanvilla, Book VII c 5 (above, note 112) and Reeves, Hist, of Engl. Law c 25 ; 3id Ed. IV, 82), integre per te, vel per alium, seu alios, colligens, quicquid de Mis collegeris in aliquibus tutis locis deponere. ac ad opus carissimi in Christo filii nostri . . . illustris Regis Angliae (ut votum suum efficacius exequi valeat) conservare pro- cures ; . . . "* Bracton (Rer. Brit. Scr. No. 70) I, 480 : Item si liber homo intestatus et subito decesserit. dominus suns nil intromittat [se] de bonis defuncti, nisi de hoc tantum, quod ad ipsum pertinuerit s. quod habeat suum herioth, sed ad ecclesiam et ad amicos pertinebit executio- bonorum, nullum enim meretur poenam, quis, quamvis decedat intestatus. "" Among the earliest of such provisions are the resolutions of the councils in the Isle of Man, 1239 (Wilkins.- Concilia I, 664) : Bona intestatorum ad arbitrium episcopi dioecesani, vel ejus in absent/a, sui generalis vicarii minis- trentur. Cf. also in particular the constitution of archbishop Boniface at the council of Lambeth, 1261 (Wilkins, I.e. I, 746 if.) : Those feudal lords shall be excommunicated who bona . . . intestatorum non permiserint pie dis- tribui in usus misericordiae, pro dispositione ordinariorum, saltem pro ea portione, quae defunctum, cnntingit . . . >" Const, of Othobon, 1268 (Wilkins, Concilia II, 1) o 23 : . . . agit humana pietas miserieorditer in defunctum, cum res temporales, quae illius fuerant, per distributionem in pios usus (in ecclesiastical language this in- 430 ECCLESIASTICAL COURTS [V, 14a state too opposed the claim and compelled, in particular, the payment of the debts by the bishops."* From the beginning of the fourteenth century the law became in substance this : tlie estate was, as to the greater part, to be dis- tributed among the kinsmen ; as to the smaller part, to be devoted ia charitable purposes; lastly, the bishop might retain a small fee for his trouble in ad- ministering.''^ Furthermore, an act of Edward III restored as to procedure the state of affairs contemplated in Magna Carta, the administration and dis- tribution of the estate being assigned to the kinsmen and friends, whilst the bishop was confined in the main to supervision.''" eluded, as a ruin, distribution to the kinsmen ; cf. also Reeves, Hist, of Engl. Law 3rd Ed. IV, bO) ipsum juvando sequuntur, et coram caelesti jvdice pro ipso propitiabiUter infercedunt. Prolnde super bonis ab intestato decedentium provisionetn, quae ol/m a praelatis regni ArCpliae cum approbatione regis et baronum dicitur em,anasse {Magna Carta is probably meant; no other ordinance is known to which the reference might h6),firm,iter approbantes, •dcstricte inhibemus, ne praelati vel alii quicuvqiie bona intestatorum hujusmadi quocunque m,odo recipiant vel occupent contra praemissam pro- v'.sionem,.—Ct. also diocesan council of Exeter, 1287 (Wilkins, Concilia II, 129) c 50 : Si qui vero laicorum decesserint intestati, de bonis eorum, per locorum ordinarios taliter praecipim,us ordinari, ut pro anim,a defuncti in pios usus totaliter erogentur. '."* Magna Carta 1215 c 27 : . . . salvis unicuique debitis quae defunctus ei debebat. 13 Ed. I ( 1285) Stat. Westminster II o, 19 : Cum post mortem alicuius decedentis intestati et obligati aliquibus in debito, bona deveniant ad ordinarios disponenda, obligetur decetero Ordinaritts ad respondendum, de debitis, quatenus bona defuncti sufficiunt, eodem, m,odo quo execuiores huju^s- ^odi respondere ti-nentur si testam,entum. fecisset. Gf. Articuli, quibus videtur ■ecclesiae praejudicari per statuta domini regis ultimo edita in suo parlia- •mento, anno Dora. 1285 (Wilkins, Concilia II, 119),' c 1 : Contra hoc, quod praelati .lolehant habere liberam facultatem disponendi de bonis intestatorum,, tarn quoad solvenda debita defuncti, quam etiam quoad eadem, bona pro anima ejusdem in pios usus alias convertendi ; videtur dominus rex ad se trahere cognitionem quoad debitorum solutionem.. The parliament of Carlisle, 1307, complained that William Testa claimed for the pope the biens et chateux des testatours generaument (in opposition to dis- tinctem,ent) en lour testarnentz nom,m.ez, furthermore, the biens et chateux des intestats: . . . les biens des Intestats par grants de Bois, deivent par I'ordenaire du lieu estre donez et departies pur I'alme le mort. The king accordinf^ly issued an ordinance to check the papal demands. [Ratuli Parlia- m,entorum 1,219 ff.) [In 1273 the pope sent two nuncios to England who, among other things, were to make inquiry De bonis episcoporum, aliorumque praelatorum defunctorum ab intestato and De indistincte legatis. Ann. de Wintonia {tier. Brit. Scr. No. 36) II, 113.] 129 rjijjg const, of Archbishop Stratford at the council of London, 1342 (Wilkins, Cone. II, 702 ff.) cc 7, 8, to be connected with the constitution of Boniface (1261), sets forth again the claims of the church to administer and divide the estates of those dying intestate or testate, c 8 : . . . statuimu^, quod episcopi, et alii inferiores judices nostrae provinciae de bonis clericorum beneficiatorum, quos testari posse constat, de consuetudine regni Angliae, seu aliorum testantium, quorum,cunque, . . . nullatenus se intromittant ; sed executores testamentorum, ipsorum perm,ittant libere disponere de eisdem, necnon ab intestato decedentium, solutis debitis eorundem, bona, quae supererint, in pias causas, proximis decedentium consanguineis, servitorilms, et propinquis, seu alias pro defunctorum animarum salute distribuant et con- vertant ; nihil inde sibi retento, nisi forsitan aliquid rationabile pro ipsorum ordinariorum labore fuerit retinendum, . . '. Cf. also constit. of arch- bishop Chichele, 1416. (Wilkins, I.e. Ill, 377.) "" SI Ed. 111(1357) St. 1 c 11 : . . .en cas ou homme devie (=dies) intestat, les ordinairs facent deputer de plus proscheins et plus loialx amis du mort §60] FROM NORMAN CONQUEST TO THE REFORMATION 431 Substantially the law stood thus until the reformation and beyond it.''' In disputes as to immovable estate the ecclesiastical courts were never competent. 6. Suits in respect of tithes}^'' Whether as a consequence of William's ordinance the ecclesiastical courts were at once recognized as competent in suits touching tithes, is not ascer- tainable. The earliest cases known of such actions in them occur in the time of Stephen."^ But from all the reigns from William I to Henry II there are cases on record of suits for tithes being tried in the secular court.'''' Nor can we discover that that court was restricted to any particular suits of the kind ; possession and property in tithe were both taken cognizance of before it. Archbishop Becket condemned all consideration of tithe causes by the secular court."^ Subsequently, from the end of the twelfth century, the competence of the secular courts seems to have been curtailed in favour of the ecclesiastical. By the middle of the thirteenth century the rule was acknowledged even on the part of the state that the latter were solely competent."" intestaf,pur administi'er ses biens ; les ijueux deputez eient accion a demander et recoverer come executours les de.ttex dues au dit mort intestat, en la Court le Boi pur administrer et despendre pur lalme du mort ; et respoignevt auxint, en la Court le Moi, as autres as queux le dit mort estoit tenuz et ohligez, en mesme la manere come executours respondront ; et soient accountables as ordinairs, si avant come executours !e Viewes de Franck-pledge : Les articles sont ceux : . . . De Christians usurers ; et de touts lour Mens. "' 15 Ed. Ill (1341) St. 1 c 5 : Item accorde et asserituz est qe le Roi et ses heires eient la conisaunce des usereres mortz et qe les Ordinares de seinte esglise eient la conisaunce des usereres vifs, desicome a eux attient, faire com- pulsioun par censures de seint esglise pur le pecche, de faire restitucion des usures prises contre la lei de seinte esglise.. Temporal penalties during lifetime against lenders upon interest are threatened by ordinance of Edward III, 7th March, 1364 and the proclamation, based thereon, of the town of London (Lib. Albus ; Rer. Brit. Scr. No. 12 ; I, 368 ff.). "* 15 Ed. Ill St. 1 was revoked by the king (15 Ed. Ill st. 2) : volentes tamen quod articuli in dicto statuto . . . contenti, qui per alia statuta nostra vet progenitorum nostrorum Regum Angliae sunt prius approbati, iuxtaformam dictorum statutorum. . . . observentur. "* 3 Hen. Vll ( 1487) c 6 fixes for loans upon in terest disguised under form of sale, bargain etc. a penalty of £100, to be imposed by chancellor or justice of peace, reservant all Esglise, cest punissement nient contristeant (temporal punishment notwithstanding), la correccion de lour almes a les leies dicell accordant (of. also c 7). 