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C. | H N: f == = : —": = HEI gº"—r; E | r - *X. - t- - - -> =; fiſſiſſill IIITIIIITTTTTIſ: Eºrº THE CONSTITUTIONAL HISTORY AND CONSTITUTION OF THE CHURCH OF ENGLAND THE CONSTITUTIONAL HISTORY AND CONSTITUTION OF THE CHURCH OF ENGLAND TRAN SLA TED FROM THE GERMA W OF FELIX MAKOWER BARRISTER IN BERLIN Avon dečet d'ºcé tendere in praejudicium ecclesiasticae libertatis quod pro Rege et re publica ſeecessarium invenitur.-9 Ed. 11 st. 1 (1315|6) Articuli cleric 8 31 g ml, 0 m SWAN SONNEN SCHE IN & CO, Lim. NEW YORK : MACMILLAN & CO 1895 Butler & Tanner, The Selwood Printing Works, Frome, and London, : : NOTE, Eor the various editions of books which have been used the reader should consult appendix XIV.-The Lehrbuch des Kirchenrechts 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. Scr. = Rerum Britannicarum Medii Aevi Scriptores. The number given is the number in the catalogue of the series, as printed in append. XIV, II, 1 c. Unless the contrary is stated, the Roman figure denotes the volume, the Arabic the page. Such a reference as $54, near note 57, is to be taken as a reference to the text of § 54, near the place where note 57 is marked. The year-dates added in brackets to citations of acts down to 1714 are taken from Statutes of the Realm. Where a double date is given, the first is old style, the latter new, the time indicated being the beginning of the parliamentary Session in which the act in question was passed. In all other cases year-dates have been corrected so as to make the year begin with January 1st instead of—as was the method of computa- tion which prevailed until the end of 1751—with March 25th. For the English translation the author, who is indebted to Dr. Felix Liebermann for many valuable suggestions, has made several alterations. Those of more material importance will be found in the following passages: § 1, note 21; $ 4, note 5 near note 9; $ 5, near note 8a; $9 III; $ 11, near note 30a; $ 19, note 1 ; $ 22, notes 5, 7, 13; $ 14, note 18; $ 27, note 13; $ 33, note 25; $ 43, note 2; $ 44, note 16; $ 48, near note 16a ; $ 54, note 7; $ 55, note 25; $60, note 11, near note 26; append. I, note a ; append. XIV, II, 2. CONTENTS. I, HISTORY OF THE CONSTITUTION OF THE CHURCH. 1. England. PAGE A. To the time of the Norman Conquest. § 1. (a) The introduction of Christianity § 2. (b) Relation of State and Church to one another . . . . 7 § 3 s (9) Development of the Church Constitution internally * , 10 B. From the Norman C޺st to the Reformation. § 4. (a) Relation of State and Church to one another . . . . . 12 § 5. (b) Development of the Church Constitution internally . . . 46 C. From the Reformation to the Present Day. § 6. (a) The Reformation . & t tº e g t * e , 48 § 7. (b) The struggle against Papists and Protestant sects at the end of the sixteenth and in the seventeenth century . g . 68 § 8. (c) Relation of State and Church to one another . e g , 962 § 9. (d) Development of the Church Constitution internally . & ... 100 § 10. 2. Scotland . g º e e & e † e º * t . 103 § 11. 3. Ireland † $ g * g * & º g & * e . 125 4. The Colonies and Abroad. § 12. (a) General . g & . . . * & g º & * . 141 § 13. (b) The United States and American missionary districts e . 151 II. SOURCES OF ECCLESIASTICAL LAW. § 14, 1. General © e & . . . g tº g ū † e g . 157 § 15. 2. The Book of Common Prayer . te e g e sº & † . 163 3. Articles of Belief º tº g º tº & * . . . * . 169 RELATION OF THE CHUROH OF ENGLAND TO OTHER CHRISTIAN CHURCHES. . The relation of the reformed Church of England to the Church in Eng- land before the Reformation . g e † g g g º . The relation of the reformed Church of England to other Christian Churches of modern times. * ſº * º º g . 177 . Procedure against heretics. * * * º º º º s . 183 viii CON TENTS § 20, § 21. § 22. § 23. § 24. § 25. § 26. § 27. § 28. § 30, § 31. § 32. § 33. § 34. § 35. § 36. § 37. § 38. § 39. § 40. § 41. § 42. § 43. § 44. 1 V. THE CLERGY AND THEIR ORDERS. 1. General 2. Participation of the Clergy in the Deliberations of Parliament 3. History of the Celibacy of the Clergy V. THE SEVERAL AUTHORITIES IN THE CHURCH. 1. The King. A. Medieval powers. (a) In relation to foreign influences. 1. The Supreme judicial power. Restriction of appeals to the pope 2. Restrictions of the papal legates. 3. Restriction on the introduction of bulls 4. Restraint upon ecclesiastical officials as to leaving the realm. (b) In relation to the National Church B. The Supremacy of the Sovereign as introduced by the Reformation. 2. Civil Authorities for the Administration of the Church. A. Authorities of the Reformation time. (a) Authorities for administering the revenues of the state from various ecclesiastical Sources (b) High Commission for Ecclesiastical Causes . B. Authorities of the Present Time. (a) The Governors of the Bounty of Queen Anne (b) Ecclesiastical Commissioners for England 3. Archbishops and Bishops. A. Origin of the various Archbishoprics and Bishoprics. e º B. History of the precedence of the Archbishops of Canterbury as against the Archbishops of York C. Rights and duties of the Archbishops . D. Rights and duties of the Bishops . 4. Chapters 5. Representatives and Assistants of the Archbishops and Bishops. A. Assistants in the exercise of governing powers . B. Assistants in the exercise of power to confirm, ordain, and consecrate C. Assistants in the exercise of governing powers and also in that of powers of confirmation, ordination and consecration JD, Administration of an Archbishopric or Bishopric during vacancy 6. Archdeacons 7. Rural Deans 8, Parish Priests PAGE 195 200 21% | 225 232 235 239 24.1 251 260 261 265 268 272 281 294 295 298 CON TENTS ix 9. Representatives and Assistants of Parish Priests. PAGE A. Stipendiary Curates t e wº & & º i gº º . 338 B. Readers . * e g g © & * * e g * . 340 C. Deaconesses' Institutions, Sisterhoods, Brotherhoods . * g . 343 . 10. Churchwardens . te & g g e tº tº & o g . 345 11. Minor Officers. A. Parish Clerks . . . & ſº tº ºf gº . . . g , 348 § 50. B. Sextons . . . . . . . . . . . . . . 850 $ 51, C. Beadles . . . . . . . . . . . . . 350 § 52. D. Organists . g º tº . * * & & e g . . . 350 § 53. 12. Lecturers . . . . . . . . . . . . . 351 18. Ecclesiastical Assemblies. / A. National and Provincial Synods. / $ 54. (a) Historical . . . . . . . . / e tº . 352 § 55. (b) The Provincial Convocations of the Present Day. . . . 372 § 56. (c) The Houses of Laymen . g ſº g * ſº º * , 377 § 57. B. Diocesan Synods and Diocesan Conferences . & g g . 378 § 58. C. Rural Chapters § * g e tº g º g g gº . 382 N4. Ecclesiastical Courts. A. Historical. § 59. (a) To the Norman Conquest t * g e * e ſº . 384 § 60. (b) From the Norman Conquest to the Reformation . . . . 892 § 61. (c) From the Reformation to the Present Day . . . . . 445 B. The Several Courts. § 62. (a) Royal Court . tº & * º g * & & º . 456 § 63, , (b) Archiepiscopal Courts . º tº * º iº e # . 460 § 64. (c) Episcopal Courts . tº & tº * & tº e e . 462 § 65. (d) Archidiaconal Courts . & º º t & t . . 463 § 66. (e) Other Ecclesiastical Courts . is tº * & & . . 464 A PPENIDIX. \. Ordinance of William I touching the competence of Ecclesiastical Courts (probably circ. 1070) & tº e g a a * . 465 II. Charter of Stephen, 1186 . . . . . . . . . . 466 III. Charter of Henry II, 1154 . * ë & g g * tº t . 466 IV. Constitutions of Clarendon, 1164 . . . . . . . . . 467 W. Documents touching the Submission of John to the Pope's Suzerainty, 1218. 1. Conveyance of the kingdom to the Pope . . . . . . 470 2. Oath of Fealty . e e * tº g t ; tº & . 470 VI. John's Charter, 21st November, 1214, touching elections of prelates . 471 X CoN TENTS PA. G. VII. Extract from the Magna Carta of 1215 . . . . . . . 47 VIII. Statutum de Provisoribus, 25 Ed. III (1350/1) st. 4 . . º . . 47 IX. Extract from Edward IV's Charter, 2nd November, 1462 . º e . 47s X. 25 Hen. VIII (1533/4) c 20 ss 3 and 4, touching the mode of filling vacant SeeS . e e Q e * e e & e o . 479 XI. The Thirty-nine Articles of 1563 in the Latin form of 1571 . . . 481 XII. Extract from the Canons of 1604 . ſº e e e º tº e . 488 XIII. Examples of Instruction to and Commission of a Rural Dean in the nineteenth Century. 1. Instruction to the Rural Deans of the diocese of Canterbury, 1883 . º e © º e e e º tº tº . 502 2. Rural Dean's Commission, as now used in the diocese of Salisbury. º © e º tº o º º e . 503 XIV. Conspectus of Literature. I. Collections of Documents º - e e º - e . 504 II. Church. History. 1. Chronicles e e o e e s e . . . . . 506 2. Law-books and legal treatises from the beginning of the twelfth to the beginning of the fourteenth century .. 526 \ 3. Modern works on Church History & Q tº tº . 530 NIII. Ecclesiastical Law . e e e e e º e g . 532 IV. Some important authorities on parts of the history and law of the church, though not specially devoted thereto . . . 532 W. Statistics, Lists of Cathedrals, Monasteries, Bishops, etc. . . 533 XV. Chronological Table of the Kings of England from the Norman Conquest to the present day . e º º º º º º . 534 Index . . . e º º e º e º e & º • * . 537 jistory of the Constitution of the Church, "I 1. E N G L A N D. A. TO THE TIME OF THE NORMAN CONQUEST. § 1. a. The introduction of Christianity.” s, early as the beginning of the third century Christianity was ſidely diffused in the Roman province of Britain, alike among the Omans and the native inhabitants. The constitution of the church as episcopal. Members of the British clergy took part in the uncils of Arles (314), Nicaea (325) and Rimini (359): doctrinal introversies did not leave the church of Britain unconcerned. Wing to missionary efforts, emanating partly from Britain, partly m Rome, Christian churches arose in Ireland and at several ints in what is now called Scotland. At the time when the successive descents of Teutonic tribes gan (450), the Roman province was essentially Christian. These athen settlers, however, gradually conquered the southeastern ||rt of the principal island, and their settlements were combined form seven small kingdoms, the boundaries of which were con- hintly changing: Kent (peopled by Jutes), Essex, Sussex, Wessex |ast, south and west Saxons), East Anglia, Mercia, Northumbria (all |ree peopled by Angles). For a considerable time, the hegemony || now to one, now to another of these states, the king of the ºding state being designated Bretwalda.” The earlier, British The dates which mark the gradual disruption of the country are brought ‘ether in Haddan and Stubbs, Councils I, 43. The conquest of the district ith of the Thames falls between the years 450–516; that of the whole eastern list, 516–77. various forms of the name occur. By some it is interpreted as Briten- lier; by others, perhaps more correctly, as Breitwalter, from the adjective ſter. The dignity of Bretwalda represents historically a preliminary stage the establishment of a common sovereignty for all Anglo-Saxon states. On derivation of the name and the position of the Bretwalda cf. Freeman, St. of Norman Conquest, 3rd edition I, 548, appendix B. Perry, Hist. of the Engl. Church I co 1–9.—Compare also appendix XIV, II, 3 a., b. H. C. L 2 TO THE WORMAN CONQUEST |I, 1A inhabitants were in part slain or driven out, in part merely reduced to subjection and compelled to discharge the lowest offices. In these districts but slight traces were left of the constitution of a Christian church, traces which were speedily obliterated.” Even whilst the driving back of the Britons by the new settlers was still in progress, the conversion of the latter was undertaken from Rome. Pope Gregory I sent in quick succession two missions, the first in 597 under the conduct of Augustine, the second, intended to reinforce the first, in 601 under the direction of Laurentius * and Mellitus. As the first point of attack Kent was chosen. The Kentish kin Aethilberht held at this time the position of Bretwalda. The queen a Frankish princess, had remained a Christian and was already exer. cising the rites of her faith in a church, which dated back to Roman times, near the chief town of Kent, Canterbury (= Kenterburg). Christianity as taught by the Roman missionaries differed in various external uses from the Christianity of those parts of the Country whose population still remained Keltic. The difference: related principally to the mode of determining Easter, to the rite observed at baptism and to the shape of the tonsure.” The emissaries of the pope succeeded, in a brief space of time, in extending the church over Kent and Essex. To the latter countr Augustine had gained ready admission, inasmuch as Saeberht, relation of Aethilberht, was ruler there. In Kent the church, spite of the blows which fell upon it, maintained its ground; b in Essex it was suppressed as early as 617–618, that is, shortly aft the death of Saeberht. Meanwhile (from 616) Northumbria under king Eadwine h become the leading state. Eadwine was a suitor for the hand * As to the alleged archbishop of York, Samson, who is said to have liº at the end of the fifth century, see Haddam and Stubbs, Counc. I, 149 note Geoffrey of Monmouth, not a credible authority, relates, Historia Briton, (ed. Giles) lib. xi Š$ 8 and 10, and after him Matth. Parisiensis, Chron. Thajº that the Saxons summoned to their help against the British king Caretic [according to Matth. Parisiensis (Rer. Brit. Scr.), Chr. Maj. I, 250 he ascend the throne in 586] an African king named Gormund, who had invaded Irelar Gormund defeated Careticus and ceded a large part of the conquered count to the Saxons. Secesserunt 7tague Britonum reliquide in Occidentales reg partes, Cornubiam videlicet atque Gualias. . . . Tres igitur archipraesul videlicet urbis Legionum, Theomºus Londomiensis, et Thadioceus Eboracená cum omnes ecclesias Sībī Subditas, usque ad humum destructas vºidissent : C. omnibus ordinatºs, quº ºn tanto discrimine superfuerant, diffugiumt ad tu mina memorum in Gualias. . . . Plures etiam Armoricanam Britann? magno navigio petiverunt : ita wt tota ecclesia duarum provinciarum, Loègr widelicet et Northamhumbriae, a conventibus suis desolaretur : Séd haec al referam, cum librum de eaculatione eorum transtulero. No such account found in the Anglo-Saxon chronicles, Beda Høst. Eccles., Nennius Høst. Brăton or Gildas De eaccid. Britanniae. On Gormund see also W. Hardy in Rer. B. Scr. No. 39; I, 596. f * Laurentius had been commissioned by Augustine to convey to Rome reports and enquiries. (See preface to Gregory's answers, printed in Hadd and Stubbs, Cowmc. III, 18.) * For the details see Haddan and Stubbs, Counc. I, 152. § 1] THE INTRODUCTION OF CHRISTIANITY 3 the Kentish king's sister. He received her to wife upon condition of allowing her the free exercise of her religion. Paulinus, a member of the second Roman mission, accompanied the princess in 625 to York, the chief town of Northumbria, and was successful" in inducing the king and the nobles (627) to accept Christianity; he it was who spread the Christian faith over Northumbria, and bore it also to certain places in Mercia. In the year 633, Eadwine was defeated and slain in the battle of Haethfelth by the united kings of Mercia and the western Britons, the former a heathem, the latter a Keltic Christian. As a conse- huenge, the Roman Christianity in Northumbria and Mercia became the object of persecution and its organization was destroyed. Paulinus fled to Kent, where he laboured until his death as bishop of Rochester. Upon Eadwine's overthrow the two provinces of Northumbria, Deira nd Bernicia, fell to separate rulers. Both of these princes had reviously been converted to Keltic Christianity, but renounced heir faith upon their accession to power." They continued the war with the Britons and were alike slain. Oswald now became king f Northumbria and in the year 635 defeated the Britons at enisesburna” (= Dilston 2). His conversion had taken place during is exile in the north. Thus the form of Christianity presented to im by his teachers was the Keltic ; and it was this form that, |ter his victory, he introduced into Northumbria, being assisted by shop Aidan, whom he had summoned from the monastery at Iona." As a result of the dominant influence of the then reigning kings Northumbria, Christianity was presently again diffused over rcia and Essex.” Here too the form which now prevailed was »ltic. In East Anglia, at an earlier time (between 628 and 632), king rpwald, acting under the suasion of the Romish Christian, king dwine of Northumbria, had accepted Christianity. After a short ºak in the propagation of the church, the work was, with the sent of archbishop Honorius of Canterbury, resumed (between and 636)” by Felix, a Burgundian bishop, and carried on with bcess. At a later date Christianity was further spread in the d, partly from Roman, partly from Keltic sources. - The conversion of Wessex was undertaken by the missionary inus, who arrived in Britain in the year 634. The mission was independent one, proceeding from North Italy. Here as in East glia there was an intermission in the work (643–50), after which was, in the latter year, taken up again by Agilbert, who was of llic origin but had studied long in Ireland.” * Compare, however, Haddan and Stubbs, Counc. I, 123 for an account of the |tism of Eadwine by an apparently British priest, Run, Son of Urbgen. Beda, Hist, Eccles. Book III, c. 1 $150. * Beda, Hist. Eccles. Book III, c. 1 $ 151. * Beda, Hist. Eccles. Book III, c. 3. - ' Haddan and Stubbs, Counc. III, 93 ff.-In 654, after a break of thirty-seven rs, a bishop of London was again consecrated—Bishop Cedd. Haddan and Stubbs, Counc. III, 88; on the date see III, 89, note a. * Haddan and Stubbs, Counc, III, 90. 4 TO THE WORMAN CONQUEST [I, 1A In Sussex it was not until about the year 680 that the conversion of the people—the king and queen had already embraced Chris- tianity—began. It was effected by the agency of bishop Wilfrid, who had been driven from York. ** Thus in the middle of the seventh century, even among the Teutonic inhabitants of Britain, the two forms of Christianity, the Roman and the Keltic, were represented in nearly equal proportions, The differences, which were in respect of minor points, were exag- gerated by both parties to the complete rupture not only of com munity of faith, but of community of life.” The Irish bishop Dagan refused to eat under the same roof as the archbishop of Canterbury." The Romish clergy, on their part, so soon as they felt strong enough treated the Kelto-Christian clergy as not entitled to officiate, and did not recognize the validity of orders conferred by them.” | Repeated attempts had been made to induce the Kelts to Sur render their special uses. Thus Augustine had held two solemn cor ferences with the British bishops (about 603); * whilst Laurentius the second archbishop of Canterbury, had addressed letters to th clergy of the Irish and the Britons.” Both had failed in thei efforts. It was only in South Ireland that the popes, before th middle of the seventh century, succeeded in obtaining the acceptan of the Roman uses.” - * Reports in Haddam and Stubbs, Cowmc. I, 202. For later times cf. Beſ (d. about 734) Hist. Eccles. Book II, c. 20 $ 147: . . . quippe cum usq hodže mor's sit Brittonum fidem religionemgue Anglorum pro nihilo hab" meque in aliquo eis magis communicare quam pagan?s. * Letter of Laurentius, Mellitus and Justus to the Scottish (=Irish) bishd (604–610) printed in Haddan and Stubbs, Counc. III, 61: . . . Dagami Episcopus ad mos veniens, mom Solum clbum mobiscum, Sed mec in eod hospitão quo vescebamºur, Sumere volužt. * Compare especially Theodore's Penitential (Haddam and Stubbs, Counc. 173 ff.), Book II, c. 9 $$ 1-3. § 1 runs as follows: Quº ordinat? Sunt a Scottor vel Britomum Episcopis, qui in Pascha vel tonsura catholic? nom sunt, adum aeccleside more Swnt, sed Žterum a catholico Episcopo manus. &mpositione com nventur. See likewise the words of Wilfrid (664) in Eddius, Vita Wilfr, (1 Brit. Scr. No. 71) I, 18.—After the conference of Streoneshalch, however, W. bishop of Wessex, which followed the Roman use, consecrated Ceadda to Yö, with the assistance of two British bishops—adsumpt?s ºn Societatem Ordinatio duobus de Brittonum gente episcopis. Haddan and Stubbs, Counc. I, 124. * Haddan and Stubbs, Counc. III, 38 ft. *' Printed in Haddan and Stubbs, Counc. III, 61. - * The efforts of pope Honorius I (625–38) and of the pope elect (640) John are reported in Beda, Høst. Eccles. Book II, c. 19.-Beda, also in Hist, Ecc Book III, c. 3 $ 155: . . . Hoc etenim ordine Septemtrºomalis Scottor (Scotti = the inhabitants of Ireland and of the islands on the west of Scotla provincia et Omnis matio Pictorum illo adhuc tempore (635) pascha Domžnác) celebrabat, destimams se in hac observatione sancti ac laude digm; pat Anatolº Scripta secutam ; quod am verum sit, peritus quisque facillºme c moscit. Porro gemtes Scottorum, quae in australibus Häbermae insulae partil morabantur, jamdudum ad monitionem apostolicae sedis antástitis, pasſ canonico ritu observare did?cerunt. Beda, Book III, c. 26 $ 237: Reve awtem patrºam Colmano, suscepāt pro illo pontificatum Nordanhymbror. famulus Christ? Tuda (664), qui erat apud Scottos austrinos eruditus at Ordºnatus episcopus, habens juacta morem provincide illius coronam tomsº ecclesiasticae, et catholicam temporis paschalis regulam observams; wº- T.I. f. , º f : " ...} : ; ; ; ; ; ; 4 C F CHRISTIA VITY 5 As then the domains of the two forms of Christianity were no longer coincident with the domains of the two races, the Kelts and She Teutons, but, on the contrary, both forms were represented even n the Teutonic kingdoms, the need of uniformity became imperative. Moreover, a settlement of the controversy was easier to effect in the eutonic kingdoms, where differences of race played no part. When Paulinus fled from Northumbria, there had remained behind me deacon, at least, who followed the Roman use. Intercourse with the Southern kingdoms of the Anglo-Saxons, with Gaul and with taly afterwards served to keep alive a Roman party in Northumbria. his party derived further support from the fact that king Oswiu (OSwio, Oswy), Oswald's successor, married a Kentish princess, and Baused his son Alchfrid to be instructed by the priest Wilfrid, who had studied in Rome and Lyon, and adhered to the Roman party. To put an end to the controversy, Oswiu in 664 Summoned a conference to meet at the monastery of Streoneshalch (= Whitby). At this conference there appeared bishops Colman of Northumbria, Jedd of Essex and Agilbert (before and perhaps still bishop of Wessex),” as well as others of the clergy. The representatives of \he two parties discussed in public the questions of the calculation f Easter and of the shape of the tonsure. The result of the dis- ission was, that king Oswiu decided in favour of the Roman use, hich was now universally introduced into Northumbria and Essex. Whatever remained of Keltic uses in the Teutonic kingdoms of ritain after the conference of Streoneshalch, was suppressed by hbishop Theodore of Canterbury (668–90). The national church uncil assembled by him in 673 at Herutford expressly confirmed e obligation to fix Easter according to the Roman mode of ckoning.” In the Keltic districts of the British Isles, however, the old usages ld their ground almost everywhere up to the eighth or the begin- g of the ninth century.” It was, in some cases, considerably * It is doubtful whether Agilbert had yet become bishop of Paris. Haddan d Stubbs, Counc. III, 106, note. * Counc. Herutford (Haddan and Stubbs, Counc. III, 118) c 1: Ut sanctum em. Paschae in commune Omnes servemus, Domžnica post quartam decimam, nam mems?s prºmi. * The Roman tonsure and calculation of Easter were accepted about 630 in th Ireland, in 704 in North Ireland (compare $ 11, note 3) and probably in mbria (Haddam and Stubbs, Counc. II, 6; the date 688 is given by Skene, tic Scotland, 2nd ed. II, 219); in 705 the part of Cornwall subject to Wessex jpted the Roman Easter (Haddan and Stubbs Counc. I, 673). The acceptance, out 710, of the Roman Easter and tonsure among the Picts was due to a Sree of Nectan MacDerili (Haddam and Stubbs III, 294); whilst the monastery Iona adopted it in 716 (Beda, Høst. Eccles. Book III, c. 4, Book V, cc 22, 24).- he dates are brought together in Haddan and Stubbs III, 223. The Welsh shoprics one after the other (middle of the eighth to the beginning of the nth century. Haddan and Stubbs I, 203) and the western parts of Cornwall robably from the middle of the ninth century. Haddan and Stubbs I, 674, 6) were the last of the Keltic churches to adopt the Roman Easter. Compare uno Krusch, Die Einführung des griechischen Paschalråtus im Abendlande ; Newes Archiv der Gesellschaft für diltere deutsche Geschächtskunde IX, 141sq. 6 TO THE NORMAN CONQUEST (I, 1A longer before the bishops of those districts surrendered their inde- pendent positions and allowed themselves to be incorporated in the papal Organization of the church.” As regards Wales” in particular, the princes of that country fell from the beginning of the ninth century, into political dependenc On the Anglo-Saxon kings. Soon afterwards began the gradua Coalescence of the constitutions of the two churches. The bishoprics of South Wales came, from the end of the ninth century, into more or less close connexion with the Anglo-Saxon church.” But it was not until the beginning of the twelfth century that the Welsh bishops completed their submission to the archbishop of Canter- bury,” and still another century passed before Welsh independence in state and church was wholly overthrown. Meanwhile Christianity in England had again had to struggle for existence. With the beginning of the ninth century came a series of attacks from heathen Northmen, especially the Danes. They pillaged the country and destroyed, above all, many of the large monasteries, For long the Anglo-Saxons had to encounter reverses; at last in 878] under the leadership of Aelfred the Great, they routed the Danes, whº were induced to settle peaceably under their own ruler in the north eastern and some of the eastern provinces, their king Guthrum and many of his people accepting the Christian faith. A centur of comparative respite from external attack followed, during whic the Anglo-Saxon kings were able again to reduce the Danish part the country to subjection. However, towards the end of the ten century, successive hosts of Northmen, among whom Christian * In regard to Cornwall see Haddan and Stubbs, Counc. I, 673-695. Fr the middle of the ninth century the single British bishop of Cornwall recogni: the Supremacy of Canterbury. In the middle of the tenth century proba the first Saxon bishop of Cornwall was consecrated. In the first half of eleventh century the British see was merged in the Saxon see of Crediton. * For the documents referring to Wales see Haddan and Stubbs, Cound 202–620, * Haddam and Stubbs, Counc. I, 204, note. * Haddan and Stubbs, Counc. I, 308, note. Urban of Llandaff (1107) Bernard of St. David's (1115) were the first bishops who subordinated the selves in every respect to the archbishop of Canterbury. Afterwards the sai Bernard claimed metropolitan authority for the see of St. David's, New strugg. ensued before Bangor and St. Asaph submitted to the archbishop of Canterbul St. Asaph being the last to yield. On the fruitless endeavours of Giraldus Barri, towards the end of the twelfth century, to raise once more the quest of the independence of the see of St. David's see Introduction to Vol. I of works of Giraldus (Rer. Brit. Scr. No. 21); on the efforts, equally fruitless, bishop Beck of St. David’s in 1284 see Introduction, pp. xxviiff, to Vol. Regist. Epist. Peckham (Rer. Bråt. Scr. No. 77). For the attempt of the re! earl Glendower in the years 1404 f. to restore the ecclesiastical independer of the Welsh bishops compare Haddan and Stubbs I, 668 ft., Pauli, Gesch. v. England, W, 33. *- * In Denmark king Harald II, about the middle of the tenth century, w forced into acceptance of Christianity by the emperor Otto I. His son Swe who was likewise baptized, became an apostate and displaced his fathé Harald died in 986. Swen (Swegen) headed most of the subsequent descer upon England and in 1013 expelled king Aethelred. He died in 1014; his sc Harald and Knut adopted the Christian faith. The former became king | § 2. RELATION OF STA TE AAW D C H U R C H 7 were now numbered, renewed the pressure. The bitter contest was bnded by a fresh division of sovereignty: for a short time the Anglo- Saxon king, Eadmund Ironside (1016–17), and the leader of the Northmen, Knut the Great, ruled the two states of the divided ſealm, the latter monarch having previously embraced Christianity. Eadmund died very soon after the division, and Knut now became King of all England (1017).” Knut favoured the church. From his 'eign Christianity in England was threatened no further by attacks of the heathen. | § 2. b. Relation of state and church to one another." During the early days of progressive conversion the church was Pntirely independent of the state. It entered the state as a sort ºf society, containing in itself all that was requisite for its own evelopment and directed by its own heads. Nowhere had it any \oints of contact with the civil constitution ; neither did the state nfluence the church, nor the church the state. But this was very soon changed. Conversion, as a rule, followed rtain lines: first the king was won over, and his example was ed to work upon the nobility; not until this had been done was e effort made to convert the common folk. Thus the church ted upon the ruling powers. Among the lower people, for long it 'l not possess the necessary support : it was accordingly compelled have regard to the wishes of the secular rulers of the state. he clergy of those days were better educated than those about am ; as a result, it was the bishops who everywhere took their ces as chief counsellors to the kings. That civil and ecclesiastical uences in the several states should work in the same direction s a natural consequence of this close connexion between the ders of the two interests. or was there any opposition between the several kings and the ntral governors of the church at Rome. The communications hich passed consisted mainly of admonitions from the pope to the ngs, which the kings obeyed, and of petitions from the kings to e pope, which the pope did not reject. This relation towards the pope continued unchanged when, in the ginning of the ninth century, the Anglo-Saxon kingdoms had en combined into a single state. Outwardly the pope meddled t little with the affairs of the English church; the sole important nmark, the latter leader of the Danish forces in England.—In Sweden Chris- nity gained the ascendency under Olaf Schoosskönig (circ. 1000), in Norway out the same time under Olaf I Trygväson. " In 1018, upon the death of his brother Harald, Knut became king of Denmark. For instances of the exercise of papal influence in the ninth and tenth Ituries see Stubbs, Comst. Hist. I, 267 c 8 $ 90. Gneist, Engl. Verfassungsgeschichte § 5 III.-Stubbs, Constitutional History c 8 $83. 8 TO THE WORMAN CONQUEST - [I, 1A points in this regard are the conferring of the pallium on the two archbishops and the taxation of England by the imposition of Peter pence.” Far more considerable was the influence which the pope exercised, not in definite legal forms, but in an informal way, either by personal or epistolary intercourse with Englishmen in high place, or through the mere force of that example, which the Italian and Frankish countries, more closely connected with the papal government, exerted upon less civilized England. - Within the land, church and state remained in intimate union. It is true, occasions already arose when the archbishop of Canter. bury” openly opposed the king. Such dissensions, however, were 0. a personal and transient character; there were no real and lasting controversies as to the relation of state to church. As a rule, the king with the assistance of the archbishop of Canterbury directed alike the secular and the ecclesiastical administration. At the national councils, whèrein important measures and laws were dis- cussed and adopted, both bishops and temporal magnates were present. The laws enacted dealt with spiritual as well as with secular things. In the legislation of Eadmund (940–46) and ofter afterwards, the resolutions arrived at are, it is true, divided in Out ward form into laws spiritual and laws temporal; but both group rest. On the consent of the same persons, nor is the division strict, carried out in regard to the substance of the several enactment In these laws we find, as touching ecclesiastical affairs, regulatio which deal with the keeping of the church's peace (ciric-grið), wi the right of asylum, the chastity of the clergy, dues payable to t church, the duty of repairing church buildings, the observance holidays and fasts, penal proceedings against the clergy and li matters. At other assemblies, held for the most part under tº presidency of the archbishops, the chief subjects of discussion w the internal affairs of the church. King and secular magma| frequently took part in such ecclesiastical councils. In like manner in lower spheres ecclesiastical and secular Offici worked in concert. This was especially the case in the field". jurisdiction. The royal officer and the bishop sat together in tº folk-moot of the shire. A similar relation seems to have prevail. in the hundred-moots.” Moreover, it was everywhere the clerg who conducted the ordeal before the folk-moot.” In cases whei church interests were injured, part of the money penalties impos| i * Compare also the mention of the pope in Aethelred VIII (1014) c 26: (. maesse-preóst man-slaga wºröe, oãº)e elles man-wearc tö swièe gewurce, b07. polºge he aegôres, ge hôdes ge eardes and wraecm?ge Swä wide Swā papa h; scrife, and daed-bête georne (“If a mass-priest becometh a manslayer otherwise doeth too grave a misdeed, then let him lose all, class and countil and go into eacile so far as the pope prescribeth for h7m, and let him willing atome for the deed’). So Knut II c. 41 (compare here leg. Hem. I [Schm appendix XXI] c 73 $ 6). For the history of Peter pence see Paul Fab Recherches sur le denier de Saônt Pierre em. Angleterre au moyen àge Mélanges d’archéologie et d’histočre published by l'école française de Roº, supplement to Vol. XII. 1892 pp. 159 ff. * So especially Dunstan (959–86). “Cf. § 59, notes 3 and 4, "Cf. § 59, note § 2) RELATION OF STATE A W.D CH U R CH 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 ormer kept constant watch on the conduct of the latter and served ſis 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 Df the Anglo-Saxon era, is a difficult matter to ascertain.” Two tights were in conflict with each other: the right, traced back to eathen days, of free election by the clergy, and the right, at least Co-operate, of those who had endowed the several bishoprics and bbeys. Particularly in the monasteries, the right of free choice of tº abbot (subject to episcopal confirmation) seems to have been in eat measure maintained.” In numerous cases, however, we find } * Cf. § 59, note 19. - | Edward and Guthrum c 12, buton he elles 66erme (kinsmen) haebbe. Be jd-gebºneówm and lage (Of people's ranks and law), Schmid, appendix V c 8. tituta Cnut' (Schmid, appendix XX; a law-book, probably dating from rtly after 1110) III c. 63.−The right of representing kinsmen in such a case aScribed to the king—but not in such a way as to exclude the possibility the bishop's right side by side with the king's—in Aethelred VIII c. 33, ut II c. 40, leg. Henrici I (a law-book, probably dating from 1110–18. ºhmid, appendix XXI) c 10 $ 3, c. 75 § 7. * Aethelstan (924 [925]–940) II c 26 $ 1: And se biscop (iman?ge B6 off- rnesse aet bäm geréfam, he hºt on his folgoëe sj (“And let the bishop collect he penalty for disobedience [?.e. for the non-execution of a law promulgated at e same time] from the geréfa, who is in his diocese'). Eadgar (959–75) III 3: And se déma be Ödrum won déme, gesylle ham cynge hund-twelftig scăll. 3 bote, . . . . and āman?ge bare scºre biscéop ba bóte to baes cynges handa | Let him who judgeth unjustly pay the king 120 shillings as a penalty, . ºd let the bishop of the shºre gather it into the king's hands”). - * Further details in Stubbs, Introduction to Epistolae Cantuarienses (Rer. rêt. Scr. No. 38 Vol. II) pp. xxviiff. * Cf. Gneist, Vfgsgesch. § 2, note 5; also Stubbs, Comst. Hist. I, 149 c 6 $ 57. * Poenitentiale Theodor? (probably dating from the end of the seventh cen- ry. Haddan and Stubbs, Counc. III, 173 ff.) lib. II c. 6 $ 3; Privilege granted y king Wihtred of Kent at a Witenagemot at Baccanceld, relating to the ection of an abbot in eight monasteries of Kent (date—between 696 and 716; "inted in Haddam and Stubbs III, 238; genuineness not beyond dispute); Žalogus Egbertà (regarded as genuine; between 732 and 766; printed in Haddan d Stubbs III, 403) c 11; Synods of Pincahala and Celchyth, 787 (Haddam and tubbs III, 447) c. 5; Council of Celchyth, 816 (Haddan and Stubbs III, 579) c 4. IO TO THE WORMAN CONQUEST [I, 1A 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 evenſ matters connected with church administration was not claimed by the church; although, in practice, there were many such matter in which the state did not intervene.” The clergy were not exemp from military service; they did not, indeed, as a rule take part in war personally, but they furnished men from their holdings. I isolated donations of land to churches and monasteries, or on othé special Occasions, varying degrees of freedom from services to t state were granted ; but in almost all cases there remained at leas the trinoda necessitas, as it was called, the obligations of milita service, the repair of bridges and the maintenance of fortifications When the Anglo-Saxon kings, to keep the Northmen away, saw the Selves compelled to pay them tribute—the well-known Danegeld they raised the necessary sums by the imposition of a land-ta But church lands did not contribute thereto, and they continued have this immunity whenever afterwards, in Anglo-Saxon tim this tax was levied for other purposes.” § 3. c. Development of the church constitution internally. I. Archbishops. After some initial uncertainty the Angl Saxon church, from the beginning of the ninth century onwar was permanently divided into two archiepiscopal provinces, ov * Compare $37, note 6. * Letters of Alcuin upon occasion of a vacancy in the archbishopric of Yor 796 (printed, Haddan and Stubbs, Counc, III, 499, 500). Compare also tº examples adduced in Stubbs, Comst. Hist. I, 149 f. c 6 $ 57. * Compare $ 59, notes 13, 14. * Compare $ 59, sub finem. * According to Aethelstan (924 [925]–940) I pr., tithes payable to the chur are to be collected even from the bishops' own property. * For the taxing of church lands under William II see § 4, note 21. * Gneist, Engl. Verfassumgsgeschichte $5 I, II.-Stubbs, Const. Hist. c. 8. § 3. I W TERNA L 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 Ourney Over their dioceses once a year, and were enjoined to hold, pparently 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- ented, by his one archdeacon.” Whether as early as these Anglo- Saxon days rural deans were instituted as resident overseers in Small istricts of the bishopric, is a doubtful matter.” The companions if the bishop, who remained behind at the episcopal seat, formed hemselves into a corporation. Such a corporation was, in the oldest 3riod, frequently monastic or at least composed of monks and cular priests. In the second half of the eighth century a sharper vision was drawn between these two classes." At the same time decline of monasticism began. In the following century the cor- rations at the episcopal seats were transformed, everywhere or Ost everywhere, into chapters of secular clergy. When then in tenth century monasticism was rejuvenated, a struggle broke Compare $ 33. * Compare $ 33. * Compare $57, notes 1 and 3. Compare $42. * Compare $43, note 2. Council of Clovesho, 747 (Haddam and Stubbs, Counc. III, 362 f): c 4 Ut episcop? &m Swis paroch?’s abbates atque abbatissa's momeant, tenus Seipsos primo pomant eacemplum bene våvendi, deinde subjectos Sibi egulariter conversamtur, diligent; cura eacerceamt . . . ; c. 5 . Ut Scopé monasteria, sº tamen ea fas est ita nominare, quae utique quamvis Qpor?bus 'st’s propter vim tyrannicae quandam avarătiae, ad religion’s ristianae statum nullatenus immutari possint, id est, quae a saecularibus, º, Džvinae Scilºcet legis ordinatione, sed humamae adžnºventionis praesump- ;6, utcºnque tementºr; tamen pro salute anºmarum Żm eisdem com/morantium, "e debeamſ, sit mecesse : et ut inter caetera eachortamenta praevidednt, me Sacerdot's ministerio aliquod illorum dežnceps debilitatum periclétetur, ºntºbus ad hoc eorum possessoribus ; c. 19 . . . Ut momach? Sew ºnomes . . . gºt?etam ac regularem vitam agant, . . . ; c. 28 . . . . et &nter alias regular's vitae observantias, vestibus consuet's juacta formam. Velºcet priorum, Sºve cleric?, sive momachi dečnceps utamtur . . . ; c. 29 quod post hanc synodum mom liceat clericos, vel momachos vel sanctº- ºn?ales, ulterºus apud laicos habitare in domżbus saecularium, sed repetant Qasteria ub? prºmºtus habitum sanctae profession’s Sumpserant ; is a gatine synods, of Pºncahala and Celchyth 787 (Haddan and Stubbs, Counc. & 447 ff.) c 4: . . . Ut Episcopi diligent? cura providednt, quo Ommes On?cº Su? camom?ce vivant, et momachi sew monachae regulariter conver- tur, tam ºn cºb’s quam in vestibus, ut discretào sit inter canonicum et Mnachum vel secularem, ; g I 2 TO THE REFORMA TION (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 NORMAN CONQUEST TO THE REFORMATION. § 4. a. Relation of state and church to one another." The conquest of England by the Normans brought with it tightening of the central state control. This strengthening of t civil power came at a time when the papacy, represented by Greg VII (pope from 1073), began to express with greater boldness th before the ultimate conclusions to which its principles led, and demand not merely the exemption of the church from secular int ference, but even the subjection of all the various civil forces to power of the papal see. The existence of these two opposite a progressive tendencies rendered a peaceful co-operation, based mutual regard, such as had hitherto in general prevailed betwe church and state, for the future impossible. In its stead came fir a sharper accentuation of the opposing principles and a more p cise definition of the rights and duties of each power toward other, then a struggle between the two for mastery in the state. 7 Compare $ 37. * Compare $37, note 6. 9 Compare $44, notes 3–5. º 19 Church-Scot, candle-Scot, Soul-Scot, plough-allms. a Gneist, Eng. Verfassumgsgeschichte $14.—Stubbs, Comst. Hist. c. 9 $ 101 (William c 10 $ 106 (William II), § 112 (Henry I), c 12 $$ 139, 140 (Henry II), § 153 (John), 3 and elsewhere. For the time of Henry III: H. R. Luard, On the relation between Engla and Rome during the earlier portion of the reign of Henry III, Cambridge 1877 (deals the years 1216–35).-Weber, Heinrich, Uber das Verhältnis Englands Zw Rom wiſh rend # der Legation des Kardimals Otho in den Jahren, 1237–41, Berlin 1883. Cf. also appen V, II, 3 a. - § 4. A. E. LA 3 CA OF STA # E 4 ºf £3 CH J R Cº I3 Tºuring the first stage of that, strºggle, tº William J to the death of Henry ... (1906–12:2) we see a sueady retreau 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 Richard II (1272–1399), the state turns to the resolute assertion of its rights, and endeavours Sy strict regulations to restrain the church within limits consistent with the welfare of the body politic. The proceedings of Edward [II (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, is foreign foes of England. From Henry IV to the Reformation 1399–1529) follows a third stage, a time of comparative peace. oth parties maintained their irreconcilable views. But the atten- ion of the kings was fully occupied by the continuance of the great truggle with France and by the civil wars of red and white rose; he clergy, on their side, needed the protection of the civil power gainst the newly arisen party of reform." Thus, in this period aim, small skirmishes between church, and state occurred; but either of the two parties staked its whole forces on the issue, and \th preferred, as each difficulty sprang up, to bridge the gulf be- (een their principles by conventional dispensations and compro- SeS. he constitution of the English state under the first Norman gs was that of an absolute monarchy, the will of the sovereign ng, however, influenced by frequent discussion with his nobles.” was only by degrees that, following isolated precedents, decisive }lutions of the magnates of the land, and consultations with resentatives of the knights of the shire and the towns became Omary, the former from the time of Henry III, the latter from t of Edward I. In spite of the fact that the influence of the iament thus originated, gradually increased, the power of the kings aimed for long so preponderating, that their personal character ost determined the whole administration of the government. Ordingly, the relation of state to church varied with each suc- ing reign, especially during the acute period of the struggle. William I based his claim to the crown of England mainly on an $ged hereditary right of succession.” But he at the same time nvading England appealed to the Sanction of pope Alexander II, o had sent him the banner of the church." When, however, he first attacks of Wycliffe upon the doctrines of the church were circ. 3. Shirley, Introduction pp. xv. ff. to Fasciculº Zºzanºorum (Rer. Brăț, Sor. 5). Compare $ 21, note 6. |Stubbs, Comst. Hist. I, 280, note 1 c 9 $95.—Cf. however the view of the ists in the thirteenth century, Bracton (Rer. Brit. Scr. No. 70) WI, 74: Non m tenetwr (the king) warrantizare donationem et feoffamenta regum qui Taverant ante conquestum, pse en?’m reac non est e o ru'm haeres . . . The pope approved the attack on England, partly because archbishop Sti- ld of Canterbury had obtained the pallium from an antipope. I4 TO THE REFORMA TION |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.” 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 O Rome. This explains the circumstance—though other reasons may also have prevailed "-that in an ordinance issued probably abou 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 case to the exclusive adjudication of the ecclesiastical authorities (aſ whose disposal he placed the coercive powers of the state), and in so far admitted the validity of ecclesiastical law.” Thus, for thſ 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. BU William, on the other hand, also laid a foundation for the permaner incorporation of the higher clergy into the body politic of Englar as peers of the other magnates. This was effected by extendi to the higher clergy that feudal relation which, even as regard secular magnates, was first perfected under William I.” This inn; vation was essentially effected by the condition imposed by Willia probably about 1072, that the several bishoprics and greater abb should furnish a definite number of knights; various administrati measures in the same spirit gradually put the lands of the hig * Letter of William I to pope Gregory (printed in Migne, Patrologiae Cur Completus Vol. 148 p. 748, among the letters to pope Gregory, No. 11): Hu, tus legatus tuws, religiose Pater, ad me veniens eac tua parte, me admoſ quatemus tibi et successoribus twis fidelitatem facerem et de pecunia, gi antecessores mei ad Romanam Ecclesiam mittere solebant, mel'čus cogătar wnwm, admis?, alterwm mon, admisi. Fidelitatem facere moluſſ, quia mec promisi, mec antecessores meos antecessoribus tufts id fecisse comperio. Pect tribus fere annis, in Galliès me agente, negligenter collecta est; nunc divina misericordia me in regnum meum reverso, quod collectum est praefatum legatum mºttàtur; et quod reliquum est, per legatos Lanfra archiepiscopi fidelis mostri, cum opportunum fuerit, transmittetur. The date of the letter as given in the text is inferred from letters No. 50 5074, 5135 in Jaffé. Dünzelmann in Forschungen 2\ºr deutschen Geschic XV, 533 would lead us to adopt 1078–9. According to Freeman, History Conquest IV, 433, note 1, it was not before 1076; according to Stubbs, Co., IIäst. I, 309, note 1, c. 9 $ 101, about 1076. * Alleged reasons are:—(i) that the intention was to weaken the Anglo-Sa folk-moot in favour of the Norman bishops; (ii) Spelman's conjecture (cf. : I, note a) that the ordinance dates from 1085 being adopted, it is conten that the ordinance was the price paid the church for renouncing oppositio. the then projected, afterwards (at the Council of Salisbury in 1086) execu plan, that all capable of bearing arms, including the sub-tenants of the cle: and laity, should take solemn oath of fealty to the king. - 7 The ordinance is printed in appendix I, where note a "discusses the da For further particulars as to its scope see § 60, note 3. * For a similar relation between thegns and king in Anglo-Saxon times Gneist, Verfassungsgesch. § 1, note 1. § 4. & E; 4 ºf ON OF STA Tº A. W.'ſ; T H ºf ; C # I5 'lergy on the same footing in other respects as those of the secular assais.” The view took form that the possessions of all the sees ochester excepted), of the larger abbeys and some parishes were aronies, that is fiefs held immediately under the king as feudal bra." Important was it that this view was also adopted by the hurch, and that here again the two contending powers had a ommon basis.” In course of time manifold inferences, which, how- ver, could not always be followed out to their full extent, were lrawn from the feudal character of the possessions of the higher lergy. Many of these alleged ‘inferences' are due to the fact that reviously existing rights and duties were brought within the pur- iew of the feudal principle and interpreted by its light. The means by which William sought to keep the church in check he collected by Eadmer, a contemporary writer, as follows:—“Some the things which he ordered to be newly observed throughout hgland I will set forth. . . . He would not endure that any- e in all his realm should, save at his bidding, admit the chosen ntiff of the Roman city as pope, nor that any should at all receive ſter from the pope unless it had first been shown to him. Nor d he suffer that the primate of his realm, to wit, the archbishop of interbury . . . presiding over a general Council of the bishops, Yuld enact or forbid ought, save such things as were according to royal will and had been first Ordained of him. Nor yet did he ºnt that it should be permitted to any of his bishops to appeal, mmunicate or visit with other ecclesiastic pains any of his ºns or servants, accused by public clamour of incest, of adultery, some capital offence.”” It is hard to say now whether these ciples were really so new as Eadmer assumes. At all events, ave to do here not with general orders issued by William, but ompare $ 21, note 4. - ºnly in Anselm's struggle with Henry I was the king's position as suzerain 6 prelates for a time challenged. In chapter 11 of the constitutions of Éndon, which was not rejected by the pope, the statement is quite clear: #episcopi, episcopi, et universae personae regn?, quº de rege tement in #e, et habent possess? ones su as de do m i no rege sº cut baro- ºn, et inde respondent justit??s et mºnistris regis, et Sequºuntur et facăunt is rectituděmes regias et consuetudºmes. Eadmer (born probably about 1060, died about 1124, or according to Rule , Hist. Nov. (Rer. Brit. Scr. No. 81) p. 9: Cuncta ergo divāna simul et tºna ejus mutum eacpectabant. Qude Cºuncta, ut paucis anºmadvertantwr, dam de àis quae mov a per Angliam Servar? Constitułt pomam. . . . Non pati volebat quemgwam in Omn? dom?natione Sua constitutum Romanae pontificem pro apostolico mis? Se jubénie recipere, aut ejus litteras sº prº- is sib% ostensae nonfuissent ullo pacto suscºpere. , Primatem quoque regni ºrchiepiscopum dico Cantuariensem. . . . . sº coacto general? episco- ºn concilio praesideret, non sºmebat quicquam statue’re aut prohibere, nåså suae voluntatº accommoda et a se prºmo essent Ordinata. Null: měhºlo- is episcoporum suorum concessum ºr? permittebat, ut alºquem de baron?- hús Seu månästrås, sive incestu, sive adulterio, Sive aliquo capital? crèmène ºatum publice nåså ejus praecepto implacătaret aut eaccommunicaret, aut ecclesiastică răgoris poena consträngeret. I6 TO THE REFORMATION [[, º with isolated instances from which Eadmer has, on his own respon. sibility, inferred a general rule.” William II felt the danger of an independent organization of th clergy under their own heads, the archbishop of Canterbury a primate of England * and the Council of the national church. Ac cordingly he attempted to prevent these heads as long as possibl from attaining to well-Ordered efficiency. The death of Lanfran in 1089 left his archbishopric vacant; the king refused to fill it declaring that he would be his own archbishop.” For several year he withstood the pressure of the mobility and the clergy. However during a severe illness, which was skilfully utilized by the churc party, he yielded so far as to appoint a new archbishop (1093). Eve then he still declined to give permission for the holding of a counc of the national church.” Under his rule the rights which t crown had hitherto enjoyed, were maintained.” Financial clair * Stubbs, Comst. Håst. I, 309 c 9 $ 101, inclines to the view that an agr ment of effect as quoted was entered into between the king and the Engl church. There is however no statement of the chroniclers that such was case, and Eadmer's language points to a one-sided exercise of power, not to a sort of contract. 14 The subordination of the archbishop of York to the archbishop of Cant bury had been recognized during the reign of William I. It had, it is t been effected in concert with the king, and at a later date Henry I sough maintain, in opposition to the pope, the agreement which had been reac Cf. § 34. Though the kings may have had their reasons for regarding subordination as advantageous to the state; yet, on the other hand, the gow ment of the church party was thus unified and strengthened. * Eadmer, Hist, Nov. (Rer. Brit. Scr. No. 81) p. 30, year 1093: . Žpse (Anselm) hoc tempore, mec alºus qu’s archiepiscopus erót, me eaccepto: * Eadmer, Hist, Nov. (Rer. Bråt. Scr. No. 81) p. 48, year 1094. Archb. A says to Will. II: Iube, si placet, concilia eac antiquo usu removará. Generale mempe concilium episcoporum eac quo reac factus fužst? nom. Žn Anglia celebratum, mec retroactis pluribus annis. The king replies:– m?hº visum fuerit de his agam, non ad tuam Sed ad medm voluntatem also letter of Anselm in note 17-As to the council at Rochingeham, 10 § 54, note 16. - 17 Chronicle of abbot Hugo of Flavigny (the chronicle was written b grees circ. 1085–1102; the author was in England in 1095 or 1096 a attendant of the papal legate ; printed in Monumenta Germaniae ; Scrip VIII p. 474), year 1096: Tumc temporis pro componenda inter fratres Wii regis filios concordia, Willelmum videlicet regem Anglorum et Robertum q tem, Norman norum, abbas Dāvīomensis eac praecepto papae mare transfer wi praescriptum regem ammoneret de multis quae illicite fiebant ab é episcopatibus videlicet et abbat's quas Sibi retimebat, mec eis pastores prol bat, et reditus proventusque Omnium Sibi assumebat, de Symonia, de for tione clericorum ; et quia conventionem fecerat cum eo Albanensis episc quem primum illo miserat papa (cardinal the bishop of Albano, legate in land in 1095), me legatus Romanus ad Angliam mitteretur mºs' quem reac cíperet, et quia adeo auctoritas Romana apud Anglos avarātia et cup?t legatorum vºluérat, ut eodem Albanense praesente et consentiente mec cq dźcente, immo praecipiente, Camtuariensis archiepiscopus fidelitatem Petro et papae wraveral Salva fidelitate domini sui regis. Quae res into adoleveral, ut ºvullus €92 parte papae ven?ens honore debâto eaccēperetur, 7. esset in Anglia arch?ep?Scopus, episcopus, abbas, medum monachus aut cle qui litteras apostolicas suscipere auderet, medum obedire, mis; reac iuberets Letter of Anselm (end of 1099 or beginning of 1100) to Paschal II (M $4] RELATIO/W OF STA TE A W D C H U R CH I7 were also more strictly enforced against the clergy. A This was partly done by drawing new inferences from the analogy of lay iefs. An ecclesiastical crown fief, vacated by the death of the ccupant, was regarded as a knight's fee, which in default of an heir reverted to the crown.” The king, accordingly, first attached he usufruct in the interval between two occupations.” Not Con- ent with that, but applying the analogy of reversion completely, he reduced the substance : for during a vacancy he sold or let out Shurch lands on farm for a long term, a large fine being paid down ſt once, which passed into his own coffers.” When in any particular ase the levying of a land tax was requisite, in breach of the usage a connexion with the earlier Danegeld he extended the liability ) the possessions of the church.” Henry I had, at his accession, to give a formal assurance that e would abstain from selling church land or letting it out on irm.* A vacant ecclesiastical crown fief was now treated not as trologiae Cursus, vol. 159 p. 74; among Anselm's Letters, Book III, No. 40): * Eacigebat enºm a me reac ut voluntatibus Suis, quae contra legem et untatem Dei erant, sub mom? me rect?tud in is assensum praeberem. n Sºme Sud jussione apostolicum molebat recipi, aut appellar? &n Anglia; wt epistolam e? mºtterem, aut ab eo missam reciperem, vel decret's ejus direm. Comcilium mom permisèt celebrari in regno Suo eac quo reac factus per tredecám ammos. Terras Ecclesiae homºm?bus Swis dabat ; . . . Haec ſulta alia . . . . videns, petić licentiam ab eo sedem adeundé apostolicam, ide consilium de anima mea et de officio mihá injuncto accºperem. Re- dźt reac me in se peccasse pro sola postulatione hujus licentiae, et proposuit ut aut de hac re, sicut de culpa, satisfacerem, et securum illum redderem, mpl?us peterem hanc licentiam, mec aliquando apostolicum appellarem, He terra éjus cæto eacărem. . . . Anglo-Saxon Chronicle, under year 1100. (Rer. Bråt. Scr. No. 23) I, 364: 3odes cyrcean he myöerade, and ba bisceoprices and abbotrices, be ba eal- on his dagan feollam, ealle he h; oë'êe wič feo gesealde, oëöe on his agenre heolol, and to gafle gesette, for Ö'an be he ael ces man mes, geh a do des lae we des, y'rfen wºm a be on w olde, . . . . (God’s church he brought And the bishoprics and abbacies whose elders [heads] in his days fell, them either sold for money or kept them in his own hand and farmed them out ºnt, for that he would be the heir of every man, of clerk and of layman). or the fact that this right was first exercised by William II see Stubbs, t. Hist, I, 325, note 2 c 10 $ 106 and Freeman, The Reign of William s II, 564 ff. appendix W. ee note 22. Compare further Florentius Wigorniensis, Chron. year 1093 "horpe II, 30): Quº cum se putaret cæto moráturum, ut eſſ Suº barones suggesserunt, vitam swam corrègere, ecclesias mom amplius vendere, mec ad censum pomere . . . promisèt. - * 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 eccles??s propria et dominica eral, . . . quia majorem fiduciam in oration?bus Sanctae ecclesiae habebant quam in defensionibus armorum. Et hanc liber- tatem habużt sancta ecclesia usque ad tempus Willielmº jum? or 2 s, quº de baron?bus totăus patriae awazºlium petät ad Normanmiam retinendam de fratre Suo Roberto eunte Jerusalem. Ips? autem concesserunt e? IV sol. de 707 &Q?! &Q we h ’ da, sancta m eccles? a m mom eaccº p? entes ; quorum dum. ſº guerto clamabat ecclesia, libertatem suam reposcens, Sed nichºl Sibi profºu?t. * Carta Henric; I (printed in Statutes of the Realm I, 1 and by Liebermann |H. C. C I8 TO THE REFORMATION [I, 1 an escheated knight's fee, but—after some vacillation—as a fie 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 En land between state and church. The dispute turned upon the rela tion of the bishops to the king. Anselm, archbishop of Canterbur was the leader of the church party. He had repeatedly had diffel ences with William II, especially as touching money, had cons quently retired in dudgeon from England, and remained, during thi latter years of that king's reign, in Italy and France. Abroad h came in contact with Hugo of Lyon; with Urban II then, and wit Pascal afterwards, pope, who alike pursued the quarrel about in vestitures against the German emperors, Henry IV (1056–110 and Henry V (1106–25). Returning to England at the invitation Henry I, he refused to do him the accustomed homage. He als refused in future to consecrate the bishops whom the king, accor ing to the custom hitherto prevailing, had invested with the pastor staff and ring. In long negotiations with the pope and the arc bishop the king endeavoured to uphold his rights. At last at gemot held in London in 1107 a settlement was reached, the ex terms of which are not ascertainable with complete certainty fr the extant evidence. We know, however, that the king surrender his right of investing with staff and ring; on the other hand does not seem to have admitted in favour of the chapters limitations whatever of his own right to fill vacant sees.” Anse in Transactions of the Royal Historical Society 1894 p. 40): . . . Et regnum oppressum eral injust’s eacactionibus, ego respectu De? et a more q erga vos omnes habeo, sanctam Deč aecclesiam imprimás liberam facio quod nec vend a m mec ad firm am poºnam mec, mortuo archiepiscopſ. episcopo sive abbate, aliquid accipiam de dominio aecclesiae vel de hom?" efus, domec successor in eam ingrediatur. . . . * Eadmer, Historia Novorum (Rer. Brit. Scr. No. 81) p. 186: . . . . . h?nc praesente Anselmo, astante multitudène, annuit reac et statuit ut tempore in reliquum nunquam per dationem bacult pastoral? § a mul? quisquam episcopatu aut abbatia per regem vel quam lºbet la’ m an um in Anglia in vestº retur, concedente quoque Anselmo ut mºll lºt praelationem electus pro homºmºo quod regi faceret consecrat; one Susq honor's prºva retur. Rule, Introduction to Eadmer, l.c. pp. xlii f ass! that Eadmer had no accurate knowledge of the final settlement, but that he b his account, especially in so far as it relates to homage, on Paschal's lettº 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 Rad. de Diceto, Abbreviationes Chronicorum (Rer. Brit. Scr. No. 68) I, 236, by Hoveden, Chronica (Rer. Brit. Scr. No. 51) I, 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. Brºt. Scr. No. 90) II, 493, before whom Eadmer's account lay (l.c. II, 489): Investiturum annuli et baculé indulsit in perpetuum ; retento tamen elect? on 28 et regali wºm privilegio. Anglo-Saxon Chronicle (Rer. Brit. Scr. No. 23) I, 368: se cyng . . . . to Augustes aginne on Westmynstre waes, and baer ha biscopricen and abbodrècen geaf and sette, be on Englelande očiče on Nor- mandige buton ealdre and hyrde (The king was at the beginning of August RELATION OF STATE A W D C H U R CH I9 his part, withdrew his opposition to the doing of homage by the shops in respect of their temporal possessions.” In the future as the past they were in this regard subject to feudal law. The success obtained only emboldened the church party to urge W demands.” But Henry was bent on maintaining to the full Westminster and there bestowed the bishoprics and abbacies which in Eng- d or in Normandy were without head or shepherd). Hugo Cantor (written ore 1128; The Historians of the Church of York (Rer. Brit. Ser. No. 71) II, : Propter interdictum et anathema Romanae ecclesiae reac tandem investi- as dºm?sit, dźm'ss one guidem qua nihál aut parwm am is it, parwm dem regiae dignitatis, mºhil profsts potest at is quem vellet intro- and . . . . Sed si fas est dici, adhue habet ecclesia decimantes mentam Refhºn", et Colantes culicem, et deglutientes camelum, de manual' investitura * de elect? one et consecration is libertate n : h il mu- t U 6 S. . . . admer, Vita Anselmi (Rer. Bråt. Ser. No. 81 p. 414) goes much further: antecessorum suorum usu relicto, nec person as quae in regi- ecclésiarum sumébantur per se eleg it, nec eas per dationem virgae ral's ecclesłłs quibus praeficiebantur investivit. Similarly MS. codeac Crośland sub Joãffrido abbate p. 140, quoted by Spelman, Concilia II, 28 Codex is not identical with the Chronicle of the Pseudoingulph of Croy- ... ré00 . . . Concilºo (the clergy and barons) . . . constituto tºfuras amodo Ecclesiarum, per annulum et baculum remisit; electiones ld to ru m 0 m nºbu's eccles? is libere concess it; Episcopatuum et £arum vacationes successoribus restituendas integre promisit, ac omnia Mae Sancta mater Ecclesia diu antea suspáraverat, regali munificentia ºt, su's tantum juri bus regal? bus sepos it is et eaccept is. An- ºn a letter to the pope (printed in Eadmer, Hist. Nov. [Rer. Brit. Scr. p.191, under the year 1108; according to Rule, Introduction to Eadmer, xlii f to be assigned to 1105) declares: . . . . Reac . . . oboedienter Čen's vestram jussionem, investituram ecclesiarum, renitentibus multis, 9 deseruč. . . . Reac ipse in person's eligend's nullatenus propria voluntafé, Sed religiosorum se penitus committit consilio. . . . ischal II in a letter to Anselm (in Eadmer, Hist, Nov. [Rer. Brit. Scr. p. 178 under the year 1106) had, without surrendering the principle, the latter to withdraw his opposition to the doing of homage by the : Quod Anglic? regis cor ad apostolicae sedis oboedientiam omnipo- & dignatio inclinavit, eidem miserationum Domino gratias agimus, Quod autém et regi . . . adeo condescendimus, eo affectu et com- Jºe factum noveris, it eos qui jacebant erigere valeamus. Qui enim stans ad sublevandum manum porrigit nunquam jacentem eriget, nisi et àpse tr. Caeterum, quamvis casui propinquare inclinatio vided tur, statu m It rect? tº dº nºs (with double meaning) non a mºtt it. Te autem, ab illa prohibitione . . . absolvimus, quam ab antecessore nostro memoriae Urbano papa adversus investituras aut homânia factam 8. Tu, vero €0s qui investituras acceperunt, aut investitos benedioc- €rºnt, aut homżnia fecerunt, . . . suscipito, et eos . . . absolvito. Rule, Introduction to Eadmer l.c. pp. xliiff, 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, Håst. 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 § 123; III,302,304 c 19 $$ 377, 378; III, 532 c 21 § 462; Friedberg, Defin. p. 173) was known, and that it is a reasonable sur- º º the establishment of this difference was a consequence of the events O º * The growing character of the papal claims is well shown by a letter written 2O TO THE REFORMATION [I, 1 the prerogatives inherited from his forefathers. When, for exampli in 1116 the pope sent a legate, Anselm, abbot of St. Saba, to Englan to take up his abode there and to thwart the native archbishops, th king forbade the legate to enter the country.” Moreover menti is made of cases in his reign in which the resolutions of chur councils were framed with the consent or confirmation of the ki. or the secular magnates.” What legal effect attached, in tº opinion of contemporaries, to such a confirmation, can no long be ascertained. In spite of Henry's vigorous exercise of the royal power, a secon considerable advance of the papacy falls within his reign. dispute between the archbishops of Canterbury and York as official position and precedence ended in the former's accepting t. position of papal legate (1126).” He thus became an official of t papacy, which the archbishops of Canterbury had not hitherto be His example was followed by later archbishops.” For the fut then the right of the pope to intervene in the archbishop's admin tration could not well be challenged. It is especially to the f that the highest authority in the English church was, as a rule permanent papal legate that we must trace the notable increas appeals to the pope which presently showed itself, particula during the next reign. - Stephen's reign was characterized by pliability to ecclesiast claims. That was the form in which the king paid the clergy their support of his usurpation. In his second charter (11 express mention is made of the confirmation of the king by Innocent II. Among several concessions to the church whic contained in this charter,” the following may be emphasize & in 1115 by Paschal II to the king and the English bishops (printed in Ea. Hist, Nov. [Rer. Brit. Scr. No. 81] p. 232). Four demands are therein f lated: 1. Confirmation by the pope upon the election or translation of bis 2. Reservation to the pope of final decision in all judicial proceedings a bishops; 3. Freedom of appeals to the pope; 4. Councils to be held only the pope's knowledge. It is alleged that in all these respects the pope's was contravened in England. - * Compare $ 24, note 4. * Compare $54, notes 25 and 26. * Compare $34, note 12. * Compare $34, note 15. * Printed in appendix II. * According to Henry of Huntingdon (Rer. Bråt. Scr. No. 74) Bk. VII p. 258 the king had already made some concessions, for the most part cont in the charter of 1136 (among them two of those mentioned above) at Chri 1135. Stubbs, Const. Hist, I, 347, note 2 c 10 $ 113, however, suppose there is a confusion here with the later charter. The passage runs: Inde per- reºcłł reac Stephanus apud Oacemeford, ubi recordatus est et confirmavit pacta, quae Deo et populo et Sanctae ecclesiae concesserał Żm die coronat? on 7 S S 'u ae (26th Dec. 1135). Quae Sunt haec: Primo vovit, quod defunct is ep is cop is nºwn quam ret? meret eccles? as in manu sua, sed statim election? can On? ca e consent? en's episcopis eas investºret. Secundo vovit, quod nullius clerici vel laici Silvas in manu sua retineret, sicut Henricus reac fecerat, qu? singul?s ann?s implacitaverat eos, så vel venationem cepissent in Silvis proprºs, vel S7 eas ad necessitates Suas eactèrparent vel děmčnuerent. . e Tertão vovit, quod Denegeldum, id est, duos solidos ad hādam, quos antecessores Su? accàpere Solebant singul?s annis, in aeternum condon.aret, Haec principa- liter Deo vovit, et alºa, Sed nºhºl horum ten u žt. ... ºr RELATION OF STATE AAW D C H U R CH 2I puliarly important : in suits against the clergy and in suits as to private property of church officials and of the church 8? the ºlesiastical courts are recognized as exclusively competent; the ng promises to entrust to the chapters during episcopal vacancies management of the possessions belonging to the bishopric ; the stamentary dispositions of the clergy are to be observed ; in case I die intestate, their property shall be distributed according to the gment of the church pro salute animae (i.e. to ecclesiastical foun- ions and to the next of kin);” lastly, the charter contains allusion to the way in which the appointment of bishops is to e place : it is to be ‘in canonical form ' (i.e. by election of the pter).* in certain other respects too the want of a strong government led marked progress in the realization of the pretensions of the rch, if only as a matter of fact and without general and express cession. V enry II had fought in conjunction with his mother Matilda ighter of Henry I) against Stephen for the possession of the ne. By a compromise (1153) Stephen was recognized as king Henry designated as his successor. Thus Henry II had no need archase his tenure of the crown from parties in the state. In the ter” issued at his accession he confirmed not the concessions tephen but the engagements entered into by his grandfather y I. ring the reign of Henry II the second great struggle between and church ensued. The leader of the church party was as Becket, Already as royal chancellor a high” officer in lministration, he was, at the king's instance, elected archbishop nterbury (1162). The object at which Henry aimed was per- ſo unite the control of church and state in a single office. But t defeated the project by resigning the chancellorship.” Minor nces followed.” The struggle about principles began at the perhaps the expression distributionem bomorum ecclesiasticorum is to jerstood. But perhaps only distributio after the death of the holder is as to which the charter contains further on a more precise regulation. * For the connexion of this provision with other legislation as to intestacy compare $ 60, notes 118 ft. * Domec pastor can on 7 ce substituatuºr. * Printed in appendix III. * The chancellorship in these times gradually gained in importance. Probably in Becket's day the post of justiciar was regarded as 'the higher (cf. Stubbs, Comst. 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. Stubbs, Comst. 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, in 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, Comst. Hist, I, 499 c 12 $139). 22 TO THE REFORMA TTON [I, synod of Westminster in October, 1163. The immediate occasi was supplied by the king's proposals to limit the right of the cler to be tried by ecclesiastical tribunals. As the reign of Henry II One of the most important for radical improvements in the admin tration of secular law, it is probable that these proposals touchi the spiritual courts were only parts of a more extensive scheme reform.” Becket resisted. The king thereupon returned to position he had held when issuing his first charter : he required bishops to abide by the legal usage in the days of his grandfath Henry I.” But an unconditional agreement of this sort the bish were not prepared to make; inserting in their answer the resen tion salvo ordine, they sought to leave the door still open for a fut claim to more extensive rights, especially those accorded them Stephen. No settlement being reached at Westminster, the disp was continued at the national council of Clarendon, January, 1 By the king's command what he wished to be recognized as v law upon the chief debatable points—because ‘it had been pract of Henry I and other ancestors'—was put into writing.” The d ment so drawn up is known as ‘the Constitutions of Clarend The constitutions were accepted by the barons and by the bish who were partly intimidated by the king's threats. Becket hesit to the last ; but seeing himself deserted by his brethren he end expressing acquiescence.” The constitutions” thus accepted contain, as the circumstan their production would lead us to expect, many provisions in tation of ecclesiastical as against temporal jurisdiction. B addition, there is a whole series of regulations upon other ma the permission of the king is required before land belonging king's feud can be given in perpetuity to the church, as al * Stubbs, Comst. Hist, I, 503 c 12 $ 140. * The state of the law under Henry I was also appealed to in the st which preceded the issue of Magma Carta (1215), principally, indeed, n reference to church law but to feudal law. Roger de Wendover, Flore riarum (Rer. Brit. Scr. No. 84) II, 84, 111, 113. Radulphus de Cogg Chromicon (Rer. Bråt. Scr. No. 66) 170. * Comst. Clarendom (in appendix IV) . . . facta est recordatio et r tºo cujusdam partis consuetudºmum, et libertatum, et dºgmitatum antecessorum. Suorum, videlºcet reg's Henricº avº su% et al?orum, quae observaré et tenerº debent ºn regmo. (Join Henric; et alºorum [sc. antecessorum]; quae refers to consuetudºmes, libertates et dºgmitates. In Stubbs, Select Charters a comma is placed after Su?, whilst that after al?orum is omitted.)—Anselm, too, had in 1095 promised to observe the consuetudimes; it was not till later that he endeavoured to modify his undertaking. Eadmer, Hist, Nov. (Rer. Brit. Scr. No. 81) 84; cf. Anselm's report, above, note 17. * Whether after initial refusal he at last even appended his seal, is doubtful. Cf. Perry, Hist, of Engl. Ch. I, 240 c 15 § 10. Hefele, Konzáliemgesch. § 625; 2nd Edit. W, 628 f. 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 especially the account in the letter of Gilbert Foliot, bishop of London (written 1166) in Materials for Hist, of Becket (Rer. Brit. Scr. No. 67) V, 527 ff. * Text in appendix IV. 4] RELATION OF STA TE A W D C H U R CH 23 cence is needed for prelates to go abroad and for appeals to be made the pope; the king must be approached before a tenant-in-chief his or a royal servant can be excommunicated or his lands put lder interdict ; the holdings of the prelates are expressly declared be feudal, and the administration and usufruct thereof during acancy are assigned to the king; episcopal and abbatial elections ‘e to be held by the more prominent members of the vacant church Otiores personae ecclesiae) in the king's chapel; and must have the sent of the king with the counsel of the magnates of the realm ersonae regni “) by him summoned for this purpose. Henry sent the constitutions to the pope with the request that he O would signify his concurrence therein. The pope declined. The ing repeated his request supporting it by letters from Roger, arch- shop of York and apparently also from Becket.” But the pope mained firm. Becket was now desirous of recalling his promise.” new disagreement arose. One of the temporal magnates brought 3omplaint before the king's court, alleging that the archiepiscopal art had refused to do him right. When, in consequence, a sum- ns issued against the archbishop, the latter did not obey the call. ºr this disobedience the king cited him to appear before the council Northampton (October, 1164). The archbishop was condemned to a fine and in so far submitted that he gave security for its ment. The king then, to complete his humiliation, demanded t he should produce accounts of his administration of the chan- rship. Becket now declined to accept the verdict of a royal t and appealed to the pope. For this repudiation of the royal t the archbishop was sentenced to imprisonment." He, how- , succeeded in staying the publication of the sentence and fled refuge to France. Henry's ambassadors and Becket himself ired to the pope at Sens, where the latter disallowed ten out of sixteen chapters of the constitutions of Clarendon as being in radiction of the canons.” - * x years of struggle ensued. Becket conducted his share therein France, being vigorously supported by the French king, Louis or the meaning of personae regnº see appendix IV, note 10. Hefele, Konzáliengeschächte § 625; 2nd Edit. W, 629, notes 2 and 3. Letter exander III to Becket 27th Feb. 1164 (Materials for the History of Becket º, Brit. Scr. No. 67] W, 86): . . . . reac . . . , ut suo desiderio faciliorem animum praeberemus, fratermitatis tuae et praedict archiepiscopº (of York) ad nos litteras impetravit. (For fratermitatis tude one MS. reads fratrum. mostrorum, which, in another, is interlined as alternative. l.c. note 3.) 46 The pope had so advised him even before he had cognizance of the negotia- tions at Clarendon : . . . S. autem, jam dicto regiº Super huju Smod? vos in aliquo astrictos cognoscités, quod promº sist is mulla tenus observetºs, sed hoc potius revocare curetis, et de promissione ill?cita Deo studedt's et ecclesiae reconciliari. Mat, for Høst. Becket (Rer. Bråt. Scr. No. 67) V, 84. It is doubtful whether Becket received this letter before the council or just after it. l.c. note a. 47 By a letter of June, 1165 (Mat. for Hist. Becket [Rer. Brit. Scr. No. 67) V, 178) Alexander III declared this sentence void on the ground of its injustice. 48 Constitutions 1, 3, 4, 5, 7, 8, 9, 10, 12, 15. Mat, for Hist. Becket (Rer. Brit. Ser. No. 67) V, 71 ff. Hefele, Konzáliengeschächte $ 626; 2nd Edit. W, 638. 24 TO THE REFORMA TION [I, 1 VII. But the pope was loth to assent to the employment of harsh measures. When, at last, an interdict was clearly impendin Henry became reconciled to Becket (1170) and allowed his retur. although Becket, on his part, did not promise to recall his measur. against bishops and clerks who had remained faithful to the kin No arrangement was made concerning the constitutions.” Th archbishop went back to England, and celebrating his triumph numerous excommunications, provoked the king to utter a wish th someone would deliver him from the truculent priest. The resu was the murder of the archbishop in the cathedral of Canterbul 1170). ( Becket now appeared in the light of a martyr. The king enemies charged him with having instigated the murder. H. political opponent, the king of France, urged the pope to severit In Rome the issue of an interdict could with difficulty be prevente All this constrained Henry to change his line of action, and aft some preliminary negotiations he concluded at Avranches in Se tember, 1172, a formal contract with the pope's legate. Therein promised—apart from certain points of only temporary importa —first, that in ecclesiastical cases he would permit free appeal Rome and the execution of the papal decisions, reserving, howe to himself the right of requiring security that the appellants did seek the harm of the realm or his own; secondly, that he w abolish the customs which had been introduced in his time to prejudice of the church. He also released the bishops from the which they had taken to observe the constitutions of Claren But no general renunciation of the matter of those constitutions expressed.” º * As to the stipulations between the king and Becket see the report o latter to Alexander III, Materials l.c. VII, 326 ft. and Henry's act of recon tion and restoration, l.c. VII, 343. * A document (printed in Hoveden [Rer. Bråt. Scr. No. 51] II, 36; a Materials l.c. VII, 516) expressing the reconciliation of 1172, was drawn the legates Albertus and Theodinus on One side and the king on the other. following conditions of absolution were imposed on the king, and he, as als son, promised and swore to observe them : He was to pay the money need equip 200 knights for one year, the men to be employed in the defence of J salem ; he was himself to undertake a crusade within three years; the p sions confiscated during the quarrel with Becket from clergy and laity were be restored. Apellationes mec impedietis, nec permittetis impediri, quin liberé fiant in eccles? as tº c is caus? S ad Romanum pontificem, bonafide, absºue fraude et malo ingenio, ut per Romanum pontificem causae tractentur, et swum. consequantur effectum : sic tamen, ut sº vobis suspect fuerint aliqui, securita- tem faciant, quod malwm vestrum vel regnº vestri mon, quaerunt. Cons we- tw alºnes quae inductae sunt contra eccles? as terra e vestrae in tempore vestro, pen it us d? mºttet is . . . et jurastis ambo, quod a domino papa Aleºcandro et catholicis successoribus ejus, gºu a m dºw, vos s? cut antecessores vestros et catholicos reges habwe'rºnt, minime recedetis. (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, Konzálēengesch. 2nd Ed. W, 685. Cf. below $ 4, note 64)—Report of the legates to the archbishop of Ravenna 4] RELATION OF STA TE A W D C H U R CH 25 From the construction of the agreement it is evident that it was ly in the question of appeals that the pope had obtained a material ncession of permanent significance; as regards the other provisions the constitutions of Clarendon his only success had been in pre- ting the church's recognition of their binding force, so that in is respect the rule of law on several points remained, as before, a tter of dispute between king and clergy.” uch a solemn determination of the law as had been made in the stitutions was not without its effect upon the practice of a future e. The royal tribunals applied their provisions, in so far as these ł not afterwards been expressly renounced, as being of legal lidity, and these provisions lie at the root of later constitutional actments. Thus the later statutes of provisors and mortmain are by elaborations of the two first chapters of the constitutions of rendon. After the reconciliation at Avranches Henry, who had to contend *\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- clubled an agreement with the papal legate Hugo, by which on One sidd the king, in contrast to the provision of the constitutions of Clalendon, 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, l.c. II, 37): . . . . Relaadavit (the king) praetered episcopos de promissione quam e? fecerant de consuetudinibus conservandis, et promisit quod non eacăget in futurum. * 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 l.c. VII, 553): Novćt ecclesia Romand eac longo temporås tractu quantam libertatem antecessores nostri circa institutiones ecclesiarum habuerint; quam mos, intuitu Deº et precum vestrarum interventu, Secundum admonitiones venerabilium virorum Alberté et Theodwānī legatorum vestrae sanctitatis, ad aequºtatem canonicae amoderation is temperavāmws. Impraesentiarum Żtaque liberam electionem ecclesiae Anglicanae annuimus, . . . 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 [Rer. Brit. Scr. No. 68] I, 367): . . . conveniente clero, sub pau- corum interstitio d?erum . . . apud Westmonasterium, praesente justiciario 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 l.c. WI, 505): . . . Nec velis eis qui electionem facturi Sunt personam de qua electionem facere debeant nominare. 26 TO THE RE FORMA TIO V [I, om the other side, the legate recognized some exceptions tO t rule.5* The pope SmOothed the way for the king to the complete subju tion of Ireland.°° The same influence moreOver emabled Hem omce or twice in the latter years of his reign to levy a mew t, personal property being mow for the first time brought under cę tributiom, and the clergy mo less tham the laity rendered liable its payment.* From this time dates the policy, oftem revived 54 Henry confirmed the terms of the recomciliation in a letter to the p; printed in Radulf de Diceto, Ymagìnes Historiarum (Rer. Bröt. Ser. No. I, 410; excerpts given im Roger de Wendover, Flores Historíarum (Rer. Scr. No. 84) I, 105: Dománo papae reae Anglorum. Propter reverent? sanctae Romanae ecclesîae, atque devotíonem, quam erga eam, et paternítat ac dilectìonem vestram, et fratrum, vestrorum habemus et semper habuêm, lícet plurìmum resisterent et reclamarent regnâ vostrâ majores et m; discretâ, ad ìnstantíam vêrô dîscretâ et sapìentís Hugonís Petróleonìs, sam, Romanae ecclesîae cardínalís, apostolícae sedís legatâ, amîcî et cognat? ) trâ, capitula q^tae subscrípta sunt ín regno nostro temenda concessê}mus. (I) Vídelícet quod clerícus de caetero non trahatur ante judícem seculare), în persona sua de aliquo crímínalâ, neque de alíquo forísfacto, eæcepto foris{acto, forestae meae, et eaccepto laïco feodo [Rog. de Wendover l.c. abbrev(;ates pro alíquo crêmême vel transgressíone, nìsì pro foresta et laïco feodo] [unde mœchâ vel alíâ dománo secularâ laïcum, debetur servítíum. (II) Comcedo qtiam, quod archíepíscopatus, epìscopatus, et abbatíae non teneantur ín manu] mea vltra annum, másâ urgente necessítate et evádent% de causa quae propter ho]c mo^ fuerìt ìnventa ut díutíus teneantur. (III) Comcedo etìam quod ínterfe}tores clerìcorum, quâ eos scíenter vel praemedítatí ínterfecerìnt, convìctâ vel cofnfessâ coram, justítíarío meo, praesente epíscopo vel ejus Qfficíalí, praeter comsjuetam, laïcorum vêndáctam, suam, et suorum, de haeredítate quae eos contìngìt per- petuam, sustìneamt eachaeredatíonem. (IV) Comcedo etíam, quod £; 7?,O??, cogantur facere duellum. ! ὐδ Compare § 11, mote 10. - ( 5° It is doubtful whether a, tax of this kind (contribution to crusade) had beem already levied 1184 (1185). A document relevant here is primted in Wilkins, Comc. I, 490: Y : Dispositio ad subveniendum, terrae Jerusalem, a dománo Philippo, 'rege Francìae, et Henrìco rege Anglíae, communâ concílío epíscoporum, et comátum, et barOnum, terrarum, suarum, approbata. Art. I. Quod unusquísque ta^m clerícoru m, quam l α ἐcorat m, quâ plus quam 100 solídos non habuít, de unaquaque domo, quam habuerìt, sì sìngulís dìebus ìgnìs consuetudínaríe accendetur, 2d. sángulás annìs usque ad tres annos persolvet. Art. II. Sì vero ín mobìlìbus plus quam 100 solìdos habuerìt, de unaquaque líbra . . . în Anglía unus sterlóngus persolvetur usque ad praedictum, termónum. Art. III. Quâ vero 100 libras in terris vel ín redítíbus habuerít, vel eo amplíus, de 100 líb. 20 s. annuatìm dabât. - Art. IV. Quâ vero ín redîtîbus mónus quam 100 líbras habuerit, de 20 líb. dabit 4 solid. et de 40 lib. 8 solìd. et ita deínceps, ad ratìonem praedictam. . . Art. VI. Decima debetur ad defensàonem, terrae Jerusalem, a matîvîtate S. Johannîs Baptístae anno . . . 1184 în decem annos, salvo jure domín- orum, et ecclesîarum. But the genuinemess of the document is disputable (Stubbs, Const. Hist. I, 622, mote 4 c 13 § 161). • - After the taking of Jerusalem by Saladim (1187) a Saladin fíthe 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 mational council of Geddington (Feb. 1188). Hoveden (Rer. Bröt. Scr. No. 51) II, 835; 4] RELATION OF STA TE AAW D C H U R CH 27 \ter reigns, of keeping the national church in check by the |ediation 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.” The growing demands of Rome for money led naturally to the exhibition in following centuries of Occasional opposition by the English clergy to the pope, but of position which was never so strong that a determined resistance s permanently offered to papal pretensions. The short reign of Richard I furnishes little of interest for the |story of the constitution of the church. The king came but twice IEngland. He was first at the crusade, then in confinement, la thy at war upon the continent, leaving his ministers to rule in his alsence. 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 taſ. Of ecclesiastical possessions only the free land (libera feoda) of pallish churches was to be exempted.” The monks demurred to the payment of the tax. By way of answer the king proclaimed that Benedict (l.c. No. 49) II, 31. In March, 1188, a corresponding grant was made at Paris for France. Hefele, Konzáliengesch. 2nd Ed. W, 738. These first grants of the new tax were, indeed, for ecclesiastical objects, but soon the same tax was raised for temporal purposes. *7)Perry, Hist, of Engl. Ch. I, 268 c 16 $ 11. *|For a first attempt on the part of the pope to levy a regular tax in England see enedict (Rer. Brit. Ser. No. 49) I, 311: Interim (1184) papa Lucius m?sit munčios Suos ad regem Angliae, postulans ab eo, et ab clericatu Angliae, aude:- lium ad defensionem patrimon? beat Petré contra Romanos. Reac vero ºn. Angliam m?sit nuncium suum ad episcopos Angliae, ut per eorum consilºum. providentius responderet nunciès domână papae. Illi vero congregati Lun- doni's coram Ranulfo de Glanvil, justitiario regis, de communi eorum consilio mandaverunt domżno regà, quod in consuetudinem verté posset ad detrimentum regnº, sº permitteret muncios domini papae in Angliam venire ad collectam. faciendam. Et ideo de eorum consilio eral, ut dominus reac secundum volunta- tem. Suam et honorem, auxilium faceret domino papae. Dicebant enim, quod. tolerabilius esset, et plus eis placeret, quod dominus reac de eis accºpéret, 8? vellet, recompensationem awaºlº quod pse faceret domino papae. Quorum? consºlio dominus reac adgwievit.