11 Hen. VII (1495) c 8 repeals the act, just mentioned, as obscure. In case of lending at interest, or selling goods to persons being in necessity and buying the same again within three months for less money, or lending money on receiving proiit from lands etc., if complaint be made in the king's court, one half the sum lent shall be forfeited, whereof one half goes to the king, one half to the person suing, or if none sue, the whole to the king. Suit may be by information in any of the king's courts pf record. The act ends : Reservyng alwey to the spirituall jurisdiccion their lawefull punysshmentis in every case of Usurie. §60]' FROM NORMAN CONQUEST TO THE REFORMATION 443, the feudal vow and of the oath vrhich. juratores i^' had to take."" Probably the ecclesiastical authorities also exercised the right of imposing penance whenever oath or promise was broken. In accordance with their general principles they, P^ssumably, at the same time used their influence to bring about a fulfilment of v-f J "^^'^ pledge. Civil jurisdiction in the cases here contemplated was for- bidden to the church in the constitutions of Clarendon.'*' But the distinction between civil action and penal prosecution— on which Glanvilla laid stress'*"— was not strictly observed either by state or church. On the one hand, the '^^ Jwraiores had an intermediate position between witnesses and jurymem in the modem sense. '" Laws of William I (preface p. ci to Hoveden, Ber. Brit. Scr. No, 51, vol. II) c 6 : . . . si Ftancigena appellaverit Anglum de perjurio . . . Anglus se defendat per quod melius voluerit, aut judicio ferri, aut duello. ... An instance of proceedings before a civil court against perjured juratores will be found in Bigelow, Placita Anglo-Normannica. London, 1879, p. 34. Cf. also Odericus Vitalis (Ed. of Le Prevost) IV, 239: Anno ab Incarnatiane Domini 1107 Henricus rex proceres sues convocavit, et Bodbertumde Monteforti placi- tis de violata fid,e propulsavit. Unde idem, quia reum se sensit, licentiam eundi Jerusalem accepit, totamque terram suam regi reliquit. Leges Henrici I (law-book ; probably 1110-18). c 53 § 4 : /S"? dominus d& felonia vel fide mentita, compellat (=brings before the court) hominem suum, . . . Assisa de Essoniatoribus (jireisice p.cy toSoYeAen,l.c.yo\.lT): . . . si essoniatores voluerint invenire vadium et plagium quod ad diem habebunt warantuTn suum,, et si non habuerint, deinde capiantur ut perjuri. According to Glanvilla {circ. 1180-90) Book II c 19 there were civil penalties for perjury of juratores in the assisa. For full particulars of procedure and penalties in such cases see Bracton, Book IV, tract. 5 cc 4, 5 (IV, 388 ff.) ; Fleta^ Book V c 16; Britton, Book IV c 9. Cf. also Fleta, Book II c 1 § 19: Item^ atrox injuria est quae omnium mobilium amissionem confert, et Legem liber- am aufert, et quae locum habet in Usurariis Christianis, et de perjurio con- victis. . . . According to Meta, Book V c 16 § 4 and Britton, Book IV c 9 § S only the violation of an assertory (having reference to the past or the present) oath, not that of a promissory, is penal. The oath of a juryman belongs thus to the former class. In the Mirrour aux Justices c 1 s 4 and c 4 s 19 the idea of perjury is extraordinarily wide ; in it is included every violation of an oath of fealty or breach of official duty ; cf . e.g. (Ed. Honard IV, 497) : En perjury cMent vers le Boy . . . touts ceux subjects le Boy qui le maudissent ou escomengent. '*' c 15 : Placita de debitis, quae fide interposita debentur, vel absque interpo- sitione fidei, sint', in justitia regis. Becket and Alexander III seem to have-- ' assumed that in the constitutions of Clarendon the exercise of the corresponding penal jurisdiction was also forbidden ; it is not apparent that they could have had in view any other provision than that quoted. Becket at Vezelay con- demned (1166) as contained in the constitutions, among other things, the rule : Quod non liceat episcopo coercere aliquem de perjurio vel fide laesa. (Eeport of Becket to Alexander III, Materials for History Becket ; Ber. Brit. Scr. No. 67 ; V, 387.) Alexander III writes 1165-6 to Henry II : . • • negotia ecclesi- astica, et praesertim criminalia, quae de laesione fidei vel jura- menti emergunt, causas quoque super rebus et possessionibus ecclesiarum, personis ecclesiasticis tractanda relinquere . . . non adeo serenitatem tuam deceret quam etiam. expediret. {Materials, I.e. VI, 554.) '*" G-lanvilla, Book X c 12 : Die autem statuta debitore apparente in Curia^ creditor ipse si non habeat inde vadium neque plegios neque aliam diraciona- tionem nisi solam fldem, nulla est haec prdbatio in Curia domini Begis, Veruntamen de fidei lesione vel transgressione inde agi poterit in^ Curia Christianitatis. Sed Judex ipse ecclesiasticus, licet super crimine tali possit cognoscere et convicto penitentiam vel satisf actionem injungere, placita tam,en de debitis laicorum vel de tenementis in Curia Christianitatis per Assisam regni, ratione fidei interpositae, tractare vel terminare non potest. . . . 444 ECCLESIASTICAL COURTS [V, 14a ecclesiastical courts continued for some time longer to make a general claim without closer distinction to actions de perjurio et fide laesa ; on the other hand, Henry III, and at first perhaps Edward I also, prohibited them from dealing with all such matters."" Whether the Circumspecte Agatis contained a provision upon the question is doubtful."' At any rate towards the end of the thirteenth century it seems to have been acknowledged that the ecclesiasti- cal courts, if they confined themselves to the imposition of admissible penances, could punish in all cases of perjury or breach of faith. This was upheld by rulings of the courts in the reigns of Edward III"'' and Henry VI."' Side by side therewith examples are found of judgments of the period from Henry IV to Edward IV in which the older confusion recurs, the secular courts forbidding to the ecclesiastical all action in respect of perjury or breach of faith in case the suit touching the obligation confirmed by the oath was one within the cognizance of a secular court."* From the end of the reign of Edward IV the opinion prevailed among the secular judges that the church courts could indeed punish for perjury or breach of faith, if the main issue belonged to the compe- tence of the secular court, but only ex officio^ not at the instance of the party concerned."" The underlying idea probably was that the party, as a rule, would only prosecute if by so doing the fulfilment of the contract could be com- pelled."^ Thus by a circuitous process a return had been made to the old dis- tinction, that if it was only a question of imposing a penance, the ecclesiastical court was competent in all cases of perjury or breach of faith. Under Henry VII statutory measures were issued to direct civil proceedings against persons (especially jurymen) who had broken' the oath they had taken in a civil court."' "" Cf. above, note 79. See also complaint of the clergy at the provincial council of London, 1257 (Wilkihs, Concilia I, 726) c 27: . . . ; si inter laicos in contractibus interveniat fldei datio, vel infringat jusjurandum quis juramentum vel fldem, et judex -{sc. ecclesiasticus) velit cognoscere de tali peccato mortali {saltern ad poenitentiam injungendam) porrigitur regia prohibitio ; et salus animarum irnpeditur in damnationem plurimorum, ea occasione, quod ratione catallorum praestitunfuerat jusjurandum. '^' In some MSS. the words et similiter defidei laesione are wanting ; and so in the text adopted in Statutes of the Realm. Cf. St. of R. 1, 101, note 9. If the words stood in the ordinance, they laid down that the ecclesiastical courts might try such causes dummodo non petatur pecunia, sed agattir ad correc- cionem peccati. With this would agree the royal answer, printed above, note 162. "2 22 Ass. 70; Fitz. ProJiib. 2, cited in Beeves, Hist, of Engl. Law, Ed. 1869, III, 104. "■^ 34 Hen. VI, 70 cited in Eeeves, I.e. "^ Eeeves I.e. cites the following instances : (1) 2 Hen. IV, 15. Bra. Praem, 16 ; (2) 11 Hen. IV, 83 (88 ?) ; (8) 88 Hen. VI, 29 ; (4) 20 Ed. IV, 10; 22 Ed. IV, 20. — ^Cf. complaint of the clergy at the provincial council of London, 1399 (Wilkins, Concilia III, 240) c 48: Item in causis perjurii et defamationis quum in foro ecclesiastico agitur dunfaxat ad poenam canonicam impon- endam si generalis prohibitio regia judiei porrigitur, quamvis judex ille constare facial sub sigillo suo in cancellaria regis de htijusmodi causa, et quod procedatur tantummodo ad poenam canonicam ea occasione infligendam, c'onsultatio regia (cf. § 27, note 10, sub finem) denegatur. Unde perjurium incurrentibus et defamantibus grave imminet periculum m,orum, cum per- jurium et defamatio hvjusm,odi sic perpetuo maneant impunita. Quare sup- plicant . . . ut rex dignetur gratiose concedere, quod in Mis casibus poterit consultatio emanare. "^ According to Eeeves-, I.e. this view was first expressed towards the end of the reign of Edward IV by judges Brian and Littleton, and afterwards approved in the judgment 12 Hen. VII, 22. ■ "° Eeeves, I.e. "' 11 Hen. y//(1495) c 21 An Act agaynst Perjurye. Eelates to proceedings §61] FROM THE REFORMATION TO THE PRESENT DAY 445 § 61. c. From the reformation to the present day. 1. Paeticipation op ecclesiastical persons in tempoeal couets. During the previous period the popular courts or folk-moots had been, with but few traces left, displaced by the royal courts. Hence the participation of the clergy as such in the temporal court, a par- ticipation due to the old constitution of the folk-moot, ceased. On the other hand, the clergy were not as such excluded from participa- tion in the royal court. Thus, for example, many instances occur of clerks filling the position of justices of the peace. In some acts of the reformation period, for certain cases of offence against a prescribed doctrine the possibility of constituting mixed courts was contemplated.^ But such provisions did not obtain per- manent significance. against jurymen in the city of London, who violating their oaths give a wrong verdict, c 24 An Act for Writtes of Attaynt to be brought agaynst Jurors for untrue Verdictes. As the preceding, but without limitation to London. Valid until the next parliament, c 25 An Act agaynst Perjury unlawfull maynte- naunce and corrupcion in officers, ss 2 ff. relate to perjury on occasion of inquest before a justice of peace ; s 6 concerns the case, if perjury bee eommytted by proves in the Kinges Courte of the Chauncery or before the Kinges honorable Councell or els where. Valid until the next parliament. In these three acts ecclesiastical jurisdiction is not mentioned. ^ 34 & 35 Hen. F/// (1542/3) c 1 ss 2 and 17 : Any person who maintains etc. what is contrary to the doctrine set forth since 1540 shall be condemned by the bishop and two justices of the peace, or by two members of the king's council, oi- by commissioners appointed by the king. By 1 Ed. VI (1547) c 1 the spiritual representative is only called upon for advice; ss 1, 2 : actions for speaking irreverently of the sacrament of the altar are to be heard before justices of the peace ; s 5 : the justices shall direct to the bishop the following writ : Rex . . . Episcopo L. salutem. Praecipimus tibi quod tu Cancellarius tuus vel alius deputatus tuus sufficienter eruditus sitis cum Justiciariis nostris ad pacem in Comitatu nostra B. consei'vandam assignatis apud D. tali die ad sessionem nostram ad tunc et ibidem tenendam ad dandum consilium et advisamentum eisdem Justiciariis nostris ad pacem super arranamentum et deliberacionem offendencium' contra formam statuti concernentis sacrosanc- tum Sacramentum Altaris. 2 & 3 i?d. VI (1548) c 1 Act of Uniformity ; s 4: offences against this act are to be investigated and determined by the Justices of Oyer and Determyner or the Justices of Assise; s 5 : provided . . . that everye Archebisshopp or Bisshopp shall or maye . . . joyne and associate him selfe . . . to the said Justices ... 1 Eliz. (1558/9) c 2 Act of Uni- formity ; s 4: The archbishops and bishops are to compel the observance of this act by ecclesiastical pains ; s 5 : The Justices of Oyer and Determiner ani the Justices of As.sise shM likewise take measures to prevent transgression ; s6: . . . all and every Archebishope and Bishope shall or maie at all time and times at his libertie and pleasure, joyne and associate himself by vertue of this Acte to the said Justices of Oier and Determiner, or to the said Justices of Assise at every the said open and generall Sessions to be holden in any place within his Diocese for and to thinquirie hearing and determining of the offences aforesaid. Cf . also 14 Eliz. (1572) c 5 s 32 : The bishops (or their chan- cellors) shall visit the hospitals whose founders are deadand for whichspecial visitors have not been fixed ; in case accounts of the receipts of the hospital are refused or the proper application of those receipts is not shown . . . , every 446 ECCLESIASTICAL COURTS [V, 14a^ 2. Ecclesiastical couets. The reformation as such made no change in the competence of the ecclesiastical courts.^ But slowly, even during the time when the reform was developing, that gradual limitation progressed which was beginning as early as Henry VII. At the opening of the first revolution the church was deprived of the right to inflict fines or imprisonment ; but at the restoration recovered its former punitive powers.^ Yet the diminution little by little of the sphere of com- petence of the ecclesiastical courts still continued ; nor was the process arrested until the middle of the nineteenth century, when it came to a temporary standstill. a. Competence in respect ©/"persons. The legislation of the reformation period in this respect was con- nected with the restrictions on the ecclesiastical courts partly already permanently introduced under Henry VII, partly tentatively laid down in the first years of Henry VIII by the act — limited as to the time of its validity— 4 Hen. FIZ7(1B12) c 2.* 23 Hen. VIII (1531/2) c 1, at first likewise only in force for a few years, deprived clerks under the degree of subdeacon of benefit of clergy even in a first case of petty treason, murder or of robbery or arson under aggravated circumstances. Clerks in higher orders were to be delivered up to the bishop, but might be by him de- graded and surrendered to the secular court for judgment. 28 Hen. F///(1536) c 1 prolonged the validity of this last act and extended the effect of its provisions as to clerks in minor orders to clerks of all higher degrees. By 32 Hen. FIZ/ (1540) c 3 the two preceding suche person . . . shall forfayte and lose suche summe . . . of Money as to the said Bysshoppe or Chauncelour and two Jtcstices of the Peace . . . shalbe thought meete and convenient, . . . Similarly, according to s 37, in the case of other charitable foundations. ^ lEd. VI (1B47) c 2 ss 3-7 (see § 6, note 42) laid down that the ecclesiastical courts in contentious civil or criminal causes should thenceforward give judg- ment in the king's name, whilst other (specified) faculties etc. of ecclesiastical authorities should run as before in the names of the bishops. Tbis act was repealed by 1 Mar. st. 2 (1553) c 2 s 1. Cf. also 1 & 2 Phil. & Mar. (1554 & 1554/5) c 8 s 24.— 1 Mar. st. 2 c 2 was repealed by 1 Jac. I (1608/4) c 12 s 8. When under Charles I doubts were raised whether the provisions of 1 Ed. JI c 2 were thus revived, the star chamber took the judges' opinion. That opinion was given (1637) to the effect that the statute was not in force and that pro- cess might issue out of the ecclesiastical courts in the names of the bishops. The opinion is printed Card well, Doc. Ann. II, 212. " Cf. § 7, notes 36 and 39. ^ On these earlier acts see § 60, notes 69-71.— The attitude of Henry VIII to- wards this question is shown by his letter (1533) to bishop Tunstall of Durham (Wilkins, Concilia I, 762) : And as for the living of the clergy, some notabU offences we reserve to our correction, some we remit by our sufferance to the judges of the clergy ; as murther, felony, and treason, and such like enormi- ties' we reserve to our examination ; other crimes we leave to he ordered by the clergy, not because ive may not intermeddle with them, for there is no doubt but as well might we punish adultery and insolence in priests, as emperors have done, and other princes at this day do, . . . §61] FROM THE REFORMATION TO THE PRESENT DAY 447 sbatutes were made perpetual, and it was also enacted (as had been the case in 4 Hen. VII c 13 for the lower clergy) that in any convic- tion for felony persons admitted to their clergy should be branded in the hand, and should on a second offence not be again surren- dered. Other less important laws added certain cases in which benefit of clergy was likewise taken away, and amended the main enactments in regard to verbal defects.^ ^ The following acts of Henry VIII's reign from the beginning of the refor- mation are relevant here : — 22 Hen. VHI (1B30/1) a 9 An Acte for poysoning. In a particular case of poisoning the culprit is deprived of his clergy. Henceforward wilful poisoning shall be adjudged high treason, and benefit of clergy shall not be allowed to any person convicted of it. [This enactment is repealed by 1 Ed. F/ c 12 s 1, whereby treason is only to be what is so under 25 Ed. HI st. 5 c 2 ; the act of Ed. VI, however, in ss 9 and 12 m.ain tains the withdrawal of benefit of clergy in cases of poisoning.] 23 Hen. VHI (1531/2) cl An Acte that no person eommyttyng Pety Treason Murder or Felony shalbe admytted to his Clergye under Subdeacon. The statute refers to the fact that the bishops have not discharged their obligation under 4 Hen. IV a 3 (cf. on this point § 60, note 44). s 1 : Clergy is taken from all persons (whether the actual perpetrators or their nhettora) founde gyltye after the lawes of this londe for any maner of pety treason, or for any wylfull murder of malyce prepensed, or for robbyng of any Churches Chapells or other holy places, or for robbyng of any . . . persons in theyr dwellyng howses . . . or in . . . the highe wages, or for wy II full burnyng of any dwellyng houses or bernes . . . ss21F. : Not applicable to persons within the orders of subdeacons or above. These must remain ' in perpetual prison ' under the keeping of the ordinary unless they become bound with sufficient sureties for their good behaviour. An ordinary may degrade a convict person and send him to the king's bench. 