—Voluntary contributions had been collected from the English clergy some years before. Ralf de Diceto, Ymagines Historiarum, year 1173 (Rer. Brit. Scr. No. 68) I, 378 : Nicholaus Romanae ecclesiae subdiaconus, a domino papa transmissus, ab archiepiscopis, episcop?s, abbatibus, abbat'ss?s, prioribus, arch? mandritis, plurimam collegit pecuniam, Žn wSuS ecclesiae laborantºs ºn scismate convertendam. * Hoveden (Rer. Brit. Scr. No. 51) IV, 48: . . . dominus papa paterna. eachortatione dºlºgenter monwët domżnum Ricardum regem Angliae, ut pro salute animae Suae mon permitteret praefatum archiepiscopum diutºus fung? administratione saecular?, meque de caetero 'psum, vel alium episcopum Sºve sacerdotem, ºn administratione saecular? admitteret ; praecepºt etiam in virtute obedientiae universis ecclesiarum praelatis, me ips? ausu temerario Saeculares administrationes suscºperent. * Hoveden (Rer. Brit. Scr. No. 51) IV, 47: libera feoda ecclesiarum. parocháalºum de hoc tallagão eaccipiebamtur. - 28 TO THE REFORMATION [[, 1 thenceforth no man who had done an injury to clerk or regular should be obliged to give satisfaction to the injured. This Wils enough to extract payment from the monks.” The same procedule 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 were present in Rome to hold an election there and consecrated (1207) Stephen Langton, the object of their choide, as archbishop of Canterbury, in spite of John's refusal of the royal assent. Thus began the third great struggle between state a 'd church in England. The king declined to receive Langton in his country. King a hd 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 stouly maintained his authority at home and sternly punished the clergy who opposed him. But now, dreading the invasion of a Freſhch army and dubious of the loyalty of his English barons, whom (#On- stant oppressions had alienated from his cause, he suddenly $ur- endered to the pope far more than the original ground of dispute. n the 15th of May he declared in the presence of the legate Phn- 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 º marks sterling. Swearing fealty to the pope,” he bound hims: lf to | * Howeden (Rer. Bråt. Scr. No. 51) IV, 66: Eodem anno (1198), quia véré areligios; noluerunt dare regà quinque solidos de wanagio carucae, s?cut Caeter? homines regnº faciebant, eacážt edictum, a rege, ut quicumque in regno Suo foråsfec'sset clerico, aut al?? viro religioso, non cogeretur satisfacere ill?', sed si clericus aut alius vir religiosus foråsfecisset alicuž laico, statºm compellere- tur ad satisfaciendum ill? : unde factum est, quod vir? religiosi ad redemp- tionem coactº 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 (Ber. Brit. Scr. No. 58). V. * 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 reac Anglorum Johannes a solio regn? depomeretur, et alius, papa procurante, succederet quº dignior haberetur. Ad hujus quoque sententiae eacecutionem scripšit domżnus papa potentissimo regà Francorum Philippo, quatemus in remissionem omnium suorum peccaminum hunc laborem assumeret, et, rege Anglorum a solio regn? eſcpwlso, &pse 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 W. 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. 58) II, 210, ſ ) RELATION OF STATE A W D C H U R CH 29 re pognize Langton as archbishop and to replace the property with- wn from the church during the course of the struggle. arch from the party of the temporal barons, he issued on the 21st November, 1214, a charter relating to the election of bishops and 2r prelates.” By this charter is granted to chapters and monas- convents the right of freely electing their prelates, with rvation, however, of the king's right to administer the property lºng vacancy; before an election the royal permission to elect, pro isions of this charter held good in law up to the reformation, if, in actual practice, they were not seldom evaded. They $ The aim which the king had in view in issuing the charter miscºrried. The barons' rebellion broke out nevertheless, and the Englsh bishops did not enter the lists against them. In 1215 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, no between the king and the church.” º 214; Roger de Wendover, Flores Historiarum (Rer. Brit. Scr. No. 84) II, 74, 81, 95, In the declaration of May, appendix W, 1 we read: . . . fidelitatem . . . facimus 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. Høst. I, 602, mote 2 c 13 $ 158. Hefele, Konzáliengesch. 1st Ed. W, 612 ft., 2nd Ed. W, 685, 687. * Printed in appendix WI. 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 Rymer l.c. I, 127; Matth. Paris. l.c. II, 607). (Matth. Par. l.c. W, 541, year 1256 reverts to the two documents, with the introduction: Nota utilem cartam regis Johannēs, sé observaretur, de libertate electionum et confirmationem, Papae Innocentić 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 REFORMA TION [I, J.B TJnder king Henry III the successive heads of the administratiºn seldom ventured to oppose the pope, but sought rather to manag the business of the country in concert with him and his legaté 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 "pf the English clergy by Rome rose. But at the same time there v introduced a state taxation of purely ecclesiastical income, at f \t in the form of contributions from smaller church circles, such the clergy of the several archdeaconries, the chapters or the diocesan synods, All such developments were gradual and resulted from use in particular cases; there was no enunciation of new le; theories upon the subject. º practice become obsolete, requiring the consent of the feudal to the transference of land in mortuam manum (i.e. to spiri eal persons or bodies), were now revived (7 Ed. I [1279] Statºrde 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 bºrons 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. III, 310 fſ, c 19 $$ 381–387. * The older provisions are to be found in Const. Clarendon co 2, 9 (appendix IV); Magna Carta of 1217 c 43 (appendix VII, note 27); 43 Hen. III (1259) c 18–Compare also Bracton (Rer. Brit. Scr. No. 70) I, 218, 360 f. * Printed in Rymer, Foedera, 4th Ed. I, 926:— * Sanctissimo in Christo patrº, domino B. divāna providentia, Sanctae Romanae ecclesiae Summo Pontifici, suž devot; filii, (here follow the names of 7 comites, 94 dom?n?, 1 castellanus, 1 baro, and one without designation) devota pedum oscula beatorum. Sancta Romana mater ecclesia, per cujus ministerium fides Catholica gubernatur, in Swis actibus cum ea, sicut firmiter credimus et tenemus, maturitate procedit, quod nulli praejudicare, sed singulorum jura, non minus Žn alºs, quam in Sežpsa, tanguam mater alma, conservard valet illaesa. . Sane, convocato per Seren?ssimum dominum nostrum Edwardum, Dež gratia, Regem. Angliae ºllustrem, parliamento apud Lincoln?am general: ; idem. dominus noster quasdam, literas apostolicas, quas super certis negotiis, con- ditionem et statum regnº Scotiae tangentibus, eac parte vestra receperat, in medio each?beri, et seriose fecit nobis eacpon?. Qužbus auditºs, et diligenter intellectis, tam nostris sensibus admiranda, quam hactenus inaudita, in eisdem audivāmus contineri. Scimus enºm, pater Sanctissème, et motorium est in partibus Angliae, et nonnullis al??s non ignotum ; quod, a prima institutione regn? Angliae, Reges éjusdem regn?, tam temporºbus Britonum, quam Anglorum, superius et directum dominium regn? Scotiae habuerunt, et in possessione vel quasi superioritatis et direct? domini? &psius regm? Scotiae successivis temporibus eactiterunt ; - Nec ullis temporibus ipsum, in temporalibus, pertinuit, vel pertinet quovis jure ad ecclesiaſm supradictam ; Quin?mo Čdem regnum, Scotiae progenitoribus praedict; domini noströ Regibus Angliae, atque Sibi feodale eactitit ab antiquo, § 4] RELA TIO V OF STA TE A V D C H U R C H. 3I olea\ly asserts the independence of English kings as against the pope,in all temporal matters. Nor Was this enough ; even after the abal prohibition Edward intervened in the Scottish disorders, ba§i\g his right on his suzeraimty. In the last years of his reign, the Ring, supported by the parliament, addressed himself to chèck the ajrbitrary taxatiom of monasteries by superiors abroad and the iiiiiii of money from the realm by monks or their agents.70 Nec | etiam Reges Scotorum, et regnum aliâs, quam Regíbus Angliae, sub- fuerunt, vel subjícá consueverunt. INeq|ue Reges Anglíae, super jw r í b u s s μ έs, ìn regno praedicto, aut aliis „suis te m p o r al í b u s . c o r g m . al ? q u o jwd à ce eô cles íastíco, vel 2° • ryâ, eæ líbera praehemêmentía status suae regíae dígnítatís et coiisue- s, cunctís temporíbus írrefragabìlìter observatae, re$ponder a, m t, a u,t ^, d e r e d eb eb a 17, t. og £, habito tractatu, et delíberatíone dílígentô, super contentís, ín vestrís dii m\ , memoratis, communis, concors et unanímís omníum, et sάνgulorum, congélsus fuít, est, et ecrát ínconcusse, Deo propítío, ín futurum : . Qu 0\d p r aefatus d o m %^ u s ^ Qster Reae super jurìbus regnę suę &cotìae, aut alíís s u í s te m p o r a l í b u s, m u l latem u s ju d í c í a l 37 e m re- sp o 1^6\eat c o r a m. v ob è s, nec j u d ? c í ú m s vt beat q u o q u o modo : Aut iit; sua praedícta ín dubíum, quaestíonís deducat : INec ad praesentiam vestram procuratores aut nuncìos ad hoc míttat ; praecipue cum praemìssa cederent manífeste ín eachaeredatíonem jurìs coronae regni Angliae et regiae dignitatís, ac subversionem status ejusdem regn; ^otoriam) : necnon ín praejudìcìum libertatum, consuetudínum, et legum, paternarum ; ad quarum observatìonem et defensíonem, eac debíto praéstít; juramentâ, astrìngìmur ; et quae manutenebámus toto posse, totisque víríbus, cum Deô auacílío defendemus. : INec et í a m per m átt á m u s, a ut al % q u at e^us per m í ttem us, sícut ^ec possumus, nec debemus, p rae m %ssa tam ìnsoláta, îndebáta, praejudícíalía, et alias ìnaudita, praelibatum do m %^ u m nostrum Regem, et íam S í vel let, facere, seu q u o m, 0 d O l í b et atte m pta re. Quocírca sanctítatí vestrae reverenter et humálíter Supplícamus, quatenus eundem dominum nostrum Regem (quí ínter alios prìncìpes orbìs terrae, catholicum se eæhibet, et ecclesíae Romanae devotum) jura sua, líbertates, consuetudínes, et leges, absque dêmêmutíone et ínquíetudíne, pacífice possídere : et ea állábata percípere benígníus permittatís. In cujus reí testìmonìum sígíllís nostrâs, ta m p r0 ^ ob îs, quam pro- tota com m ιη άtate p rae d ? ct à reg^ ? An gl %ae, praesentíbus sunt appensa. Datae apud Lìncolniam, XII. die Februarîâ, anno Domînâ MCCCI. T "° 35 Ed. I (1806/7) Stat. Karlioli (=of Carlisle; called also in older collec- tioms Statutum, de asportatís relìgìosorum, in Líber Custumarum [Rer. Brìt, Scr. No. 12] II, 488 Stat. de Relígíosís Alíenígenís). Mentiom is made in the preamble of a, resolution to the same purpose having beem carried in 33 Ed. I (The petition of the secular magnates and of the communítas in 88 Ed. Iis printed in Rer. Brìt. Ser. No. 98, p. 313), the publication of which was stayed; it is now, after fresh discussiom, issued as a, law. The essential provisions are:— c 2. Ne quìs Abbas, Prìor, Magíster, Custos seu quâvis alíus relígíosus . . . _ censum alíquem per superìores suos, Abbates, Prìores, Magístros, Custodes relígíosarum, domorum, vel locorum ìmposítum, vel ìnter se ipso§ alîqualiter ordínatum, eactra regnum, . . . déferat vel transmittat. . . . Et sí quís contra praesens statutum venêre presumpserít, consíderata qualitate delíctâ et regîe prohíbícíonís pensato contemptu, gravìter punâatur. c 8. Inhibition of aliem heads of houses: ne decetero tallagìa, census, ìmposì- cíones, apporta seu alía quecunque onera . . . ìmponant vel faciant aliqua- ?iter assídere. . . . c 4. Abbots aliem may visit their houses in England. At the parliamemt of Carlisle (1807) there was also presented to the king a 32 TO THE RE FORMA TIO V [II, 1B It was probably during this reign that the issue of the Ciréum- specte agatis ** brought about a more accurate delimitation of the competénee of secular and ecclesiastical courts in several doubtful GaSeS. petition against a series of encrQachments by the clergy at home and }y the pope. On these proceedings amd measures taken in consequence see Sftubbs, Const. Hìst. III, 839, c 19 § 392; more fully in his Introduction to Chºfom. of* the Reigms qf Ed. I and Ed. II(Rer. Bröt. Ser. No. 76) I, pp. cix ff. 71 Archbishop Peckham of Canterbury had Ordered at the coumcil of Rbading (1279) that the clergy should read every Sunday a number of * ópso facto excommunications.' Among them (Wilkins, Comcílía II, 83 ; for gar? lectìones see Reg. Epìst. Peckham [Rer. Bröt. Scr. No. 77] III, p. cxxiii):— Pr | mo, eaccómmunîcentur auctorìtate concílíí 0æom. a . . . Ste Cantuaríensâ archíepóscopo celebratâ, Omnes quę malítíose ecclesias ju privare praesumunt, aut per malítíam, aut contra justítíam libertates jnfríngere vel pertubare ìntendunt. Ec quo ìntellìgìmus vínculo eaecom cditìonìs subjacere omnes ìllos, quâ literas ímpetrant, a quacumque curía Vícalí, ad împediendum processum ecclesíastícorum judícum ín causis, qudte per sacros camo mes ad forum, ecclesíastícum, pertínere noscumtur. Septę mo, eœcommunìcantur omnes îllâ, quâ malítíose contemnunt jeocequí mandatum, domónâ regís de eaccommunícatís capíendís, . . . No n o, eaeeommunicantur . . . . quâcunque de domíbus, manerìs, vel, grangís, vel locis alíís archìepíscoporum vel episcoporum, vel alíarum personarum, ecclesíastícarum, contra îpsorum voluntatem . . . falíquíd Ἀuferunt, vel consumunt, vel ìnjuriose contrectant; . . . | The archbishop was compelled by the king in the same year to recall the objectionable instructions (Wilkins, Concílía II, 40):— i Memorandum quod venerabilis pater J. Cantuar. archiepiscopus venit coram, rege et consílio suo ín parlíamento regís S. Míchaelís, anno regnâ regìs septímo apud Westm, et confitebatur et concessit, quod de statutis, provìsìonìbus et declaratíoníbus eorumdem, quae per ípsum promulgatae fuervnt apud, Reding, mente Augustâ anno codem, ínter quasdam sententías eaccommunica- tíonís, quas ídem archíepìscopus âbâdem promulgavít. Primo, deleatur, et pro mon pronunciata habeatur ìlla clausula ån prìma sententía eaccommunícatíonís, quae facit mentíonem de ímpetrantibus literas regias ad impediendum processum ín causis, quae per sacros canones, etc. §ecundo, quod non eaccommunícentur mânîstrî regìs, licet îpsâ non pareant mandato regís, ín non capìendo eaccommunìcatos. Tertío, de íllís, quí ínvadunt manerìa clericorum, ut íbí sufficíat poena per regem, posíta £» ę · · ¢ ú ę ¢ ę In spite of this revocation and of the fact that Edward I, in two prohibitions of September 28th, 1281 (primtedim Wilkins, Concìlìa II, 50) warned the prelates mot to do aught against the king's rights at the approaching council, Peckham, at the provincial coumcil of Lambeth, which met October 7th, 1281, directed the clergy to read four times a year certaim excommunications the text of which agreed almost exactly with those published at Reading (Wilkins, Concílía, II, 5i; var. lect. Peckham, as above, p. cxxxi). Forms 7 and 9 of the council of Peading are unchanged. ' Form 1 mow emds : ín quo eœcommunìcarì intellìgì- mus quí líterís aut jurìbus curíae laïcalis ecclesíastícarum causarum pro- cessum, împedíunt, quae íta ad ecclesiam pertínere noscuntur, quod nullatenus possunt, nec c o n s u e v e r u nt, per seculare judìcìum termínarí. Et hujus- modí sententía ínsuper de caetero denuncíarí praecîpîmus, e0ccommunîcatos omnes îllos, quâ falsae eœceptíonís título archìepiscopalem, aut epìscopalem, processum, ìmpedìunt, aut subterfugìunt dìscìplìnam. The constitutions are dated 10th October. In a, letter of the 2nd November, 1281 (Regíst. Peckham I, 239, also Wilkims, Comeìlìa II, 64) Peckham endeavoured to justify himself to . the king by urging that ecclesiastical were superior to secular laws. v [The chromiele of Os me y (Rer. Brìt. Ser. No. 86, Annales Monastici, IV, 285 § | fe ELA TION OF STA TE A VD CH U R CH 33 ll this was effected without any considerable struggle. But an attempt by Edward to bring the ecclesiastical property of the cleſ!gy 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 legard 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- Nevertheless, as a matter of fact, both for some time before Magna Carta and afterwards, such impositions of taxes took place, 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 report's under the year 1280: Nom. Octobrás, septimo videlicet die ejusdem, mensis, dominus Johannes Cantuartensis archiepiscopus, . . . apud Lamheye sollemme concilium celebravit; . . . Caeterum in eodem concilio proposuérat quasdºm libertates ad coronam domini regis spectantes et a multis retroactis temporibus usitatas annullare, videlicet cognitionem juris patronatus, pro- hibitiones regias in placités de catallès et hujus mod? quae spiritualitatem mere contingere videbantwr ; cu? reac per quosdam de Swis in eodem comcilio publice se opposuit, et intentando mºnas inhibuit, me quid statuere praesumeret in praejudicium sew depressionem regiae libertatis. Unde factum est ut territus archiepiscopus a sua praesumptione pen?tus resiläret. (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, Conc. II, 115 ft.). Probably it was in this connexion that the king's instruction Cºrcumspecte agatºs, 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, Comst. 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 pomatur in regmo mostro, misi per commune consilium regm? mostri, m?sº ad corpus mostrum redimendum, et prº- mogenitum filium mostrum milâtem facáendum, et ad filiam mostram primo- genitam Semel maritandam, et ad haec mom fiat mis? rationabile awaºlium : simil: modo fiat de auxiliès de civitate Londom?arum. 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 hujus mod? awaºlia persomalia et mom praedialia, persomas em?'m resp?- cºunt et mom feoda, . . . - * For an—unsuccessful—attempt to tax the clergy in 1207 compare: Ammales de Waverley (Annales Monastic: ; Rer. Brit. Scr. No. 36; II, 258): Reac Iohammes . . . convocatis episcopis, abbatibus et prioribus, comitibus et baronibus, et magmatibus regmi, celebravit concilium Londonàs in octavis Cir- cumcision?s; ibique convenit episcopos et abbates, ut permitterent personas et beneficiatos ecclesiarum dare regà certam Summam reddituu’m suorum. In Quod cum non consentirent praelati ecclesiarum, data est dilatio usque ad sequens concilium celebrandum, Oaconiae in octavis purification?s beatae Mariae; Żbique congregata infinita multituděme praelâtorum ecclesiae et magmatum regn? H. C. ID 34 TO THE REFORMATION [[,]1B then prevailing view prelates sat in the national council simply? as 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 becdºme 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 aſ the church provincial synods.” If the representatives of the lower rànks of the laity were present at the national council or of the clergy at the provincial symods, 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.77 The admission of representatives of the counties andf the towns to the civil national council grew, indeed, more and morè 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 *- eacegit ab episcopis et abbatibus quod privs eacegerat ab eis. Sed consilio inito, omnestam Cantwardenses quan Eboracenses metropolitan? wºndmºm?ter respond- erunt, Anglicanam eccles?am nullo modo Sustinere posse, quod ab Omnibus saeculis prºvis fuit inauditum. Reac ergo sanāori usus consilio, eacactionem &llam pen?tus relaacavit. Posted generaliter statućt per universum regnum, ut ommis homo (under this designation the clergy were included. Roger de Wendover, Flores Historiarum; Rer. Brit. Scr. No. 84; II, 35) de cujuscun- que feudo, juraret pretium catellorum suorum de immobili et mobilâ, et-de his daret decimam tertiam partem regi . . . * Negotiations took place with diocesan synods, cathedral chapters, arch- deaconries, monastic orders, etc. Some examples in Stubbs, Comst. Hist. II, 205 c 15 § 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 11 ff. " Compare $54, notes 31 ff. " Compare $54, notes 38 ft. * Stubbs, Const. Hist. II, 255, c 15 $$232,233. * Compare $ 21, note 20. - RELATION OF STA TE AND CH U R CH 35 h d, on the 25th of February, 1296, published his bull Clericis laicos, in which, without having England specially in view, he forbade in ge neral, under pain of excommunication, the payment of civil taxes up on the property of churches or of the clergy, as also the collection of such taxes, without papal authority previously obtained.” Havin reg gard to this bull, the clergy in the national council of 1296 de- mu\rred 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 their refusal.” Upon this the king declared that such a refusal involved a breach of homage.” On the 26th of Jahuary he convened the temporal magnates of the realm, but not the spiritual, to a colloquium to be held on the 24th of February.” Orj January the 30th he put the clergy outside the protection of the laws and announced his intention of confiscating their fiefs.” Arch- bishop Winchelsey replied on the 10th of February by excommuni- catling all who transgressed the papal prohibition.” On February 80 quod quicumque praelati ecclesiasticaeque personae, religiosae. vel seculares, quorumcumque ordinum, conditionis, sew statuum, collectas vel tallićts, decimam, vicesimam, sew centesimam suorum et ecclesiarum proven- tuum vel bonorum laicis, solverint, vel promiserint, vel se soluturos consenser- ânt, qut quamvis aliam quantitatem, portionem, aut quotam &psorum proven- #ww.m., vel bonorum aestimationis, vel valoris ipsorum, Sub adjutor??, mutuº, subventionis, subsidić, vel don? nomine, seu quovis aléo titulo, modo, vel quaesito coloré, absgue auctoritate sedis apostolicae; necnon imperatores, reges, et quêvés alius . . . . qui talia imposuerint, eacegerint, vel receperint . 60 ºpSO Sententiam eaccommunicationis incurrant. Universitates quogue, Quae in his culpabiles fuerint, ecclesiastico suppomimus interdicto, . . . (Wilkins. Concilia II, 221). This bull is in close connexion with previous prohibitions. In the general council of the Lateran III (1179), printed as c.4, Decretals Greg. IX (Lib. Eactra) 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 Eoctra) III, 49, had amended: Propter imprudentiam tamen. Quorum- dam Romanus 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 there with see the full accounts in Stubbs, Const. Hist. II, 135 ft. c 14 $180 and Hefele, Konzáliengeschächte 2nd Ed. VI, 289 ft. * Winchelsey's summons to the council of the southern province is to be found in Wilkins II, 219. * Bartholomaeus de Cotton, De Rege Edwardo I (Rer. Brit. Scr. No. 16) 318. * Barth. de Cotton, l.c. 318: Eac gito homagium et juramentum pro baron??s vestris māhā praestitum non tenetis, mec ego teneor vobis in aliquo. ... . * Summons in Palgrave (Record Commission), Parliamentary Writs I, 51. * Annales de Wigornia (Rer. Bråt. Ser, No. 36; Annales Monastici), IV, 530 : Et in aula regis Iohannes de Mettingham publice proclamavit, né Quis Causas in curia regis religiosorum defenderet vel clericorum, Sed, laïcorum causae procederent sicut privis; et quod religiosi et clerici fuerunt extra pacem ef defensionem regiam, pronunciavit; et quod nullum breve transgression's de cancellaria eacáet pro religioso vel clerico qualicumque, guocumque modo gravati fuerint contra pacem, fertão Kal. Februarà tale fuit regis consilium, quod praecºperet praescriptam duritiam fieri contra clerum. Cf. Barth. de Cotton, Ac. 318, 319. * Barth. de Cotton, l.c. 320, 36 TO THE REFORMATION [I, IB the 12th the king ordered the confiscation of all fiefs in the hands of the clergy.” 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 whiph the king again took them under his protection.” The clergy of the northern province had already yielded, and received on the sº of February the assurance of royal grace.” Urged by Winchelsey, fibe 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., vicecomité Wygormiae salutem. Propter aliquas certas causas tibi praecipimus, quod omnia laica feoda totius cleri ºn balliva tua tam archiepiscoporum, episcoporum, et religiosorum quam allorum. clericorum quorumcumque, cujuscumque status écistant, una cum bonis et catel- lis in eisdem inventis, sine dilatione capiatis in manum vestram, et ea Salvo custodºre faciatis; ita quod mec ips; mec aliquis per åpsos ad ea manum iºpo- mant, domec aliquid inde praeceperimus ; et hoc mullo modo omittatis. Teste meipso apud Ely, XII, die Februarà. (Printed in Annales de Włgornia ; Rer. Brit. Scr. No. 36; Ann. Monastic? 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 jecerunt citra Pascha ; et feoda ammea a eccles? is vel haereditate contingenda per annum in Swis man?bus reac tenebit; post hoc per breve eschaetae capitales dominº feodum recuperabunt. Eactune tales mec ement mec vendent; mec prae- Sumat aliquès, talibus deservère, sew alias communicet quoquomodo. Et s' resistant spoliatoribus, incarceremtur. According to Barth. de Cotton, l.c. # * last cited edict appears to have been issued at the colloquium of Feb. th. * The king's letter of protection and a list of the persons to whom it was given is in Brady, Hist, of England, London 1685 fſ, II, appendix No. 20; cf. also Nos. 21, 22. * Edwardus etc. Capitameo Marinariorum et eisdem Marinariis ac omni- bus Ballºvës et fidelibus suis ad quos praesentes literae pervenerint, Salutem. Cwm Prael at? et Clerus Ebor. et Karl £olem. Civitatum et Diocesium prudenter intuentes inevitabiles necessitatis angustias quibus Ecclesiae suae et totum regnum Angliae occulata fide eacpomuntur, et subjacent his diebus, usque ad quintam partem Beneficiorum et bonorum suorum istius ammº juacta taºca- tionem nuper factam de Beneficiis Ecclesiasticis de quibus decima, ultimo in subsidium Terrae Sanctae concessa, data fuit, ordinaverint et constituerint se pomere ad defensionem suam, et Ecclesiarum swarum, et ad resistendum machº- nationibus et invasion?bus hostium, . . . Nos ipsorum circumspectam provi- dentiam commendantes, suscepimus in protectionem et defensionem mostram specialem, praedictos Praelatos et Clerum, et singuloseorundem homines, terras, res, redditus, et Ommes possessiones suas. . . . (Printed in Brady, l.c. II, appendix No. 19). According to Walter of Hemingburgh, Chronicon (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. * Flores Historiarum (the so-called Matth. Westmonast.; Rer. Brit. Scº. No. 95) III, 101 : . Recesserunt itaque singul; oneratis suis conscientiis per archiepiscopum Sic dicentem, ‘Umusquisque suam animam salvet.” Ann. de Włgornia (Rer. Brit. Ser. No. 36; Ann. Monast.) IV, 531: Universos et singulos propriès conscientiis vos dimitto. Sed mea conscientia pro regis protectione vel alºo colore dare pecuniam mom permittit, § 4. RELATION OF STA TE A W D C H U R CH 37 | foymer re-admitted the clergy to his protection.” The king's pliancy s caused by the war which had broken out with France and by apprehension of troubles among the barons at home. As he was lt to cross over to the continent in order to conduct the war in pe ſon, 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- àº. and the archbishop were reconciled, and on the 31st the We permanently the taxation of spiritualities. Upon his reconciliation with Winchelsey he immediately made a fresh demand for supplies. lchelsey 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- .*---------------------—- --- - -- - - - - - - --- - - -- ---- ---- - - -º-º: * Protection printed in Brady, l.c. II, appendix No. 30. * Summons in Wilkins, Concilia II, 226. * . . . ke il me purrečent rien gravnter des biens de Seánte eglise, pour les chartres renoweler Sans conge le pape; . . . ; mes ºl, espeyrent ke par bones resonnes, ke Serreyent monstrez a le pape legerement, averunt le conge; et prient, . . . voillet Soeffrier ke il puissent hastīvement enveer par com- mun counseil de vows, 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 rescew le governement del reaume par quo; Żl est tenu2 au défens de mesme le reaume et de towtz ses Souzmi's clers et lais * Por le commun profit et defens devant ditz ad ordene ge pur ceo ge clerc's par fet d a rºmes rve se do à vent deffen dre, la tierce partie des biens tempore was de lam ge ore est des prelatz e des clerks et de totes per- somes de Sečnte eglise religieuses et autres Seit levee pur la dite necessaire em- prise (the war with France).fere et meintenºr. Ensi qe rien me soit leve par cele achelson des dimes meðmes, ne grantz oblacions obvencions mortuaires, me des biens assignez a la lumine?re ow, as Ornementz de la eglèse ou dautre biens purement esper it £e was. Ne ren me soit leve des clerks quy benefices me valent plus de V. mars en totes chouses Seloncla drežne taxacion. E entent le Roy ge les biens des clerks en leur la’s fiez quº me sount p as a porten a untz as egli ses me seſſent pas en ceste tawacion, mes courient en la taxacion des lays. E. aust entent ly Roys Qe ceux qui voudront domer la quinte partie de toutz leur biens tempo rewa e esp & rite was aportenawntz a leur benefices sožent au quint. E de ceste prise gely Rožs fera entent il si tost come ēl porra en bone mamere fere le gre de cewa de quil avera prés Selonc ceo quil devra fere en tele marvere qil Sen devront tenºr apaez. 38 TO THE REFORMA TI O W [I, 1B cede redress of the principal grievances. . The regent confirm Ed 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 ſhe 5th of November, ratified by king Edward.” Meanwhile the 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 " Printed in Statutes of the Realm, Statutes I, 123. The relevant parts of the deed of confirmation are:— ! I. Edward par la grace de Dieu, roy Dengleterre . . . Sachiez mous aver grante pur mous et pur nos heirs, qe la grande chartre des franchises et la chartre de la forest les queles furent faites par commun assent de tut le roiaume en tens le reg Henry motre pere, seſſent tº nuz en toutz leur pointz, Sams mul blem?shment e | VI. Et aus? avoms grante pur mous epur mos he?rs as erceves ques, ewes- gºles, abbes e prº wºrs, e as a utres gemtz de se? mte e g lºse, et as contes et barons et a tote la communauté de la terre, qe mes pur hule busoigne tiew manere des aides, mises me prises, de motre roiaume me prendroms, fors qe par com’m wºn as sent de tut le roº a wºme, et a commun profit de me? Sºme le rožaume, sauve les ancienes aides et prises dues et custºtmees. - The chronicler Walter of Hemingburgh gives, under the title Articul; insert? Żm Magma Carta, a Latin text, which contains not a few deviations from the French deed of confirmation. This Latin text is known under the name Statutum. de tallagio mom concedendo and is, in the preamble of the Petition of Right, 3 Car. I (1627) c 1 s 1 and in a decision of the judges (1637), erroneously designated 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 Comst. Hist. II, 147 ff. c 14 § 180. - * Letter of Boniface VIII to king Philip (Feb. 7th) in Baronius, Ammales, 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 (Amm. de Włgornia; Rer. Brit. Scr. No. 36; Ammales Monastic? IV, 531 without date. The same fuller and with date 28 Feb., Baronius, Annales year 1297, §§ 43–45, Ed. cited XXIII, 216 and in Hist, Papers from North. Reg. [Rer. Brit. Scr. No. 61] p.127): Licet enºm. Constitutionem illam ed?derömºus pro ecclesiastica libertate, mom tamen fuit mostrae ment’s intentio ºpsi regi aliiswe principibus saecularibus in tam arcte necessitatis articulo (praecipue ubi ab eactrinsects injusta timetur invasio, et ab intrinsects ejusdem regm; subversio formidatur, ac etiam praelatorum, ecclesiarum et personarum ecclesiasticarum evidens periculum imminet), viam subventionis eaccludi, quominus ipsi praelati ecclesiae et ecclesiasticae personae libero arbitrio ac sponte de mostra lºcent? a pro communi defension is awaci- lio, in quo proprium interesse cujuslibet conspicitur, principibus ac sibà èpsis providednt juacta Suarum modulum facultatum. 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, l.c. year 1297, § 51, XXIII, 219; sponte liberoque arbitrio de licentia nostra. * Printed in Prynne, Records III, 725 and in Pithou, Libertés de l'Eglise Gallicane Ed. 1639 II, 1089: “in case danger threatens the realm, inconsulto etiam Romano Pontifice.” : $4] RELATION OF STA TE A W D C H U R CH 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.” Bitt the dispute did not end here. In principle the pope, and with \him the English clergy, adhered to the view that papal t was requisite for every tax upon church property. Once moreſ 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.” From this time the quarrel whether spiritualities were or were not taxable gradually ceased. In point of fact, grants of church taxes were madé 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 limitation, 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 tºº 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.” 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 } * Stubbs, Const. Hist. II, 147 c 14 § 180. Boniface VIII, by bull of 12th March, 1301 (Hist. Papers from Northern Registers, Rer. Brit. Scr. No. 61; p. 147) declared that he left to the king what the latter had collected through Żmpositiones et eacactiones 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 I, 105):- - E par ceste choses suzdites me pount me osent pas les Prelatz de Seinte Eglise assentºr Ke contribucion seit fete de lur biens me de biens de la clergie em. contre le defens le Apostoille. Nom placuit Regi set communitas procerum approbavit. * Compare Stubbs, Comst. Hist. III, 349 c 19 $ 396. * Compare $ 21. 19° 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. * 1979 Ed. II st. 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 |, 1B and ecclesiastical courts, couched almost in the terms of the ſGir- cumspecte agatis, which is, as we have seen, probably assignable to Edward I; * besides this, it redresses a number of insignificant church grievances, without, however, sacrificing essential prejoga- tives of the state. Edward III in like manner remained, for the most part, at beace with the national church, whose assistance he needed to enable him to carry on his wars with the king of France.” In the early Realm I, 171 and in Hist. Papers from the Northern Registers; R. Brit. Scr. No. 61, pp. 253 ff. The answers contained therein had already been read at the parliament of Lincoln, 9 Ed. II). cc 1–6 relate to the jurisdiction of the ecclesiastical courts re causes; c. 7 to excommunications; c. 8 to competénce re clerks employed in the exchequer; c. 9 to the levying of distress on Ghurch property (the answer to the 12th art. of articles of 1279–85 is almost idºntical 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 18 to the examination of persons, presented by the king to a benefice; c. 14 to free election to church dignities; co 15 and 16 to the amenability of clerks to the courts. The relation of the statute to. pºeviºus 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 mostrorum quondam Regum Anglie, in diversis parliament's Swis, et sºmżliter postguam regn? nostri gubernacula suscep?mus &n parliament's mostrés, per prelatos et clerum regn? nostri, plures articuli continentes gravamina aliqua ecclesie Anglicane et épsis prelatis et clero ºllata, ut ºn eisdem asserebatur, porrect fužssent, et cum instancia supplicatum, wt inde apponeretur remedium opportunum: Ac muper in parliamento nostro apwd Lincoln. anno regm; mostr; mono, articulos subscriptos, et quasdam respon- Siones ad aliquos eorum privas factas, coram consilio mostro recitari, ac quasdam Tesponsiones corrègi, et ceteris (North. Reg.: certis) articulis subscriptis per mos et dictum consilium nostrum fecer’mus responder: ; quorum quidem articulorum et respons?onum tenores subsequwntur in hunc modum. .. * Compare above, note 71. se $ * 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. III (1326||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. III (1340) St. 4. c 1 lays down that no spiritual person's goods shall be purveyed for the king without the owner's consent; c 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; co 4, 5 relate to the administration of the temporalities of bishops during vacancy. 18 Ed. III (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); c 3 relieves clergy who purchase land in mortmain; c 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. t 25 Ed. III (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] RELA TI OM OF STA T E A W D C H U R CH 4 I part ºf the reign friction was avoided owing to the fact that from 1330 to 1340 John Stratford, who became archbishop of Canterbury in 1833, and his brother Robert 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 developºment 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 ãº, Only.” The recognition of this principle hampered the clergy henceforth considerably in compelling an alteration in par- łiamentary 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 1851 was passed the first law (Statutum de provisoribus) that in unmistakable terms and with strict penalties for breach opposes the usurpa- tions of Rome 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. III (1330) c 6: Item est acorde gelestatut madgairs fait et afferme a Kardoğl, cest assaver, qe les Religiouses me facent apport outre meer, soët Ameyntemu garde, et tenu, en toutz point2.—5 Ed. III (1831) c 3: Ensement est acorde et establi ge un estatut fait a Kardoil, en temps me? Sºme le Rož lael {= l'aieul), en quel est contemuz gegentz de Religion me facent apport hors dw poialme, soit tenuz, gardez, et maintervuz en touz pointz. Cf. above, note 70. * The impetus was given by a petition of the lower house of parliament in 1343. The several measures which followed up to 1851 are brought together in Stubbs, Comst. Hist. II, 413 c 16 $ 259; III, 339 c 19 $ 392. * 25 Ed. III (1350/1) st. 4, printed in appendix VIII. 42 TO TH E REFORMA T I O /V [I, 1B presentation which lie in ecclesiastical persons or bodies, thejn may these nevertheless present, if they venture to do so. If they jdo not present or if their presentee does not obtain possession, thſe 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 presént 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 enàctment of these two laws.º 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 | * 27 Ed. III (1353) st. 1 c 1, Statutum contra admullatores Judiciorum Curiae Regis. The statute is often designated * the first praemunire-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. º Both laws were confirmed and supplemented by 38 Ed. III (1363/4) st. 2. º Compare $ 21, note 31. º Rotuli Parl. II, 290 : Lour disoit (the chancellor to the parliament), Coment le Roi avoit entendu qe le Pape, par force d'un fait quel il dit qe le Roi Johan fesoit au Pape, de lui faire Homage pur le Roialme d'Engleterre et la Terre d'Irlande, et qe par cause du dit Homage q'il deveroit paier chescun an · perpetuelment Mill Marcs, est en volunte de faire Proces devers le Roi et son Roialme pur le dit Service et Cens recoverir. De qoi le Roi pria as ditz Pre- latz, Ducs, Countes et Barons lour avys et bon conseil, et ce q'il en ferroit en cas qe le Pape vorroit proceder devers lui ou son dit Roialme pur celle cause. Et les Prelatz requeroient au Roi q'ils se purroient sur ce par eux soul aviser, et respondre lendemain. Queuac Prelatz le dit lendemain adeprimes par eux mesmes, et puis les autres Ducs, Countes, Barons, et Grantz respondirent, et , disoient, Qe le dit Roi Johan ne nul autre purra mettre lui ne son Roialme me son Poeple en tiele subjection, Saum2 Assent et accorde de euac. Et les Com- munes sur ce demandez et avise2, respondirent en mesme la manere. Sur qoi feust ordeine et assentu par commune Assent en mamere q'ensuit : © Queuœ Prelat 2, Duc s, C'ou ntes, Barons et Com m u n es, eu sur ce plein deliberation, responderent et disoient d'une accorde, Que le dit Roi Johan * me mul autre purra mettre lui me son Roialme me son Poeple en tiele subjection saum2 Assent de eux, et come piert par plusours Evidences qe si ce feust fait ce feust fait saunz lour Assent, et encontre son serment en sa Coronation. Et outre ce, les Du c s, Count es, Baron s, G rant 2 et C'om m un es accorderent et granterent, qe en cas qe le Pape se afforceroit ou rien attempteroit par Proces 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 n0Strorum. 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, Const. Hist. II, 13 c 14 $ 169). - RELATION OF STA TE A W D C H U R CH 43. to claim the tribute. That England was, in temporal matters, independent of Rome, was never afterwards seriously questioned.” last years of his reign Edward III, after negotiations d been carried on in 1874–75 at Bruges, received assur- the pope * as to the removal of the principal grievances complainºd of. But the promises made were not long observed.” Richard II (1377–99) was a minor when he became king. In the year 188! rebellions broke out in many parts of England. The imovement for the reform of the church played a certain part in many of ſthese risings. It is probably in connexion there with that there was issued in 1382 the first secular law against lollard heretics" The house of commons, however, maintained the invalid- ity of tº t law, because it had been promulgated without their assent. S ^ Soon after the king had taken the government into his own hands (1389), Edward III'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 eaccellence 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.” * Reference to the feudal relation between them was made by the pope to |Elizabeth. - * Bulls of the pope, 1st Sept. 1375, in Rymer, Foedera 4th Ed. III, 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 up 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 difficulty of access to Rome on account of the war between England and France, the admissibility of citing Englishmen to Rome is temporarily restricted. (6) The English archbishops are commissioned to require cardinals who have benefices in England to repair the buildings thereof.-See Stubbs, Comst. Hist. II, 447, note 3 c 16 $ 261. * Compare the numerous complaints of the ‘good parliament,’ 1876, against papal abuses, Rotuli Parliamentorum II, 337 ff.; for example, c. 98: Item faſt a penser ge. Dževac ad commys ses ouveles a mostre Sečnt Pier le Pape, a pasturer et nom pas a townder. * Cf. § 19, notes 5 and 7. * The most important provisions of these laws are to be found in § 23, note 11. * 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 sta during the reigns between Richard II and the reformation. As early as the days of Edward III a resting place 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 comrhons 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 permal lntly in force. The personal exemption of the clergy from secula jurisdic- tion continued within the limits in which it had hitherto been confined. It was only under Henry VII (1485–1509) that this privilege began to be curtailed. The prosecution of heretics was regulated by state enactment. In 1882 the commons, as we have seen, had protested against the validity of the lollard law then issued. The first generally recognized law against heretics dates from 1401 (2 Hen. IV c 15), 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 lollards' 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 cases 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 c 17 § 291; III, 34, 260 c 18 $$ 306, 367. * The following are the acts which belong here: 25 Ed. III st. 4 (1350/1); 25 Ed. III st. 5 (1851/2) c 22; 38 Ed. III (1363/4) st. 2 cc 1-4; [against provisions through others than the recognized pope, Urban VI: 2 Ric, II (1878/9) st: 1 c 7); 3 Ric, II (1879/80) c 3: 7 Ric, II (1883) c. 12; [cf. also 10 Ric, II (1386)]; 12 Ric, II (1888) c 15; 13 Ric. II (1389/90) st. 2 cc 2, 3; 16 Ric, II (1392/3) c 5; 2 Hen. IV (14001) c 3; 7 Hen. IV (1405/6) c 8; 9 Hen. IV (1407) c. 8; (1 Hen. V (1413) c 7); 4 Hen. V (1415/6) st. 1 c 4. § 4. RELATIO/W OF STATE A W D C H U R CH 45 laws were frequently put into effect and supplied a welcome means of resisting the worst encroachments of the pope. Martin W (1417–31) made a futile attempt to obtain their total repeal. By his desire archbishop Chichele with the bishops appeared in the lower house of parliament to propose a change in the statutes of provisors and praemunire.” So far from listening to his appeal, the º begged the king to defend the archbishop of Canter- bury from Calumny and impending attacks in Rome. Apart from the matter of encroachment upon foreign rights of presentation, repeated efforts were made to induce the pope to remove other abuses which attached to the system of Romish dis- pensations. Promises were several times made ; so especially in the concordat entered into at the general council of Constance between the pope and the representatives of the English nation.”7 But the CCºncessions then made, like those of a similar kind at earlier dates, were expressed in such elastic terms that they brought no permanent relief. With the questions here involved, questions affecting the internal administration of the church rather than its relation to the state, state legislation meddled but little. We must, however, mention as exceptions the statutes dealing with appropria- * The pope's letters, the answers and a report upon the appearance of the bishops in the lower house of parliament (Jan. 1428) are printed in Wilkins, Conc. III, 471 ff. The lower house begged that the king, by his ambassadors in Rome and by a letter to the pope, would protect the archbishop of Canterbury against the calumnies brought against him and defend the rights of the arch- bishop and church of Canterbury in the proceedings pending at Rome. The king assented (6 Hen. VI [1427) Rot. Parl. IV, 322). * The concordat as drawn up by the Roman chancery, 17th April, 1419, is printed in Wilkins, Concilia III, 391. It is laid down therein:- 1. The cardinals shall not be too numerous, shall be taken impartially from all nations with the assent of a majority of the college of cardinals. 2. As there are in England too many places of absolution approved by the pope, and offerings are thus withdrawn from the parish churches, the bishops are to make report to the pope, in order that he may revoke superfluous licences. 3 and 4. For the future appropriations are only to be made with the assent of the bishop. Under certain circumstances existing appropriations (uniones, incorporationes, appropriationes et consolidationes) may be done away with. Vicarić perpetuº are in that case to be appointed. 5. All privilegia de utendo pontificalibus (mitris, Sandal??s, etc.) granted since the death of pope Gregory XI (1378) are revoked. 6. Pluralitates are henceforth only to be granted person’s mobilibus or to men of distinguished learning. 7. Holders of benefices for from one to seven years or longer have been without orders. This is not to be, sº tamen . . . Sint alias habiles ad ordines suscipiendos. 8. Dispensations by the pope from residence, or to archdeacons to make their visitations by deputy, are not in future to be made absgue causa rationa- bili et legitima in litteris dispensationum eacprimenda. 9. Lºtterae facultatum to monks to hold church benefices with or without care of Souls are not to be granted. 10. Englishmen, as well as others, are to be promoted to office in the Roman CUllſ 18, t . 11. The pope will issue a bull upon the matters above mentioned. 46 TO THE REFORMATION [I, 1B tions 1% and with the penalties for the purchasing of bulls to be discharged of tithes.” A large number of abuses in church ad- ministration, founded on the purchase of papal dispensations, still survived. It was with these abuses that Henry VIII began in his first reforming laws. - § 5. b. Development of the church constitution internally. I. Archbishops. At the commencement of this period the archbishops of Canterbury raised a claim to receive the Oath of obedience from the archbishops of York. But the claim was not permanently acknowledged, and England remained divided into two ecclesiastical provinces, at the heads of which were archbishops enjoying equal rights. In 1126 the archbishop of Canterbury ac- cepted the position of a permanent legate of the Roman pontiff. By so doing he sacrificed his independence in one direction to gain authority in another. From the middle of the fourteenth century the archbishops of York were likewise almost always papal legates. But the district subjected to the archbishop of Canterbury being considerably superior in area and population, he was thus practically assured of a more prominent position than the archbishop of York enjoyed. Moreover, from the middle of the fourteenth century, the latter admitted the precedence of his brother of Canterbury." II. Bishops and their officers. Within the first two cen- turies after the Norman conquest the larger number of the bishoprics were divided each into several archdeaconries.” The effect of this was to lower the position of the rural deans, and the archdeacons appropriated the greater part of the privileges which had previously belonged to them.” But further, some of the rights of supervision which had hitherto been the bishops' now passed to the archdeacons. The court of the archdeaconry became a special court of lowest instance, detached from the episcopal court. The holding of the latter fell to a new functionary, called the episcopal “official.’ “ Moreover, in exercising the potestas ordinis the bishop was often relieved owing to the association with him, from the thirteenth century, of episcopi suffraganei, episcopi in partibus infidelium.” III. Parish priests. The position of the parish priests suf- fered from the abuse of appropriations.” By the fourteenth century about a third of all English parishes were appropriated. Hence the revenues applicable to the actual care of souls were much diminished; the natural tendency of this was to cause the clergy who came into most frequent contact with the people to remain ** 15 Ric. II (1391) c 6; 4 Hen. IV (1402) c 12. * 2 Hen. IV (1400/1) c 4; 7 Hen. IV (1405/6) c 6. * With this paragraph compare $34, * Cf. § 42, notes 4 and 5. * Cf. § 43, note 9. 4 Gf. § 38. 5 Cf. § 39. * Cf. § 44, note 11. I W TERMA L DEVELOPM EAW T 47 stage of Culture. It was not until the end of the fourteenth century" that the development of the system was checked. IV. (thurch councils. The provincial synods, at the end of the last and the beginning of the present period hardly to be distinguished from secular councils, awoke to new and independent life. In ever-increasing degree the bishops consulted representatives of their subordinate clergy, whilst, at the same time, the laity ceased to take part in the deliberations. At the end of the thir- teenth century elected representatives of the parochial clergy were summoned ; it became an established rule that definite classes of church officials must be summoned in person, and that, for other classes, a definite number of representatives should be called; every provincial synod resolved itself into an upper and a lower house. These provincial councils, whether in consequence of their fusion with the representation of the clergy in the national council or without any such intervening stage, obtained the right of granting taxes in respect of church property. In connexion therewith grew up a right to the king to require from the archbishop the summon- ing of the provincial synod at any time. But the archbishop also retained the right, to which he had urged his claim since the end of the twelfth century, of calling such a council even without the king's Consent." Whilst then the ecclesiastical synods of the province, which now were called convocations, thus came to be an important factor in the constitution of the state and attained to efficiency and far-reaching influence, national church councils, owing to the jealousy of the archbishops, met but seldom, and almost exclusively under the presidency of pontifical legates. They did not become a permanently operative part of the church Organism. W. Monks. The struggle between the regular clergy and the monks still continued. In numerous instances the monasteries 7a se- cured, to a greater or less extent, immunity from the bishop's super- vision. Cases of exemption from any form of episcopal interference had probably occurred as early as Anglo-Saxon times.” After the conquest the first monasteries wholly free from such control were those of the cistercians, who settled in England in 1128. By de- grees a considerable number of abbots of larger monasteries received the external signs (the mitre etc.) of the episcopal dignity. The first reported case in England of such a bestowal of episcopal ornaments by the pope took place in 1063, the recipient being the abbot of St. Augustine's in Canterbury; but the abbots are said not to have used * On the whole paragraph compare $ 54. * The position of the various monasteries can be seen in Ch. H. Pearson, Historical Maps, 2nd Ed. London, 1870, p. 58. On pp. 67 ff. see lists of the monasteries destroyed or abandoned by 1066, of the houses of canons and of benedictin monks existent in 1066 and of the number of new foundations under the several reigns from 1066 to 1877. A list of the monasteries, colleges etc. founded before 1066 is given in Walter de Gray Birch, Fast? Monastic?. * Cf. § 2, note 9. 48 To THE PRESENT DAY [I, 1C: those ornaments after the conquest.” After this another bºstoval first happened under pope Hadrian IV (1154–59), the ornaments being conferred on the abbot of St. Alban's.” ) The appearance of the mendicant Orders in England during the first half of the twelfth century led to an increase in the strength of monasticism. As the monks always willingly submitted them- selves to the pope, they were secure of his support in their endeavour to break through the regular constitution of the church. 3. ſ C. FROM THE REFORMATION TO THE PRESENT DAY. § 6. } a. The reformation.” The peculiar characteristic of the course of the reformation in - England is that the movement was for long, that is, until the death of Henry VIII, confined, for the most part, to changes in the con- stitution of the church, the old doctrines being treated with all possible forbearance. The aim of the struggle which the king undertook was the deliverance of the state from the influence of a foreigner. In such an effort he found, as other kings had done before, the assured support of the national council; and under pres– sure from him, the highest church officers in the land also arrayed themselves at his side. Turing the conduct of the struggle assist- ance was derived from the party which was desirous of dogmatic changes, a party which since the lollard controversies had never been wholly extinct, and to which the reformation in Germany had given a forward impetus and increased authority. This party, even in Henry's reign, succeeded in introducing certain alterations in doctrine and in the externals of divine service. But Henry, in this respect, was a restraining rather than a propulsive force; to far- reaching innovations he offered the most vigorous resistance. It was not until the regency during the minority of Edward VI that the reformation in England was on its doctrinal side accomplished. The outward and apparent cause of the outbreak of the quarrel * Goscelin, Hist. Transl. S. Augustini lib. II c 5 (printed in Migne, Patrol. Cursus, vol. 155 p. 33. Goscelin died probably in 1098; Hardy, Rer. Brit. Scr. No. 26, II, 83); Thorn, Chron. (ed. Twysden) 1785, 1824. * Matthaeus Paris., Vitae 23 Abbatum St. Albani (ed. Wats. London 1639) p. 73: Duo namque maocłma privilegia adept: Sumt. Primum de pontificalibus ormamentis; . . . For fuller information see l.c., or in Gesta Abbatum Mom. St. Albani (Rer. Brit. Scr. No. 28) V, 124–158, drawn from Matthaeus Paris. The documents, regarding the definite agreement (1163) between the abbot of St. Alban's and the bishop of Lincoln are printed in Dugdale, Monasticom, Edi- tion 1817–30, WI, 1276 and in Roger de Wendover, Chron. (Rer. Brit. Scr. No, 84) I, 22. a Gneist, Engl. Verfassungsgesch. § 30,—Perry, Hist. of Engl. Ch. Vol. II ce. 1-16.-Ranke, Englische Geschichte Book II cc 3–8 Book III c 1. Compare also appendix XIV, II, 3 a, c. § 6] THE REFORMATION 49 between Henry VIII and the papacy was the king's desire, issuing from political considerations,' to be divorced from his wife Catherine of Arragon. To effect this there were needed, according to the view till then prevailing, proceedings before a papal court. These proceedings were begun. But the pope, likewise for political reasons,” sought to postpone a decision as long as possible, and gradually adopted an attitude of decided refusal.” There with was connected in England the fall (1529) of Wolsey, hitherto first minister of the crown, who, combining in himself the offices of royal chancellor, archbishop of York, papal legate and cardinal, had for many years controlled the higher administration of church and state.” The first statute of this period that, if only in a limited sphere, is levelled against papal influence, 21 Hen. VIII (1529) c 13,” followed close upon Wolsey’s disgrace. The enactment lays down definite prin- ciples as to pluralities and as to residence, and declares the obtain- ing of papal dispensations to have pluralities or to be discharged of residence an offence punishable with a moderate fine.” In order . to make the convocations pliant, the king threatened the whole of the clergy with prosecution for breach of the praemunire acts. After prolonged discussion both convocations bought pardon by the payment of heavy sums and by acknowledging that the king was ‘the single protector, the sole and sovereign lord, and in so far as the law of Christ allows, the Supreme head' of the English clergy (1531).7 Shortly after this, perhaps convocation itself proceeded to action against the pope. A petition to the king purporting to be from convocation—the date is not precisely established—begged-that he would take steps to limit the heavy dues payable to the pope upon the attainment of archbishoprics and bishoprics; if the pope did not concur, they prayed that the obedience of the king and his people * His affection for Anne Boleyn was a later and additional inducement. Banke, Engl. Gesch. 2nd Ed. Vol. I pp. 162 ff. * Ranke, l.c. pp. 170 ft. The pope at the outset expressed himself disposed to grant a dispensation. - * By the king's wish the pope had commissioned Campeggio and Wolsey to determine the issue in England. But on Catherine's appeal he revoked the case to Rome, and on July 23rd, 1529, the two cardinals adjourned the court. From that time Henry's hostility to Rome was pronounced. * Wolsey’s removal was due nominally to his condemnation for breach of the praemunire statutes, really to the fact that he was suspected of not urging the king's case at Rome with sufficient zeal. * An Acte that no spirituall persons shall take to ferme of the Kynge or any other person any Londes or Tenementes for terme of life, lyves, yeares or at will etc. 1 And for pluralities of Benefices; and for Residence. SS 9, 16. * For the text of their declarations see § 28, note 2,-Their pardon was expressed in the acts:— 22 Hen. VIII (1530/1) c 15 An Acte concernyng the pardon to the Kyngs Spirituall Subgectes of the Provynces of Canterbury for the Premumyre. 22 Hen. VIII (1530/1) c 16 An Acte concernyng the pardon gravinted to the Kynges Temporall Subgectes for the Premumyre. 23 Hem. VIII (1531/2) c 19 An Acte concernymg the Kynges gracyous pardon of premunyre graunted unto his spirituall Subjectes of the provynce of York, H.C. E 50 TO THE PRESEAW T DAY [ſ, 10 might be by law withdrawn from the see of Rome.” The act 23 Hen. VIII (1531/2) c 20 follows the lines of the petition in ques- tion. It ordains that all payments to Rome upon preferment to any archbishopric or bishopric, except five per cent. of the whole yearly value, shall utterly cease, and that the making of them shall be punishable by forfeiture. If the pope owing to non-payment refuses or delays bulls apostolic or other things requisite, then shall he that is named for the bishopric or archbishopric be consecrated without further formalities—as was in old time customary—by the archbishop or (if for an archbishopric) by two bishops appointed by the king. The renunciation of obedience is not threatened; on the Contrary the whole act is conceived in a spirit of moderation; more- Over, power is reserved to the king to negotiate with the pope and to determine within a definite time whether and to what extent the statute shall become operative.” * It may please the King's most noble grace . . . , First, to cause the Said wnjust eacactions of annates to cease, and to be foredoen for ever by act of th?s his grace's high court of parliament. And in case the pope wold make any process against this realm for the attaining those annates, or else wol retain bishops bull 'till the annates be payd, forasmuch as the eacaction of the said annates is against the law of God, and the pope's own lawes, forbidding the buying or selling of spiritual gifts or promotions; and forasmuch as al christen men be more bound to obey God, then any man; and forasmuch as St. Paul willeth ws to withdraw ourselves from al such, who walk 'nor- džnately; it may please the King’s most noble g race to ord a £n 2 m this present parliament, that then the obedience of hºm and the people be with drawn from the see of Rome; as in like cases the French King withdrew his obedience of him and his subjects from pope Benedict the XIIIth of that name; and arrested by authority of his par- liament al. Such annates, as it appeareth by good writing ready to be shewed. (Strype, Eccles. Memorials, Edition 1822, vol. I pt. 2 p. 158 nu, 41 after the manuscript Cleopatra E. 6 p. 263; after Strype in Wilkins, Concilia III, 760.) Wilkins places this petition under the year 25 Hen. VIII (22 April 1533–21 April 1534). But as its contents point to the fact that no law against the payment of annates had then been promulgated, the date at all events does not appear to be suitable.—The bill was laid before parliament between 14th and 28th February, 1532, and passed on the 19th March in the same year; all the bishops and two abbots are said to have voted against it (Reports of Chapuys to Charles V, abstract in Letters etc. of the reign of Henry VIII, vol. V, ed. Gairdner, No. 832 [805), 879). Stubbs, appendix IV p. 88 to the Report of the Ecclesiastical Courts Commission 1883, Parliamentary Reports vol. XXIV alludes to the petition under date of February, 1532. - ° 23 Hen. VIII (1531/2) c 20 An Acte concernyng restraymt of payment of Ammates to the See of Rome. - - s 1: . . . Annates, otherwise called furst fruytes . . . heretofore have been taken of every Archebysshopprèche or Byssopprèche with?n thès Realme by restraint of the Popes Bulles for confirmacions eleccions admyss?0ms postulacions provisions collacions disposicions institucions installacions in- vestitures orders holye benedèccions palles or other thinges requyste and neces- sary to thatteynyng of these their promocions . . . and albe it that the King and all h is naturall subject ys as well spirituall as tempor- all ben as obed & ent devout e cathol & Q we and h wºmble ch 6 loi re n of God and Holz e Church as any people be within any Realme cristened . . . enacted : . . . that the unlawfull paymentys of Anmates or furst fruytes and almaner contribucions for the same for any Archebysshopprèche or Bys- shopprighe or for any Bulls hereafter to be opteyned from the Courte of Rome § 6] THE REFORMATION 5.I The house of commons now made an attack on the convocations, disputing their power to make constitutions and Ordinances inde- pendently of royal assent or of the assent of lay subjects of the crown. This attack was supported by the king, although he sought to maintain the appearance of acting as a mediator. Under such pressure the convocation of Canterbury, after initial hesitation, announced its submission on the 15th of May, 1532. In the instru- ment drawn up it is conceded :— 1. Convocation may only be summoned at the king's command ; to or for the forsaid purpose and intent, shall from hensforth utterly cesse, except in so far as is expressed below. Whoever, elected etc. to a bishopric, pays anmates, first fruits or the like, forfeits to the king his personal property, and for the time during which he is in possession of the bishopric, all temporal lands and possessions pertaining to it. s 2: furthermore it is enacted . . . that every person hereafter named and presented to the Courte of Rome by the Kyng . . . to be Bysshop of any See or Dioces within this Realm, hereafter shalbe letted deferred or de- Zayed at the Courte of Rome from any suche Bysshopriche wherunto he shalbe so presented, by meane of Restraynt of Bulles Apostolique and other thinges requisite to the same : . . . every Suche person so presented may be and shalbe consecrated here in England by tharchebisshop in whose provynce the seid Bisshopräche shalbe, so alwaye that the same person shalbe named and presented by the Kyng for the time being to the same Archebysshopp, And yf any person being named and presented as is aforesaid to any Archeb is shop- prèche of this Realme making convenient Sute as is aforesaid, shall happen to be letted deferred delayed or otherwise distourbed from the same Archebis- shopriche for lacke of Palle, Bulles, or other thinges to him requysite to be opteyned in the Courte of Rome in that behalf; That then every suche person . so named and presented to be Archebisshop may be and shalbe consecrated and invested after presentacion made as is aforeseid, by any other two Bysshopes within this Realme whome the Känges Highnes or any of his heyres or suc- cessours Kynges of Englonde for the tyme being will assigne and appoynte for the same, according and ºn lyke maner as dyvers other Archebisshopes and Bysshopes have been heretofore in awncient tyme by Sondry the Kynges most noble progenitours made consecrated and invested within this Realm ; . e s 3. For the writing, obtaining and sealing of the bulls there may however be paid to Rome 5 per cent, of the yearly value of the bishopric in question. The king may compound with the pope to reduce or extinguish ammates, inas- much as king and parliament would wish first to proceed by amicable means. The composition so made shall hold good in law. - s 4. The king is empowered up to the following Easter or before the beginning of the next parliament to declare by letters patent whether and in how far this is to be a statute or not. s 5. If no redress be had by friendly means and the pope persists in his exac- tions and harasses the king or his spiritual or lay subjects by eaccommunicacion. eaccommengement interdiccion or by any other processe censures compulsories wayes Or meanes, the king, his temporal and lay Subjects, shall, without scruples of conscience, minister or cause to be ministered all sacraments or other divine Services, and this in spite of excommunications etc., which none are to publish or execute. - [The act was put into full force by royal letters patent of 9th July, 25 Hen. VIII, i.e. 1533 (printed in Statutes of the Realm, note to act); it was supple- mented and made more severe by 25 Hen. VIII (1533/4) c 20 ſon which see below, note 17]; it was repealed by 1 & 2 Phil. & Mar. (1554 amid 1554/5) c 8 s 3, and again put in force by 1 Eliz. (1558/9) c 1 s 2. The firstfruits withdrawn from the pope by the act above, as also other dues, are transferred to the king by 26 Hen. VIII (1534) c 3. --- 52 TO THE PRESENT DAY [I, 10 2. New canons, constitutions or other provincial ordinances cannot be enacted, promulgated or executed without royal leave first ob- tained; they need, moreover, the king's approval after acceptance by the synod; - 3. Provincial constitutions, ordinances and canons already enacted shall be examined by a commission to be named by the king and consisting of members of parliament and of the clergy, and, so far as seems requisite, with the king's consent annulled.” - " lºor the discussions which led up to this see Perry, Høst. of Engl. Church II, c. 5 §§ 17 ff. The projected review of the older canons was never com- pleted. See § 14, notes 17 ff. The declaration of submission runs (Wilkins, Conc. III, 754):— We your most humble subjects, daily orators and beadsmen of your clergy of England, having one speciall trust and confidence in your most eaccellent wisdom, your princely goodnesse, and fervent zeal to the promotion of God’s honour and christian religion, and also im, your learning, farr eacceeding, irº our judgment, the learning of all other Kings and princes that we have reed of; and doughting nothing, but that the same shall still continew and dailey 2ncrease in your majesty, - first do offer amd promise ‘ām verbo Sacerdot??' here unto your highness, sub mºttºng our self's most humbly to the same, that we will never from henceforthe enact, put in ure, promulge, or eacecute any new e canons or consti- tution provinciall, or any other new e ordinance, provinciall or synodall, in our convocations or Symode, in time commyng, which convocation is, alway hath. byn, and must be assembled onely by your high commandment or writte ; only your highness by your royall assent shall lycence us to assemble our convocation, and to make, promulge, and eacecute such constitutions and ordinaments, as shall be made in the same, and thereto give your royall assent and authorite. Secondarily, that whereas diverse of the constitutions, ordinaments, and canons provinciall or symodall, which have been he retofore enacted, but thought to be not only muche prejudiciall to your prerogative royall, but also over muche omerous to your highnesses subjects; your clergye aforesaid is contented, if it may stand so with your highnesses pleasure, that it be com- mitted to the eacamination and judgment of your grace, and of thirty two persomes, whereof sæteem to be of the upper and mether house of the temporalte, and other s?acteen of the clergye, all to be chosen and appointed by your most moble grace. So that fymally whichsoever of the said constitutions, ordina- ments, or canons provinciall or synodall shall be thought and determyn'd by gour grace, and by the most part of the said 32 persons mot to stand with God's laws, and the laws of your realme, the same to be abrogated and taken away by your grace, and the clergye. And such of them as shall be seem by your grace, and by the most part of the said thirty two persomes to stand with. Goddes lawes, and the lawes of your realme, to stand in full strength and power, your grace's most royall assent and authorite ones impetrate fully given to the same. The instrument executed as to the presentation of the resolution by arch- bishop Warham to the king (16th May) describes this resolution as one framed only by the upper house of the convocation of Canterbury (Wilkins, Concºlia. III, 754): . . . schedulam per ?psum et alºos episcopos, abbates, et priores domus superioris convocation’s praelatorum, et cler; provinciae Cant, in domo capitulari infra monasterium Westm. hesterna die, viz, quintadecima die hujus mensis Maº, tent. £mactitatam, comcordatam et conclusam . . . regi tradždžt. According to Collier, Eccles. Hist. Ed. 1852 IV, 195 a special resolution of the lower house was not called for because the latter had already voted a more comprehensive declaration of submission, so that adhesion to the more limited declaration of the upper house was regarded as already given. According to Wilkins, Concilia III, 749 (resolutions of 13th and 15th May) it § 6] THE REFORMATION 53 In August, 1532, Warham, archbishop of Canterbury, died and was succeeded—the consecration was in March, 1533*—by Cran- mer, who favoured the new doctrines and who had for some years been actively furthering Henry's case in the affair of the divorce. Whilst up to this point pope and king had shown consideration for each other, there now followed in Swift succession measures which marked a complete breach between the two. The act 24 Hen. VIII (1532/3) c 12 forbade appeals to the pope in matters pertaining to marriage, testaments and church dues (‘tithes, oblations and obventions'), and it laid down that in all such cases final decision should be given by the authorities of the English national church.” Accordingly, the question of the king's divorce was, in spite of the fact that the pope had reserved decision to himself, tried before Cranmer as judge of the archiepiscopal court. Cranmer on the 23rd of May, 1533, pronounced the marriage null and void.” Anne Boleyn, whom the king had married privately some months before, was now crowned. The pope's answer was to give his own verdict and to declare the marriage of Henry and Catherine valid (23rd March, 1534).” In England severance from the pope was completed by four important laws, in which he is entitled ‘bishop of Rome' or ‘bishop of Rome, otherwise called the pope.’ By the first of these, called the statute of submission, 25 Hen. VIII (1533/4) c 19, the essential part of, the declaration of submission made by the clergy in convo- cation two years before, was converted into an act of parliament, and at the same time every form of appeal to Rome was forbidden.” might well seem that on the 15th May the upper and lower houses adopted the same declaration. . As to the relation of this declaration of Submission to the later statute of submission compare $54, note 56. - * The appointment of Cranmer was made in the form hitherto customary— by election of the convent, royal confirmation, nomination to the pope and provision from him. For the substance of the several bulls relating to the appointment of Cranmer see Collier, Eccles. Hist. Ed. 1852 IV, 207. * On this act see § 23, note 13. * Judgment in Wilkins, Concilia III, 759. * Judgment in Wilkins, Concilia III, 769. * 25 Hen. VIII (1533/4) c 19 An Acte for the submission of the Clergie to the Kynges Majestie [repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3, revived by 1 Elż2. (1558/9) c 1 s 2}. s 1 converts into law the declarations of the clergy : the summoning of con- vocation, the making, publishing and execution of provincial ordinances, can only take place with the king's concurrence. Text in § 54, note 56. s 2 empowers the king, in accordance with the declarations of submission, to name a commission of 32 persons to examine the older canons (cf. § 14, notes 17, 18). • s3. No canons shall be made or executed which are contrary to the king's prerogative or to the laws or customs of the land. Text in § 14, note 16. s 4. There shall be no manner of appeals to Rome. Text in § 23, note 14. A supreme court of appeal is established in England. Text in § 62, note 2. s 5. Whosoever appeals to Rome or procures any sort of process thence to hinder the present law is Subject to the penalties of praemunire according to 16 Ric, II c. 5. s 6. Appeals from places exempt from the archiepiscopal jurisdiction are to He to chancery, not to Rome. 54 TO THE PRESEAW T DAY [I, 1C Letters patent dated 9th of July, 1533, put into effect the statute already mentioned, 23 Hen. VIII c. 20.” By 25 Hen. VIII (1533/4) c 20 the same statute is confirmed, and in so far extended that for the future no person is to be presented to the pope for the office of archbishop or bishop, and no annates or similar impositions are to be paid. In the same act the procedure for filling an archiepiscopal or episcopal see is newly and in detail prescribed, and the rules there laid down have remained in force—with interruption under Edward VI and Mary—down to the present day. The procedure is as follows:—When a see is vacant, the king grants to the cathe- dral chapter a licence to elect (congé d'eslire) and at the same time indicates in a separate communication (letters missive) the name of the person to be chosen. The chapter must elect this person and certify the election under seal to the king, to whom the elected has to take ‘Oath and fealty.’ Then the king requires and commands, if a bishopric is to be filled, the archbishop, if an archbishopric, an archbishop and two bishops, or four bishops, to confirm the election and to consecrate and invest the elected. There is to be no pro- curing of bulls or other things from Rome." The third law of the series is 25 Hen. VIII (1533/4) c 21, in which it is set forth as a reason for the enactment, that the king is by recognition of the convocations ‘supreme head of the church of England,’ the restrict- ing clause added by the convocations being dropped. Peter pence and all other dues to the pope are abolished; suing at the Roman court for any dispensation or favour is forbidden under the penalties of praemumire; the powers which the pope had exercised in this sº- s 7. Until the review of the older canons takes place, they are to be observed in So far as they are not repugnant to the king's prerogative or the laws and customs of the land. Text in § 14, note 17. * Compare above, note 9. * 25 Hen. VIII (1533/4) c 20 An Acte restraymyng the payment of Ammates [or First Fruits to the Bishop of Rome and of electing and consecrating of Archebishopes and Bishopes with?m this Realm]. [ss 3 and 4 of this act were temporarily altered by 1 Ed. VI (1547) c 2 s 1; the whole act was repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3, but revived in its full extent by 1 Eliz. (1558/9) c 1 s 2.] g- s 1. As the pope has made no answer to the amicable overtures in accordance with 23 Hen. VIII c. 20, that act has been confirmed by royal letters patent. s 2. As it was not clearly expressed in that act how bishops are to be elected and consecrated, be it ordained that the said law be observed in all points; eaccept only that moo person . . . hereafter shalbe presented momymated on- commended to the seid Bishopp of Rome . . . to or for the digmätze or office of any Archebishopp or Bishopp within this Realme . . . , nor shall send mor procure there for any maner of Bulles breves palles or other thymges re- guys?te for an Archebishop or Bishop, mor shall pay any Sommes of money for Annotes first frutes or otherwyse for eacpedicion of any suche bulles breves or alles; - p ss 3 and 4 contain the new regulations for the election and consecration of bishops and archbishops. Text in appendix X. s 5. Such elections and consecrations are declared effectual. s 6. Whosoever does not make election and notify it within twenty days, and whosoever does not consecrate and invest within twenty days after the king's letters patent of signification come to his hands, and whosoever obtains or exe- cutes ecclesiastical process in hindrance of this act is subject to the penalties of praemunire according to 25 Ed. III st. 5 c 22 and 16 Ric. II c 5. § 6] THE REFORMATION 55 respect are transferred to the archbishop of Canterbury, with whom in more important cases the lord chancellor must co-operate; attend- ance at general church councils abroad is prohibited; monasteries etc. exempt are placed under the visitation of royal commissioners; right of confirmation in respect of monastic elections, in so far as hitherto exercised by the pope, is also vested in royal Commissioners.” The fourth law belonging here is what is known as the first act of supremacy, 26 Hen. VIII (1534) c 1. In it the king is declared to be “the only supreme head in earth of the church of England,’ again without the limiting clause of the convocation ; that title and * 25 Hen. VIII c. 21 An Acte for the eaconeracion frome eacaccions payde to the See of Rome. s 1. The king is designated ‘supreme hede of the Church of Englonde.’ The text of the passage is given in § 28, note 3. It is then ordered: that no per- son or persones of this your Realme or of any other your Domynyons shall from henceforth pay any pencions censes porcions peterpence or any other &m- posicions to the use of the seid Bisshopp or of the See of Rome - s 2. Neither the king nor a subject shall sue to the pope or to any com- missioner of his for licenses dispensacºoms composicions faculties grantmtes Tescriptes delegacies Or any other instrumentes or wrytymges. Upon applica- tion of the king, the archbishop of Canterbury shall grant him all necessary dispensations etc., which were before granted in Rome, but not for any cause or matter repugmant to the law of Almyghty God. s 3. In like manner upon application of Some other person. In cases which are unusual and in which dispensations had not been commonly granted by Rome, the approbation of the king or his council is to be first obtained. s 4. If the dispensation etc. would have cost £4 or more according to the scale of taxing at Rome, it requires to be confirmed by your Highness wºnder the greate Seale and inrolled in your Chauncerie . . . The chan- cellor or keeper of the great seal (the two offices being identical at latest from the time of Elizabeth) needs no special warrant from the king to enable him to confirm the dispensation. ss 5–10. Contain details as to registry of licences, fees etc. s 11. Should the archbishop refuse a dispensation, a writ shall issue from the lord chancellor or the keeper of the great seal enjoining him to grant one or to show cause. s 13. Nothing contained in this act shall be interpreted as implying an inten- tion to declyme or vary from the congregacion of Christis Churche; it is only an ordinance rendered necessary by policy. s 14. Relates to exempt monasteries and [text in § 26, note 7] to participation in foreign church councils. s 15. The present law alters nothing in 21 Hem. VIII c. 13 (touching plurali- ties and residence). s 16. He who sues for dispensations etc. in Rome incurs the penalty of prae- munire (16 Ric, II c. 5). s 17. Previous grants from Rome to monasteries etc. shall remain valid. But payments (pensions etc.) to Rome, papal visitations or confirmations of elections, and oaths to the pope are forbidden. Visitations and confirmations, where hitherto existing, pass to royal commissioners. s 21. The king with the advice of his council can reform and change indul- gences and privyleges . . . obteymed at the see of Rome or by auctoritie thereof. ss 22, 23. Within a certain period the king may order the immediate execution (before the time fixed) of this act, or its annulment. [The act was approved and put into force immediately by letters patent of 7th April, 25 Hen. VIII, i.e. 1534 (printed in Statutes of Realm, note 3 at end of act). It was repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3 and rendered operative again by 1 Eliz. (1558/9) c 1 s 2.] 56 TO THE PRESENT DAY [I, 10 all honours, privileges and powers thereto pertaining are assigned to each subsequent holder of the crown; the king is to have the right of repressing all errors, heresies, abuses and other offences, which can be repressed by any spiritual authority or jurisdiction.” To give practical effect to the act of supremacy Henry VIII in 1535 appointed his chief minister Crumwell as his representative (‘vicegerent, vicar-general etc.') in ecclesiastical affairs,” and directed a visitation—the first took place in the autumn of the same year—of the monasteries and of the whole clergy.” At the same time, under date 18th September, 1535, he issued an inhibition to the bishops and their officers, forbidding them to exercise any juris- diction whilst the visitation was pending.” He then transferred to the several bishops for the period of the visitation these rights of jurisdiction as rights emanating from himself and subject to recall. He left to the bishops besides—the rights committed to them in the Bible.” At the beginning of the year 1536 all monasteries etc. * Text in § 28, note 4.—The law was repealed by 1 & 2 Phil. & Mar. c. 8s 4, not afterwards revived, but replaced by similar provisions in 1 Elż2. c 1 ss 7–9. * Cf. § 30, note 1. * For the dates of the visitations of the monasteries in this and in the following years see Perry, Hist, of Engl. Church II, 122 c 8 $ 5. * The inhibition to archbishop Cranmer is printed in Wilkins, Concilia III, 797: Cum nos auctoritate mostra Suprema ecclesiastica omnia et sångula monasteria, domos, prioratus, et loca alia ecclesiastica quaecumque, totumque clerum infra et per totum nostrum Angliae regnum constituta propediem wisłtare statuerémºus ; vobis tenore praesentium stricte inhibemus atque man- . damus, et per vos Suffragane's veStrás confratrºbus episcopis, ac per illos Swis archidiaconis, infra vestram provinciam Cant. ubiläbet constitutés, sic inhi- berá volumws atque praecºpºmus, quatemus pendente visitatione mostra hujus- mod?, nullus vestrum monasteria, ecclesias, ac loca alia praedicta, clerum ve visitare, aut ea, quae Sunt jurisdiction?s, eacercere, sew guácquam alăud &m. praejudicium dictae nostrae visitation?s generalés quovºsmodo attemptare praeswºmat, Sub poena contemptus. * Commission of the king to the bishop of Hereford, 14th October, 1535 (Wilkins, Concilia III, 797): Quandoquidem Omnis juris décend; auctoritas, atque etéam jºur?s d?ct? o O m nº moda, tam élla, q wae eccles & as tº ca dź cº twºr, gºu a m secula rés, a reg & a potestate, velut a Supremo capite et Omnium infra regnum nostrum magistratuum fonte et scaturăgăne prºmº- tws eman aver it ; same illos, quº jurisdictione hujuSºmodº antehac mom nºis; precario fungebantur, beneficium hujus mod?, sic effs eac liberalitate regia indul- tum, gratis anºmás agnoscere, idque regiae munificentiae Solummodo acceptum Teferre, eigue (quoties ejus majestati videbitur) libenter reddere convenát. Cum itaque nos jure nostro universum clerum totius regn? nostr; Angliae visi- tare intendentes, . . . Thomae, Cant. archiepiscopo, ac per eum tºbě et aléés hujus regn? noströ episcopis quibuscumque, ne, pendente visitatione . . €C!, quae sunt jurisdictionis, eacercere attentares sive attentarent per alias literas inhibuerimus; quia . . . Thomas Crumwell, mostris et hujus regn: noströ Angliae tot et tam arduis negotić's adeo praepeditus eacºst?t, quod ad Ommem. jurisdictionem nobis, ut supremo capit? hujus/mod? competentem . . . in Sua persona eºcpediendam non Sufficiet; nos . . . tº b? vices most ras, sub m odo et form a £nfer & us descript is com mºttend as fore teq we l? cent £ and wºn esse decre v 7 m w8 . . . (Then follows the commission to ordain, institute, collate, invest, remove in the diocese of Hereford, and to deal in the customary way with matters of wills and administrations to the amount of £100, and with other causes which properly come before an ecclesi- § 6] THE REFORMA TI OM 57 with a yearly income of less than £200 were suppressed and their property bestowed on the crown (27 Hen. VIII c 28). A few months later the first authorized declaration upon dogma appeared in the form of the ten articles, ‘devised by the king's highness’ majesty,’ agreed to by convocation and afterwards published by the king. These articles correspond in many points with the doctrines of the German protestants; but in other respects adhere to Roman usage.” To give effect to the ten articles and to regulate several other-subjects of interest to the church, Crumwell issued an Ordi- - . of general purport called ‘the king's injunctions to the clergy’ (1536).” - All these innovations led to a formidable rebellion in the north (autumn 1536), which, however, was at first quieted by means of mutual concessions by the two parties. When, in spite of these concessions, the outbreak began anew, it was sternly suppressed by the king. But, though the doctrinal changes already introduced were in general maintained,” Henry refused (1538) to make the further advance in that direction to which the German protestants astical court.) . . . Caeteraque omnia et singula in praemissistantum, Sew circa ea necessaria seu quomodolibet opportuna, praeter et ultra ea, q va e tº b? eac Sacrès liter is d? v ć nºt us com m is sa esse dºg m 0 SC wºnt wr, wice, mom?ne, et auctor?tate mostrás eacequend tâbâ . . . vices nostras . committimus, et liberam facultatem concedimus; teque licent?amºus per prae- sentes ad most rºw m bene placătu m dºwntaac at du rat wºrds, cum cujus- Jäbet congruae et ecclesiasticae coercion's potestate. . . . . . This commission refers in its empowering part only to the duration of the visitation.—By a further commission of 21st July, 1536 (Wilkins, Concilia III, 810) the right of visitation within his diocese was conferred on a bishop also of Hereford upon the Same conditions. * Compare $ 16*. * Printed in Wilkins, Concilia III, 813. This is the first of the ordinances entitled injunctions.—To the year 1536 belong the two following laws:– 28 Hen. (1536) c 10 An Acte eactyngwysshing the auctoryte of the Busshop of Rome. It declares that anyone supporting the authority of the bishop of Rome by writing, preaching, teaching or act shall incur the penalty of praemumire provided by 16 Ric. II c. 5. All ecclesiastical and secular officials are to take the oath of supremacy now first introduced, a refusal of it being declared to be high treason. (In regard to the oath of allegiance, cf. the acts concerning the king's succession, 25 Hen. VIII c 22 s 9; 26 Hen. VIII c. 2; 28 Hen. VIII c. 7 s. 1.) 28 Hen. VIII c. 16 An Acte for the release of suche as have obteymed pretended Lycences and Dispensacions from the See of Rome. All bulls etc. previously granted by the bishop of Rome or his predecessors are to be void, and use may not be made of them under penalty of praemumire. All officers of the church already appointed may exercise their rights in virtue of the present act, not of any foreign authority. Dispensations, faculties etc. granted by the pope to individuals, may have effect for one year to come but solely in virtue of this act and in so far as they could have been conferred by the archbishop of Can- terbury. The bulls etc. are to be delivered to an officer to be named by the *; and new licences conferred under the great seal. So will they obtain validity. * Especially was this the case in the Institution of a Christian Man (pub- lished May, 1587), a sort of catechism, discussed and agreed by the bishops and a number of archdeacons and professors, licensed by the king; and in Crumwell's injunctions for the year 1538. On both points see Perry, Hºst. of Engl. Church II, 150 ft. c. 9 $$ 17 ff. 58 TO THE PRESENT DAY [I, 1C had repeatedly been urging him. To prevent the reformation in belief from proceeding against his will, he brought about a statutory prohibition, enforced by threats of the severest penalties, against denying certain of the older doctrines of the church. This is known as the six article law, 31 Hen. VIII (1539) c 14, which was followed by a series of similar enactments.” Nevertheless, in the last years of the reign some alterations of the church service in a protestant sense were gradually effected.” Moreover, in the years after 1536 the process of innovation or reform in the matter of the church constitution was more vigorously pursued than that in respect of doctrine. Menaces of all kinds compelled the larger monasteries, one after another, to dissolve. The act 31 Hen. VIII (1539) c 13 conveyed to the crown the pro- perty of all monasteries suppressed or relinquished since the first statute of dissolution, and of all to be suppressed or relinquished in the future.” The lands and rents which thus accrued to the crown were, in great part, given, sold at a cheap rate or bartered away to the great ones of the land in order thus to identify the interests of influential families with the reformation. Other important Con- sequences attended the confiscation of the monasteries. With the extinction of monastic representatives vanished for ever that numerical preponderance of the clergy in the upper house of parlia- ment” which had hitherto prevailed. By 31 Hen. VIII (1539) c 9 Henry had been empowered to establish a certain number of episcopal sees and cathedral churches and to endow them with confiscated monastic property. Of this act he availed himself, founding six new episcopal sees” and introducing into those of the older bishoprics in which hitherto there had been monastic convents instead of chapters, a regular cathedral constitution with secular canons.” Furthermore, he established a number of collegiate churches as a compensation for dissolved monasteries. After the death of Henry VIII the party of those who desired further advance in the direction of doctrinal innovations, gained immediate ascendency in the council of regency.” Thus Hertford, * On the provisions of the six article law see § 16° and § 22, note 19; on further legislation with the same tendency see Ś 19, notes 24 and 25.-In 1543 The Necessary Erudition of any Christian Man was, after approval by the con- vocation, published by the king. This is a revision of the Institution of a Chris- tian Man in the direction of a somewhat stronger leaning to the old doctrine. Compare Perry, Hist. of Engl, Ch. II, 179 c 10 pt. ii Ś 3. - * Perry, Hist, of Engl. Church II, 181 c 10 pt. ii Ś 4. * Other statutes of dissolution are 32 Hen. VIII (1540) c 24 (hospitallers of saint John), and 37 Hen. VIII (1545) c 4 (colleges, chantries, hospitals etc.); of later date : 1 Ed. VI (1547) c. 14 (similar foundations) and 1 Eliz. (1558/9) c 24 (new foundations in Mary's reign). * * Compare $ 21, notes 38, 39. * Compare $33, note 35. * Compare $37, notes 21, 22. º * The council of regency for the minority of Edward VI was appointed under Henry VIII's will. The king had nominated leading men of both parties. Gardiner, one of the most prominent adherents of the old doctrines, had been struck out of the list owing to complicity in a court plot to draw the king to the Roman catholic side. - § 6] THE REFORMATION 59 afterwards duke of Somerset, was chosen lord protector. Moreover the young king, Edward VI, frequently expressed himself without reserve in favour of the innovations. Decisive measures were taken without delay, 1 Ed. VI (1547) c 1 directed, in agreement with a previous resolution of convocation, that the “sacrament of the altar’ should be received in both kinds.” 