23 Hen. VIII (1531/2) c 11 An Acte for breking of prison by Clerkes convicte. s 1 : Clerks convicted of murder or felony and surrendered to the bishop fre- quently break prison ; this offence is for the future to be felony, and to be subject to such peyne of dethe and penaltie and losse of landes arid goodes as for other felonies is accustomed. Benefit is not allowed, s 2 : those in ' holy orders ' (subdeacon's or higher) on conviction are to be delivered to the ordi- nary, there to remayne without any purgacion. s 3 : the ordinary may degrade convicted clerks and send them to the king's bench. 25 Hen. VIII (1533/4) c 3 An Acte for stondyng muet and peremptorilie challenge. The provisions of 23 Hen. VIII c 1 shall be applicable even if the person indicted of murder etc. upon his arraignment shall stand mute or chal- lenge above twenty persons or will not answer directly ; also, if goods were stolen in another county than that in which the arraignment is. 25 Hen. VIII (1583/4) a & An Acte for the punysshement of the vice of Buggerie. Sodomy a felony without benefit of clergy. The act is only valid until the end of the next parliament (cf . 28 Hen. VIII c 1 and 82 Hen. VIII c 8. 25 Hen. VIII c 6 was "repealed by the provision in 1 Mar. st. 1 c 1 s 8 ; it was revived in the form in which it held good at the end of the reign of Henry VIII and made perpetual by 5 Elis. c 17). 23 Hen. VIII (1536) c 1 An Acte that Felons ab.juryng for Pety Treason murder or felony shall not be admytted to the benefyte of their Clergye. The validity of 22 Hen. VIII oli (touching abjurations and sanctuaries), 23 ifen. Vnic 1, 25 Hen. VHI c 3, 25 Hen. VIII 6 is prolonged to the last day of the next parliameat (s 1) ; the provisions of these acts are to be applicable to per- sons within ' holy orders ' as well as to those in lower orders (s 2). 31 Hen. VIII (1539) c 14, Six article law (repealed by \ Ed. F/ c 12 s 2) takes away clergy for offences against itself (ss 1-3, 20). 32 Hen. VIII (1540) c 3 For the continuacion of Actes. s 1: 22 Hen. Villa 448 ECCLESIASTICAL COURTS [V, 14a These enactments, with immaterial alterations, remained in force during all the vicissitudes of the reformation period and were, as to the major part, expressly repeated in statutes not only of Edward VI's reign, but also of Mary's. Only as to actions against peers were certain reservations made.^ 14, 23 Hen. Villa 1, 25 Hen. VIII c 3, 25 Hen. VIII c 6, 28 Hen. VIII c 1, with extension to those in ' holy ' orders, are made perpetual, s 2 : . . . enacted . . . that suche persones as ben or shalbe within holy orders, whiche by the lawes of this EealTne ought or may have their clergie for any felonyes, and shalbe admitted to the sam,e, shalbe brent in the hande, in like maner andfourm,e as lay clerkis ben accustumed in suche cases ; and shall suffre and incurre afterwarde {i.e. in case of relapse) all suche paynes daungiers and for- factures as be ordered and used for their offences of felony, to all intentis . . . as lay personnes admitted to their clergie be or ought to be ordered and used by the lawes and statutes of this realme. 38 Hen. VIII (1541/2) c 8 Tlie Bill ayenst conjuracions and wichecraftes and sorcery and enchantments. Conjuration, witchcraft etc. for injurious purposes is punishable as felony without benefit of clergy or sanctuary. 33 Hen. VIII (1541/2) c 14. Similarly false prophecy. 37 Hen. VIII (1545) c 10. Similarly diffusing written, unsigned charges of high treason. (The three last mentioned acts are repealed by 1 Ed. VI [1547] c 12 s 3.) ° From the reigns of Edward VI and Mary the following are in point: — 1 Ed. VI (1547) c 12 An Actefor the Repeale of certaine Statutes conceminge Treasons, Felonyes etc. s 9 : No benefit or sanctuary shall be allowed in case oi murder of malyce prepensed . . . poisoning of malyce prepensed . . . breaking ofhowse by day or night . . . and . . . person . . . therby putt in feare or dreade . . . robbing of any person in or near highway . . . felonyous stealing of horses, geldinges or mares . . . felonyous taking goods out of church etc. . . . and that apart from the form of trial or pleading of the accused {attainted or convicted, or being indyted or appealed, thereupon found guilty by verditte of 12 men, or confess upon arraynment, or will not answer directly according laws, or stande wilfullie or of malyce muett). On the other hand there shall be benefit and sanctuary in all other cases of felony just as before 24th April, 1 Hen. VIII. s 13 : In all cases in which benefit is granted and in all cases in which it is by this act taken" away, excepting willfull murder and poysoninge of malyce pre- pensed, a peer shall under this act of common grace uppon his or their request or prayer alleging that he is a Lords or Pier . . . and claym- ing the benefltt of this Acte, thoughe he can not reade, withowt anny burnynge in the hande Losse or Inheritaunce or corruption of his bloude, he juged . . . for the first time onelie . . . as a Clerke convicte, and shalbe in cace of a Clercke convicte which maye make purgacion; . . [Of. also ss 14, 15.] 2 & 3 ISd. VI (1548) c 29. Sodomy felony without benefit or sanctuary. 2 & 3 Ed. F7(1548) c 33 explains 1 Ed. F7c 12 s 9 to mean that benefit is also lost in cases of stealing of one horse. 3 & 4 Ed. VI (1549/50) c 5 An Acte for the punyshment of Unlawfull Assem- hlyes and rysinge of the Kinges Subjectes (of limited duration, prolonged to the end of the next parliament by 7 Ed. VI c 11) declares various specified acts to be felony without benefit. 5 & 6 Ed. VI (1561/2) c 9 explains 23 Hen. VIII c 1 as to the meaning of ' robbing any person or persons in their dwelling houses, the owner etc. being therein.' 1 Ed. VI c 12 is not mentioned. h&QEd. VI (1551/2) c 10. 25 Hen. VIII o 3, in so far as it prescribes that (other conditions fulfilled) benefit is lost when the arraignment is in a county other than that in which the offence was committed, has been virtually repealed by 1 Ed. FJ 12; it is in so far hereby revived. §61] FROM THE REFORMATION TO THE PRESENT DAY 449 Legislation in the first years after Elizabeth's accession was of the same tendency.^ Subsequently, 18 Eliz. (1675/6) c 7 abolished the special amena- bility of the clergy to their own courts ; no man allowed his clergy was to be committed to the ordinary. Beneficium cleri remained, for the present, to the same extent as before ; it had however no further effect on the amenability of the clerk to the secular court, only operating to mitigate the punishment ; * in cases in which beneficium was to be granted, the utmost sentence was to one year's imprisonment.* 2 & 3 Phil. & Mar. (1555) c 17 takes benefit from a certain accessory to murder before the act. 4 & 5 Phil. & Mar. (1557/8) c 4 >4n Acte. that Accessaries in Murder and divers Felonies shall not have the benefitte of Clergie. si: Enacted . . . that all and every person . . . that . . . shall maliciouslie commande hire or councell any person or persons to commit or doo any Petie Treason wilfull Murder, or to doo any Eobberie in any dwelling House or Howses, or to committ or doo any Bdb- berie in or nere any Highe Waye in the Eealme of Englande, or in any other the Quenes Dominions, or to comm,itt or doo any Jkobberie in any Place within the Marches of Englande against Scotelande, or wilfully to burne any divelling Howse or any parte therof, or any Barne, then having Come or Grayne in the sam£ ; that then everye such Offender or Offenders and every of them. . . . shall not have the betiefite of his or their Clergie. s 2 : Provided alwaies and be it enacted. That every horde and hordes of the Parliamerd, and Piere and Pieres of the Eealme having Place and Voice in the Parliament, upon every Injditem,enl for any ofthoffences aforesaid, shalbe tryed by their Piers as hathe bene accustomed by the hawes of this Eealme. ' 5 Eliz. (1662/3) c 14 An Act agaynst the forgyng of Evydences and Wryt- inges. s 6 declares such forgeries on a second ofence to be felony without benefit. 5 Eliz. o 16 makes witchcraft and conjuration, under certain circumstances, felony without benefit. 5 Eliz. o 17 An Act for the punishement of the Vyce of Sodomy e revives and makes perpetual 26 Hen. VUI c 6 as it stood at the king's death. 5 Eliz. c 20. According to s 2 any person feigning to be an Egyptian (gipsy) and consorting with such vagabonds for the space of one month shall be guilty of a felony, without benefit or sanctuary. 8 Eliz. (1566) ci An Acte to take aivaye the benefitte of Clargye from certen feloniouse Offenders, s 1 : Owing to the number of cut-purses or pick-purses it is enacted that no person or persons which hereafter shall happen to be in- dyted or appealed far fdlonimis tdkinge of any Money Goodes or Cattelles from the person of any other privylye without his Knowledge in anye place whatsoever, and thereuppon founde gyltie etc. . . . shall from hensforthe be admytted to have the benefyte of his or their Cleargie . . . and shall suffer Death in such maner andfourme as they shoulde if they were no Clarices. s 2 : Hitherto if a surrender was made to the ordinary, the surrendered could not be arraigned for a former offence, having his clergy of a later [cf. leg. Hen. 7c 5 § 10, 26 Ed. HI (1351/2) st. 6 c 5]. This is now declared permissible if there was no clergy for the earlier offence. 