1 Ed. VI (1547) c 12. repealed the laws against heretics, the six article law and all other laws touching doctrine.” 2 & 3 Ed. VI (1548) c 1 brought in a book of common prayer, based in most respects on protestant doctrines.” 2 & 3 Ed. VI (1548) c 21 took away all positive laws against the marriage of priests, though it pronounces such marriages. undesirable.” 5 & 6 Ed. VI (1551/2) c 1 substituted for the first book of common prayer a revision of it in which the protestant views were accepted even in regard to the last considerable matter at issue.” Lastly in 1553 the king published, probably after convoca- tion had deliberated on it, the confession of faith known as the forty-two articles.” Side by side with these enactments were numerous injunctions, proclamations and administrative regulations, all aiming at the removal of Surviving Roman usages, such as the worshipping of images, pilgrimages, obligatory auricular confession etC,40 * An Acte against such as shall unreverentlée speake against the Sacrament of the bodie and bloude of Christe commonläe called the Sacrament of the Altar, and for the receiving thereof in both kyndes, [Repealed by 1 Mar, st. 2 (1553) c 2; revived by 1 Eliz. (1558/9) c 1 s 5.] * An Acte for the Repeale of certaine Statutes concerninge Treasons, Felonyes, etc. S 1. No offence made high treason or petit treason by statute shall be adjuged º Such except under 25 Ed. III st. 5 c 2 [cf. § 60, note 45] or under this 8,CT, - s 2, 5 Ric, II st. 2 c 5; 2 Hen. V st. 1 c 7; 25 Hen. VIII c. 14; 31 Hen. VIII c 14; 34 & 35 Hen. VIII c. 1; 35 Hen. VIII c. 5, and all and every other Acte concerning doctrine and matters of Religion are repealed. S º All new felonies made by statute since the accession of Henry VIII are repealed. - s 4, 31 Hem. VIII c. 8 and 34 & 35 Hen. VIII c. 23 (rendering royal proclama- tions valid as acts) are repealed. SS 5, 6, Penalties fixed for asserting that the king is not, or that the pope is, supreme head of the church [repealed by 1 & 2 Phil. dº Mar. c. 8 s 7]. S 7. Nothing in this statute shall be construed to repeal the laws against counterfeiters of coins or of the king's sign manual. S 8. Any attempt of heirs to the king or successors to the crown to disturb. the order fixed by 35 Hem. VIII c 1 is high treason. SS 9 f. refer mainly to the allowance of benefit of clergy. Cf. § 61, note 6. * Compare $ 15'. * Compare $22, note 23. * Compare $15°. * Compare $163. * These injunctions are to be found in Cardwell, Documentary Annals I, 4 f-Other laws which belong here are:— 2 & 3 Ed. VI (1548) c 19 An Acte for abstinence from Fleshe. As though every day and every kind of food is equally holy, yet abstinence subdues the body to the spirit, and as through greater use of fish the fishers are the better employed and much flesh is spared, it is laid down under penalties that no. flesh may be eaten on the usual fish days. 3 & 4 Ed. VI (1549/50) c 10 An Acte for the abolishinge and puttinge awaye of diverse Bookes and Images. All English and Latin books of any 60 TO THE PRESENT DAY [[ 16 On the other hand, in the matter of the church constitution the government was content to abide almost wholly by the precedents of king Henry's time. It issued general injunctions regarding church affairs, exercised the right of visitation, and required the bishops, in consideration of the devolution of the crown, to sue for new commissions to use such powers as were not conferred upon them by the Bible. The commissions granted are almost verbally identical with those of Henry VIII's reign; only they do not like the latter contain a limitation to the time of a royal visitation.* The act 1 Ed. VI (1547) c 2 substituted, in the filling of bishop- rics, appointment by royal letters patent for the nominal election introduced under Henry VIII; it further enacted, in connexion with the powers conferred on the bishops, that in future the writs and judgments of ecclesiastical courts should run in the king's name, whilst a bishop might, as before, issue in his own name letters of Orders, deeds of appointment and similar documents.” It is to be 4.ind which have been beforetime employed for divine service and have not been set forth by the king, as also all images before or now in a church, are to be destroyed under penalty to the possessor or are to be delivered up to be destroyed. Primers issued by Henry VIII may be used if invocations of Saints 40r prayers to Saints are blotted out, Monuments and the images thereon may remain, unless the dead person has been worshipped as a saint. 5 & 6 Ed. VI (1551/2) c 3 An Acte for the Keping of Hollie dačes and FaStånge dayes. Certain days are declared holidays and certain, fasting days. Offenders to be punished by the censures of the church. The provisions of 2 & 3 Ed. VI c. 19 are maintained. |The two last acts are repealed by 1 Mar. st. 2 (1553) c 2.] * The commission granted to archbishop Cranmer (7th Feb. 1547) is printed in Cardwell, Doc. Ann. I, 1. According to Burnet, Hist, of Réformation. Ed. 1865 II, 41, the bishops newly appointed under Edward VI (Ridley, for example, consecrated 25th Sept. 1547) were not compelled to procure similar commissions, so that they received their powers of jurisdiction for life, not subject to revocation. By letters of the king to the archbishops, 4th May, 1547 (the letter to the archbishop of York is printed Cardwell, Doc. Ann. I, 24 and corresponds to the letter of Henry VIII quoted in note 22; an identical letter to the archbishop of Canterbury is mentioned in Wilkins, Concilia IV, 14) the exercise of ecclesiastical jurisdiction during the Goming royal visitation was forbidden, but further letters allowed, in accordance with the precedent in Benry VIII's reign, a temporary exercise of such jurisdiction (ex. of such Metters, Wilkins, Concilia IV, 14). - * 1 Ed. VI (1547) c 2 An Acte for the election of Bisshoppes, and what Seales and Style they and other Spirituall persons eacercising Jurisdiction Ecclesiasticall Shall use. s 1 : . . . enacted, that fromhemsfurthe no Suche Conge dislier be graunted nor election of anny Archebisshopp or Bisshopp by the Deane and Chapéter made, But that the King maye by his lettres patentes at all tymes awhen anny Archebisshopprèche or Bisshopprèche be voide conferre the same to anny parsome whom the King shall thincke mete; The which collacion 80 by the Könges lettres patentes made and delivered to the persome to whome the Ring shall conferre the same Archebisshopprèche or Bisshopprèche º shall stande to all intentes constructions and purposes to as muche and the same effecte as thoughe Conge dislier had byn given, thelection dewlie made and the same confirmed; And that upport [.. . .] the Said parsome to whome the Aaïde Archebisshopprèche Bisshopprèche or Suffraganshipp is so conferred collated or given maye be consecrated and sewe his Livery (= the delivery of § 6] * THE REFORMATION 6J. observed, however, that even under Edward VI the episcopal con- stitution of the church was maintained.” Mary, the daughter of Catherine of Arragon, ascended the throne (6th July, 1553) upon the premature death of Edward. The way in which the inception of the English reformation had been ac- Companied by an attack on the validity of her mother's marriage, naturally prejudiced her against reform. Nor had any change in her views taken place after her mother's death; on the contrary, she had during Edward's reign continued in spite of the punishing of her chaplains to worship in the old forms. Upon her accession. she availed herself of the rights of Supremacy which the law placed at her command to influence the clergy toward the old doctrines. But a permanent result could only be obtained by the repeal of the reforming enactments. A law was accordingly passed property, i.e. the temporalities, into possession) or Outerlemayne (=Ouster [Óter] le main, the delivery of land from the hand of an administrator Such as a guardian or the king) and doo other thinges as well as if the Saide Ceremonies and elections had been doom and made. S 3.: . enacted, . . . that all somons and citations or other pro- cesse Ecclesiasticall in all suites and cawses of Instaunce betwºacte partie and partie, in all cawses of correction, in all cavses of bastardye or bigamye, or 2nquirie de jure patromatus, probates of Testamentes and Commissions of Administracion of persons decessed, and all acquittaunce of and upport accomptes made by the eacecutours administratours or Collectours of Goodes of ammy deade persome, be from the first daye of Julye meat following made £m. the name and with the Style of the King, as is in writtes originall or judiciall at the Comen Lawe, and that the Teste therof be in the name of the Archebisshop or Bisshopp or other having Ecclesiasticall Jurisdiction who hath the Commission and graunte of thauctoritie Ecclesiasticall Immediatlºe. from the Känges Highnes; and that his Commissarie Officiall or Substitute eacercising Jurisdiction under him shall putt his mame in the Cºtacion or pro- cesse after the Teste. - s 6. The archbishop of Canterbury shall use his name and Seal for alf faculties and dispensacºoms according to the act dealing there with ; and that the saide Archeb is shoppes and B is shoppes shall make admitte order and refourme their Chauncellors officialles comássaries advocates proctours and other their officers ministers and substitutes and commissions to Suffrigan Bisshoppes &m their owne names under the 2 r owne sea les. Žn Suche manmer and fourme as theie have heretofore used, . . . and lyke- wise shall make collacions presentacions giftes institucions and inductions of benefices lettres of orders or démèssories under the £r owne m a mes and seales as theſe have heretofore accustomed. s 7: . . . that all processes hereafter to be made or awarded by amy Ecclesiasticall person or persomes for the tryall of any plee or plees or matter depending or that hereafter shall depende in ammy of the Känges Courtes of Recorde at the commen lawe, and lymätted by the lawes and customes of this Realme to the spirituall courtes to trye the same, that the certificate of the same after the tryal therof shalbe made in the King es name for the tyme being and with the stile of the same King, and under the Seale of the Bisshopp graved with the Könges armes with the name of the Bishopp or spiritual. Officer being to the Teste of the same processe and Certificate and to everye of them. • . [This act was repealed by 1 Mar. st. 2 (1553) c 2 (cf. also, touching the juris- diction of the bishops, 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 24 sub finem); it was never revived. Cf. § 61, note 2.] * But a presbyterian church for strangers was established in London. 62 TO THE PRESEAW T DAY [I, 1C which cancelled their penal provisions.” On the other hand, the house of commons rejected the bill by which the government endeavoured to obtain the repeal of all the acts of the last two reigns which affected the exercise of religion. However, after a prorogation, the government, in spite of determined opposition from a third of the lower house, carried its proposal to repeal all the more important reform laws of Edward VI and to establish the form of divine service used in the last year of Henry VIII.” In home and foreign policy the queen was easily accessible to the influence of her near kinsman, the emperor Charles V of Germany. By 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.4° 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 VIII, 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 Premºlºre. s 1: . . . enacted . . . that from hensforthe mone Acte Dede or Offence, being by Acte of Parlydment or Statute made Treas one pet ite Treas one or MŽs p r is on of Treas on . . . shall be taken . . . to be Highe Treason petite Treason or Mispräsion of Treason, but onely suche as bee declared and eacpressed to bee Treason etc. by . . . 25 Ed. III St. 5 . . . s 3: . . . that all Offences made Felonye, or limited or appointed to |be within the cace of Prem wºn £re, by any Acte . . . made sither's 1 Hen. VIII, not being Felony before, nor within the case of Premumºre shall from hensforthe bee repealed . . . . * 1 Mar. st. 2 (1553) c 2 An Acte for the Repeale of certayne Statutes made in the time of the Raigme of Könge Edwarde the Syache. s 1. Repealed were: 1 Ed. VI c. 1; c 2; 2 & 3 Ed. VI c. 1; c. 21; 3 & 4 Ed. VI c 10; c. 12; 5 & 6 Ed. VI c. 1; c. 3; c. 12. s 2: . . . all such Divine Service and Administration of Sacramentes as were most commonly used ºn the Realme 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 g * 1 Mar. St. 3 (1554) c 2. § 6] THE REFORMA TI OM . . 63 dispensation was granted for the acquisition of church lands and for certain official proceedings since the reformation. It was only after this had been done that 1 & 2 Phil. dº Mar. (1554 and 1554/5) c 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 47 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 and Ecclesiasticall Pos- sessions and Hereditamentes 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. VIII. 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 2i Hen. VIII c. 13 which declare the procuring of bulls for pluralities or non-residence to be a penal offence. s 3 repeals entirely: 23 Hen. VIII co 9, 20; 24 Hen. VIII c. 12; 25 Hen. VIII cc 19, 20, 21. s 4 repeals entirely: 26 Hen. VIII cc 1, 14; 27 Hen. VIII c. 15; 28 Hen. VIII cc 10, 16; 31 Hen. VIII c. 9; 32 Hen. VIII c. 38; 35 Hen. VIII c. 3; also that part of 28 Hen. VIII c. 7 which prohibits marriage within certain degrees. s 5 repeals that part of 35 Hen. VIII c 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. VIII c. 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 $g made séthence 20 Hen. VIII againste the Supreme auctivorétie of the Popes Holines or Sea Apostolike of Rome, or conteining matter of the same effect onely, that is repealed ºn any of the Statutes aforesaid, shall be also by aucthoritee hereof from hensforthe utterly voide it. s 9. There has, furthermore, been handed to the queen another petition (quoted overbatim), 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 verbatºm) 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 mostram et libertatem Ecclesiasticam pertiment. 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, 1C: 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, dº Mar. (1555) c 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 Domžnions, gs grownded in the Lawes Statutes and Customes of the same, and bye your highe Jurisdiction Aucthoritie Rožall and Crowne Imperiall and in your Courtes omely 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 c. 5. - s 18. Although the title of Supreme head of the church cannot rightly be used ; ºlish king, yet writs, letters patent etc. in which it has been used shall € W3,11C1. 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. All bulls made void by 28 Hen. VIII c. 16 shall become effectual in so far as mot conteyning matter contrarye to or prejudiciall to aucthorite digm?tie or preheminence Rožall or Imperiall of the Realme, or to the Lawes of this Realme now being in force and not in this Parliament repealed. s 21. By grants of Henry VIII and Edward VI the jurisdiction over certain parish churches and chapels which were before exempt from the bishop and º to a monastery, has been transferred to laymen. These grants are made VOICL. 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. t [As to the extent to which this act was repealed by 1 Eliz. c 1 see below, note 53.] 48 1 & 2 Phil. & Mar. (1554 and 1554/5) c 6 An Acte for the renue?ng of three Estatutes made for the punishment of Heresies. Revived are: 5 Ric, II st, 2 c 5; 2 Hen. IV c. 15; 2 Hen. Vist. 1 c 7. [This act and the three acts mentioned therein were repealed by 1 Eliz. c 1 s6.] * An Acte for theoctinguishement of the Fyrst Fruites etc. and of Rectories and Parsonages impropriate remayning in the Quenes handes. The act also contains the royal renunciation of the first-fruits and tithes conferred by 26 Hen. VIII c. 3.-Cf. 1 Elżz. c. 4. - 30 See Perry, Hist, of Eng. Church II,228 c 13 s 16, with note. Such removals were partly in imitation of analogous proceedings under Henry VIII and Edward VI. § 6] THE REFORMATION 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 legatime commission of Pole compare Brady, The 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 l.c. 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 1555. 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 Apostolºcae ºn 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 March, 1558—Compare further Matthew Parker, De Antiqui- tate Britannicae Ecclesiae et Privilegºs Ecclesiae Cantuariensés etc. Lambeth, 1572 p. 421: Id quod pontificem in Polum vehementius irrötavāt, quod suffs contra Caesarem et Hispanos pro regno Neapolitano vindictaeque cupādātate Žnceptis obstaret, seque offic?? mumerisque Sui in ea causa in qua redarguà a Quocumque mollet, admoneret. Itaque papa abrogata Polº legatione eum Roman wevocavit, eiusque loco Gulielmum. Petrum, Franciscan? ordēn’s virum Car- dinalem atque Legatum creavăţ. . . . . . Haec Omnia Mariae Reginae privis- quam Polo nunciabantur, quae éo inscio 'ussłł me h; qui in Angliam a papa mitterentur, Anglorum ope tražicerent aut ad portus appellerent, tum sé quae literae perferantur, ut interceptae non Polo sed sibi traderentur, . . . . Papa . . . respondit, Polum probabilibus argument's atque conjecturis Žn haeresis Suspiciomem. Sºb? Romandegue curiae venºsse, ideoque a se Roman, accers?r? . . . Hoc ets? Regina caelare Polum volužt, tamen is ab al??s nºmcø's accepāt, atque prorsus ab argented Cruce gestanda, Omnique legatina admºn’s- tratione munereque cessavāt, mºsºtgue . . . ad papam . . . ; . . . Papa . . . permisit Polo Legationem gerere, donec Caraffam. Cardinalem fratris sužfilium pacem inter Philippum et Gallum initurum mitteret, . . . Cf. § 34, note 13. H. C. F 66 TO THE PRESEAV T DAY [I, 1C 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 offices; 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 * The marriage was on 29th April, 1558. Mary Stuart's husband ascended the French throne as Francis II on 10th July, 1559. He died on 5th December in the following year. * 1 Eliz. c 1 An Acte restoring to the Crowne thawncyent Jurisdiction over the State Ecclesiasticall and Spirituall, and abolyshing all Forreine Power re- pugnaunt to the same. s 1, 1 & 2 Phil. & Mar. c. 8 is repealed so far as the contrary is not afterwards declared (cf. ss 4, 16). ~ s 2. Revived and to be applied in regard to Elizabeth and her heirs are: 23 Hen. VIII cc 9, 20; 24 Hen. VIII c. 12; 25 Hen. VIII cc 19, 20, 21; 26 Hen. VIII c 14; 28 Hen. VIII c. 16. s 3. Revived in so far as not altered under Edward VI are: 32 Hen. VIII c 38; 37 Hen. VIII c. 17. 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. VI c. 1 is revived. S ºpened are 1 & 2 Phil. & Mar. c. 6 and the heresy laws therein men- tioned. - § 6] THE REFORMATION 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.” s 7: . . . enacted . . . that no forreine Prynce Person Prelate State or Potentate Spirituall or Temporall shall at any tyme after the last Daye of this Session of Parliament, use enjoy or eacercise any manner of Power Juris- diccion Superioritee Aucthorite Preheminence or Privilege Spirituall or Ec- clesiasticall within this Realme or within any other your Majesties Dominions or Countre's that now be or hereafter shalbee, but from thensforthe 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 Quenes High mes is thom el ye supreme Gover now r of this Realme and of all Other her Highnes Domžnions and Countreis, as well in all Spºr it wall or Eccles? a stic all Thºnges or Causes as Temporall, and that no for- Teine Prince Person Prelate State or Potentate hathe or oughte to have any Jurisdiccion Power Superioritee Prehem?mence or Aucthoritee Ecclesiasticall or Spirituall within this Realme, and ther fore I doo utterly renounce and forsake all forraine Jurisdiccions Powers Superiorities and Aucthorities, and doo promise that fromhemsforthe I shall be a re Faż the and true Alle- g? ance to the Quenes Highnes her Heires and lawfull Successoures, and to 'my power shall assist and defende all Jurisdiccions Preheminences Privileges and Aucthorities granted or belonging to the Quemes Highnes her Heires and Successoures, or united or anneaced to Thºmperiall Crowne of this Realme: So helpe me God 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 swing Lyverie Or Owstre 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, praemumire according to 16 Ric. II c. 5; of repeated relapse, the punishment for high treason. tº S 16. This act does not revoke any provision contained in 1 & 2 Phil. dé Mar. C 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 mamer of Order Acte or Determinacion for ammye Mat- ter of Religion or Cause Ecclesiasticall had or made by thawcthoritie of this present Parliament, Shalbe accepted demed interpretated or adjudged at any time hereafter to be any Errour Heresie Scisme or Scismaticall Opinion; . S 20. Limitation of heresy (text $ 19, note 30). S 22. Penalties for aiding and abetting offences against this act.' * An Acte for the Uniformitée of Common Prayou're 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 against 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 anneace to the Crowne certayne Religious Howses and Monasteries and to refourme 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 PRESEAW T DA Y [I, 1C 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 Romish 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 ing of lamps etc. Compare also 1 Eliz. c. 4 An Acte for the Restitution of the First Fruites, and Tenthes and Rentes reserved Nomine Decime, and of Parson- ages Impropriate, to Thèmperiall 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. (?.e. 1562) to be incontestable at law. 57 Cf. § 30. * Art. 37. - a Perry, Hist. of English Church II, 286 f. cc 17 ff.—Ranke, Engl. Geschichte, Bk. III f.- 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 1568 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 France 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 France, 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- quillity, 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, Høst. of Puritans Ed. 1822 I, 191 ff. * Under 27 Eliz. (1584/5) c 1 An Act for Provision to be made for the Suertie of the Queenes Majestées most Royall Person, and the continuance of the Realme Žn Peace. i * The countermeasure was 13 Elż2. (1571) c 2 An Act agaynste the bringing £n and putting in Eacecution of Bulls and other Instruments from the Sea of 70 TO THE PRESEAW T DAY [I, 1C Wards at Rheims), at Rome and at other places on the continent seminaries were erected to train priests under jesuit control for service in England.’ The year 1580 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) c 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 35 Eliz. (1592/3) ce 1 and 2.19 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, Rome.—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: catholicos tum demum obliget, quando publica ejusdem bullae eacecutio fier? poteråt. It was renewed by Sixtus V (1585–90). * Neal, Hist, of Puritans Ed. 1822 I, 272, gives the following seminaries: Douay 1569, Rome 1579, Walladolid 1589, Seville 1593, St. Omer 1596, Madrid 1606, Louvain 1606, Liege 1616, Gent 1624. & * An Act against Jesuites Semymarãe Priestes and such other like disobedient Persons. * Cf. § 11, nr. note 21. * 23 Eliz. (1580/1) c 1 Am Acte to retežme the Queenes Majesties Subjectes in their due Obedience, 35 Elż2, (1592/3) c 1 Am Acte to retayme the Quemes Subjectes Żm Obedyence, is especially directed against protestant sectaries (s.9). The enact- ment was for a fixed time which was several times prolonged—43 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. II (1664) c 4 S 1 to be still in force. 35 Eliz. (1592/3) c 2 An Acte against Popish Recusantes, confirmed by 3 Jac. I (1605/6) c 5 s 4. * Compare $ 10, note 26, § 7) STRUGGLE AGAINST PAPISTS AWD PROTESTANT SECTS 7I seminary priests and refusers of the oath of supremacy.” 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 church.” In consideration of these desires the king arranged the Hampton court conference (1604) between puritans and representatives of the state church. As the issue 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 Acte for the due Ececution of the Statutes againste Jesuits Seminarie Preistes Recusants etc.; 3 Jac. I c 4. An Acte for the better discovering and Tepressing 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. I (1609/10) c 6 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 Am Act concerning Monopolies and Dispensations with penall Lawes and the Forfeyture thereof. * The millenary petition is printed in Perry, Høst. of Engl. Church II, 372 c 22, notes and illustrations, and in Collier, Eccles. Hist. Ed. 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 northern 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, 10 have exercised an influence on the practice of the courts which is still appreciable. Dissensions at home availed to check 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 Rushworth, 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 laws against 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. * The commissions are printed in Rymer, 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, I, 547). The concession of the English ambassadors, Paris, 18th Nov. 1624, as to the secret assurance to be given runs:— - Le Roy de la Grande Bretaigne donnerd au Roy win escrit particulier signé de luy, du Seremissème Prince son fils, et d'un Secretaire d’Estat; parlequel il promettra, enfoy et parole de Roy, Qu'en contemplation de son tres cher fils, et de Madame Soeur du Roy tres Chrestien, qu'il permettra à 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).º 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.º Besides this Catholiques Romains de jouir de plus de liberté et franchise, en ce qui regarde leur religion, qu'ils n'eussent fait en vertu d'articles quelconques accordés par le traité de mariage fait avec l'Espagne : ne voulant, pour cet effect, que Ses subjects Catholiques puissent estre inquietés en leurs personnes et biens pour ·faire profession de la dite religion et vivre en Catholiques, pourveu toutesfois qu'ils en usent modestement, et rendent l'obeisance que de bons et vrays Subjects doivent à leur Roy, qui par sa bonté ne les restreindra pas à aucun serment contraire à leur religion. º Letter of lord Carlisle (one of the English ambassadors in France) to the duke of Buckingham, 16th Feb. 1625 (printed in Hardwicke, l.c. I, 551). º Commission printed in Rymer, Foedera 3rd Ed. VII, pt. IV p. 191. º Printed in Rymer, Foedera 3rd Ed. VII, pt. IV p. 189 :- $ seront Fiances selon la forme usitee en l'Eglise Catholicque, Ap0Sto- lècque et Romayne. © e le Mariage indissoluble se celebrera en France, C, $ ma dite Dame, 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'interviendra aucune Ceremonie Ecclesiastique. Le libre exercice de la Religion Catholicque, Apostolicque et Romaine est accorde a Madame, comme aussy a toute sa Suitte et auœ Enfans qui maistront de ses Officiers ; pour cet effect ma 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 demeure; que les dits Chapelles seront Ornees comme il appartient et besoing, et la Garde en seront Cominse a tel quil plaira a ma dite Dame 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 l'usage Romain, mesmes toutes Judulgences et Jubillez, que ma dite Dame obtiendra du Pape, y pourront estre gaingnez ; sera aussy donne un Cimetiere en la Ville de Londres, au quel ceux de la Suitte de ma dite Dame qui viendront a deceder, seront àmhume2 Selon l'usaige de l'Eglise Romaine, ce qui se fera modestement ; le quel Cimetiere 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 cas que la Cour seculiere se saisist de quelque un des dits Ecclesiasticques, pour quelque Crème qui concernast l'Estat, et quelle eust faict Informer contre luy, elle renvoyera au dit Evesque le dit Ecclesiasticque avec les Charges et Infor- ºmations faictes contre luy, a fin qu'il congnoisse du Delict, le quel estant previllegie, il le remettra entre les mains de la dite Cour seculliere, après l'avoir Degrade, et pour toute aultre fantlte seront renvoyez les dits Ecclesias- ticques au sus dit Evesque, pour proceder contre eulac selon les Constitutions Canonicques ; et en cas d'absence ou Maladie dudit Evesque, celluy, quil commettra pour son Grand Vicaire, aura le mesme pouvoir. Ma dite Dame aura vingt huict Prestres ou Ecclesiasticques sur l'Estat de Sa Maison, en ce compris ses Aumosniers et Chappellains pour deservir les susdites Chappelles, selon quil leur sera ordonne; et sà 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 quelque voye que ce puisse estre, de faire renouncer Madame a la Religion Catholicque, Appostolicque et Romaine, ni la porter a chose quelconque qui y SO2t CO7?tra2 re, 74 TO THE PRESEAW T DAY [I, 1C Contract the old private pledge, given by Charles when still heir apparent, remained in force.” The marriage thus conditioned was not long delayed.” With the French princess many Romish priests entered the country. When parliament pressed for the exécution of the laws against papists, the king did indeed issue ordinances in the sense required;” as, how- ever, the government was bound by the secret assurance, efforts 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 tº ſº Tous les Domesticques que Madame memera en Angleterre Seront Catholicques et Francois chois?z par Sa Majeste Treschrestienne, et ou älz w?endrożent a mourār, ou que ma déte Dame en vowlust changer quelques ungs, elle en prendra en leur Place d'aultres Catholicques et Francois, ou Angloys, noyennant gue Sa Majeste de la Grande Bretaigne y consente. e Les Enfants qui maîstront du dit Mariage, seront mourrèz et esleve2 jusques a la Age de trečze ams, dupres de ma dite Dame Royme 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 Rymer, Foedera 3rd Ed. VIII, pt. I p. 159). The latter runs:– e Que pour ce quº touche les Catholiques Romažmes Subjets de Sat Majeste, On m'a oublèe aucun point m? aucume Circumstance, quº dit este promise en leur faveur ; Et qu’elle m'a autre desir mi Intention que de Traiter ses dºts Subjets Catholiques Romains en toute Equite; Et, en Consideration et pour l'Amour de son bom Frere et de Sa Treschere Espouse, leur faire toute la Grace et Faveur qu'on se pourroit promettre et esperer, tant aux, Considera- #. Susdêtes, que powr les Promesses faites et Articulees antparavant som. Mariage. Mažs qu'il plažse auss? au Roy Treschrest?en, et a ses Ministres, de se Tessowvenir Que les plus obligeans et eacacts termes et mots, comprises dºctes Articles, furent proposez de la part du Roy Treschrestien, sewlement attac fins de dommer au Pape telle Satisfaction, Que la Dispensation s'en pulst ensuivre; Et que, dw coste de Sa Majeste, on s'est toušjours reserve, que le premier et principal Sočng seroët la Conservation de son Estat, et la Pałac 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 Rymer, Foedera 3rd Ed. VII, pt. IV p. 191. * In the king's letter of 15th Dec. 1625, to the archbishop of Canterbury touch- ing recusants (Cardwell, Doc. Ann. II, 155) 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 Sending of any to be Popºly 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 due 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 Rymer, Foedera 3rd Ed. VIII, pt. III p. 52:- c 3: Quant a ce quº regarde les Articles et Contracts de Mariage de la Re?me de la Grande Bretagne, ils seront confirmes de bomme foy, et sur ce qui concerne la Maison de la Reyme, s'il y a quelques choses d adjouster ou dámānuer, se fera de part et d'autre, et de grè d grá, aims? qu'il sera jugé plus d propos pour le Service de ladźte Re?me. 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 Rymer, Foedera 3rd Ed. VIII, pt. III p. 141. * Compare $ 11, nr. note 26. 76 TO THE PRESENT DAY [I, 1C 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. Some 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 f. c 27 S$ 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 Roman 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 Concern &ng the regal power; II For the better keeping of the day of his majesty's most happy inauguration; III For the suppress? ng the growth of Pope'ry; IV Against Socº nº an is m , W Against Sectaries; WI An oath enjoined for the preventing of all 7 mºnovations in doctrine and government (cf. § 18, note 9); VII A declaration concerning some rôtes and ceremonies; VIII Of preaching for conformity; IX. One book of articles of inquiry to be used at all parochial wisitations; X Concerning the conversation of the clergy; XI Chancellors' patents (cf. § 36, note 9); XII Chancellors alone, not to censure any of the clergy in sundry cases; XIII Eaccommunication and absolution not to be pro- mownced but by a priest : XIV Concerning commutations, and the disposºng of them ; XV Touching concurrent jurisdiction; XVI Concerning licenses to marry; XVII Against veacatious citations.—For the money grants of the con- vocations of 1640 see § 54, note 58. * * 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 on 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 Dec. 1640 (printed, from Rushworth, Høst, Coll. pt. II p. 1365, in Collier, Eccles. Hist. Ed. 1852 WTII, 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, l.c. VIII, 216, from Rush- 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, II (1661) st. 1 c 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, Häst. of Puritans Ed. 1822 II, 307. * 16 sq. Car. I (1640 f.) c 38 An Act for the Attainder of Thomas, Earle of Strafford of High Treason. * 16 sq. Car. I c. 7 (May, 1641). .* * 16 sq., Car. I c 11 (5th July, 1641) An Act for repeal of a branch of a Statute prºmo Elizabethe concerning Comżssioners for causes Eccles?asticall. s 1 revokes the stattitory authority for establishing a high commission court; s 4 forbids the future establishment of such a court. s 2: . . . that no Archbishop Bishop mo Vicar Generall nor any Chancellour Official nor Commissary of any Archbishop Bishop or Vicar Generall nor any Ordinary whatsoever mor any other Spirituall or Ecclesiasticall Judge Officer or MŽnister of Justice nor any other person or persons whatsoever eacercêsºng Spirituall or Ecclesiasticall power authoritie or jurisdiction by any Grant Licence or Commission of the Kings Majestie his Heires or Successors or by any power or authoritie derived from the King his Heires or Successors or otherwise shall . . . award impose or ºnflict any pažne penalty fine 78 TO THE PRESENT DAY II, 1C 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, a mercement ºmprisonment or other corporall punishment upon any of the Kºngs Subjects for any contempt misdemeanor crème offence matter or thing ºwhatsoever belonging to Spirituall or Ecclesiasticall cognizance or Jurisdic- tion ; whosoever administers an oath to any churchwarden, Sydeman or other person, 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 court 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 Sën S6 – 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. VIII: To their (the Scottish negotiators') desire concerning unity in ºreligion and unºformity of Church Government as a speciall meane for con- serving of Peace betw?act the two Kingdomes 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 Majestée with advice of both Houses of Parliament 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 there?n ºn 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 Majestée and the Prince but such as are of the reformed religion . . . It is answered That his Majestée 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 make 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 members 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 afford their assistance. Accordingly, parliament now pronounced in * The protest is printed in Rushworth, Hist. Collections pt. III vol. I p. 466. * 16 sq. Car. I c 27 An Act for disłmablºng all persons ºn Holy Orders to eacercise any tempo rall jurisdiction or authorit?e. s 1: . . . . that mo Archbishop or Bishop or other person that mow is or hereafter shall be in Holy Orders shall at any time after the 15th . . Febr. 1641 have any Seat or place suffrage or Voice or use or eacecute any power or authority in the Parliament of this Realm nor shall be of the Privy Councell of his Majestée his he?res or successours or Justice of the Peace of Oyer and Terminer or Goal Delivery or eacecute any temporall authoritée by vertue of any Commission but shall be wholly disabled and be uncapable to have receive w8e or eacecute 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. Rushworth, Hist. Collect. pt. III vol. II p. 559, gives the summons. 8O TO THE PRESEAW T DAY [I, 10 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, 1645, 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 God,” which was soon afterwards adopted in Scotland.* Against Laud, who had remained in prison,” the proceedings in impeachment before 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 be consulted with by the Parliament, for the setling 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, Deams, Deans and Chapters, Archdeacons, and other Ecclesiastical Officers depending upon the Hierarchy, is evil, and justly offensive and burthensome to the Kingdome, a great impediment to Reformation and growth of Religion, 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 ; . ſº Definite persons are summoned for 1st July, 1643 . . . to confer and treat amongst themselves, of such matters and things touchºng and concerning 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 Houses of Parliament & G * 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, l.c.) 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 person nominated to him by the parliament a certain rectory in his patronage; besides the suspension, all his temporalities were sequestered. * Resolution of 19th August, 1645, ordinances of 20th February, 14th March, 1646 (these ordinances are printed in Rushworth, Høst. Coll. pt. TV 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 setling without § 7] STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 81 stitution of the church, as it existed in England and Wales, was declared on the 9th 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 delay, of the Presbyterial Government ºn the Church of England); ordinance of 28th August, 1646 For Ordžmation of Ministers by the Classical Presbyters within their respective bounds, for the several Congregations within the Kingdom of England (statement of contents in Scobell, l.c.). * Ordinance of 9th Oct. 1646 (in Scobell, l.c.) For the abolishing of Arch- bishops and Bishops within the Kingdom of England, and Domžnion of Wales, and for setling of their Lands and Possessions upon Trustees, for the wse 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 . . . . 1646 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 Scobell, l.c.) For the speedy dividing and setling the several Counties of this Kingdom into distinct, Classical Presby- ter?es and Congregational Elderships. The counties are to be divided, subject to the approval 9f 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 ºn the Church of England and Ireland, agreed upon by the Lords and Commons assembled in Parliament, after Advice had with the Assembly of Dºvimes: “Be it Ordered . . . That all Parishes and places whatsoever withºn the Kingdom of England and Domžnion of Wales (as well priviledged places and eacémpt 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 jºrée for the eacercise of Divine duties to be performed according to the Džrectory and not otherwise.” Elders shall be forthwith chosen in all congre- gations. The province of London is divided into twelve classical eldershºps. The counties too are to be divided into classical presbyteries. The latter can constitute congregational elderships, ‘where a competent number of persons e qualified for elders’ shall be found. Where seven congregational eldershºps are founded within a classis, 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 classis in the province. The national assembly consists of members sent by the pro- Vincial assemblies, each of which supplies two ministers and four ruling II.C. (; 82 TO THE PRESENT DAY [I, 1C 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 99 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, was 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 Scots 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 punishments. 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 presbyterianism 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 the following ordinances (in Scobell, l.c.):- 30th Jan. 1649. Inhibition against proclaiming 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. * Ordinance of 19th May, 1649 (in Scobell, l.c.). * In connexion with constitutional forms from 1649–60 the following dates may be noted:— -. 1. Rump 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, l.c.) 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, 10 As presbyterian constitution of the church, which 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 parl. of 1656 c 10 all the more important ordinances between 20th 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. 1659. 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. Tiong parliament again sitting, from 21st Feb. 1660. 9. Convention parliament, which met 25th April, 1660, recognized Charles II as king. By 12 Car. II (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. II (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 issued without royal assent were pronounced void by 13 Car. ‘II (1661) st. 1 c 1 (cf. below, note 67). t * Compare $37, 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, l.c.) Commissioners appointed for Approbation of Publique Preachers. Whereas for some time past weak, scandalous, pop?sh 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 prèacher. The commissioners are to demand a testimonial, signed by three persons, one a preacher of the gospel, “touching the godly and unblameable conversation' of the presented. The penalties fixed by 13 Elż2: (1571) 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 person (minister) who frequently and publicly used 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 1656 c 10. * Ordinance of the rump parliament of 27th Sept. 1650 (in Scobell, l.c.) For relief of religious and peaceable people from the rigor of former Acts of Par- liament in matters of Religion. All parts of the acts 1 Eliz. c 2, 35 Elż2. c 1, 23 Eliz. c. 1 . . . and all and every the Branches, Clauses, Articles and Provisos eacpressed and contained in any other Act or Ordinance of Parlia- ment, whereby or where?n any penalty or punishment is imposed, or mentioned 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 made 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. * Compare especially (in Scobell, l.c.):- 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 Westminster, 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 59) exclude papists from offices in the church. Act of the Cromwellian parliament of 1656 c 16 An Act for Discover?ng Con- w?cting and Repressing Popish Recusants (in it an oath is imposed aimed at the most important doctrines which separate Roman Catholicism from protestantism). 4. Even under Cromwell a Roman catholic priest was executed (Ranke, l.c.). 86 TO THE PRESENT DAY II, 16 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 1654, 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 25th 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 (cf. 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, l.c.) 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 eacact abridg- ment of Publick Acts and Ordinances, London, 1657) ss 2–5. * Compare upon these ordinances § 19, note 37. * Compare above, note 59. * Printed in Whitelocke, 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 and 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 Rule and Warrant of the Scriptures, be asserted, held forth, and recommended to the People of these Nations, that mone may be suffered or permitted by opprobrious Words Or. Writing maláciously or contemptuously to revile or reproach the Confession of Faith . . . ; and such who profess Faith &m God the Father, and in Jesus 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 Eagample of a good Conversation: But that they may not be compelled thereto by Penalties nor restrained from their Profes- Sºon, but 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 mot this Liberty to the civil Injury of others, or the Disturbance of the publick Peace; so that this Liberty be not eact ended to Pope'ry or Prelacy, or to the counte- man câm g such, who publish horrible Blasphem żes, or pract?se or hold forth Lê cent?o us mess or Profane mess under the Profess? 0 m. 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 qualified and duly approved) of any Trust, Promotion or Employment whatsoever in these Nations, that any Ministers who agree in Doctrine, Worship and Disciplôme 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 Mănăstry; . . . such Mănăsters or publicle Preachers or Pastors of Congregations . . . are © disemabled to hold any civil Employment, which those in Orders were or are disenabled to hold by . . . 