18 Eliz. (1575/6) o 3 s 3 declares a rogue guilty of a third offence to be a felon without benefit. * On the double meaning of beneficium cleri in the older time see § 60, notes 35, 36. » 18 Eliz. (1675/6) c7 An Acte to take awaye Cleargie from thoffendours in Bape and Burglarye, and an Order for the Deliverye of Clarkes convicte with- out Purgacion. H.C. ropter communem utilitatem regni, ex- ceptis imprisonatis et utlagatis secundum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de qidbusflat sicut praedictum est.'* 25 46. Omnes barones qui fundaverunt abbatias, unde habent cartas regum Angliae, vel antiquum tenuram, habeant earum custodiam cum vacaverint, sicut habere debent}^ 27 60. Omnes autem istas consuetudines praedictas et libertates quas nos concessimus in regno nostro tenendas quantuin ad nos pertinet erga nostros, omnes de regno nostro, tarn clerici quam laid, observent quantum ad se perti- net erga suos. ^^ 63. Quare voluTnus et flrmiter praecipimus quod Anglicana ecclesia libera- sit et quod homines in regno nostro habeant et teneant omnes praefatas liber- tates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre, sibi et haeredibus suis, de nobis et haeredibus nostris, in omnibus rebus et locis, in. perpetuum, sicut praedictum est. Juratum est autem, tarn ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo- ingenio observabuntur. Testibus supradictis et midtis aliis. Data per manum nostrum in prato quod vocatur Buningmede, inter Windelesorum et Stanes, quinto decimo die Junii, anno regni nostri septimo decimo.^^ "' 1216 omitted ; not restored in later confirmations. Cf. § 60, notes 124 ff. 22 =ordeal (by water or fire). "^ 1216 c 31 the same.— 1217 c 34: Nullus balliviis ponat de cetero aliquem ad legem m,anifestam nee ad juramentum (to path with compurgators) simplici loquela sua, sine testibus fidelibus ad hoc inductis. — 1225, as in 1217 ; only instead of nee, vel. "* 1216 omitted, and not afterwards restored. " There is a new provision in 1217 c 39 : Nidlus liber homo de cetero det amplius alicui vel vendat de terra sua quam ut de residua terrae suue possit sufflcienter fieri domino feodi servitium ei debitum quod j^ertinet ad feodum illud.—\S3.b, the same.— [Cf. here Bracton, Book IV, tract. 1 c 9 § 1 {Rer. Brit. Scr. No. 70, III, 70, 76).] '^ 1216 c 37 the same with the addition : et sicut supra [c 5, see above, note B] declaratum est.— 1211 c 40 runs: Omnes patroni abbatiarum, qui habent cartas regum Angliae de advocatione vel antiquum tenuram vel possessionem, habeant earum custodiam etc. to end, as in 1216. — 1225, as in 1217. ''' There is a new provision in 1217 c 43: Non liceat ulicui de cetero dare terram sudm alicui domui religiosae ita quod ilium re- sumat tenendum de eadem domo, nee liceut ulicui domui religi- osae terram alicuius sic accipere quod trudat earn illi a quo eum receperit tenendum. Si quis autem de cetero terram suam alicui domui religiosae sic dederit et super hoc convincatur, donum suum penitus cassetur et terra ilia domino suo illius feodi incurratur. (Cf. 1217 c 39 ; above, note 25.)— 1225 the same. 28 So 1216 c 41, 1217 c 45, 1225. , ^^ 1216 omitted, and not afterwards restored. — ^In 1216 the end of the clause runs c 42 : Quia vero quaedum capitula in priore continebantur quae graviu et dubUdbilia videbantur, scilicet de scutagiis et auxiliis ussidendis, de debitis. Judaeorum et aliorum, et de libertate exeundi de regno nostro vel redeundi in 476 APPENDIX VIII. Statutum de Provisoribus, 25 Ed. .Ill (1350/1) st. 4.' Come jadis, en le parlement de bone memoire Sire Edward Roi JDengleterre, Ael nostre Seigneur le lioi qore est, Ian de son regne trentisme quint a Kardoil tenuz, oie la petieion raise devant le dit Ael et son conseil en le dit parlement, par la communalte de son Roialme, contenant qe come seinte eglise Dengleterre estoitfounde en estat de prelacie, deins le Eoialme Dengleterre, par le dit Ael et ses progenitours, et Countes Barons et Nobles de son Eoialme et lour ancestres, pur eux et le poeple enfourmer de la lei Dieu, et pur faire hospital- ites aumoignes et autres oevres de charite es lieux ou les eglise's feurent Joundes pur les almes de foundours et de lour heirs et de touz Cristiens ; et certeins possessions, tant enfeez terres et rentes come en avowesons qe se exten- dent a grande value, par les ditz foundours feurent assignez as prelatz et autres gentz de seinte eglise du dit Eoialme, pur cele charge sustenir, et nome- ment des possessions qe feurent assignes as Ercevesqes, Evesqes, Abbes, Priours, Eeligious et autres gentz de seinte eglise, par les Eois du dit Roialme, Countes, Barons et autres Nobles de son Roialme, meismes les Rois, Countes, Barons et Nobles, come Seigneurs et avowes eussent et aver deussent la garde de tieles voidances, et les presentementz et collacions des benefices esteantz des tie,les prelacies ; et les ditz Rois en temps passe soloient aver la greindre parties de lour conseils pur la salvacion du Roialme quant ils eneu- rent mester, de tiels prelatz et Clercs issint avances ; Le Rape de Rome, aero- chant a lui la Seigneurie de tieles possessions et benefices, meismes les benefices dona et graunta as aliens qi unqes ne demeurerent el Roialm,e Dengleterre, et as Cardinalx qe y demeurer ne purroient, et as autres tant aliens come den- seins, atdresi come il eust este patron ou avowe des dites dignites et benefices, come il nefeustde droit selonc la loi Dengleterre ; par les queux sils f eussent soeffertz a peine dem'euroit ascun benefice, en poi de temps, el dit Roialme qil ne seroit es m,eins daliens et denzeins, par vertue de tieles provisions contre la bone yolunte et disposicion des foundours de m,eismes les benefices, et issint les eleccions des Ercevesqes, Evesches, et autres Religious faudroient, et les alm,oignes, hospitalites et autres oevres de charite qe seroient faitz as ditz lieux ■seroient sustretes, le dit Ael et autres lais patrons en temps de tieles voidances perderoient lour presentementz, le dit conseil periroit, et biens sanz nornbre seroient emportes hors du Roialme, en adnullacion del estat de seinte eglise dengleterre, et desheriteson du dit Ael, et des Countes Barons et nobles, et en offens et destruction des lois et droitures de son Roialme, el grant damage de son poeple, et subversion del estat de tut son Roialme susdit, et contre la bone disposicion et volunte des primers foundours ; del assent des Countes, Barons, Nobles et tute la dite Communalte, a lour instante requeste, consideres les damages et grevances susdites en le dit plener parlement f eust purveu ordine et establi qe les dites grevances, oppressions et damages, en meisme le Roialme des adonqes mes ne seroient soeffertz en ascun manere. Et ja monstre soit a notre Seigneur le Roi, en cest parlement tenuz a Westminster a les Octaves de la Purificacion de notre Dame, Ian de son regne Dengleterre vintisme quint, et de France duszisme, par la greceuse pleinte de toute la commune de son regnum, et de forestis et fbrestariis, warennis et warennariis, et de consuetu- dinibus comitatuuni et de ripariis et earum custodibus, placuit supradictis jpraelatis et magnatibus ea esse in respectu quousque plenius consilium habu- erimus, et tunc faciemus plenissime tam de Mis quam de aliis quae occur- rerint emendanda, quae ad communem omnium utilitatem pertinuerint et pacem et statum nostrum et regni nostri. . . . This provision was omitted in 1217 and in the ensuing confirmations. — There is a new clause in 1217 c 46: Salvis archiepiscopis, episcopis, abbatibus, prioribus, Templariis, Hospital- ariis, comitibus, baronibus et omnibus aliis tam ecdesiasticis personis quam saecularibus, libertatibus et liberis consuetu dinibus quas prius habuerunt. — So in 1225. • After Statutes of the Realm. VIII STATU TUM DE PROVISORIBUS 477 Soialme qe les grevances et meschiefs susditz sahondent de temps en temps, a plus grant damage et destruccion de tut le Roialm,e, plus qe unqes ne firent ; cest assaver qore de novel notre seint piere le Pape, par procurement des clercs et autrement ad reservee et reserve de jour en autre a sa collacion, generalment et especialm,ent, sibien Ercevesehees, Eveschees, Ahbeies, et Priories, come totes dignetes et autres benefices dengleterre, qe sont del avowerie de gentz de seinte eglise, et les donne auxibien as aliens come as denzeihs, et prent de touz tiels benefices les primeres fruitz et autres profitz plusours ; et grande partie du tresor del Roialme si est emporte et despendu hors du Roialme, par les pur- chaceours de tieles graces ; et auxint, par tieles reservacions prives, plusours clercs avarices en ceste Roialme par les veroies patrons, qe ont tenuz