16 sq. Car. I c 27 64 g 'we do declare a liberty to tender consciences, and that no man should be disquieted or called in question for differences of opinion ºn 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. s 48: . . . That moe 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 Mammours Landes Tenements or Hereditaments not being the Landes nor Hered? ta- aments of the late Käng, Queene, Prince or of any Archbishops Bishops Deames, 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 preteact of any Act order or ordinance, or reputed Act order or ordinance since . . . 1st of January 1641 . . . shall be £m peached defeated made voºd 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. Amn. II, 225—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, 1C 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 º 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 T1S62. 12 Car. II c. 12 An Act for Confirmation of Judiciall Proceedings. 12 Car. II c. 17 An Act for Confirming and Restorečng of Ministers. S 1. As real and lawful incumbent, parson etc. is recognized, despite non- observance of legal prescriptions, every ecclesiastical person, ordained by any Eccles?astical persons, who is twenty-four years of age, has not remóunced 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 Dec. 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 ; Those removed from livings etc. are to hold the profits already re- CelVēCl. 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 without 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 Hospitalls. 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. II c. 33 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 Cardwell, Docum. Annals II, 234ff. § 7) STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 89 was expressly asserted by legal enactment that the 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.” 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 ea:-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 Taaces or Raising of Forces and Armes to which the Royall Assent either in Person or by Commission was not eacpressly 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 disºnabling all persons in Holy Orders to eacercise any Temporall Jurisdiccion or Authority, entirely repeals 16 sq. Car. I c 27 (cf. above, note 39), * 13 Car. II st. 1 c 12 An Act for Eacplanation of a Clause contained ºn 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 Primo Elizabethe con- cerning Commissioners for Causes Ecclesiasticall. s 1. The part of 16 sq. Car. I c 11 s 2 which relates to jurisdiction (cf. above, note 36) is cited: whereupon some doubt hath beene made that all ordinary power of Coertion and Proceedinges in Causes Ecclesiasticall were taken away g 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 named as aforesaid (i.e. vicar general etc.) but that they and every of them eacercising Ecclesiasticall Jurisdiction may proceed deter- mºne sentence eacecute and eacercise all manner of Ecclesiasticall Jurisdiction and all Censures and Coertions apperteyning and belonging to the same before the make?ng 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, 10 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 church." The terms of this act of uniformity are, apart from Lawes used and practised ºn this Realme in as ample manner and forme as they did and might lawfully have done before the makeing of the said Act. s 2, 16 sq. Car. I c 11 is repealed (eaccepting what concerns the High Com- mission Court or the new erection of some such like Court by Commission). s 3. The part of 1 Elż2. c 1 s 18 repealed by 16 sq. Car. I c 11 is not to be revived by this act. * ~. s 4. Prohibition of the ex-officio oath. s 5: Provided alwałes that this Act or any thing therein contained shall not eactend or be construed to eactend 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 eacercise eacecute inflict or determine any Eccle- siasticall Jurisdiction Censure or Coertion which they might not by Lawe have dome before the yeare of our Lord 1639 nor to abridge or diminish the Kings Majestées Supremacy in Ecclesiasticall matters and affaires nor to confirm the Canons made ºn the yeare 1640 nor any of them nor any other Ecclesiasticall Lawes or Canons not formerly confirmed allowed or enacted by Parliament or º established Lawes of the Land as they stood in the yeare of the Lord 1639, - * Compare Perry, Hist. Engl. Church II, 492 f. c 32 $$ 12 ft. Tr. - * 14 Car. II (1662) c 4 An Act for the Uniformity of Publique Prayers and Administracion 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. - s 1: . . . all . . . Ministers . . . shall be bound to say all publique and Common prayer in Such order and forme as is memeiomed in the . . . . Booke ammeased and joymed to this present Act and entituled The Booke of Common Prayer and Administration of the Sacraments and other Rites 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 Mämäster, 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 3. Whosoever does not do so is ºpSo 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 ºpSo facto deprivation. t 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 ?pso 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.7° 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. w - ss 9–11. Requirement of episcopal ordination. For 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 ff. 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°. - - - 7° Cf. especially 14 Car. II (1662) c 1 An Act for preventing the Mischeáfs and Dangers that 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 (First 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 and 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, Hèst. of Engl. º 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. Ammals II, 260): . . . So as for what concerns the penalties upon those who (living peaceable) do not conform thereunto through scruple and tenderness of mºs- guided conscience, but modestly and without scandal perform their devotions Żm 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 meat approaching sessions, to concur with us in the making some such act for that purpose, as may enable us to eacercise with a more universal Sátisfaction, that power of d? spens? ng, whº ch we conce? ve to be in he rent 2 m us tº g 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, l.c. II, 282): . . . we 92 TO THE PRESENT DAY [I, 10 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 Roman catholic faith and desired its toleration Only as a step to its enthronement. In 1662 he had married a Portuguese princess who remained a Roman catholic. In January, 1669, he made in private a profession of adherence to the Romish 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 1672.7% 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 think ourself obliged to make use of that supreme power Žn eccles £ast? cal Tmatters, which is not only inherent in us, but hath been declared and recog- nºsed to be so by several statutes and acts of parliament; . . . We do de- clare our will and pleasure to be, that the eacecution of all and all manner of penal laws in matters ecclesiastical, against whatsoever sort of mon-conform- Østs or recusants, be immediately 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. Roman catholic non-conformists are only permitted to worship in their private houses. * Report of abbot Falconieri to Altieri, 1674 (quoted in Ranke, Geschächte, 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) c 2 An Act for preventing Dangers 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 beležve that there is not any Transubstantiation in the Sacra- ºnent of the Lords Supper, or Čn the Elements of Bread and Wºme, 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 disableśng Papists from sitting in either House of Parlydment. & According to s 11 this act is not applicable to the duke of York. § 7) STRUGGLE AGAINST PAPISTS AND PROTESTANT SECTS 93 by open opposition in the country. The clergy of the established church had resisted the exclusion bill with might and main, holding fast to the doctrine 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 ranged themselves on the side of James; in the new parliament the advocates of his succession had the majority. The Monmouth rebellion was quickly suppressed (July, 1685). The king appointed to the army several officers of the Roman catholic faith, dispensing them from making the declarations re- quired by law. On the 9th of November, 1685, in his speech from the throne at the opening of the second session of parliament, he expressly stated this fact. The commons replied with a courteous address in which it was pointed out that dispensation from the provisions of the laws could only be by statute. The king gave an evasive answer, and the commons seemed for the moment ap- peased. But now the lords raised the same question; it was to be expected that they would take up a still more decided attitude towards the king's pretensions than the lower house. Parliament was prorogued and not again called together; on the 2nd of July, 1687, it was dissolved. To obtain a judicial decision in favour of the dispensing power, the 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 power. Public exercise of the Roman Catholic religion was allowed; the 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 of 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, suspending 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 c 2 and 30 Car. II st. 2 c 1.77 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 Sancroft, archbishop of Canterbury, and six of the * Compare $ 30, note 10. " Declaration of 4th April, 1687 (printed in Cardwell, Doc. Amm. II, 308): . . . . We . . . have thought fit by virtue of our royal prerogative to £ssue 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, l.c. II, 318). In it the declaration of April 4th, 1687, is repeated verbatim. - 94 TO THE PRESENT DAY [I, 1C bishops addressed a petition to the king, wherein they laid stress on the fact that the dispensing power claimed by the king, on which his declaration rested, had been repeatedly pronounced by parlia- ment to be illegal; they were not inclined to share his responsibility by reading the declaration in their churches; he was therefore prayed not to persist in his demand.” The king did not recall his order, but, as a matter of fact, the reading of the declaration took place only in a few churches. The seven bishops were charged with ‘contriving, making 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 read the declaration; and on the 12th of July the high commission directed that the names of such clergymen should be ascertained. Up to this time Mary, daughter of James by his first wife and brought up a protestant, had been regarded as the eventual succes- sor to the throne. She had in 1677 married the Statthalter of Holland, William, prince of Orange, also a protestant. The birth of a son to James on the 10th of June, 1688, opened the prospect of a Roman catholic succession to the crown and so of a continuance of the prevailing abuses. William had long had secret communica- tions with the malcontents in England. Believing 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 bishops to his presence, and by their advice revoked a number of 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 first 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 crown, 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 established church had, 79 The petition is in Cardwell, l.c. II, 316; it was presented on the 18th May, 1688. r 798. The date is that of James's departure from Rochester on his second flight. I’. 80 1 Gul. & Mar. sess. 1 c 1 An Act for removečng and Preventing all Questions and Disputes concerning the Assembling and Sitting of this present Parlia- ment; c. 8 An Act for the Abrogating of the Oathes of Supremacy and Allegiance and Appointing other Oathes. Cf. the mention of the same oaths in 1 Gul. & Mar. sess. 2 c 2 An Acte declare?ng the Rights 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 Sancroft 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 church, 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 Roman 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 visions against Roman 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 Majestées 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 1805. * 1 Gul. & Mar. sess, 1 c 9 An 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 Securečng the Government by dis- arming Papists and reputed Papists; c 26 An Act to vest in the Two Univers?- ties the Presentations of Benéfices belong?ng to Papists. Cf. also the acts cited in note 80. * 1 Gul. & Mar. sess. 1 c 6 An Act for Establishing the Coromation. Oath ; 1 Gul. & Mar. sess. 2 c 2 Bill of Rights s 1 (art. IX, X); both again confirmed in 12 & 13 Gul. III (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 power Maintaine 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 Prévèledges as by Law doe or shall appertaine wnto them or any of them 2–All this I Prom?se to doe. * An Act for Eocenpting their Majestyes 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, 10 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 Roman 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 Geo. 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 endeavour succeeded in the case of the Irish church, as also in most of the colonies; 87 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 ft. Cf. also on modern legislation Gneist, Engl. Werwaltungsrecht, 3rd Ed. p. 1060–On the history of the constitution of the Roman catholic church in England after the reformation see Meyer, Dže 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. Verfassungsgesch. §§ 31, 33,47. Engl. Verwaltungsr. 3rd Ed. §§ 168, 172–174. § 8] RELATION OF STATE A W D C H U R CH 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 not 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 Ilê, Iſle. - 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 in 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 98 TO THE PRESENT DAY [I, 1C tives, the crown became the champion of the constitution and doc- trimes of the established church against the protestant sects. The church promoted the objects of the crown by evolving doctrines Which 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, them 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- WOWell. 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 established 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 a 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 STA TE A W D C H U R CH 99 Creeds; the exclusively protestant 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 Tapprochement with the present Roman catholic church, alike in liturgy and in dogma. The church of Rome, 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 Roman 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 upper 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 its attacks. 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 fendencies 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. IOO TO THE PRESENT DAY [I, 10. § 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 revived 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 * Compare $33, notes 35, 37–39. * Compare $ 39, notes 6 and 7. * Compare $37, notes 21 and 22. * Compare $43, note 13. * 2 & 3 Phil. & Mar. (1554) c 4 (cf. 1 Eliz. cc 4, 19), parl. ordin. of 8th June, 1649 (cf. ordin. of 5th April, 1650, 2nd Sept. 1654 c 49, act of 1656 c 10, 12 Car. II (1660 c 11 SS 44, 48). - - - a-—º- •..? Kºeist, Engl, Verwaltungsrecht, 3rd Ed. §§ 169–171, 173, 174. * § 9] - I W TERMA L DEVELOPMENT IOI from reformation times had formed part of the revenue of the eroWn, 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 bishoprics and chapters” and by 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." 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. w * Compare $ 31, note 10 and § 32, near notes 1 and 3; also Perry, Hist, of ºgl, Church II, 577, note 2 c 39 $ 1. * Compare $32, note 13. * Cf. Perry, Hist, of Engl. Ch. III, 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) c 71, to which are supplementary 1 Vict. c. 69, 1 & 2 Vict. c 64, 2 & 3 Vict. c. 62, 3 & 4 Vict. c 15, 5 & 6 Vict. c. 54, 9 & 10 Vict. c. 73, 40 & 11 Vict. c 104, 14 & 15 Vict. c 53, 23 & 24 Vict. c. 93, 36 & 37 Vict. c 42, 41 & 42 Vict. c 42, 48 & 49 Vict. c. 32, 49 & 50 Vict. c. 54. ** 21 Hen. VIII c. 13, 1 & 2 Vict. c 106, 13 & 14 Vict. c98, 48 & 49 Vict. c. 54. * 6 & 7 Gul. IV c. 77's 18, 1 & 2 Vict. c 106, 13 & 14 Vict. c. 98. * Compare $44, near note 22. - * Compare especially 31 Eliz. (1588/9) c 6, canon 40 of ####, 1 Gul. & Mar. * 1 (1688) c 16, 13 Ann. (1713) c 11 s 2, Perry, Hist, of Engl. Church III, 19 *C 23, . * Cf. § 44, near notes 20 and 24 f. - * Cf. especially Toulmin Smith, The Parish . . . with Illustrations 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. $ * * * . ; ; IO2 TO THE PRESENT DAY [I, 10. 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, abolished 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 & 57 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.” TV. 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 bore such names as:—parish for all ecclesiastical purposes; dis- trict parish or ecclesiastical district ; parochial chapelry; district church, district chapelry or particular district ; separate district for ecclesiastical purposes; new parish for ecclesiastical purposes. Relevant are especially the following acts:–58 Geo. III c. 45, 59 Geo. III c. 134, 3 Geo. IV c.72, 5 Geo. IV c 103, 7 & 8 Geo. IV c. 72, 1 & 2 Gul, IV c. 38, 2 & 3 Gul. IV 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, 11 & 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, , 1156. p. ; 31 & 32 Vict. c 109 Compulsory Church Rate Abolition Act. * Cf. § 48, note 16a, and Makower, Die Englische Kirchengemeinde und die Landgemeindeordnung von 1894 in the Deutsche Zeitschrift für Kirchenrecht § 10] SCOTLA W.D IO3 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.” s 10. 2. HISTORY OF THE cons TITUTION OF THE CHURCH IN SCOTL AND...a CHRISTIANITY was diffused in Scotland from the fifth and sixth centuries partly by British but in greater measure by Irish mis- * Cf. § 56. * Cf. § 57, near notes 12 ft. * I. Sources. 1. Legislation: The Acts of the Parliaments 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. Resolutions of councils: Robertson, Concilia Scotiae. Ecclesiae Scoticamae statuta, tam provincialia quam Synodalia quae Supersunt, 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 prereformation time and of many details of Scotch ecclesiastical history. The appendix contains documents relating to the Scottish church. Vol. II contains the Statuta.)— Acts and proceedings of the General Assemblies of the Kirk of Scotland from 1560 to 1618. [Be- tween 1618 and 1638 there was no general assembly..] Publications of the Bannatyme Club, 3 vols. Edinburgh, 1839–45. [Another edition of the same Acts and proceedings is: The Book of the Universall Kirk of Scotland: wherein the head is and conclusionis devysit be the Ministers and Commissionaris of the particular Kirks thereof, are specially ea pressed 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, 1638–1842, reprinted from the original edition, under the superintendence of the Church Law Society, Edinburgh, 1843. 3. Other documents: Theiner, Augustin. Vetera, Monumenta Hibernorum et Scotorum, Historiam Illustrantia, . . . ex: Vaticami, Neapolis ac Florentiae Tabulariis . . . Rome, 1864. (Embraces the years 1216–1547.)—The collections of Spelman, Wilkins, Haddan and Stubbs (appendix XIV, I, 1) also extend to Scotland. II. Church history. 1. Ancient and modern times: Bellesheim, Alphons. Geschichte der Katholischen (=Roman Catholic) Kirche in Schottland von der Einführung des Christentums bis auf die Gegenwart. 2 vols. Mainz, 1883. Translated into English with notes and additions by D. O. H. Blair. 4 vols. Edinburgh and London, 1887–90.-Cummingham, John. The Church. History of Scot- land from the Commencement 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- terian 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 Church in Scotland. London, 1893. (Abstract of the history of the presbyterian, the protestant episcopal and the Roman Catholic church.)—Skinner, John. An Ecclesiastical History of Scotland from the first appearance of Christianity in that 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 Reign 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 Church of Scot- land, past and present. 5 vols. London, 1890 ft. This work consists of the following treatises: James Campbell (History of the Church) . . . from its foundation to the reign of Malcolm Cranmore; James Rankin, . . . from the reign of Malcolm Cranmore to 1688; T. B. W. Niven, . . . . from 1688 to the present time; Andrew Macgeorge, The Chºwrch in its relation to the Law and the State ; Adam Milroy, The Church’s Doctrine ; Thomas Leith- man, The Church’s Ritual; Andrew Edgar, The Chºwrch’s Discipline ; Nenion Elliot, Teinds or Tithes and Church property in Scotland. ^- 2: Ancient times: Keith, Duncan. A History of Scotland, civil and ecclesiastical, from the IO4 SCOTLA WD [I, 2 sionaries. The Keltic uses, which deviated from those of Rome, held their ground here until the beginning of the eighth century.” * Ninian (circ, 411), who is mentioned as converting the southern Picts, 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 Haddam and Stubbs, Councils I, 116, note. * Compare $1, note 21. earliest times to the death of David I, 1153. 2 vols. Edinburgh, 1886. (Vol. I contains the political, vol. II the ecclesiastical history.)—Mac Lauchlam, Thomas. The Early Scottish Chºwrch; the Ecclesiastical History of Scotland from the first to the twelfth century. Edin- burgh, 1865.-Skene, F. William. Celtic Scotland: a History of Ancient Alban. 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 3b. - Reformation and modern times: Calderwood, David. The History of the Kirk of Scot- land. 1678, New Ed. in 8 vols. Edited for the Wodrow Society by Thomas Thomson. Edinburgh;1842. (Covers, apart from a short introduction, theyears 1514–1625.)—Hetherington, 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 disruption, May 18th, 1843; with an introductory essay on the principles and constitution of the Church of Scotland. Ap- ſpendices containing the first and second books of discipline, and various historical documents. 2 vols. 7th Ed. Edinburgh, 1852.--Keith, Robert. The History of the Affairs of Church and State in Scotland, 1527–1568. Edinburgh, 1734. 1 vol. New Ed. prepared by John Parker Lawson for the Spottiswoode Society. 3 vols. Edinburgh, 1845–Kirkton, James. The Secret and true History of the Church of Scotland from the restoration to the year 1678; to which is added an account of the Murder of Archbishop Sharp, by James Russell an actor therein. Published at Edinburgh, 1817. –Knox, John (the reformer). The History of the Réformation in Scotland, in 4 books, 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 Knoa, collected and edited by David Laing for the Bannatyne Club. Edinburgh, 1846 f.-Koestlin, Julius, Die schottische Kirche (i.e. the presbyterian), ihr inneres Leben und ihr Verhältnis zum Staat, von der Reformation bís auf die Gegenwart. Hamburg and Gotha, 1852–Lawson, John Parker. History of the Scottish Episcopal Church from the Revolution to the present time. Edinburgh etc., 1843. (Govers the time since 1661, and in more detail, that between 1688 and 1842.)—Row, John. The History of the Kirk of Scotland from 1558 to 1637; with a continuation to July, 1639, by his son John 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 church), 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 Tºmé, 4 vols. London, 1843–45.-Stevenson, Andrew. The History of the Church and State of Scotland from the accession of King Charles I to the year 1649. Edinburgh, 1840.- Wodrow, Robert. The History of the Sufferings of the Church of Scotland, from the Restora: tion to the Revolution. 2 vols. Edinburgh, 1721. Another edition: 2 vols. Glasgow and Edinburgh, 1829, 30. - & & ſº tº & & 4. Special : Bannatyne Club, Origines Parochiales Scotiae, The Antiquities ecclesiastical and territorial of the parishes of Scotland (ed. by Cosmo Innes, James B. Brighan 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 the present time. . . . .” by M. Russell. Edinburgh, 1824. (Contains also: Keith’s View of the parishes of Scotland before 1688; John Spottiswoode, An Account of all the Religious Houses that were in Scotland at the time of the Reformation; Walter Goodall, On the first planting of Christianity in Scotland, and on the history of the Culdees.)—Reeves, William. The Culdees of the British Islands as they appear in history, with an Appendia of Evidences. Publin, 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, continued in Jowrm. of Conv. Cant. (Ed. Warren) 1865 p. 1555, 1856 pp. 26, 103; 1857 p. 375.-Walcott, Mackenzie E. C. Scoti-Monasticon . ... ," A History % the Cathedrals, Conventual Foundations, Collegiate Churches and Hospitals of Scotland. ondon, 1874. * * - See further the list of authorities in the English translation of Bellesheim, pp. xxiff. III. Church law. - * * * tº g g tº Gemberg, Aug. Fr. Leop. Die schottische Nationalkirche, mach ihrer gegenwärtigen whd ãwssern Verfassung. Hamburg, 1828–The constitution and law of the church of Scotland, by a member of the college of justice. With introductory note by Tulloch. Edinburgh and London, 1884. (A short methodic outline of the present state of the law.) - t § 10] CH U R C H CONSTITUTION IO5 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 (843) 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 Iona had the precedence. - * The bishop of St. Andrews, called from the them 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 I). º note 1), Haddan and Stubbs, Councils II, 148, note. Robertson, Cown- căls I, 207. * For example, in 1115 were founded the sees of Moray and Dunkeld; before 1119 (according to Skene, l.c. II, 375: about 1115) 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. Haddam and Stubbs II, 190, 195, 210, 216 (149), 217, 231. Cf. also the, in part different, account in Acta Sanctae Sedis, vol. XI p. 12 (Rome, 1878). * Bull of Calixtus II, 1119, printed in Haddam and Stubbs II, 192.-Compare Loofs, l.c. p. 76, who doubts whether the same mode of consecration was used at an earlier period. - - * Letter of Lanfranc, archbishop of Canterbury (1070 to 1089) to Margaret. Iſaddan and Stubbs II, 155. At the queen's wish : . . . De tune âgitur sim pater twws, et tu mea filia esto. -- IO6 SCOTLA WD [I, 2 held to mediate between Canterbury and York, of Winchester and Windsor (1072).”. 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 * Wilkins, Concilia I, 325. Council of Windsor: . . . Subjectionem vero Dunelmensis, hoc est, Ländisfarnensis, episcopº atque omnium regionum a termºn’s Lăcăfeldensis episcopi et Humbrae magni fluvić usque ad eact remos Scot? ae fines, . . . . Cantuariensås metropolitanus Eboracensi archi- episcopo €ſusque successoribus in perpetuum obtinere concessit. On these councils cf. § 34, 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 tangºlam vestro Archiepiscopo debitam oboed?entiaſm each?beatis. 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 : . . . praecipimus, ut mullus dečnceps in eccles??s vestris in Episcopum mºst a metropolitano vestro Ebor. Archiepiscopo aut ejus licentia. C97. Secret?!?’. Porro . . . mandamus, ut . . . Thurstimo &m Eboracensem, Arch?ep?Scopwm consecrato, . . . canonicam oboedientiam deferatis; sicut temporºbus Gerard? . . . a . . . Paschale Papa mandatum est. Had- dan and Stubbs II, 192. Similarly Calixtus II, 1122, to king Alexander of Scotland and the Scottish bishops, l.c. II, 205; Innocent II, 1131, to the Scottish bishops, l.c. II, 217; Hadrian IV, 1155, to the same, l.c. 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 Sanct. 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 consequence of disputes with the king Turgot could not perform his functions and had to withdraw, l.c. 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) pen?tus absolutum ab Ecclesia Cantuariemsä, . . . seque in vita Sud con- sensum non praebºturum, wit Episcopus Scotiae subderetur Pontific; 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) Rodbertus (Robert), prior of Scone, was elected bishop of St. Andrews. A synod held (1125) by the legate John of § 10] CHURCH CONSTITUTION IO7 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 Honorius 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 Rodbertus consecrated by the archbishop of York, salva. querela Ebor. Ecclesiae, et salva justicia Sancti Andreae, l.c. 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 Suthraže (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, l.c. II, 229. Also, on the resuscitation of the see of Glasgow (about 1115), the archbishop of York conse- Crated the new bishop (l.c. II, 195), and for a time in the twelfth century the bishop of Glasgow acted under the archbishop of York as his superior. In 1165. the Scottish bishops consecrated Richard, bishop of St. Andrews. In the treaty of Falaise confirmed at York, 1175, is the following nugatory clause: Comcessit & Teac Scotiae . . . et Barones et al?? homimes suff, domino Regi (of England), quod Ecclesia Scotiae talem subjectionem amodo facief Ecclesiae Angliae, qualem illé facere debet, et solebat tempore Regum Angliae praedeces- Sorum Suorum. Sºmżliter Ricardus Hºpiscopus St. Andreae et . . . con- cesserumt, Quod etiam Ecclesia Anglicama illud jus habeat in Ecclesia Scotiae, quod de jure habere debet, et quod ips; mom erumt contra jus Anglicanae Ecclesłae . . . Hoc idem facient al?? Episcop? et clerus Scotiae At the legatine council of Northampton, 1176, the Scottish bishops refused to make 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 to exercise archiepiscopal powers in Scotland until final decision by the papal see, l.c. 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 Rome, l.c. II, 251 ff. * Clement III to William, king of Scotland: . . . duaºmus statu- endum, ut Scotticana Ecclesia Apostolicae sed? . . . mullo mediamte debeat Subjacere; . . . . Adjācāmus, ut mulli de caetero qui de regno Scotiae mort fuerit, mis? Quem Apostolica sedes propter, hoc de corpore suo specialiter destimaverit licitum sit in eo legation?s officium eacercere . . . This bull was probably repeated by Celestine III in 1192, as also by other popes, e.g. in 1208 (by Innocent III), in 1218 (by Honorius III). Haddan and Stubbs II, 273, 274, note. For more as to these bulls see Robertson, Councils I, 40, note. At the-wish of the king of Scotland Innocent IV further laid down (1245): wt eaedem causae (disputed church elections) vel aliae, sº quas in eodem. regmo oriri contigerit, aut etiam eacamánaciones praedictae (electionum), eactra. ?dem regnum auctor?tate Sedis Apostolicae vel Legatorum &psius commºttº mom valeant. Quas s? forsam ab eaderm Sede eactºra ödem regmum eac legitima causa committà contingeret, in civitate ac dioces? Eboracens? m?nºme commit- tamtur, sed committamtur dumtaacat &m Karleolems? vel Dumelmens; civitatibus ac dioces?bus 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 archbishop of York. Stubbs, Comst. Hist, I, 597 c 13 $ 158. Raine, Introd. p. xxxviii to Rer. Brit. Scr. No. 61. - IO8 SCOTLA WD [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 Enox. 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 lollards 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- fluence 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 wrvus episcopus communi reliquorum consilio con- servator eligeretur, quí de concélèo ad concilium swo fungeretur officio, praesertim in concilio provincial; quotannis indicendo auctoritate conserva- toria per literas ad singulos episcopos ; quibus eos requireret quatemus die et Zoco praescript's adessent in habitu decent?, wrva cum praelatis, id est abbatibus et majoribus prioribus suae dioecesis ; mec mom cum capitulorum, collegãorum, et conventuum procurator:bus domeis, decarvis, et archidiacom’s º II. Quod idem conservator pro tempore concilio praesideret, materias tractandas proponeret, suffragia collègeret, cum maioré et Santor? parte patrum concluderet, et decretum interpomeret © * III, Quod idem conservator pro tempore manifestos ac motorios eiusdem concélèë Sew alicuºus statut? in eodem violatores pun:ret tº tº * Wilkins, Introduction 31. Acta Sanctae Sedis (1878), vol. XI p. 14. The bulls are printed in Robertson, Counc. I, 110, note 1; 122, note l; 123, note 1. The detachment of the province of Glasgow by the pope was a consequence of Fesolutions of the Scottish parliament. * For details see Robertson, Cowmc. I, 122 ft. * No. 4 (Acta Parl. II, 295). § 10] THE STRUGG L E A GA I WST ROME IO9. John 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 thane selfis, to the uttermost of thare poweris, to manteame the trew preaching of the Evangell of Jesus Christ, as God should offer unto thane preacher's and opportunitie. Knox, Hist, of Reform. Ed. Laing I, 251. On the authority of this passage it has been asserted, that there perhaps was a formal bond re- Sembling later covenants. * The document is printed in Knox, l.c. 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 Parl. 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 half ma Jurisdictiown nor autor?tie within this realme in tymes cuming And that mame of oure saides soveran?'s sub?ectis of this realme sute or desire &m omy tyme heireftir title or rycht be the said bischope of Rome or his sait to omy thing within this realme wnder the panºs of barratrye That is to say proscriptiown banischement and mevèr to bruke honour office nor dignitie within this realme. * No. 3 repeals older laws which would have prevented reformation. No. 4: . . . that ma maner of persome or person’s in Omy tymes cum?ng administrat Ony of the Sacramentes fožrsaïdes [baptism and the eucharist] Secre?tlie or in ony uther maner of way bot that that ar admittit and havand power to that effecte and that ma maner of person nor person's say messe nor gºt heir messe nor be present thairat under the pame of confiscatiown of all thaër gudes movable and unmovable and puneissèng of thair bode's at the discret?own of the magistrat. . . . IIO SCOTLA WD [I, 2 Mary Stuart repaired (1561) on the 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, 1567, 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 from prosecution for their religious belief.” Mary was compelled, by 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 offices 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 Parl. II, 548): . . . Our said Soverane with the awyse of the haill thre estaites of this parliament, hes thocht meidfull and convenient To dispense case abrogat and annull like as hir Majestie presentlie dispenses cases abrogatt’s and ammullis all and quhatsumevèr lawī's actis and constitution's Canone civile or municipale with all uther constitution?s and practik penale Introducit contrar to the foirsaïd Religioun and professoures of the Samyne, . . . 20 1567 Jac. VI (Acta Parl. III, 14 f.). No. 3 Ament the abolissing of the Pape, and his usurpăte authorite, confirms the act No. 2 of 1560. No. 4 Ament the annulling of the actis of Parliament, maid againis Goddis word, and maintenance of Idolatrie ºn Ony tymes bypast, confirms act No. 3 of 1560 and the confession of faith of 1560 (No. 1). No. 5 Ament the Messe abolischät, and punisching of all that heiris, or sayis the samºn, confirms act No. 4 of 1560. No. 6 Ament the trew, and haly Körk, and of thane that ar declarit not to be of the samin . . . . the foërsaid 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 'member's of the said Kirk . . . swa long as thay keip thame selfis sa dewydit fra the societie of Christis body. t No. 7 Anent the admissioun of thane, that salbe presentit to benefices, Jiawand 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- sibility of the presentee. No. 8 Ament the Këngës alth, to be gewºn at his Coromatiown. The corona- tion oath, the substance of which is given, contains a promise to maintain religion as then received. No. 9 Ament thane that sould be?r publict office he?refter. Only professors of the reformed 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. º No. 12 Ament the ºurisdictiown of the Kirk: . . . . . The King's grace, with avise of . . . grantit jurisdictiown to the said Kirk, quh?lk consistis and standis in preicheing of the trew word of Jesus Christ, correctiown of maneris, and administratiown of haly Sacrament's . . . And that thair be na wther £urisdictiown ecclesiasticall acknaw.legeât within this Realme, 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 Parl. III, 95. Nos. 6 and 7 of 1579 repeat the pro- visions of Nos. 6 and 12 of 1567, with inconsiderable alterations. Acta Parl. TII, 137. No. 1 of 1581 enumerates and confirms the laws in favour of the reformed church. Acta Parl. III, 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 Parl. III, 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, bishoprics, chapters, collegiate churches, and the non-filling of monastic offices which become vacant. The first and fundamental article runs:— Ament Archeb & shop r & Ick is and B is chop rikkēs. It is thocht, in consideratiown of the present state, That the names and titällis of Archebischoppis and Bischoppis are not to be alterit or immouat, nor yit the boundes of the Dioce's confoundit ; bot to stand and continew in tyme culming, as thay did befoºr the reformatiown of religioun, at leist, to the Júngēs Majesties maioritie, or consent of Parliament. That person's promovit to Archebischoprikkēs and Bischoprikkēs be, Safar as may be, indewed with the qualite's specifeit in the Epistlis of Paule to Timothe and Tytus, II 2 sº SCOTLA WD [I, 2 year) supported the resolutions of the 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 effect to the resolutions. But the general assembly of April, 1578, forbade chapters until its next meeting to make any election to bishoprics which might become vacant, and the next assembly of June, 1578, rendered the injunction perpetual. The assembly of 1580 voted the immediate abolition of the episcopal office. Resolutions in 1578 and 1581 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 thair be a certame assembly or cheptowre of learn?t mºm?sterås anneact to every Metrapolitan or Cathedrall seatt. - To all Archebischoprikkēs and Bâschoprikkēs vacand or that sall happ?n to vaik heiréfter, person's qualife?t to be nominat within the space of year and day eftir the vacance; and the person's nominat, to be 30 years of age at the le?st. The Deane, or failyeing the Deane, the m?act in dignitie of the Cheptoure, during the tyme of the vacance, Salbe Vicar generall and use the jurisdictioun Žn spiritualibus as the Bâschop mycht have usit. All Bischopp?s and Archebischoppis to be admittit he?refter, sall eacerce ma farther jurisdictioun in spirituall functioun nor the Superintendentis hes and presently eacerces, quhill the same be agreit upown; and that all Archebischop- pes and Bischoppis be subject to the Kirk and Generall Assembly thairof in spiritualibus, as thay ar to the King in temporalibus; and half the advise of the best learn?t of the Cheptowre, to the mowmer of Seac at the leist, in the admissãown of Słc as Sall have spirituall functiown in the Kirk: ; as alsua that # be lawchfull to als momy wither's of the Cheptowre as plesis, to be present at the said admissiown, and to voit tha'rament, 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 (l.c. I, 246). The presbyterians dispute that the assembly of Leith, January, 1572, which sent members to the commission, was a regularly summoned general assembly. Compare Hetherington, Høst. of Church of Scotland I, 138 ff-Ranke, Engl. Geschächte 3rd Ed. II, 6 asserts that the resolutions were confirmed by parlia- ment in January, 1573. But no such confirmation is discoverable in the Acta Parliamentorum. * The letter is printed in Acts and proceedings of Gen. Assembly, l.c. I, 248. * c 1 No. 6: It is a title falslie usurpät be Antichrist, to call himselfe heid of the Körk, . . . No. 9 : Notwithstanding, as the ministerås and uthers of the ecclesiasticall estait ar subject to the magistrat civill, so aucht the person of the magistrat be subject to the Kirk spiritually, and in ecclesiasticall govern- ment. And the eacercise of both these jurisdictiones cannot stand in one person. ordinarlie . . . • * § 10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS II3 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 Parl. III, 292 f.):— No. 2: . . . Our Soverane lord and his thrie estatis assemblit in this present Parliament ratefe’s and apprevis and perpetuallie confirm is the royall power and auctoritie over all statis alsweill spirituall as temporall within this Tealme . . . . And . . . That his h?enes, his said aris and successouris be thame selffis and thałr counsell's ar and in tyme to cum salbe Juges competent to all person's h?s hºenes subjects of quhatsumevèr estate degrie, functioun, or conditioun that ever they be of spirituall or temporall, In all materis quahai- rim they or omy of thame Salbe apprehendit, summound or chargelt to ansver to Sic thing?s as Salbe inquirāt 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 bishops are thus secured.] . No. 4: . . . . Our Soverame Lord and his thrie estatis assemblåt in this present parliament discharge's all Jugementis and Jurisdictionis spirituall or tem- porall accustomat to be us?t and eacecute upoun ony of his hienes subjectis, quh?lkes ar not approvit be his ſhàemes and his said is thrie] estatis [convenit] in Parliament, and be allow?t and ratefelt be thame : . . . And . . . That name of his h?enes Subiects of quhatsumever qualitie, estate or functiown they be of, spirituall or temporall presume on tale upown hand to convocat, convene or assemble tha'me Selffs togidder for haldžng of counsellis, convention’s or assemble's To treat, consult and determinat in ony mater of estate, civill or ecclesiasticall (eaccept in the Ordinare Jugementis) without his majesties speciall commandement, eacpres licence had and obten?t to that effect, under the panis Ordºn't be the law?s and acts of Parliament agan?'s sic as unlawfullie convo- catés the Kºng's liegeis. - - No. 20: . . . That patrik Archiebischop of sanctandº'ois and uther is the bishop's . . . . . with sºc uther's as salbe constitute the King's majesties Commissionar's ºn Ecclesiasticall causes Sall and may direct And put ordour to all mater?s and causes ecclesiasticall within thair dioce?ses våset the Kärkis and State of the mºnisterie within the same, Reforme the collegejs thairin, Resave his h?enes presentationis to benefices . . . And that ma presenta- tion?s to benefices be direct?t in tyme cuming to ony utherås, And that com- Tmission?s be eactendit particularlie heirupoun in sik maner as his hienes and [his] previe counsell sall think eacpedient . g - An act of 22nd Aug. 1584 No. 2 (Acta Parl. III, 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 Rymer, Foedera 3rd Ed. VI pt. IV p. 185. The fundamental pro- visions of the treaty run :— Prºmºtºm, Conventum concordatum et conclusum est, quod idem Principes H. C. T II4 SCOTLA WD [I, 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, quam nunc profitentur, Religione, adversus quoscumque alios qui, ejusdem Religionis evertendae causa, contra alterſtrºm eorum quicquam molâentur attentabunt vel facient, twenda et conservanda, h00 speciali et sacrosancto Foedere cavebunt, ac omnă quo poterunt studźo Sédulo conabuntur et operam dabunt, ut reliqui Principes, qui eandem veram colunt Religionem, una cum illis in hoc tam sanctum Propósitum et Foedus conven?- ant, junctisque Véribus verum Dei Cultum in suis Ditionibus conservent, ac sub dicta antiqua et apostolica Religione swum Populum tuéantwr et régant. Item, Conventum concordatum et conclusum est, quod hoc speciale Foedus pro twenda et retinenda Christiana et Catholica Religione, quae hoc tempore ab utroque Principe servatur, ac in Regnis et Ditionibus earundem Divčno Favore colitur et fovetur, sic et Defensionis et Offensionis Foedus, contra quoscumque, qui liberum ejus eacercitium in eorum Regnis et Domºn's impe- dient sew quov's modo impedire comabuntur, mon, obstantibus quibuscumque Tractatibus Amācātiarum Foederibus Confoederationibus, inter alterwtrum eorum, ac ejusdem Religion's Infestatores sew Adversarios quoscumque prºus Żnités. . . . * No. 8 of 1592 (Acta Parl. III, 541):- The earlier laws in favour of the reformed church are confirmed, especially No. 1 of 1581 (cf. 