lour avancementz par long temps pesiblement, sont sodeinement ostes ; sur quoi la dite Communalte ad prie a notre Seigneur le Boi qe desicome le droit de la Corone Dengleterre et la loi du dite Roialme sont tides, qe sur meschiefs et damages qe si aviegnont a son Roialme il doit et est tenuz par son serement, del acord de son poeple en son parlement, faire en remede et lei, en ostant les meschiefs et damages qensi avignont, qe lui pleise de ce ordiner re- mede: Notre Seigneur le Roi, veiant les mischiefs et damages susnomes et eant regard al dit estatut fait en tem,ps son dit Ael, et a les causes contenues en ycele, le quel estatut tient touz jours sa force et ne feust unqes defait ne anulli en nul point, et partant est il tenuz par son serement del faire garder come la loi de son Roialme, coment qe par soeffrance et negligence ad este puis attempte a contraire; et auxint eant regard a les grevouses pleintes a lui faites par son poeple, en ses divers parlementz cea enarere tenuz, voillantz les tresgrantz damages et meschiefs qe sont avenuz, et viegnont de jour en autre a la Eglise Dengleterre par la dite cause remede ent ordiner ; par assent de touz les grantz et la Communalte de son dit Roialme, Al honour de Dieu et j)roflt de la dite eglise Dengleterre et de tut son Roialme, ad ordine et establi, qe les f ranches eleccions des Ercevesehees, Eveschees, et tutes autres dignites et benefices electifs en Engleterre, se tiegnent desore, en manere come eles feurent grantes par les progenitours notre dit seigneur le Roi, et par les auncestres dautres Seigneurs foundes. Et qe touz prelatz, et autres gentz de seinte eglise qi ont avowesons de quecomqes benefices des douns notre seigneur le Roi et de ses progenitours, ou daidres Seigneurs et donours, pur faire divines services et autres charges ent ordines, eient lour collacions et presente- mentzfranchement en manere com£ ils estoient feffes par lour donours. Et en cas qe dascune Erceveschee, Eveschee, dignite ou autre quecunqe benefice, soit reservacion, collacion, ou provision faite par la court de Rome, en destourbance des eleccions, collacions ou presentacions susnomes, qe a meisme les temps des voidances. qe tieles reservacions collacions et provisions deusent prendre effect, qe a meisme la voidance notre Seigneur le Roi et ses heirs eient et enjoicent pur cele foitz les collacions as Ercevesehees, Eveschees et autres dignites electives, qe sont de savowerie, autieles come ses progenitours avoient avant qe franche eleccion feust graunte, desicome les eleccions feurent primes grantez, par les progenitours le Roi sur certeines forme et condicion, come a demander du Roi conge de eslir, et puis apres la eleccion daver son assent roial, et nemye en autre manere, les queles condicions nyent gardez, la chose doit par reson resortir a sa primere nature : etqe si, dascune Meson de Religion del avowerie le Roi soit tiele reservacion, collacion, ou provision faite, en destourbance de franche eleccion, eit notre seigneur le Roi et ses heirs a cele foitz la collacion, a doner cele dignite a persone covenable. Et en cas qe reservacion, collacion ou provision soit faite a la Court de Rome, de nule Esglise, provende, ou autre benefice qe sont del avowerie des genz de seinte esglise, dont le Roi est avowe paramount inmediat, qe a mesme le temps de voidance, a quel temps la reservacion collacion ou provision deusent prendre effeit, come desus est dit qe le Roi et ses heirs de ce eient le preseritement, ou collacion a cele foitz ■ etissint de temps en temps a totes les foitz qe tieles gentz de seinte eglise ^eront destourbes de lour presentementz ou collacions par tieles reservacions collacions ou provisions come desus est dit ; Sauvee a eux le droit de lour avowesons et presentementz quant nul collacion ou provision de la Court de 478 APPENDIX Home, ent ne soit faite, ou qe les dites gentz de seinte eglise osent et vuillent a ■meismes les benefices presenter ou collacion faire, et lour presentees puissent leffect de lour collacions et presentementz enjoier : et en meisme la manere eit chescun autre Seigneur de quel condicion qil soit, les presentementz ou collacions a les mesons de religion qe sont de savowerie, et as benefices de seinte eglise qe sont apurtenantz a meismes les mesons. Et si tiels avowes ne presentent point a tides benefices, deinz le demy an apres tieles voidances, ne levesqe de lieu ne la donne par laps de temps deinz un mois apres le demy an, qe adonqes le Hoi eit ent les presentementz et collacions, come il ad dautres de savowerie demeisne. Et en cas qe les piresentes le Boi, ou les presentes dautres patrons de seinte eglise, ou de lour avoioes, ou ceux as queux le Roi ou tielx patrons ou avowes susditz averont done benefices apurtenantz a lour presentementz ou collacions, soient destourbez par tiels provisours, issint qils ne puissent avoir possession de tieles benefices, par vertue des presentementz et collacions issint a eux faitz, ou qe ceux qe sont en possessions des tiels benefices soient empesches sur lour dites possessions par tielx provisours, adonqes soient les ditz provisours et lour procuratours, executours et notaires attaches par lour corps, et menes en response, et sils soient convictz demoergent en prisone sanz estre lesse a main- prise, en bailie, ou autrement delivres, tanqils averont fait fin et redempeion au Boi a sa volente, et gree a la partie qe se sentera greve. Et nient meins, avant qils soient delivres facent pleine renunciacion, et troevent sufficeante seurete qils nattempteront tide chose en temps avenir, ne nul proces stieront par eux ne par autre devers nuly en la dite Court de Rome, ne mde part aillours, pur nules tieles emprisonementz ou renunciacions, ne nule autre chose dependant de eux. Et en cas qe tielx provisours, p)rocuratours, executours et notaires ne soient trovez, qe lexigende courge devers eux par du£ proces, et qe briefs issent de prendre lour corps quel part qils soient trovez. auxibien a la suite le Roi come de partie, et qen le mesne temps le Roi eit les profitz de tielx benefices, issint ocupez par tielx provisours, forspris Abbeies, Priories, et autres 'mesons qont college ou Covent ; et en tieles mesons eient les Covent et colleges les profitz, sauvant totefoitz a notre seigneur le Roi et as autres Seigneurs lour aunciene droit. Et eit cest estatui lieu autresibien de reservacions collacions ' et provisions faites et grantes en temps passe, devers touz ceaux qe ne sont unqore adept corporele possession des benefices, a eux grauntes, par meismes les recervacions, collacions et provisions, come devers toux autres en temps avenir. Et doit cest Estatut tenir lieu commenceant a les octaves susditz, IX. Extract from Edward IV's Charter, 2nd November, 1462." . . . quod de cetera, nullus,justiciarius,vicecomes,commissarius,escaStor, coronator, ballivus, aliusve officiarius, aut minister noster vel heredum nos- trorum aut aliorum, qui curias legates ex concessione nostra aut praedeces- sorum nostrorum,, aliave auctoritate tenent, inquirat seu inquiri facial de excessibus, fdoniis, raptibus mulieruni, proditionibus aliisve quibuscumque transgressionibus perpetratis seu perpetrandis, seu sic dicta perpetrata fuisse per aliquem vel aliquos archiepiscopum, vel archiepiscopos, episcopum vd episcopos, abbatem vel abbates, priorem vel x>riores, decanum vel decanos, archidiaconurn vel archidiaconos, officiarios, commissarios, rectores, vicarios, seu eorum successores, presbyteros, capellanos et clericos quoscumque infra sacros ordines constitutos, aut religiosas x>eTsonas supradictas praesentes velfuturas. Et si contingat aliquam duodenam, quaestamve, aliquem vel aliquos hujus- modi archiepiscopos, episcopos, praelatos, abbates, priores, decanos, archi- diaconos, officiarios, commissarios, rectores, vicarios et eorum successores, presbyteros, capellanos vel aliquos clericos in sacris ordinibus constitutos de cetero indictare, praesentare, accusare vel impetere, quod tunc ipse vel ipsi, • Printed after Harduin, Ada Conciliorum etc. IX, 1470. Also printed in Wilkins, Concilia III, 583 and Eymer, Foedera 3rd Ed. Y, Ft. II, p. IH.