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 ye'r at the leist, and ofter pro re nata as occasioun and necessitie sall require To hald and keip generall assemblies Providing that the king is Mažestie or his com: missioner with thame to be appoyntit be his hienes be present at ilk generall assemblée befoir the dissolving thairof Nominat and appoint tyme and place quhen and quhair the nāact generall assemblie salbe haldūn, And in caise mather his Majestie nor his said commissioner beis present for the tyme in that town quhair the said generall assemblie beis haldžn That and in that caise It salbé jesum to the said generall assemblie be thame selffes To nominat and appoynt. tyme and place quhair the niact generall assemblie of the kirk salbe keipit and haldūn as they haif bene in use to do thir tymes bypast, And als ratifies and apprevis the sºnodall and provinciall assemblies To be haldin be the said kºk and ministrie twyise ilk ye'r as thay half bene and ar presentlie in use to do within every province of this realmé And ratifies and apprevis the presbiteries and particulare sessionis appointit be the said kirk with the haill furts- dictioun and discipline of the same kirk aggreit upown be his Mačestie ºn conference had be his h?enes with certame of the ministrie convenit to that effect, Off the quhilkes articles the tenmour followis : . . . The general assembly hes power to handle ordour and redress all thing's omitt?t or done amiss in the particulare assemblies, It hes power to depose the ºffice beraris of that province for gude and iust causes deserving deprivatiouſ. • * A number of old acts, favourable to the Romish church, are repealed. No. 2 of 1584 (cf. above, mote 25) is thus explained: it shall na wayes be preſſu. dicall nor dirogat anything to the privilege that god hes gevin to the spirituall office berarás in the kirk, concerning heades of religioun, materis of hereste, eaccommunicatiown, collatiown, or deprivatiown of ministeris or ony 87c essen- tiall censoures speciall groundit and havand warrand of the word of god. The act of 1584. No. 20 (cf. above, note 25) is repealed. In place thereof it is $10] THE PRES BYTERIANS 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 presentation's to benefices To be direct to the particular . presbiteries in all tyme cuming with full power to thatmve to giff collation's #hałrupown and to put ordour to all materås and causes ecclesiasticall withºn thair boundis according to the discipline of the kirk, Providing the foërsa?dºs presbiteries be bund and astrictit to ressave and admitt quhatsumevèr qualifiet minister presentit be his Mačestie or wther laïc patrounes. * The resolutions of 4th March, 1597, of the general assembly at Perth are printed in Acts and Proceedings, l.c. III, 895. The most important as to church constitution run :— 1. That it is lawfull to his Majestie, be himselfe, or his Hienes Com- 2missioners, or to the Pastours, to propone in a Generall Assemblée, quhatsoevºr poynt his Majestie or they desyres to be resolvit or to be reformit in matters of eacternall goverment, alterable according to circumstances; provyding it be dome in right tyme and place, animo edificandi, won tentandź. - 9. No Conventiowns sould be among the Pastour's without his Majesties Jcnowledge and consent, eaccept alwayes thaër Sessiowns, Presb%tries, and Synods, thair meitings in visitatiown of kirks, admissãown and deprivat?own of Ministers, taking up of feids, and sick uthers as hes not bein found fault be his Majestie. 10. In all principall townes, Ministers sould not be chosłm, without the consent of thaër awºn flock and his Majestée. The most important of the Dundee resolutions (14th May, 1597) run (Acts and Proceedings, l.c. III, 925):— First, Anent the propositioun movit be his Majestie to the Assemblée, craving that befor the conclusãown of any weghtie matters concerning the estate of his Hāenes or of his subjects, his Majesties advyce and approbatiown be cravit therto, that the same being approvit be his Majestie, may have the betteſ' eacecutiown, and, if neid beis, be authorizit be his Hiemes law's : The Assemblée craves most humblie, that his Majestée, either be himselfe or his HZenes Com- missioners, in matters concerning his Majesties estate, or the haill estate of his subjects, and uthers of great wecht and importance, that hes not bein treattit of before, wald give his advyce and approbatiown therto, before any finall con- clusiown of the same : and, for the better obedience to be given to such lyke statutes in all tyme comeing, that his Majestie wald ratifie the same, either Öe act of his Hiemes Parliament, or Secrett Counsell, as salbe thocht neidfull . The quhilk his Majestie promised to doe, according to his Hºenes propost- town, quhilk was acceptăț and allowit of the haill Assemblie. * Act of 16th Dec. 1597 No. 2 (Acta Parl. IV, 130):— ſº that the kirk within this realme, quhairin the samin religiouſ is professit, is the trew and halie kirk; and that såk pastwris and mºnºster’s within the samān as at ony tyme his maîestie sall ple's to provyčd to the Office place title and dignitie of ane bischoip abbott or wther prelat sall at all tyme heiréfter haif vožtt in parliament Sãclyk and als frelie as ony uther ecclesłas- ticall prelat had at ony tyme bigame, And als declaris, that all and quhatsum- evir bishopreis presentlie vacand in his hienes handis, quhilkºs as y?t ar wndispomit to ony persone, or quhilkis salhappin at ony tyme he?réfter to waik, salbe onlie dispomit be his majestie to actuell prechearis and mºnºsterås ºn the lcirk on to sik utherås person’s as salbe fundin apte and qualife?t to use and eacerceis the office and functiown of ame minister or precheour, and quha ºn thair provisionis to the said is bishoprikás Sal accepte in and upown tha'me to be actuelle pasturis and ministeris And according therto sall practe’s and eacerce the sam&m thairéfter. II6 SCOT /A W.D - [I, 2 At the union of the crowns of England and Scotland under James there were thus bishops in the Scottish church, although it had remained presbyterian in principle; and if there was no royal Supremacy, there were nevertheless no imconsiderable rights On the part of the king to co-operate in the government of the church. On the other hand, neither bishops nor king had such extensive powers as in England, It was the object of James I and afterwards of Charles I to transfer English relations to Scotland and indeed to bring about a complete merging of the Scottish church in the English. Their endeavours were, in the first instance, successful. A Scotch act of 1606 restored to the bishops the temporal possessions which had been confiscated by an act of 1587.” The general assembly of Linlithgow (1606) voted upon the king's recommendation that the moderators of presbyteries and provincial assemblies should be elected for a permanency, and that the bishops should be ‘constant, moderators’ of the presbyteries which met at their episcopal seats and of the provincial synods.” The king set up two courts of high commission for Scotland (February, 1610).” The general assembly of Glasgow (June, 1610) laid down that bishops should visit their dioceses themselves unless the bounds were too great ; that sentences of excommunication must be approved by them; that they were to Ordain and, in association with the ministers of the bounds, to deprive; moreover, the right of the general assembly to depose a bishop was made subject to the king's consent.” Later in the Item, as concerning the office of the said is person’s to be provydit to the saidžs bishoprikás in thair spirituall policie and guvernament in the kirk. The estadt's of parliament hes Remºttàt and Remittis the sam?n to the king is 7majestée to be advysłł, consultit and agreit upon be his hienes with the generall assemblée of the ministerås at sile tymes as his maîestie sall think eacpedient to treat with tham theron But prejudice alway is in the mentyme of the Jurisdic- town and disciplin of the kirk, establisch it be actis of parliament maid in Ony tyme preciding and permittit be the said is actis to all generall and provinciall assemble's and uther's quhatswºmevin' presbitere’s and session?s of the kirk. For the resolutions of the general assemblies of Dundee (1598) and Montrose (1601) as to the representation of the lower clergy in parliament see Acts and Proceedings of Gen. Assemb, l.c. III, 945, 946, 954. * Act of 9th July, 1606 No. 2 (Acta Parl. IV, 281). - * Acts and Proceedings of Gen. Assembly, l.c. III, 1027, 1029, 1039. The general assembly appended a number of restrictions. The bishops were to have as perpetual moderators no greater rights than their predecessors, and were only 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. * Compare $ 30, note 5. * The resolutions are printed in Acts and Proceedings of the Gen. Assembly, l.c. III, 1095. The most important of the motions adopted are:– t ther salbe yearlie Generall Assemblies, the indictioun quherof the Assembly acknowledges to appertaine to his Majestie be the prerogative of his 7°oyall crowne ; . . . that the Bâschops salbe Moderatours in every Dioces?an Synod, . . that no sentence of eaccommunicatiown, or absolutiown therfºrd, be pronouncºt . . . without the knowledge and approbation of the Bâschop of the Dyocłe, § 10] THE PRESBYTERIANS AND THE PROTESTANT BISHOPS II? 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 there with. 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, gº that all presentatiowns be direct he?rafter to the Bºschop ; g the Bâschop is to requyre the Ministers of these bounds quher he is to serve, to certifie . . . his conversatiown past, and abilitie, and qualificatiown for the functiown ; . . . the Bâschop is to take farther tryall ; and finding him qualified, and being assisted be such of the Ministrie of the bounds quher he is £o serve, as he will assume to himselfe, he is then to perfyte the haëll act of ordinatown. - Žn depositiown of Ministers, the Bâschop associating to himselfe the Ministrie of these bounds . . . is . . . to depryve him. that everie Minister, in his admissãown, sall sweare obedience to his Majestée, and his Ordinar . . . (Form of oath according to the resolutions of the mixed commission of 1572). & ºt the visitatiown of ilk dyocłe is to be done be the Bischop himselfe : and if the bounds salbe greater then he can overtake, he is . . . to appoint some worth?e man to be visitour in his place ; . . . - the Bishops salbe subject, in all things concerning thałr lyfe, conversatiown, office, and benefice, to the censures of the Generall Assemblée, and being found culpable, with his Majesties advyce and consent, to be deprivăţ . . . º Acts of 1612 No. 1 (Acta Parl. 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. l.c. III, 1116, 1144, 1145. * * Printed in Acts and Proceedings of Gen. Ass. l.c. III, 1132. * Acts and Proceedings, l.c. III, 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; l.c. III, 1132. * Printed in Acts and Proceedings, l.c. III, 1165. * Acts of 1621 No. 1 (Acta Parl. IV, 596). I 18 SCOTLA WD [I, 2 advised by Laud, determined to proceed in Scotland without further delay. In that country the king's right to issue ecclesiastical ordimances 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, 1637.4% 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 mull.” Open war * Compare Collier, Eccles. Hist, VIII, 96ff. * The order (20th Dec. 1636) is printed in Stevenson, Hist, of the Church etc. 165. * 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. * Resolution of 4th December, 1638 (Acts of Gen. Assembly p. 5): Ament the Teport of the committie for trying the siac last pretended Assemblies, they pro- duced in writ Sundrée reasons clearing the unlawfulnesse and mullétie of these Assemblies, . . . The Assembly . . . declared all these sæ 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 wn free, unlawfull, and mull Assemblies, and never to have had, nor hereafter to have, any Ecclesiasticall authoritie, and their comclusions to have been and to bee of mo force, vigour, nor efficacie; prohibited all defence and observance of them, and ordained the reasons of their mullitie to be insert in the books of the Assembly; § 10] THE PRESBYTERIA WS 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 (1650). 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, 1651) 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. - After 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 Charles II in his declaration of October 25th, 1660 (cf. as to this declaration $ 7, note 66; it is printed in Cardwell, Docum. 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, 1653, 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 ft.). * Scobell, 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 Parl. VII, 30) repealed the ordinances of the parliament which met in 1649, the act of 1661 No. 126 (Acta Parl. VII, 86) repealed the acts and ordinances of the parliaments of 1640, 1641, 1644, 1645, 1646, 1647, 1648. From 1633 to 1640 there had been no acts passed. The acts of 1661 No. 22 (Acta Parl. 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, Comcilia 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 Appendźac. * Act of 1669 No. 2 (Acta Parl. VII, 554) : . . . asserted and declared that his Mažestie hath the Supream Authority and Supremacie over all I2O SCOTLA N D II, 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 ecclesiasticall within this Kingdom ; And that be vertew therof the ordering and disposall of the Eocternall Government and policie of the Church Doth propperlie belong to his Mažestie and his Succes- sours As ane inherent right to the Crown ; And that his Mažestie and his Successours may setle enact, and emºt such constitutions, acts and Orders, concerning the administration of the eacternall Government of the Church, and the persons imployed in the same, And concerning all ecclesiasticall meltings and maters to be proposed and determined therin, As they in their Royall wisdome shall think fit. Which acts orders and constitutions being recorded Žn the books of Councill and dewly published Are to be observed and obeyed be all his Mažesties Subjects, Any law, act or custome to the contrary notwith- standing . . . 48 Act of 1681 No. 2 (Acta Parl. VIII, 238). 40 Claim of right of 11th April, 1689 (Acta Parl. IX, 38ff.).-A new form of the coronation oath was established on 18th April, 1689 (Acta Parl. IX, 48). 50 Act of 22nd July, 1689 No. 4 (Acta Parl. 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 above presbyters º * They were allowed, however, half the income of the year preceding. Acts of 1690 No. 2 (Acta Parl. IX, 111). 52 Act of 1690 No. 7 Act Ratifying the Confession of Faith and settleśng Presbyterian Church Government, the Revolution Settlement (Acta Parl. IX, 133). All laws against the papists and in favour of the reformed church are revived. . . . they by these presents Ratifie and establish the Confession of faith (i.e. the confession of Westminster; cf. § 16, note 21). . . . . As also, They doe establish Ratifie and confirme 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- Žished by the 114 Act Jac. VI parl. 12 anno 1592 Entituled, Ratification of the Liberty of the true Kirke (identical with the act of 1592 No. 8; cf. above, note 27) . . . . . . Confirmečng the forsaid act . . . except that part of it, relate- àng to patronages . . . . Rescinding, Annulling and macke?ng voyd. e (acts severally specified) . . . with all other Acts Lawes statutes ordinances and proclamationes And that in sva far allennerly as the saids Acts e are contrary or prejudiciall to, Inconsistent with, or derogatory from the pro- testant Religion and presbyterian Government now established § 10] CH U R C H CONSTITUTION I2 I act of 1695 prohibited the outed episcopalian 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 Protestant Religion and Presbyterian Church Government.' * 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. 15 Act against Irregular Baptisms and Marriages (Acta Parl. IX, 387). * Acţa Parl. XI, 402:— - * Her Majesty with advice and consent of the said Estates of Parlia- ment 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 amore especially . . . Hatfies Approves and for ever Confirms the 5th Act of the first Parliament of Kºng William and Queen Mary Ratifieing the Confession of Faith and settling Presbyterian Church Government (identical with the act, cited above, of 1690 No. 7), with the haill other Acts of Parliament relating thereto . . . . and . . . eacpressly Provides and Declares that the fore- said true Protestant Religion contained in the above mentioned Confession of Faith with the form and purity of worship presently ºn use within this Church, and it’s Presbyterian Church Government and Dºscºpline, 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- swant to the Claim of Right, shall remain and continue unalterable, And that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland . . . That . . . the Sovereign suc- ceeding . . . in the Royal Government of the Kingdom of Great Britain shall in all time come?ng at his or her 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 Prévèledges of this Church as above established by the Laws of this Kingdom in prosecution of the Claim of Right & *. * 6 Ann. c 11, S 1 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. On it falls the duty of examining and ordaining candidates for the ministry. . • * Ministers and elders are chosen to it by the presbyteries; other delegates I22 SCOTLA IV D [I, 2 In the nineteenth 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 & 88 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 patronage of the crown and of private persons was upheld against the attacks of Knox by Scottish act, 1567 No. 7 (cf. above, note 20) and confirmed by 1581 No. 4 (That ministeris salbe presentit be the king is maiestie and the Law?t patronis to all benefices of cwº under prelacy?s. Acta Parl. III, 212) and by 1592 No.8 (cf. above, note 27). By ordinance of the Scottish parliament, 9th March, 1649 No. 205 (Acta Parl. 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 Parl. 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 Amm. (1711) cººl (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 p. 1044): The General Assembly declare, That Žt 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 principle 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 major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, shall disapprove of the person in whose favour the call is proposed to be moder- ated ºn, such disapproval shall be deemed sufficient ground for the Presbytery Tejecting such person, and that he shall be rejected accordingly, and due motice thereof forthwith given to all concerned ; but that, ºf the major part 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] CH U R C H COWSTITUTION I23. The act prescribes 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 III'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 $ 7, note 81. * An Act to prevent the disturbing those of the Episcopal Communion in that Part of Great Britain called Scotland in the Eaºercise 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 imtituled Act against Żrregular Baptisms amd Marriages (compare above, note 53). I24 SCOTLA WD [I, 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, 5 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) c 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 George 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 III. As a consequence, 32 Geo. III (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 making 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 mºnisters 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 ministers shall officiate. Supplemented by 21 Geo. II (1748) c 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. III, 394. § 11] I RE LA WD I25, 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 were 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, one 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 C H U R C H IN IRE LAN D.” THE conversion of the Irish, which dates from the middle of the fifth century, was effected by missionaries from Rome and British * Code of Canons of the Episcopal Church in Scotland, as amended, adopted, and enlarged by a general synod holden at Edinburgh, ºn 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 Ross, with Caithness. " It last met in 1890 after an interval of fourteen years. * Constitution of Leo XIII in Acta Sanctae Sed?s, vol. XI pp. 3 ff. It ordains the establishment of six bishoprics: St. Andrews adžuncto tºtulo Edinburgh as see of the archbishop with four suffragans: Aberdeen, Dunkeld, Camdāda. Casa (=Galloway), 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 ſide. * T. Sources. 1. Laws : The Statutes at Large, passed in the Parliaments held in Ireland, from the third gear of Edward II, 1310, to the twenty-sixth year of George III, 1786, inclusive, with . . . Indeg. Continued down to 1800. Dublin, 1786 ft. In all 20 vols. (Published officially; based mainly on earlier printed editions. For collections of the Irish laws see Statuses:of the tealm, Introduction pp. 44 and 83.) - • * : * ~ * I26 I RE LA WD [I, 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 Roman missionary Palladius sought to gain footing in Ireland, but without success. Haddam and Stubbs, Councils II, 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 by mandate of the pope. Todd is against this view. Compare Robert, l. infra, c. Loofs, pp. 30–53, thinks it probable that Palladius and Patricius are identical and that Prosper Aquitanus, Chron. year 431 (written 455–68), 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: Usher (Usserius), James. Veterwm Epistolarum Hiberivicarum, Sylloge, quale partim ab Hibernis, partim ad Hibermos, partim de Hibernis vel rebus Hibernicis Sumt conscriptae. Post Edit. Dublim... et Parisiem. primvum in Germania, editum HerbOrmae Nassovicorum, 1696. – Wasserschleben. Die irische Kanomensammlung. Giessen, 1874. (Hibermensis, 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 Stubbs, Spelman and Wilkins see appendix XIV, I, 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, Alphons. Geschichte der katholischen Kirche in Irland von der Einführung des Christentwms bis auf die Gegen- wart. 3 vols. Mainz, 1890–91. (Relates to the Roman catholic church. In vol. I a map which shows the division of Ireland into four archbishoprics [1500]; in vol. III a map exhibiting the present division of Ireland into Roman catholic archbishoprics and bishoprics.)—Brenan, M. T. An Ecclesiastical History of Ireland. (From the earliest time to 1829; relates to the Roman catholic church.) New Edition, Dublin, 1864.—Greith. Geschichte der altirischen Kirche wnd ihrer Verbindwng imit Rom, Gallien wind Alemanniem. 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 first introduction of Christianity among the Irish to the beginning of the 13th century. Dublin, 1822. 2nd Edition, Dublin, 1829. 4 vols.-Mant. History of the Chºwrch of Ireland, from the Reformation to the Union, with a preliminary swrvey from the Apapal usurpation in the 12th century to its legal abolition in the 16th. Ilondon, 1840. 2 vols. —Moran, Patrick Francis. Essays on the Origin, Doctrines, and Discipline of the Early Irish Church. 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 Presbyteriam Chºwrch in Ireland (till 1735, con- tinued by W. D. Killem till 1841) . . . with a preliminary sketch of the progress of the Reformed Religion in Ireland during the 16th century and an appendia 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 swr la vie et l'oeuvre de St. Patrick. Elbeuf, 1883.−Stokes, Geo. T. Ireland and the Celtic Church. A History of Ireland front 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 Irish Christianity from the Anglo-Norman Conquest to the Dawn of the Reformation. London, 1889. (Both civil and ecclesiastical history.)—Todd. St. Patrick Apostle of Ireland, A Memoir of his Life and Mission, with an (introductory dissertation on some early usages of the Church in Ireland, and its historical position from the establishment of the English colony to the present day. Dublin, 1864- Usher, James. A Discourse of the Religion anciently 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, l.c. 21, note.)—Cf. the lists of authorities at the beginning of each of the 3 vols. of Bellesheim, l.c.—For the common history of the old Keltic churches see the works of Loofs, Stillingfleet and Usher, cited in appendix XIV, II, 3 b : 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 articles of the Church of Ireland. Methodically digested winder proper heads. With a cont- mentary, historical and juridical. Dublin, 1770. 2 vols. The arrangement is as in Gibson's Cºjuris etc. (cf. appendix XIV, III). § 11] CH U R C H CO WSTITUTION 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 heathem Northmen (Dames 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; cf. however, below, note 6):— e Item quaecumque causa valde difficil's eacorta fuerit atque ignota cunctis Scotorum gentium (i.e. the Irish) dudácibus, ad cathedram archiepiscopi Hibermensium, id est Patricii, atque huius antestit’s eacaminationem recte referenda. S; vero in illa cum Swis sapientibus facile Samarè non poterit, causa prae- dictae negotionis ad sedem. Apostoli cam decrew mºus esse mitten dam, Ż.e. ad Petri apostoli cathedram, auctor?tatem Romae Urbis habentem. HŽ sunt quº de hoc decreverunt, i.e. Attacilius, Patric & us, Secundinus, Benigmus. Post vero exitwm Patric?? sancti alumni swº valde éjusdem libros conscripserunt. 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 Wasserschleben'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 dogmatum 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 ft. Compare Haddan and Stubbs I, 138 and Lanigan, Hºst. c 32 Š$9 ft. 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 Iona, the Roman uses were adopted about 704. Beda, Hºst. Eccles. Book V c 15 $403.−Compare also $ 1, note 21. * The first conversion on a large scale was that of the Dânes of Dublin (pro- bably 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, Høst. 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, l.c. 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 Lanfrancă (ed. Giles) p. 57. Letter of Lanfranc to king Gothricus after the consecration, l.c. p. 61. Waterford was raised to a bishopric in 1096, and its bishop also vowed obedience to the arch- bishop of Canterbury. Tanigan, l.c. 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 f Hence the claim of later bishops of Armagh to archiepiscopal rank. In #pgient : I28 I REI, A W.D [I, 3 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 TV, 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: Ut mullus permittatur de genere Scottorum (i.e. at this time Irishmen) ºn alicuffus dioces? Sacra Sºbě mºnºsteria usurpare . . . Scimus quomodo in canon's praecipitur, wt mullus Episcoporum, [sew] presbºterorum invadere temptaverit alºus paroch?am, Tvåsº cºlm consensu proprº Episcop?. Tamto magis respuendum est ab alien's nationibus sacra ministeria percüpere, cum quibus nullus Ordo metropolitanis, mec honor aliquis habeatu'. * For the fact that the decisive synod was held at Kells (= Kenmanus, Kenana), and as to the question of a possible subsequent assembly at Mellifont see Lami- gan, Hist. c 27, note 96. Mansi, Conciliorum Collectio 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, Comc. 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 way.— The only legate in Ireland before Malachias was the bishop of Limerick, at the end of the eleventh and the beginning of the twelfth century. As to erroneous mention of earlier legates see Tanigan, 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. T)etails in Mant, Hist. I, 18. Under Edward VI am order of the English council took the primacy from the archbishop of Armagh and conferred it on the archbishop of Dublin (1551). Detters patent of Mary (dated 12th March, 1554) restored the primacy to Armagh. For the above facts see Wilkins, Com- cilia IV, 80. Finally in Charles I’s reign Wentworth recognized the precedence of Armagh. Ball, Church of Ireland p. 129. - * Bull of Adriam IV, printed in Rymer's Foedera 4th Ed. I, 19 (year 1154), and Wilkins, Concil. I, 426:— - - Same Ybern?am et Ommes insulas quibus sol just icie, Christus, illuocłł, et que documenta fide? Christiane receperunt, adjus beat Petri et sacrosancte Romane poclesie, quod tua etiam mobilitas recognoscit, non est dubium pertº- Theº.:::. . . . Significast; siquidem mobis . . . , te Hybernie insulam, ad § 11] CHURCH COWSTITUTION I29 possession of the country by the English began in 1169 and pro- ceeded rapidly. In 1172 Alexander III confirmed Adrian's grant.” But 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 III'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- subdendum illum populum legibus, et viciorum plantaria inde eact?rpanda velle intrare ; et de singulis domżbus annuam univs denarić beato Petro velle solvere pensionem, et jura ecclesiarum illius terre illibata et integra conser- Q)(.7°0. Nos 2 tague . . . gratum et acceptum habemus ut, pro dělatand?s eccles?e terminis, pro viciorum restringendo decursu, pro corrigendès moribus et virtutibus inserendis, pro Christiane religion is augmento, insulam illam in- grediarºs . . . et illius terrae populus honorifice te recipiat, et s?cut dom?- num veneretur, jure mºmºrum ecclesiarum Żllibato et 2ntegro permanente et Salva beato Petro et sacrosanctae Romanae ecclesiae de singulºs dom?bus annua wn?us demar?? pensione. Upon the exact date of this bull see Lanigan, Høst. 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, on insufficient grounds. Literature of the subject in Jaffé, Regesta 2nd Ed. No. 10056 and Bellesheim, Gesch. d. Kath. K. in Irland I, 367. Compare also Liebermann in Beilage zur Dtsch. Zeitschrift f. Geschächts- wässenschaft, vol. VII (year 1892), pt. 1, E. 58. * Bull of Alexander III in Usher, Sylloge No. 47: Quon?am ea, quae a de- cessorbus nostris rationabiliter &mdulta moscuntur, perpetua meruntur stabili- tate firmar: ; venerabilis Adrian? Papae vestigºs inhaerentes nostrique desider?? fructum attendenţes, concessionem eiusdem super Hibernáci regn? domºn?o vobis indulto (salva beato Petro et sacrosanctae Romanae Ecclesiae : s?cut ºn Anglia, sic et in Hibernia, de singulis dom?bus annua univs demarić 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. III (1357) st. 4. Stubbs, Const. Hist. II, 431 c 16 $ 259. * Compare Ball, Church of Ireland, append. D and Q. BI. C. FC I30 - I RELA N D [I, 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 . . . no Parliament be holden hereafter in the said land, but at such season as the King's lieutenant and counsaile there first do certifie the King, under the great seal of that land, the causes and considerations, and all such acts as them seemeth should pass in the same Parliament, and such causes, considerations, and acts affirmed by the King and his counsail to be good and eacpedient for that land, and his licence thereupon, as well ºn affirma- tion of the said causes and acts, as to summon the said Parliament under hºs great seal of England had and obtained ; that done, a Parliament 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 made within . . . England, concerning or belonging to the common and publique weal of the same, from henceforth be . . . acceptyd, used and eacecuted 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 Domžnions. 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 III'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 wpon 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 have full power and authority to make laws and statutes of sufficient force and validity, to bind the Kingdom and people of Ireland. º After the accession of George III Irish opposition to this view grew stronger. , 21 & 22 Geo. III (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. I c 5 was repealed by 22 Geo. III (1782) c 53 (English), whilst 23 Geo.III 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 led soon (1800) to its union with the English. Upon recent Irish demands we need not here touch. § 11] CH U R C H COWSTITUTION I3 I 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 majority 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 be done in the way of kindness, resort was had to legislation, and decisive measures were passed partly by the Irish parliament, which was under English 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 TV * 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 the King and Queen Anne ; c. 5 (Irish) Act of Supremacy; c 6 (Irish) An Act of Appeales; 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 (1542) sess, 2 c 5 (Irish) An Act for the Suppression of Kylmaynham and other Religious Houses. “ The English act 1 Ed. VI c 1 s 7 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 the consecration of two bishops in Feb. 1553. No attempt was made to compel the ; : of the second prayer-book of Edward VI. Cf. Ball, Church of Ireland D0. * - - 132 I RELAN D [I, 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 efficacy, 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 repealing Estatutes, and Pro- visions made against the See apostolique of Rome, sithence 20 Hen. VIII, and also for the Establishment of spiritual amd ecclesiastical Possessions and Hereditaments conveyed to the Laity.—Cf. further 3 & 4 Phil. & Mar. (1556) c 10 (Irish) An Act for the Dischardge of the Furst Fruites; c 13 An Act declar- Žnge the Queen's Highnes to have bene born in a moste just and lawfull Matri- mony, and also repealinge all Actes of Parliament and Sentences of divors had and made to the contrarie. * 3 & 4 Phil. & Mar. (1556) c. 9 (Irish) An Act for revive?nge of thre Statutes made for the Ponyshement of Heresies. * We may mention especially 2 Eliz. (1560) c 1 (Irish) An Act restoring to the Crown the awmcøent Jurisdiction over the State Eccles?asticall aud Spirituall, and abolishing all fore?me 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 momºne 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 corresponding 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 congé d'eslåre was issued. Ball, Ch. of Ireland p. 73); c 5 (Irish) An Act of Recognition of the Queene's Highnesse Title to the Imperial Crowne of th?s 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 * reign; the eleven articles of 1559 had been in use from 1566 (cf. 164). § * Compare, for example, a papal bull of 1600 in Wilkins, Concilia IV, 362. * An abstract of the demands of Tyrone in Winwood, Memorials I, 119. There was no written agreement. As to the trustworthiness 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 which Tyrone, the chief of the Irish rebels, submitted, the 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. During 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 1570 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, but 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 1400–1875, with appointments to Monasteries. Rome, 1876; and Cotton, Fast; Ecclesiae Hibernicae. Dublin, 1845–60, supplement 1878.-Illus- trations are collected, particularly from the preceding works, in Ball, Church of Ireland, app. I. N. R. S. ** 11–13 Jac. I 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 I34 IRELAND [[, 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 Barebone parlia- ment of 26th Sept. 1653* a large portion of the land that had been of our Lord God 1615 for the avoiding of diversities of opinions, and estab- lish?ng of consent touching true religion (Wilkins, Conc. IV, 447). The Lambeth articles of 1595 (see § 16, note 20) are adopted in them almost ver- batºm. (Wilkins, l.c. note.) * Ball, Church of Ireland 115. * Printed in Wilkins, Comcilia IV, 496. Canon 1 of 1634 runs: For the manifestation of our agreement with the Church of England in the Confession of the same Christian Faith, and the Doctrine of the Sacraments : We do Teceive and approve the Book of Articles of Religion agreed upon by the Arch- bishops and Bishops, and the whole Clergy ºn the Convocation holden at London ºn the year of our Lord God 1562, . . . And therefore ºf any hereafter shall affirm that any of those Articles are ºn any part Superstitious or erroneous, or Such as he may not with a good conscience Subscribe unto, let him be eac- communicated, and not absolved before he make a publick Revocation of his error. In the following canons the Supremacy of the king is recognized and the use of the English prayer-book and form of consecration declared obligatory; further, as in the English canons of kó04, 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 f. * The Irish canons of 1711 (printed in Wilkins, Concilia IV, 651) are also of some importance, & * An act of the united London parliament of 1656 An Act for the Atta?nder of the Rebels in Ireland fixes 26th Sept. 1653 as the day of final submission. * Printed 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 COWSTITUTION I35 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 clause 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 & 15 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. II (1665) 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 in Plowden, Am. Historical Review of the State of Ireland, London, 1803, vol. I appendix No. 49. - * See Ball, Church of Ireland p. 175. I36 I RELAND [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. IV (1828) c 17 and 10 Geo. IV (1829) c 7 were carried, granting the Roman catholics in all the realm equal rights in their civil and, with few exceptions, in their political 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 Roman catholics and protestants had alike 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. IV (1834) e 90 and 6 & 7 Gul. IV (1836) c 99 33 abolished church-rates, combined the sees in such a * 39 & 40 Geo. III (1800) c 67 (English). The union was to be operative from 1st Jan. 1801. s 1 art. V: That it be the fifth article of union, that the churches of England and Ireland, as now by law established, be united ºnto one protestant episcopal church to be called ‘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 shall be deemed and taken to be an essential and fundamental part of the union; and that in like manner the doctrine, worship, discipline and government of the church of Scotland shall remain and be preserved as the same are now established by law, and by the acts for the wn?on of the two Kºngdoms of England and Scotland. According to s 1 art. IV four lords spiritual (Irish, protestant bishops) are to sit by rotation of sessions in the house of lords of the parliament of the united kingdom. s 2 contains a regulation in accordance with an Irish act, directing that one archbishop and three bishops shall sit, changing by rotation from Session to session. * 3 & 4 Gul. IV (1833) c 37 An Act to alter and amend the Laws relating to the Temporalities of the Church of Ireland. º s 1 repeals a number of earlier acts, especially those concerning the pay- ment of first-fruits and twentieth parts and, the improvement of ill-endowed benefices. s 2. ‘Ecclesiastical Commissioners for Ireland’ are to be appointed. s 13. The payment of first-fruits is to cease. r s 14. Instead thereof the commissioners are to make a valuation of all bene- fices etc. and levy a yearly assessment therefrom. s 32. The following bishoprics are to be united:— Dromore with Down and Connor Raphoe ,, Derry Clogher , Armagh Elphin , Kilmore Killala and Achonry , Tuam § 11] CHURCH CONSTITUTION I37 way that instead of four archbishops and eighteen bishops * there came to be only two archbishops and ten bishops, and effected a series of further reforms in conformity with the needs of the time. Of other statutes belonging here is to be named especially the ‘Tithes Act, 1 & 2 Vict. (1838) c 109 which substituted for the tithe payable by the tenant (frequently a Roman catholic) a smaller rent-charge to be disbursed by the landowner (as a rule, protest- ant).” Clonfert and Kilmacduagh with Killaloe and Kilfenora Yildare , Dublin and Glandelagh Ossory , Ferns and Leighlin Waterford and Lismore º, Cashel and Emly Cork and Ross , Cloyne. s 36. The temporalities of the merged bishoprics are to be vested in the com- missioners. • & s 54. The revenues of the archbishopric of Armagh and the bishopric of Derry are reduced. - ss 63 ff. The commissioners are to apply the income of the property vested in them to the maintenance of divine Service, to the building or improvement of church buildings, to the augmenting of inadequate Salaries etc. s 65 : . . . it shall not be lawful for any Vestry called or holden in or for any Parish, Union, or Chapelry, or Place ºn Ireland, or for any Person or Persons, to make or levy any Rate or Assessment for any Church Purposes whatsoever; . . . The opposing provisions of 7 Geo. IV. c. 72 are repealed. 4 & 5 Gul. IV (1834) c 90 contains provisions as to the admissibility of sus- pending appointments to sinecure dignities and rectories without cure of Souls whether in royal or ecclesiastical patronage; also, as to disappropriations. s 16: the title to lands etc. which was vested in ‘the Trustees and Commis- sioners of First Fruits in Ireland’ is transferred to the ecclesiastical commis- SIOI) el’S. 6 & 7 Gul. IV (1836) c 99. According to s 25 the property of minor canons, vicars choral etc., in cases where no sufficient duties are attached to their offices, may vest in the ecclesiastical commissioners. * Before 1833 there were the following provinces and bishoprics:— I. Province of Armagh. III. Province of Cashel. 1. Armagh 13. Cashel and Emly - 2. Clogher 14. Limerick and Ardfert and 3. Meath Aghadoe 4. Down and Connor 15. Waterford and Lismore 5. Derry 16. Cork and Ross 6. Raphoe 17. Cloyne 7. Kilmore 18. Killaloe and Kilfenora, 8. Dromore IV. Province of Tuam. (Ardagh, cf. No. 19.) 19. Tuam [and Ardagh in prov. II. Province of Dublán. Armagh] 9. Dublin and Glendalough 20. Elphin 10. Kildare 21. Clonfert and Kilmacduagh 11. Ossory 22. Killala and Achonry. 12. Leighlin and Ferns * An Act to abolish Compositions for Têthes ºn Ireland, and to substitute Rent-charges ºn lieu thereof. The Irish house of commons of 1735 had already condemned the tithe of agistment (paid in respect of pasture lands), since which time the payment of it could no longer be enforced. Ball, Church of Ireland 218.-In the nineteenth century associations were formed to oppose the pay- ment of any tithe whatever. They rendered it impossible over the greater part of the island to collect such dues. Of other enactments in the nineteenth century touching the Irish church we may single out : 52 Geo. III (1812) c 62 An Act to enable Coadjutors to Arch- I38 IRELAND [I, 3 In 1869 the protestant state church was placed on exactly the same level as the Roman catholic church. The ‘Irish Church Act,” 32 & 33, Vict. c 42, dissolved from the 1st January, 1871, the legisla- tive union between the church of England and the church of Ire- land, divested the latter of its rank as the established church and confiscated the greater part of its possessions to apply them to pur- poses of general utility.” At the same time the not inconsiderable contributions were withdrawn which the state had hitherto paid to the presbyterian church in Ireland for the maintenance of its ministry, and to the Roman catholic college of Maynooth. The protestant episcopal church of Ireland now framed an inde- pendent constitution for itself, and adopted the English articles as well as the canons of 1634 and, subject to a new revision, the English book of common prayer. All the fundamental institutions of the English episcopal church were maintained. The revised bishops and Bishops in Ireland to eacecute the Powers of Archbishops and Bishops respectively; 5 Geo. IV (1824) c 91 An Act to consolidate and amend the Laws for enforcing the Residence of Spiritual Persons on their Benefices ; to restrain Spiritual Persons from carrying on Trade or Merchandize; and for the Support and Mažntenance of Stipendiary Curates in Ireland ; 7 Geo. IV (1826) c 72 An Act to consolidate and amend the Laws which regulate the Levy and Application of Church Rates and Parish Cesses, and the Election of Churchwardens and the Maintenance of Parish Clerks, in Ireland ; 6 & 7 Guðl. IV (1836) c 31, enabling founders of churches or chapels to vest the patronage in trustees, An Act to amend an Act of . . . George II for the Encouragement of building of Chapels of Ease in Ireland. * The following are the provisions most important for our purpose of the measure entitled An Act to put an end to the Establishment of the Church of Ireland, and to make provision in respect of the Temporalities thereof, and ºn respect of the Royal College of Maynooth. Three state ‘Commissioners of Church Temporalities in Ireland ’ are appointed, in whom is vested the pro- perty formerly vested in the ‘Ecclesiastical Commissioners for Ireland'— whose corporation is by this act dissolved—as also all other church property whatsoever. [By 44 & 45 Vict. (1881) c 71 Irish Church Act Amendment Act it is laid down that the corporation of the Commissioners of Church Tem- poralities shall, as soon as a corporate body under the title of the Irish Land Commission has been constituted, be dissolved and its property vested in the new corporation which shall keep a separate account of the property trans- ferred to them under this act. As to the employment of the surplus left to the state out of the confiscated property see Ball, Church of Ireland, app. L.L.] No compensation is to be made to the queen for her rights of patronage. The rights of private lay patrons are abolished (with compensation if applied for) in so far as they do not rest on endowment out of private means. All ecclesi- astical corporations are dissolved. On the other hand it shall be lawful for her majesty to incorporate a “Representative Church Body' with power to hold lands to such extent as is provided in the act. [This has been done. The incor- poration was in 1870; its members are the archbishops and all the bishops, one clerical and two lay representatives from each diocese, and co-opted members equal in number to the number of dioceses for the time being.] From their funds the commissioners are to pay to holders of benefices an annuity for life equal to the ascertained amount of the yearly income of such benefices; also to the representative church body £500,000 as an equivalent for private endowments now become vested in the commissioners. By this and a later act [38 & 39 Vict. c. 42 The Glebe Lands, Representative Church Body, Ireland, Act, 1875] the acquisition of churches, School-houses, burial grounds, parsonages and glebe lands by the representative church body is facilitated. Ecclesiastical courts § 11] CH U R C H CONSTITUTION I39 prayer-book for Ireland was published in 1877.” Shortly after the disestablishment fifty-four canons were agreed which contained, in particular, regulations for the external forms of divine worship and which aimed at resisting the endeavour to assimilate the worship of the protestant episcopal church to that of the Roman catholic. The most important constitutional provisions were laid down in 1870–71 in a ‘Constitution of the Church of Ireland’ and have been subsequently revised. At present the highest authority in the church is the general synod consisting of two houses, the house of bishops and the house of representatives. It was formed after the passing of the disestab- lishment bill by the union of the two earlier provincial synods with the addition of lay representatives.” In the house of bishops sit the archbishops and bishops for the time being; the house of represen- tatives is made up of elected representatives of the clergy and laity, chosen at the diocesan synods.” Provincial synods are no longer held. The diocesan synods” consist of the bishop, of the beneficed and the licensed clergymen of the diocese, and of lay synodsmen chosen at the parish vestries.