— Thia charter was confirmed by Kiohard III, 23rd Feb. 1484. The deed of confirmation is in Wilkins, Cone. Ill, 616. X. 25 H£N, VIII (1533/4) 'rnes, Con- tempt. Dispensation: 6, 2,~8, 25, 42, 47; 7, 16, 21; II, 16; 22, 31, 32; 293; 63, nr. 5; by the king: 7, 12, 21, nr. 73 ; 93 f . Dissolution of convocation : 55, 12. Divine service: 44,39; disturbance of: 61, 26. Cf. Prayer-books. Dominicans: 5, nr. 9. Donative, Donee : 296 ; 37, 23 ; 335 ; 336. Dos : 60, 107. Duel (Wager of battle) : 4, 54 ; 60, 21. Dues : 11. Taxes. Ealdorman, Earl: 59, 2, 3, 4 ; 60, 15. Easter, Calculation of : 1,5, 18, 21 ; 1 1 , ^. East Indies : 1 2, 7, nr. 17, 25 ; 20, 8 ; 39, 9. Ecclesiastical commissioners : 32 (30, 5) ; for Ireland: 11,33,36. Ecclesiastical Courts : 296 ; 59-66 ; v. Court. Election (of officers of church): v. Ap- pointment. Disputed e. to convo- cation : 55, 20. Eleemosyna libera : 21,36; 60, 145,146. Eorl : V. Ealdorman. Episcopal constitution : 6, nr. 43 ; 7, 47, 51; 179 f. ; in Scotland: 111-120; 123. Episcopal synod in Scotland : 125. Episcopus in partibus infidelium: 39, nr. 3. Cf. Bishop. Erudition of any Christian Man, The Necessary: 6,27; 19,24. Estates Committee : 32, nr. 8 ff. Eucharist: 6, 34, 53; 10, 17, 20, nr. 67; II, 17; 135; 169; 16, 5; 19, 37; 20, 26; 61, 19. Examination before ordination : 20, nr. 19 ff. Excommunication : 6, 9 ; 7, 6 ; 437 ; of a royal official or vassal of the crown : 27, 8. Excommunicato capiendo, Breve de : v. Writ. Execution of ecclesiastical sentences : 27, nr. 6 ff. ; 455. Cf. Writ de ex- communicato capiendo, de contumace capiendo, de baeretico oomburendo. Execution of secular judgments against clergy : 27, 11, 12 ; 60, 36. Exemptions : 2, 9 ; 5, 8, 9 ; 6, 15, 18, 47 ; 19,16; 32,12; 42,16,20; 66,1, 4. Exoroista: 195. Fasts: 6,40. Fealty : v. Oaths. Fellow of College: 197; 20, nr. 29. Felony: 60, 45,47. Feudal tie of higher cletgy : 4, 9, 11, nr. 18 ff., nr. 43, nr. 74, 84, 86, 88 ; 27, nr. 28 ff. ; 60, nr. 51 ff. Feudal path: V. Oath. Fides laesa : 60, nr. 186 ff. Fire insurance: 3I, 22, 23; 32, IB. Firstfruits, annates, primitise : 6, 8, 9, 17, 49, 55; 29; 31, 1-3; in Ireland: II, 16, 18, 20, 33. INDEX 541 Fish days : v. Fasts. Forest courts, offences against f . laws : 60, 11, 19, 55, 56. Forgery of documents, coins, etc. : 6, 35 ; 60, 47. Foundations (of various kinds): 6, 29, 55; 9,9; 11,36,42; 31,11.13; 32, 16; 53=1- Franciscans : 5, nr. 9 ; 19, 1- Frankalmoign : v. Eleemosyna. Free Church: 122. Galloway: 10, 11. Gef6ran, G-efgrscipe : 43, 2. General Assembly, General Convention, General Councils, General Synod : v. Synods. Gingra: 59,4. Governors of the Bounty of Queen Anne : 31. Gravamina : 55, i^^- 22. Greek catholics : 1 8, nr. 15. Guardian of the spiritualities: 21, 37, 88; 41, nr. 9f. Guild: 43,2. Gunpowder plot : 7, 12. Haemed : 22, 6. Hampton Court conference : 71 . Heathen: 22,4. Heresy : 6, 63; 1 9, 19, 30 ; 61, 19. Heretics, Prosecution of: 108; 11,19; 19; 364; 369. Heriot: 27,21. High Church tendency : 75. High Commission : I5, 6 ; 259 ; 30 ; 61, 6; in Scotland: 10, 32, 41; 30, 5; in Ireland : 30, 5. Holy days: 6,40; 7,57. Cf. Observance of Sunday. Honorary canons : v. Canons. House of Laymen : 56. Hy : V. lona. Images, "Worship of: 6, nr. 40; 1 4, 2; 169; 19, 37. Impropriation: v. Appropriation. Incorporation : ■«. Appropriation. Incumbent: 336. Independents : 7, iir. 50 ; 1 3, 2. Indicavit : v. Writ. Indies : v. East Indies, West Indies. Induction: 295; 42, 11; 43, 4. Cf. Installment, Investiture. Indulgence, Declarations of, Act of : 7, 74, 77, 78, 84. Inheritance of Churoh property : 22, 3, 14, nr. 32;63, nr.5. Injunctions: v. Ordinances. Inquisition, Inquisitors: 1 9, 15; 30, 2; Inquisitores : 48, 2. Installment : 37, 23. Cf. Induction, In- vestiture. Institution : 295. Institution of a Christian Man : 6, 26 ; 19, 24. Interdict : 4, nr. 49 f ., nr. 63, 6,9; of Eoyal officials or Crown Vassals: / 27, 8. / Interim revenue of Bishopric : 4 1 • 1 Intestacy: 27, 21; 60, nr. 118 ff. ; 61I 16; 462. Investiture of Bishops and Abbots: 4, 23 ; of the inferior clergy : 42, 11- Cf . Induction, Installment. lona: 1,21; lO, 4; 11,8. Ireland: II ; Union with England: 11, 14, 29, 82. Irregularitates : 20, nr. 15. Jerusalem, Founding of Bishopric of: 12, nr. 18. Jesuits : 7, 7, 8, 12, 28 ; 93 ; lO, 21. Judges of Ecclesiastical Courts : 22, 16, 21. Cf. Official. Judicial Committee of Privy Council : 99; 6l,nr. 9ff. Jus patronatus : 36, 9 ; 60, 158. Justices of peace : 60, 19 ; 445. Justiciar : 4, ^^• King: 23-28; 6 1, 2. Kirk session: 121. Lambeth articles : v. Creeds, etc. Lambeth : 32, 14 ; 33, 6. Last Judgment : 1 9, 37. Lay Helpers' Associations: 46, 10. Lector : 20, nr. 4 ; 46, 1, 9. Lecturer: 53- Legates, papal: 24; in Ireland: II, 8; Legatine powers of English Arch- bishops: 227; 24, nr. 7; 34,12,18, nr. 16 if., 28, 29, 31 ; 54, 26. Leges Edwardi : 60, 24 ; app. xiv., ii., 2 ; Leges Henrici : 4, nr. 85 ; 4, ^'^ ! 41; on Law-books called Leges' Ed. Conf . and Hen. I. : append, xiv., ii., 2. Legitimatio per subsequens matrimo- nium : 60, nr. 90 ff. Letters dimissory : 199. Letters of business: 55, 19, 25. Letters of orders : 6, 42, 200. Letters of request : 63, 4. Letters missive : 6, nr. 17 ; 27, 27; 40, 4. Cf. Appointment of Archbishops, etc. ; Preces regiae. Letters testimonial : 7, 56 ; 20, 17, 24. 542 INDEX Licence (royal) to make canons: 54i ^6, 73,74; 55,19,25. Licence to officiate : 295 ; 44i 1^, 20 ; 339; 46,6; 49,5; 53,2. Cf. Ad- mission . Liturgy : v. Prayer-books. Livery : 6, 42. Local Government Act : 102. Lollards : 4, 1, 121 ; 97 ; 108 ; 185 ; 188 ; 20, 3. Lord Chancellor : v. Chancellor. Lower house of Convocation : 364; 3^9; 371 ; 55- Magna carta : 4, nr. 66. Maintenance of fabric of church, of churchyard, of in8truments: 44, ^i 48,2; 60, 177; 61, 18. Man, Isle and bishopric of: 10, 3; 21, 47; 33,25; 42,18,20. Mandamus : v. Writ. Maps, relating to England : 33, 3^, 35 ; to Scotland: 10, 5, 59. Bee also 5, 7a, and 33, 37. Maritagium : 60, nr. 104 ff. Marriage, Civil : 7i 54, 65. Marriage, Prohibition of m. of clergy : 22 ; m. before justices of the peace: 7, 54, 65 ; -with a heathen wife : 22, 4 ; second m. \ v. Bigamy ; m. with several women at same time : 22, 5 ; blessing by priest : 22, 5 ; suits or disputes as to m.: 23, 10, 13; 43, 9; 59, nr. 6 ; 60, nr. 82 ff. ; 61, 16, 17. Mass : v. Eucharist. Mass-priest : 44, 2. Master of Arts : 197. Master of the Faculties: 38, 5 ; 63, 5. Masters of Orders: 21, nr. 9, nr. 35, nr. 37, 40. Methodists: 13,10; 1 8, 10. Metropolitan: 147; 33, nr. 1, 3. Cf. Archbishop. Military service: 2, nr. 16 ; 27, nr. 13 ff. Millenary petition : 7, 13 ; 22, nr. 30. Minister: 337. Minor canons : v. Canons. Missions in ancient times in Britain : I ; in Scotland: 10, 1; in Ireland : II, 1 ; protestant missions and mission- ary Societies : 12, nr. 3 ff., nr. 10 ff., nr. 19ff.; 13,16. Moderator : 10, nr. 31, 33. Monasteries: 2, nr. 9; 3, nr. 6 ff.; 4, 70; 5, nr. 7a f. ; 6, 18, nr. 21 ff., nr. 29, 47,55; 11,16; 37,nr.lff.; 345. Monks : v. Monastery, Moravian Brothers : 1 8, 10. Mortmain : v. Church property. Nomination : 295. Nonjurors : 7, 81 ; 10, nr. 62 ; I3, nr. 8. Non-residentiary canon : v. Canon. Notaries : 63, 5. Nuns: v. Monastery. Oaths, to the king of allegiance and supremacy : 6, 25, 47, 53 ; 7, 12, 52, 65, nr. 77, 80; 15, 8; 1 8, 18; 20, 22; 28, 7,24; 37,21; 42,21; 44, 48; 53, 3; in Scotland: 10, 83, nr. 63-66 ; in Ireland : II , 16 ; abroad : 154 ; homage and fealty of bishops: 4, 17, 24 ; 27, 29 ; app. iv. (art. 12) ; of canonical obedience : 4, 17 ; 1 1 , 5; 147; 20, 23; 42, 21 (43, 16); 44> 48; 45, 15; 53, 8; oaths to pope: 6, 18; 1 4, 14; homage 6f king to pope: v. Pope, Claim to suzerainty ; Coronation oath : 7, 83; 34, 84; in Scotland: 10, 20,. nr. 48, cf. 10, 54; other oaths: 7, 31, 33, 36, 69 ; 1 8, 9. Cf. Declara- tions. Obit : 6, 55. Oblations, Obventions : v. Taxes. Observance of Sunday : 71 ; 7, 57. V. also Holy days. Oeoonomus : 48, 1. Oferhymes : 2, 8 ; 27, 6. Offences against morality : 27, 7 ; 297 • 391; 60, 168; 61, 19, 21. Officials, Clergy as state officials : 201 ; 250 ; 60, 50; Prosecution or punish- ment of royal officials by ecclesias- tical authorities : 27, 8. Official, of archbishop and bishop : 36, 9 i 38 ; 63 ; 64 ; of the archdeacon: 42, IB; 58, 3; 65; of the chapter: 66, 2. Old catholics: 1 8, 15. Ordeal : 59, 7, 9 ; 60, 20, 21. Cf. Duel. Ordinal : v. Prayer-books. Oiidinances, royal, in ecclesiastical mat- ters: 6, 25, 35, 40; 161; 19, 21; 241 ; 255 ; 259. Ordination : v. Consecration, etc. Ordinatio pro clero : 4, 109. Ordines majores (=sacri) and minores : 22,2. Organ, Organist: 52. Orkneys: 10,3. Ornaments : 1 5, nr. 6 f., nr. 25. Ostiarius : 195. Ousterlemain : 6,42. INDEX 543 Pallium: 2, nr. 2 ; 6,9, 17; 105; 11,8; 33, 5, 8, nr. 12 ; 275 ; 33, 16 ; app. x. Papists : 7, 10, 12, 15, 17, 23, 58, 67, 75, 82,86; 10, 20; 136; 13, 4, nr. 5. Parish: 101 f.; 9, 16. Parish clerk : 1 1, 35 ; 49. Parish priest: 334; 44; 55,7; 57,2, 8. Parliament, Origin of : 4, nr. 2 ; nr. 78 ; nr. 110; 21; 54, 14; Irish parlia- ment: II, 12-14; 133; II, 29, nr. 32 ; the Good p. : 4, 120 ; the short : 76; the Long: 7, 35; the Rump: 83 ; the Eire bone : 7, 54 ; the Con- vention: 7, 54; Clergy in P.: II, 82, 36; 21; 54, 14, 51; in the Scottish P.; 10, 25,29. Parson : 44, nr. 32. Patronage : 7, 54 ; 295 ; 36, 7 ; 60, nr. 152 ir. ; in Scotland : 10, 58 ; 122 ; in Ireland: 11,36,42. Patron paramount : 27, 32. Peculiars : v. Exemptions. . Court of Peculiars: v. Court. Pen^lCode: 11,31. Penance : 169 ; 59, nr. 17 ff. ; 437. Pensions : 27, 23. Perjury : 60, 149, 150, nr. 186 ff. ; 61, 19, nr. 27 ff. Persona : 44, 10, nr. 32 ; personge regni : append, iv., 1, 7, 10. Peter pence : 2, nr. 2 ; 4, 5 ; 6, 18 ; 60, 178. Petitions of the clergy : I4i 8 ; 60, 6. Pilgrimages : 6, nr. 40. Placet: 25. Plebanus : 43, 1. Plough-alms : 3, 10. Pluralities : 4, 127 ; 6, 5, 6, 18, 47 ; 9, 11; 37,39; 39,4; 63, nr. 5. Pope, Influence of, in Anglo-Saxon period: 2, nr. 1, 2 ; 2, nr. 9 ; I4, 3 ; 23, 1 ff. ; 24, 1 ; in the middle ages: 23-6; 28, 1; 54, 17, 18. Cf. Appeals, Oaths, Appointment, Pi-ovisrons, Taxes. Claim to suzerainty : 4, 5 (of. 4, nr. 30), 50, 64, 69, 117, 118, 123 ; 66 ; 14, nr. 7 ; 32, 25 ; to dispose of Ireland: II, 8, 9; to infallibility: 14, 14; Eecognition in England in case of several claimants : 4j 12, 17, 50. Non-recognitioil since the Eefor- mation : 6, 8 ; 53 ; 6, 25, 35, 47, 53 ; 10,17,20; 11,18; 17. Potestas ordinis, jurisdictionis : 28, 18 ; 59. 16. Poyning's Act : 1 1, 14. Prselati majores, minores : append, vi. 1. Prsemonstratensians : 37, 16. Praemunientes-clausa : 21, 19, 25, 26, 46; 54, 14. Prssmunire, Praemunire Acts : 4, 114, 122, nr. 124 ff. ; 6, 4, 7, 15, 17, 18, 25, 44,47,53; 7,67; 21, 31; 23, 11; 239; 27, 12; 35, 1;39,4; 60, 54, nr. 160. Praepositus : v. Provost. Prayer-books: 6, 40; 7, 57, 59, 60, 66; 15 ; in Scotland : lO, 36, 40, 46 ; 1 5, 14; in Ireland : 1 1, 17, 20, 30, 37; in the United States: 1 3, 14. Prebendaries : v. Canons. Precedence : v. Hank. Precentor : 37, 14 ; 54, 39. Preces regise : 27, 23, 31. Presbyterianism, Prssbyterians : 6, 43 ; 7, nr. 4; 7, 46, 49, 51; 84; 108; 111-123; 134; I3, 2; 18, 16 ff. ; 19,37; 20,3. Presbytery: 7,46,49; lO, 56; 43,12. Presentation: 295; Presentements in autri droit : 27, 30. Presiding bishop : 147; 155. Priest: 44, '^'^- ^^' Of. Consecration, etc. Priest vioar : 37, 46. Primate : 34, 13 ; of England : 34, nr. 20, 21, 23, 25 ; of Ireland : 1 1, 6,. 8 ; 140 ; 276. Primitiee : v. Pirstfruits. Primus: 123; 125. Prior: 21, nr. 9, nr. 35, nr. 36, 37 f . ; 37, 6, nr. 12 ; 54, nr. 28 ff. ; 57, 8. Privilegium cleri: 60, 35; 6 1, 8, 9, 11. Cf. Amenability of clergy. Proclamations: v. Ordinances. Procurations : 43, 11 ; 43, 3. Procuratores (proctors) : 54, 32 ff. ; 55' 4,6. Prohibitions: 25, 7; 27, 4, 10. Prolocutor: 55, 9, 10; in Scotland: 125. Prorogation of convocation : 370 : 55, nr. 12 ff. Protestan,t: 18, 5. Provincial court : v. Court. Provincial synod : v. Synods. Provisions : Acts against P. ; Provisora : 25 ; 39 ; 4, 113, 122, nr. 124 ff. ; II, nr. 15 ; 21, 31 ; 23, 11 ; 25, 6 ; 239 ; 26, 6 ; 60, 54. Cf . Patronage. Provost (praepositus) : 37, 6, nr. 13 ; 42, i;57,2,8. Purgatory: 169; 18, 12; 19,37. ' 544 INDEX Puritans : 7j ^■ Purveyance : 27, 22. Quakers : 7, 72 ; I3, 3, nr. 5. Quare impedit : i>. Writ. Quare non admisit : v. Writ. Questmen : 48, 2. Rank, of cardinals : 34, 30 ; of the king's ■vioar-general : 34, 82 ; of the arch- bishops of Canterbury and York : 5, nr. 1; 34; of the English bishops: 34, 32 ; of the archb. of St. Andrew's and Glasgow: lO, 14; of those of Armagh and Dublin : 11,8. Eeader : 20, nr. 4 ; 46 ; 53. Rector : 44i ^'^- ^^ '^• Reformanda : 55i °^- 22. Reformatio legum ecolesiasticarum : 1 4, nr., 17 ff. Reformation : 6. Reformed Episcopal Church in England : 18, 10. Registration of places in which service is held: 10, nr. 65ff. Relapse : 60, nr. 59, 69. Representative Church Body: II, 36, nr. 43. Residence : 4, 127 ; 6, 5, 6, 18, 47 ; 9, 11 ; II,35;36, 12;37, 28;39, 4;45, nr. 4. Residentiary canon : 301 ; 303 ; 37, 28. Resignation : 20, 6 ; 40, 4. Resurrection: 19)37. Roman catholics : v. Papists. Rubric (in prayer-book) : 163. Rural chapters : v. Synods. Rural dean: 43; 45, 7; 54, 41; 58; 66 ; app. xiii. Sacraments ; 169 ; I9, 37 ; 20, 10 ; 46, 2. Sacrilege : 60, nr. 169 ff. Cf . Attack on olerici. Saint John, Order of : 4, nr. 106 ; 6, 29 ; 11,20; 60, 67. Saints, Adoration of : 169. Savoy conference : 88; 167. Sciregem6t : v. County Court. SciregerSf a : v. Sheriff. Scotland : lO ; union with England : 70 ; 7, 54; 116; 121; claim of pope to suzerainty : 4, 69. Scotti: I, 18. Soutage: 4, 72; 27, 16a. Cf. Taxes. Sects : 7, 4, 10, nr. 61.ff., 72, 84, 8B, 86. Cf . Lollards, Puritans, Presbyterians,' Independents, Anabaptists, Sooi- nians, Arminians, Nonjurors, Metho- dists, Moravian Brothers, Quakers, Old catholics, Christkatholiken, Re- formed Episcopal Church in Eng- land. Secularization : v. Church property. Con- fiscation, etc. Seminaries for Roman catholic priests : 7,7; 138. Senior vicar: 37i 46. Sequestration: 3 1, 20; 45, 9; 48, 16. Sexton: 50- Sheriff: 59, 2, 3, 4 ; 60, nr. 11. Shetlands : lO, 3. Sidemen (Sidesmen): 42, 11; 48, 2,17-19. Significavit: 61, 19. Simony : 9, 14 ; 60, 179, 180 ; 6 1, 19, 33, 34. Cf. Declarations (d. against simony). Sinecure: II, 33; 32, 12; 44, nr. 22; 334. Sisterhoods: 47- Six article law: 6,27,35; 16, 3ff., 1 9, nr. 22 ; 22, 19. Society for Promoting Christian Know- ledge: 142. Society for the Propagation of the Gospel in Foreign Parts : 142. Socinians : 1 9, nr. 27. Sodor and Man : v. Man. Soul-scot : 3, 10. Spolienrecht : 27,21. Statutes of chapters : 37i 21. Statutum de tallagio non concedendo : 4,97. Streoneshalch, Conference of : I , nr. 19 ; 274. Sub-dean : 37, 14. Subdiaconus: 195 ; 22, 2. Submission, Declaration of, Act of: 6, 10; 54,56; 55,24; 57,11. Subscription Act: 1 6, 12. Succentor : 37, 14. Succession to throne : 7,83; 10,55; 1 8, 5; in Scotland: lO, 48. Suffragan: 33, 13; 39, nr. 3 ff., 55, 1; used of a bishop in relation to his archbishop: 12,20. Summoning of church councils : 54, 7, nr. 16 ff., nr. 55 ; 55, 11. Summus justiciarius : v. Justiciar. Supremacy : 28 ; 30, nr. 9 ; 54, nr. 15 ; in Scotland: ID, 24; 116; 10, 47; in Ireland: II, 16,20. Supremacy oath : v. Oaths. Synodaticum : 44, 7. Synods. General council of the early ChristiaOj and medieval church : 1 4 INDEX 545 2, 11, 13, 14 ; of the £oman catholic church: 1 4, 14; Pananglican con- ferences : 12, nr. 24. National Synods : 47 ; 21, 18 ; 54 .; 54, 49 ; North American General Con- vention : 154 1; 13, 16; Scotch general assembly: 112; 10, 57; Scotch general synod : 125 ; Irish general synod : II , 38 f . Provincial synods ( convocations) : J, 29; 99; 19, 17; 54-56; 59, H ; Scotch presbyterian : 121; Scotch episcopal: 125 ; in Ireland: 139 ; in the colonies and abroad : 148. Diocesan synods, diocesan conferences : 54,56; 56,1,3; 57; 59,11; Irish: II, 40 f. ; federate conventions and diocesan conventions in the United States of North America : I3, 15- Archidiaconal synods and rural chap- ters: 42,11; 43,12; 58; 59,11. Parish assemblies: v. Congregation, Vestry., Participation in synods abroad : 1 ; 6, 18; 26,7; 33,28. Taking of arms in self defence : 1 9, 37. Taxes (in general sense), paid by clergy to State : 2, nr. 16, 17 ; 4, 21 (32), 56, 60, 61, nr. 72 ff., 1 1 , 33 ; 27, nr. 16 if., 54, 14, 37, 50, 53, nr. 57 ff. ; to higher church authorities: 4i ^^i ^^i 4, 70; 6, 18. Cf. Cathedraticum, Firstfruits, Procurations, Tenths, Twentieths. Taxes paid by laity to clergy: 3, 10; 23, 13; 27, 6; 44, 6 ; (48, 11) ; 60, 143. Cf. Tithes. Templars : 4, 106 ; 1 9, 1, 15 ; 60, 67. Tenens in capite (Tenant-in-chief) : 201. Tenths: 6,55; 29; 31,1-3. Test Act: 7,75. Testament (will); testamentary dis- putes: 23, 18; 60, nr. 108 ff.; 61, 15; 462; testaments of the clergy: (4,32); 27,21; 462. Testes synodales: 43, 9; 48, 2, 17; 57, 9. Theological colleges : 20, 21. Tithes: 3,nr. 10; 7,5*5 9,10; II, 35; I2,nr. 2; 13, nr. 1; 23, 13; 27,19; 44,6,8; 60, nr. 132ff.; 451. Ti^tulus beneficii, patrimonii, mensae : 20, 12. Toleration Act : 7, 84. Tonsure: 1,5,18,21; 11,3. Transgressio : 60, 47. Translation : 40, *. Transubstantiation : 7, 75; 169; 18, 12 Treason : 60, nr. 45 ff., 61, 11, Treasurer [pi chapter) : 37, 14 ; 54, 39. Trinoda necessitas : 2, nr. 16 , 27, 16. Turnus vicecomitis : 60, 11, 18. Twentieths : II, 16, 20, 33. Uniformity Acts : 1 5. Unio : v. Appropriation. United States : 142; 1 3. Upper house of Convocation : 364 ; 369 ; 371 ; 55- Usury (Lending at interest): 60, nr. 181 ff.; 6l,19, nr. 30 ff. Vacancy, Administration during (of bishopric): 4^; ot benefice: 43, 5, 9; 45,9; 48,16. Vestry: 101; 139; presidency (chair- manship) of : 44, 46 ; select vestry : 139. Vicar: 329 ff.; 335. Vicar-general (king's): 6, 20; 256 ; 30, 1 : of archbishop or bishop : 36, 9 ; 3°- Vicars choral : v. Minor canons. Vice-chancellor (of chapter) : 37, !*• Vicecomes : v. Sheriff, Turnus V. Visitation, by pope: 6, 18; by foreign heads of monasteries : 4, ^0 ; by the king: 6,21-23, 25, 41; 30,2,3; by archbishops : 294 ; by bishops : 36, 1,2; 48,2; 57,3,5,7,10; by arch- deacons and rural deans : 4, ^^^ ; 42,11; 43,3; 325; 48,2. Vows of Chastity: 170 ; 22, 19, 22. Wales: 1,23-25; 15,5; 45,8. Warden : 37, 14. West Indies: 12, 7; 145; 12,25. Westminster Assembly: 7, 41; 1 5, nr. 13; 16,21. Whitby : v. Streoneshalch. Witenagemot : 200 ; 353 f. Women, Ordination of: 20, 15. Cf. Deaconesses, Sisterhoods. Writ de excommunicato capiendo : 4, 71 ; 19, nr. 31; 27, 6; 61, 19, 36, 37; de contumace capiendo : 6 1 , 36, 38 ; de haeretico comburendo : 19, 11, nr. 20, 32, 39 ; 27, 6 ; mandamus : 27, 11 ; fieri facias de bonis ecolesiasticis : 27, 11 ; venire facias : 27, 11 ; qnare impedit: 60, 155; (juare non per- mittit: 60, 155; quare non ad- misit : 27, 11 ; praemunire facias : V. Praemunire; Indicavit: 60, nr. 138, 139, 153; scire facias: 60, nr. 140 ff. Cf. Prohibitions. H. C. N N >'.K''A< m^^^M^ •:-:-:-:a ft??s; •.v.».-:*>:»