* In the parishes besides the parish vestry there is a select vestry (consisting of the incumbent, his curates, if any, the, churchwardens and not more than twelve other persons elected. by the parish vestry from among its members) and two churchwardens taken from the registered vestrymen, one ap- pointed by the incumbent, the other elected by the vestrymen. Side by side with the above and subject in essential points to their direction are the usual officers of the episcopal church. Upon their choice the laity exercises mediate or immediate influence. The parish clergy are nominated by a board, which consists of the bishop, three diocesan representatives and three parish representa- tives. Private persons may by founding churches obtain a limited and (except in so far as relates to matrimonial causes) ecclesiastical law are by this act abolished. The right of Irish bishops to be summoned to sit in the house of lords is extinguished. Taws preventing the holding of synods, convo- cations etc. are repealed. * The Athanasian creed is contained therein ; but the rubric directing its use is omitted.—It is retained as a creed in the Articles of Religion.—The variations of the Irish from the English prayer-book will be found in Ball, Church of Ireland, app. R.R. 38 . , the General Synod . . . . shall have chief legislative power & and such administrative power as may be necessary for the Church and consistent with its Episcopal constitution. (Preamble and Declaration of the Constitution of the Church of Ireland.) As to the measures in the interim before the establishment of the new constitution see Church Year-Book: for 1883, pp. 450 ff, where it is stated ‘that the statutes of the General Con- vention, with others enacted by the General Synod, were consolidated, codified # re-enacted under the title of the Constitution of the Church of Ireland, 79. * There is also a ‘Standing Committee of the General Synod,” composed of the archbishops, the bishops, the Secretaries of the general synod, members chosen by the general synod and members co-opted by the committee. * In many dioceses now united under one bishop there are still separate diocesan synods,-23 in all at the present time, * In the diocesan synod of Dublin the university is also represented. I40 I RE LA WD [I, 3 right of patronage.” The bishops are to be elected in the diocesan synods by majorities both of the clergy and of the laity. If the majority amounts to two-thirds of the members voting of each order, the election is final. Otherwise, at least a second person must be chosen by a simple majority of each of the two orders, the bench of bishops electing from those whose names are submitted to it. To that bench also falls the appointment if the proper return has not been made by the synod within three months from the day of its meeting. The election of an archbishop of Dublin is on the same lines as that of a bishop. The archbishop of Armagh is primate of all Ireland. On the occurrence of a vacancy in the see of Armagh the diocesan synod elects in the Ordinary way a bishop who bears the name temporarily of ‘bishop of Armagh. Then all the bishops, including the newly elected, choose the archbishop from among their number. If the chosen is other than the ‘bishop of Armagh,’ then the two exchange sees. All the authorities and officers named are private. One and all, they are without corporative rights. In respect of property it is Only the protestant episcopal church as a whole that forms a cor- poration, and this is externally represented by the “Representative Church Body’ consisting of clergy and laymen, which was called into existence under the Irish Church Act of 1869.” * The development of such rights of patronage is furthered by 47 Vict. c 10 Trustee Churches, Ireland, Act, 1884, which, in the case of chapels of ease etc. exempted from the operation of the Irish Church Act of 1869, gives the trustees the power to transfer the property therein to the representative church body, and so to bring them under the ordinary church constitution. * There are (1894) the following archbishoprics and bishoprics in Ireland (they are as at the combination of sees in 1833–34, except that since the disestablish- ment Clogher, formerly joined to Armagh, has been made independent):— I. Province of Armagh. II. Province of Dublán. 1. Armagh (the bishop is the arch- 8. Dublin, Glendalough and Kildare bishop of Armagh) (the bishop is the archbishop of 2. Meath Dublin) ! 3. Derry, Raphoe 9. Ossory, Leighlin and Ferns 4. Down, Connor and Dromore 10. Cashel, Emly, Waterford and Lis- 5. Kilmore, Ardagh and Elphin IO.OI’ê 6. Tuam, Killala and Achonry 11. Cork, Cloyne and Ross 7. Clogher º 12. Killaloe, Kilfenora, Clonfert and Kilmacduagh 13. Limerick, Ardfert and Aghadoe. § 12 THE COLON TES A W D A BROAD I4 I 4. T H E E N G L ISH E PISCO PAL C H U RC H IN THE COLONIES AND A BROAD. § 12. a. General.” THE first formation of congregations belonging to the episcopal church in the colonies or abroad was of a purely voluntary character. As a rule, the growth of a congregation began in a combination of settlers to establish a place of meeting for divine worship and to raise funds for the maintenance of a clergyman. In the sixteenth and the first half of the seventeenth century such congregations of English episcopalians were founded in extraordinarily small num- bers. By far the greater part of English emigrants dispensed with every form of church organization or preferred the system of some other church. Here and there, however, even in early times the colonial authorities granted state support to clergymen of the episcopal church. An order of the privy council of 1st October, 1633, and a subse- quent order of the king, transmitted to the English communities abroad by several letters of archbishop Laud, effected a primary conjunction of the scattered communities. It was laid down that English subjects outside of England might only appoint as their preachers clergymen who conformed to the doctrine and discipline of the church of England; to the bishop of London certain powers of supervision were entrusted." Hence there arose by degrees the view that the bishop of London possessed in respect of Englishmen resident abroad all the rights of a diocesan bishop. In 1634 the king set up a commission which was to have the supreme control of colonial affairs. On this commission was conferred, among other things, the right of providing for the endowment of the church in the colonies by means of tithes and other sources of income.” * James I had demanded that he should have the right of setting a moderator over the English ministers in Holland. The ministers petitioned against such a proceeding (1624). Their letter is printed in Collier VIII, 50. Laud then (22nd March, 1633) proposed a general regulation of divine service in English factories and among English troops abroad. His suggestions to the privy council are to be found in Heylin, Cypriamus Anglicanus Ed. 1719 pt. I p. 148. According to Heylin, l.c. pt. II p. 19, on the 1st October, 1633 an order in council. was issued, corresponding essentially to the proposals of Laud. The letter of Taud, 17th June, 1634, addressed to the factory of Delph (Holland) is printed in Collier, Eccles. Hist. Ed. 1852 VIII, 89. Similar letters were forwarded to other factories. -r * Their warrant is printed in Hazard, Historical Collections etc. I, 344. * Anderson. The History of the Church of England in the Colonies and Foreign Dependen- cies of the British Empire. 2nd Edition. London, 1856. 3 vols.-Perry. Hist. of the Engl. Chºwrch, vol. III ce 7, 13, 21, 25, 26, 30, 31.-Phillimore. Eccles. Law 2230 ft.—Smith, Thomas. The History and Origin of the Missionary Societies. 2 vols., London, 1824, 25. (Vol. I relates to the missions of the moravians and of the baptist missionary Society; vol. II to those of the London missionary society, the church missionary society and the wesleyan missionary society.)—Tucker, H. W. The English Church in other Lands. London, 1886.- Statistical information as to the several colonial bishoprics and their gradual origination is contained in the Year-Book of the Church of England. - I42 THE ENGLISH EPISCOPAL CHURCH [I, 4 With the middle of the seventeenth century missionary Societies began to spring up in England. The first of these, known as the ‘New England * company,’ was founded in accordance with a resolu- tion of the rump parliament of July the 27th, 1649, the foundation being confirmed by Charles II (1662–3).” This company assists all protestant congregations and chooses the clergy employed by it, for the most part, from others than members of the episcopal church. A second association, connected more strictly with the state church, dates from 1698, and is entitled the “Society for Promoting Christian Knowledge.’ This association included missions in its scope. From it there presently broke off a ‘Society for the Propa- gation of the Gospel in Foreign Parts,’ which made missionary enterprise the exclusive object of its activity. The last-mentioned society received corporative rights from William III in 1701." Under the influence of these associations church institutions in the colonies were multiplied. In not a few places assistance in various forms was afforded to church systems by the state—that is, either by the mother country or by the local authorities of the colony. The subordination of all congregations of the episcopal church outside of England to the bishop of London proved in course of time a hindrance to their development : for the reservation to the bishop of the most important acts of administration and of some acts of divine worship presupposes his presence on the spot or his proximity to it. Especially was it felt as a grievous burden that all who had prepared themselves for orders in the colonies had to make one or two journeys to England, since there alone were bishops to ordain deacons or priests. It was the attainment of independence by the United States of America that first prompted the surrender of the too intimate Con- mexion between English church communities abroad and the mother country. In 1784 Scottish bishops, not subject to English church law, consecrated a bishop for Connecticut. 26 Geo. III (1786) c 84 removed the scruples which were derived from the English law against the consecration of foreigners, and in 1787 the English bishops consecrated two Americans as bishops of Pennsylvania and New York. When the old tradition was thus broken, there took place in the same year the consecration of the first English colonial bishop, a bishop for Nova Scotia; whilst at not very long intervals * On New England cf. § 13, note 2. 4 Ordinance of 27th July, 1649 For the promoting and propagating the Gospel of Jesus Christ in New England (printed in Scobell, A Collection of Acts and Ordinances etc.). A corporation is founded in England under the name The President and Society for propagation of the Gospel ºn New Eng- land. It may, without restriction of mortmain, acquire land of the yearly value of £2,000. A general collection is to be made in England and Wales for this corporation. * Under the name The Society for the Propagation of the Gospel in New England and the Parts adjacent in America. * Charter dated 16th June, 1701, printed in Hawkins, Historical Notices of Missions, append. A. - § 12 IN THE COLONIES AND A BROAD I43 came the consecration of separate bishops for other colonies and the multiplication of the colonial bishoprics by their division." The creation of colonial bishoprics did not rest on the act 26 Geo. III c. 84. The diocese was determined by royal letters patent; the consecration followed precisely the same rules as the consecration of bishops for England. If then the act cited has merely an external connexion with the development of colonial bishoprics, it was nevertheless of great importance in another direction : it laid the foundation for the conversion of the church of England into an universal church. In theory, it is true, the English episcopal church had never ceased to regard itself as part of an universal church * which embraced (in so far as these churches were recog- nized by it) all the churches of the various peoples; but in practice it had no communion with any of the other churches and had be- come a perfectly independent ecclesiastical system. Its administra- tion was everywhere closely connected with the administration of the English state; in Scotland only had the episcopal church already attained an almost independent position even if that position were not recognized by law.” The bishops consecrated for the United States were the first belonging to the English episcopal church in whom the law recognized perfect independence alike of the English civil power and of the English ecclesiastical authorities. With that consecration began the possibility of ex- tending the constitution of the church over all the states of the world without regard to their political connexion with England. Beside the older missionary Societies new voluntary associations sprang into life to spread the doctrine and polity of the church in the colonies and in foreign lands. In 1795 was formed the ‘London Missionary Society,’ which, however, was not strictly attached to the established church.” On the other hand an association founded in 1799 and bearing since 1812 the name of the ‘Church Missionary Society,’ was based wholly on the doctrines of the establishment. Some years later the organization of mission work became simplified, the society for the promotion of Christian knowledge transferring 7 Of the larger colonies the first to receive bishops were : 1787, British North America (Nova Scotia; four years after the bishopric of Nova Scotia had been established by letters patent, an act [31 Geo. III c. 31s 40] reserved to the bishop of Nova Scotia the jurisdiction already assigned him by letters patent in the now separated provinces of Upper and Lower Canada); 1814, East Indies (Calcutta; 53 Geo. III c. 155); 1824, West Indies (Jamaica and Barbadoes and Leeward Islands; 6 Geo. IV c. 88); 1836, Australia; 1841, New Zealand; 1842, the Mediterranean (Gibraltar); 1847, South Africa.—Cf. below, note 25. * Compare $ 18, near notes 3 ff., and note 9. * Compare $ 10, notes 65, 66. * In 1796 the basis of the society was thus laid down : . . . it is declared to be a fundamental principle of the Missionary Society, that its design is not to send forth Presbyterianism, Independency, Episcopacy or any other form of Church order and government . . . . , but the glorious Gospel of the blessed God, to the heathen , and that it shall be left . . . to the persons whom God may call into the fellowship of His Son from among them, to assume for themselves such form of Church government as to them shall appear most agreeable to the Word of God. - - I44 THE ENGLISH EPISCOPAL CHURCH [I, 4 the funds it had collected for missionary objects to its offshoot, the society for the propagation of the gospel in foreign parts, and thenceforth resigning its activity in this field. In 1841 owing to the liberality of the Societies named and other voluntary contribu- tions a ‘Colonial Bishopric Fund’ was started to erect and endow bishoprics in the colonies and elsewhere; the English and Irish archbishops and bishops, forming themselves into the ‘Colonial Bishoprics' Council,’ administered the sums collected.” The convo- cations and archbishops established ‘Boards of Missions' for the two provinces, that for Canterbury in 1885, that for York in 1889; these boards were to serve as centres from which missionary enter- prise could be originated.” In virtue of the co-operation of the large societies mentioned with other, smaller bodies,” a very considerable number of bishoprics has been created in the course of the nineteenth century and the con- stitution of the English church otherwise extended over wide areas. At first the work was done in concert with the civil government. Parliament assigned from the public purse a part of the money requisite for the East and West Indian sees. The erection and delimitation of new bishoprics were in all cases, even where there was no statutory provision to that effect, by royal letters patent, and to the king was generally reserved the right of appointing the bishops and issuing binding rules for the administration of the dioceses.” The same principle governs 6 Geo. IV (1825) c 87 ss 10– 15, dealing with church institutions in connexion with English con- sulates.” But the movement of the present century for the severance * The procedure and work of the colonial bishoprics’ council may be estimated from the two declarations (1841 and 1872) printed in Phillimore, Eccles. Law 2233. * The lines on which a board of missions for Canterbury was founded were fixed by resolutions (not binding, cf. § 55, note 24) to which both houses of convocation agreed on 4th July, 1884. Chronicle of Conv. Cant. 1884, summary, p. xlviii. The members of the board are: 1. The members of the upper house of the convocation of the province of Canterbury eac-officio; 2. An equal number of bishops and priests resident in the province, to be nominated by the lower house of convocation from their own body or from without; 3. Laymen, equal in number to the eac-officio members, to be nominated in the first instance by the archbishopric of Canterbury, vacancies being afterwards filled by co-option. The lower house elected for the first time in 1885. In the province of York a board of missions was established in 1889, first in the form of a joint committee of both houses of convocation. On the 24th Feb. 1892, the upper house resolved: That the constitution and bye-laws of the Board of Missions of this province be conformed to those of the Board of the Southern Province. Journal of Conv. York, 1892 p. 74. The boards of missions have already entered into relations with each other and appointed joint commissions for certain purposes. Cf. Church Year-Book, 1893 p. 232. * A conspectus of existing missionary societies will be found in the Church Year-Book for 1895, c. 4 p. 211. 18- Compare, for instance, 53 Geo. III c. 155 ss 51, 52. Tr. * The chief provisions of the part cited of the statute are : If at a place where there is an English consulate a chaplain is supported by voluntary con- tributions or a building procured for the holding of divine service either “according to the rites and ceremonies of the united church of England and § 12] I W T H E COLONI ES A W D A BROAD I45 of the church from the state has, since the end of the thirties, prevented any considerable assistance from being granted by the state to bishoprics to be newly created. The aid originally given to the church of the West Indies was in 1868 withdrawn (31 & 32 Vict. c 120); in 1869 the Irish church was by its disestablishment and disendowment also enrolled among the independent churches.” Moreover, the establishment of new bishoprics by royal letters patent was, after the Colenso case, abandoned in regard to colonies with their own legislatures. The quarrel between bishop Gray of Capetown, metropolitan of South Africa, and bishop Colenso of Natal, led the judicial committee of the privy council more than once (1863 ff.) to decide that, after Cape Colony had received a parliamentary constitution, the crown had no authority to confer privileges in it by letters patent.” At the present time neither for colonies with independent legislatures nor for crown colonies do the founding of new bishoprics and the appointment of new bishops take place by royal letters patent. Only for the East Indies is the older procedure retained,” in accordance with special enactments relating thereto. - The more recent creations of episcopal sees in the colonies have thus ensued without the co-operation of the English civil authorities and without their reserving any rights to themselves. Nor have such foundations, as a rule, received from the colonial authorities Ireland or of the church of Scotland,’ the consul may, ‘in obedience to an order . . . issued by his Majesty through one of his principal Secretaries of state,’ advance and pay a sum equal to the amount subscribed. (But the salary of a chaplain in Europe may not exceed £500, not in Europe £800 and building plans are to be first approved by secr. of state.) The chaplain is to be appointed by his Majesty through one of his principal secretaries of state and to hold office during his Majesty’s pleasure only. Every year is to be held a meeting under the presidency of the consul of the larger subscribers (sums specified). This meeting may, subject to the consul’s approval, make rules as to the management of the church and the expenditure of the money collected. These rules need the approval of secr. of state who may ratify, annul or change them at will. The establishment of hospitals and burial grounds for English sub- jects is also included in the scope of these sections. * In Hong Kong the foreign office has directed (1881) that contributions from the state are to be discontinued as the various posts fall vacant. The chief contributions from the state—the home government or the colonial—at the present time are to Bermuda (diocese of Newfoundland and Bermuda), four West Indian bishoprics (Guiana, Antigua, Barbados, Trinidad), Some Australian bishoprics (the number rapidly decreasing), the older East Indian bishoprics and Mauritius. For further particulars see the Church Year-Book under the reports from the several dioceses. * * Long v. Bishop of Capetown 1 Moo. P. C., N.S. 461. Re Bishop of Natal 3 Moo. P.C., N.S. 152. Other judgments on appeal sought, however, to reduce the inferences to be drawn from this doctrine. Cf. extracts from judgments in Phillimore, Eccles. Law 2246 ff. For a full account of the Colenso case see Perry, Hist, of Engl. Ch. III, 370 ft., 429.ff. 434 (c 21, c 25 §§ 5–8, 10). The last bishop appointed by letters patent to an independent colony was the bishop of Goulbourn (1863). According to Perry, l.c. III, 519 c. 31 § 6, in the transition period from 1863 to 1867 no letters patent were issued, but a royal licence was granted. * For example, on the founding (1892) of a separate bishopric of Lucknow, and the appointment of a bishop thereto. - H. C. L I46 THE ENGLISH EPISCO PA L CH U R CH [I, 4 any express and special recognition. In all these cases the English church of the colony concerned is not a state church, but a free association with the same rights and duties as every similar society. But in many places the earlier position of the colonial church as a state church has had after-effects, so that a general statement of the relation between the colonial churches and the English civil govern- ment cannot yet be formulated. The circumstance that the English church in many colonies developed independently of the state, facilitated the transmission of the same constitution to foreign countries. The first bishops of the English church consecrated for such countries had been those for the United States. The act then passed, 26 Geo. III c. 84, was, upon Occasion of the establishment by England and Prussia jointly of a bishopric of Jerusalem,” amended in some particulars by 5 Vict. (1841) c 6. Soon afterwards missionary bishoprics in foreign lands were established from the United States. England followed with reluctance the example set. The first missionary bishop despatched (1855) from England was to have the field of his labours in Borneo (especially in the northwestern district, called Sarawak), no part of which then belonged to the English crown, though Brooke had become rajah of Sarawak in 1841. But to hide the innovation the new prelate was consecrated bishop of Labuan (a small British . island in the neighbourhood) and Sarawak; moreover, in order to avoid legal difficulties, his consecration was not by English bishops, but by the bishop of Calcutta.” In 1861, without the queen's licence previously obtained, a bishop was consecrated at Capetown for the non-English region of Central Africa (Zambesi); in the same year took place the consecration in England, after the royal licence had been obtained, of a bishop for the non-English Honolulu.” All difficulties disappeared as the English government held more and * Upon the discussions over its foundation see authorities cited in Philli- more, Eccles. Law 2275, note f. Prussia has now withdrawn from her con- nexion with the bishopric. * Perry, Hist, of Engl. Ch. III, 443 c 26 $1. Difficulties in this and other cases were caused, in particular, by the provision of the Jerusalem bishopric act that a British subject consecrated to be a bishop in any foreign country must take the oath of obedience to the archbishop. * The opinion of the legal advisers of the crown was taken at the end of 1860. It ran :— We are mot aware of any statute or rule of common law by virtue of which the Archbishops or their Suffragans would incur any penalty, civil or eccles?- astical, by consecrating in this country (England) a Bishop or missionary for foreign parts among the heathem, not subject to her Majesty; but the per- soms so consecrated must not assume the status, style, or dºgmity of a Bishop when within her Majesty's dominions . . . . See Statutes 5 Vict, c 6 and 3 & 4 Vict, c 33. Shortly afterwards, however, an opinion was given that it would be better to seek the royal licence. The consecration of a bishop for Central Africa was governed by the first of these opinions; that of a bishop for Honolulu by the second. (Debates in the upper house of the convocation of Canterbury, 14th Feb. 1862, in Chronicles of Convocation pp. 972 ft.) In 1861 a bishop was con- secrated in New Zealand for Melanesia, the islands being for the most part non-English. Perry, l.c. III, 447 c 26 $6. § 12) I W T H E COLONIES AND A BROAD I47 more aloof from participation in filling sees outside England. Thus the queen's licence to consecrate ceased to be obtained. From this time onward not only did the mother church send forth numerous missionary bishops, but the churches sprung from her, in their turn despatched missions beyond their borders. The chief quarters which the English episcopal church has chosen for missionary enterprise - are Africa, East Asia, and the South Sea Islands. The relation of the colonial churches and of the churches abroad to the ecclesiastical authorities in England has likewise undergone a change in the course of the present century. As touching non- English countries, 26 Geo. III c. 84 had enacted that the English archbishops might consecrate the subjects of foreign states without requiring them to take the oath of obedience. On the other hand, even according to the provisions of 5 Vict. c 6, when British subjects were consecrated as bishops for foreign countries, the archbishops could not abstain from exacting an oath of obedience to themselves. In respect of the consecration of bishops for the colonies, the general requirement of the oath of obedience had not been legally abolished, These statutory regulations were, in the first instance, evaded by causing colonial bishops to consecrate; afterwards even the English bishops in several cases disregarded the provisions of the law.” At present, by 37 & 88 Vict. (1874) c 77, the ‘Colonial Clergy Act,’ the archbishop of Canterbury and the archbishop of York are allowed to dispense with the oath when they consecrate a bishop to any see situated outside of England.” By this means it has be- come possible for the bishops of the larger colonial districts, and sometimes for those of foreign dioceses adjacent to each other, to combine to form archiepiscopal provinces under archbishops, metro- politans or presiding bishops. These archbishops and the provincial courts etc. (not only in foreign countries but also in the colonies) are, as far as the more recent Greations are concerned, in principle independent of the English archbishops, even if the ecclesiastical laws made by the colonial archiepiscopal provinces themselves have sometimes voluntarily allowed an appeal in certain cases from their own archbishops to the archbishop of Canterbury or other ecclesi- astical authority in England. In instances of older foundations of colonial archbishoprics, a relation of subordination on the part of the colonial archbishop to the archbishop of Canterbury has been in some respects preserved ; particularly is that the case in the East Indies. In like manner those colonial bishops which have not yet been united under a colonial archbishop are, as a rule, subject to Canterbury. At the present time there are in the English church the following archiepiscopal provinces: in England, two; in Ire- land, two; in Scotland, one ; in the United States of America, one ; in British North America, two; in the West Indies, one; in the * For the first time at the consecration in England of a bishop for Bloem- fontein (1863); he took the oath of obedience not to the archbishop of Canter- bury, but to the metropolitan of Capetown. Perry, l.c. III, 447 c 26 $6. * Bishops for the colonies or foreign countries are now consecrated in- differently in England or outside it. I48 THE ENGLISH EPISCOPAL CHURCH [I, 4 East Indies, one ; in South Africa, one; in Australia, one; in New Zealand, One. In most of these provinces there is as highest authority an archiepiscopal synod, usually consisting of two houses. The idea of establishing a centre of union to prevent the falling asunder of these—for the most part—independent provinces natu- rally suggested itself. As the majority of them are, in character, free associations, a supreme synod could only be formed by voluntary action without government co-operation. Such a synod came into existence in 1867, when the archbishop of Canterbury called the first Lambeth conference. Since then it has met about every ten years under his presidency. To it are invited all the clergy of episcopal rank belonging to the church of England in any part of the world. The assembly has no right to frame binding resolu- tions.” Neither by the laws of the state nor by the laws of the churches of the various provinces has any authority been conferred upon it; indeed, it is representative only of the bishops, not of the inferior clergy or of the laity. Nevertheless, and in spite of the short duration of their existence, important beginnings of several forms of central organization have already been made at these pananglican conferences.** * In the invitation to the conference of 1867 the archbishop of Canterbury explained: Such a meeting would not be competent to make declarations or lay down definitions on points of doctrine. But united worship and common counsels would greatly tend to maintain practically the unity of faith. * Origin and History of the Lambeth Conferences, issued by the Society for promoting Christian Knowledge, 1888. For further information as to the dis- cussions of the pananglican conferences (1867 and 1878) see Perry, Hist. of English Ch. III, 423 ff. c 25, 497 ff. c. 30. * At present (1894) there are in the English colonies and in foreign countries the following bishoprics (exclusive of those in the United States and the mis- sionary bishoprics of American origin):— A. North America. I. Province of Canada. II. Province of Rupert's Land. 1. Nova Scotia (founded in 1787) 10. Rupert's Land (1849) 2. Quebec (1793) 11. Athabasca (originally separated 3. Toronto (1839) from Rupert's Land; after 1874 4. Fredericton (1845) the main part was detached as 5. Montreal (1850) the ‘Mackenzie River’; restored 6. Huron (1857) in 1884) 7. Ontario (1862; division now pro- 12. Moosomee (1872) jected) 13. Mackenzie River (1874) 8. Algoma (1878) 14. Saskatchewan (1874) 9. Niagara (1875) 15. Qu'Appelle (1884) 16, Calgary (1888; has a diocesan synod and its own representation in the provincial synod; until a sufficient endowment can be raised its bishop is the bishop of Saskatchewan) 17. Selkirk (1891) § 12] I49 I W T H E COLONIES A W D A BROAD * continued. 18. Newfoundland and Bermudas (both dioceses were separated from Nova Scotia in 1839 by letters patent. Since 1878 the Bermudas have had their own synod, which has resolved that their church shall remain united to New- foundland. The bishop, under commission from the bishop of III. Province of the West Indies. 22. Barbados and Windward Islands 23. Jamaica and Honduras (1824; with Separate diocesan organizations, 24. Independent bishoprics. - London, exercises episcopaljuris- diction over British subjects in the French islands of St. Pierre and Miquelon) 19. Columbia (1859; present district: Vancouver and adjacent islands) 20. Caledonia (1879; district : northern part of British Columbia) 21. New Westminster (1879; southern part of British Columbia) B. West Indies and South America. (1824) Independent bishopric. 28. Falkland Islands (1869; the bishop is also missionary bishop for since 1883 united under the same bishop) Guiana (1842) 25. Antigua (1842; includes also some 26. 27. non-English possessions) Nassau (1861) Trinidad (1872) IV. Province of New (embraces the South Wales whole continent and the ad- jacent isles). 29. Sydney (in 1836 sepa- rated from Calcutta as ‘bishopric of Australia'; dio- ceses detached from it; has borne its present name since 1847) . Tasmania (1842) . Newcastle (1847) . Adelaide (1847) . Melbourne (1847) . Perth (1857) . Brisbane (1859) . Goulburn (1863) . Grafton and Armi- dale (1865) . Bathurst (1869) . Ballarat (1875) . North Queensland (1878) . Riverina (1884) . Rockhampton (1892) C. Australia. V. Province of New 43. 44. 45. 46. . Wellington (1858) 48. 49. 2ealand. Auckland (in 1841 separated from the bishopric of Aus- tralia as the ‘bishopric of New Zealand'; since 1869, after divi- sions, under its present name) Christchurch (1856) Nelson (1858) Waiapu (1858) Melanesia (1861; missionary bishop- ric; diocese : the is lands in the Pacific not belong- ing to the diocese of Honolulu) Dunedin (1866; until 1871 joined to Christchurch) 50. Honolulu the whole continent of South America except Guiana) w Independent bishopric. (1861; missionary bishop- ric ; e m bra c e S Hawai and the Sandwich Islands; a dispute has broken out between the trustees on the one hand and the bishop and synod on the other) I50 [I, 4 THE EIWG LISH EPISCO PA L CH U R CH * continued. 59. Jerusalem (1841; D. Asia. VI. Province of East Indies and Ceylon. 51. Calcutta (1814; since 1890 there has been a bishop of Chota- Nagpur, who, to avoid legal difficulties, is consecrated only as assistant bishop to the bishop of Calcutta, but who is by mutual agreement independent of him except in so far as the bishop of Calcutta exercises metropolitan rights) 52. 53. 54. 55. 56. 57. 58. Madras (1835; includes the native states Mysore, Hyderabad) Bombay (1837) Colombo (1845) Lahore (1877) Rangoon (1877; includes since 1887 Upper Burma) Travancore and Cochin (1879; missionary bishopric) Lucknow (1892-3) Independent bishoprics. missionary bishopric; includes Egypt, Abys- sinia, the Red Sea, Cyprus, Syria, Palestine and with the exception of some parts, which belong to Gibraltar, Asia Minor. List of subordinate chaplaincies in the Church Year-Book, 1893 p. 620) 60. Victoria (Hong Kong) (1849; also 61. 66. . Grahamstown (1853) 68. 69. 70. 71. 72. . Pretoria (1877–8; district : Trans- 74, missionary bishopric for South China) Singapore, Labuan and Sarawak (Labuan and Sarawak founded in 1855; Straits Settlement in 1869 detached from Calcutta and joined to Labuan and Sarawak; the present title dates from 1881; the bishop, by commission from the archbishop of Canterbury 62. 63. 64. 65. and the bishop of London, has jurisdiction in Java and else- where in the Malay archipelago) North China (1872; missionary bishopric ; of the present extent since 1880) Mid-China (1880; missionary bishopric ; there is also an American bishopric there) Japan (1883; missionary bishop- ric ; in 1887 the American mis- sion and the English were incorporated by a constitution into the church of Japan; the Senior of the bishops presides at the yearly synods) Corea and Shing King (Manchuria) (1889; missionary bishopric) E. Africa. VII. Province of South Africa. Capetown (1847) Maritzburg (founded in 1853 as bishopric of Natal; upon bishop Colemso's deposition, which was not recognized by the state, Maritzburg was founded in 1869, Natal continuing but not in com- munion with the church of England) St. Helena (1859; includes Ascen- sion and Tristan d’Acunha) Bloemfontein (1863; includes Orange Free State, Basutoland, Griqualand West, Bechuanaland) Zululand (1870; missionary bishop- ric) St. John's Kaffraria (1873; epis- copal seat at Umtata) vaal) Mashonaland (1891) 75. 76. 77. 78. 80. 81. 82, 83. Independent bishoprics, Gibraltar (1842; district : North Africa, South Europe, and, in so far as not subject to Jerusalem, the Mediterranean and Black Seas and their coasts. List of chaplaincies in the Church Year- Book, 1893 p. 612) Sierra Leone (1852) Mauritius (1854; includes islands of the Indian Ocean) Central Africa (1861; missionary bishopric; seat of the bishop Originally on the Zambesi, since the 1863 in Zanzibar) . Niger River (1864; missionary bishopric) Madagascar (1874; missionary bishopric) Eastern Equatorial Africa (1884; missionary bishopric) Lebombo (1892) Nyasaland (1892) § 13] IAW T H E U WITED STATES OF AMERICA 15 I § 13. b. The protestant episcopal church in the United States of America and the American missionary districts.” Attempts to form settlements on the American continent began during the reign of Elizabeth, but only obtained permanent success after James had ascended the throne. In Virginia, the oldest colony; the constitution of the English * continued. F. Continent of Europe. 84. Madrid (1894). The bishop for South Europe—except as to the new bishopric of Madrid (?)— is the bishop of Gibraltar. Ecclesiastical supervision in North and Central Europe is exercised by the bishop of London through a special assistant bishop. (List of the congregations in Church Year-Book for 1891 p. 607.) * T. Collections of documents. Hawks (Francis) and Perry. Documentary History of the Protestant Episcopal Church in the United States of America. New York, 1862–3. (Only 9 parts seem to have been published. Therein is a collection of letters dated from 1705 to 1747 and relating to the first missions in New England, especially to those in Connecticut.)—Hazard, Ebenezer. Historical Collections; consisting of State Papers and other authentic documents, intended as materials for a history of the United States of America. 2 vols. Philadelphia; 1792, 1794. (Amongst other documents the original grants, most of them containing provisions as to the exercise of religion, of the several colonies are given.) II. Church history. Baird, Robert. Religion, in America; or an account of the origin, relation to the State, and present condition of the Evangelical Churches in the United States, with notices of the wnevangelical denominations. New York, 1856.-Ballard, Edward. The early history of the Protestant Episcopal Church in the diocese of Maine (embraces the time up to the middle of the nineteenth century) in Collections of the Maine Historical Society. Portland (Maine). Wol. VI (1859) pp. 171 ff.—Beardsley, E. Edwards. The History of the Episcopal Church in Con- 'necticut (from its establishment to 1865). New York. 2 vols. Wol. I: 2nd Edit. 1869; Wol. II: 1st Edit. 1868.-Caswall, Henry. The American Chºwrch (i.e. the protestant episcopal church) and the American Union. London, 1861. (Contains a short account of the history, also of the state of affairs at the middle of the 19th century.)—Dalcho, Frederick. An Historical Account of the Protestant Episcopal Church in South Carolina, from the first settlement of the Province to the War of the Revolution ; with notices of the present state of the Church in each Parish ; . . . to which are added the Laws relating to religious worship ; the Jowrmals and Rules of the Convention of South Carolina ; the Constitution and Canons of the Protestant Episcopal Church, and the Course of Ecclesiastical Studies; -> Charleston, 1820. (On page 427 there is a list of the bishops of the protestant episco- pal church in the United States from 1784 to 1819 with specification by whom consecrated and when.)—Hawkins. Historical Notices of the Missions of the Church of England in the North, American Colonies previous to the independence of the United States. London, 1845.- Hawks, Francis L. Contributions to the Ecclesiastical History of the United States of America. Wols. I and II. New York, 1836, 1839. Vol. I: A Nan'rative of Events commected with the Rise and Progress of the Protestamt Episcopal Church in Virginia, to which is added an Appendia, containing the Journals of the Convention im Virginia, from the Commencement (1785) to 1835. Vol. II: A Narrative of Events connected with the Rise and Progress of the Protestant Episcopal Church in Maryland. A third volume seems to have appeared.—Lauer, E. Paul. Chºwrch and State in New England (from the first settlement until the disestablish- ment of the presbyterian-congregational church in Massachusetts, 1834) in John Hopkins University Studies in Historical and Political Science, ed. Herbert B. Adams. Baltimore, Series 10, Nos. 2, 3; Feb. and March, 1892.-Neal, Daniel. The History of New England, containing an impartial account of the Civil and Ecclesiastical affairs of the Country to the year 1700 . . . with a new and accurate Map of the Cowntry ; and an Appendia, containing their present charter, their ecclesiastical discipline, and their municipal laws. 2 vols. London, 1720. 2nd Edit. 2 vols. London, 1747.-Petrie, George. Church, and State in Early Maryland (embraces the years from 1634–1692). John Hopkins Univer- sity, l.c. Series 10, No. 4; April, 1892.-Synodical Action in the United States; in the Jowrmal of Convocation of Canterbury (ed. Warren), 1854, p. 72. (Contains a short account of the modern practice.)—Weeks, Stephen Beauregard. The Religious Development in the Province of North Carolina (embraces the years 1663–1711; continuation to follow). John Hopkins Univ. l.c. Series 10, Nos. 5, 6; May and June, 1892. (Compare the authorities collected at the end of the essay.)—Wilberforce, Samuel. A History of the Protestant Episcopal Church in America. London, 1844. 1 vol. - t I52 THE PROTESTANT EPISCOPAL CHURCH [I, 4 church was taken with them by the settlers into their new abodes. The London ‘Company for the first Colony in Virginia' and after- wards the colonial legislature, established in 1619, afforded the clergy of the church support by assigning them land, tithes and other sources of revenue." But when the later colonies were planted, a large proportion of the first settlers consisted of sectaries who had fled from England or Scotland to escape the persecutions of the state church. Thus episcopacy could at first gain no footing in the majority of these settlements. In the seventeenth century in New England the presbyterians and independents had the mastery;” in Pennsylvania, the quakers; * in Maryland 4—until at the end of the century (revolu- tion of 1689; law of 1692) the protestant episcopalians obtained * Wilberforce, Hist. 30, 31.—State assistance was also granted to the clergy of the episcopal church elsewhere; for instance, in South Carolina about the middle of the eighteenth century; in Maryland 1691–2. The disestablishment of the church in Virginia was virtually effected by an act of the colonial legislature after the beginning of the war of independence and by the law of 1799; earlier endowments were recalled and the glebes sold by the act of 1802. Wilberforce, History 177,273. * The first New England colony was founded by the puritans on Massa- chusetts Bay in 1621. In 1628 they received a royal charter. Connecticut was settled in 1637, New Hampshire and Maine soon afterwards, and all three Con- tinued, in religion and politics, to belong to the freer school. New England was a collective term for Maine, New Hampshire, Vermont, Massachusetts, Rhode Island and Connecticut. * The presbyterian canons of 1634 of the church of New England are printed in Collier, Eccles. Hist. Ed. 1852, IX, 383, Record No. 111 and (with further documents) in Neal, Hist, of New England, appendix, 2nd Ed. II, 294 f. In 1679 the first episcopal church (“Ring's Chapel') was founded at Boston. Hawks and Perry, Doc. Hist, p. 3. The presbyterian-independent church was not abolished as the state church in the several states of New England until the earlier decades of the nineteenth century. See more in Lauer, l.c. * The district of what was afterwards New York was first settled in 1613 by Dutch presbyterians and called New Amsterdam. In 1664 New Amsterdam was conquered by the English. By the peace of Breda, 1667, it was finally ceded to them. The first episcopal church in New York (Trinity) was endowed by the state in 1696. - In Pennsylvania the first settlers (1638) were Swedes. Later, Dutchmen from New Amsterdam migrated thither. When the territory had fallen into the hands of the English, the quaker Penn by agreement with the English government obtained the town of Newcastle and the neighbourhood, emigrated thither in 1682, built the town of Philadelphia and established the Supremacy of the quakers. * Settled in 1633 by English Roman catholics. III. Church law. Buck, Edward. Massachusetts Ecclesiastical Law. Boston, 1866. Revised edition, Boston, 1875 (cf. p. 283, conspectus of the laws of the several states in regard to the conferring of corporative rights on religious societies).-Hoffman, Murray. A Treatise on the Law of the Protestant Episcopal Church in the United States. New York, 1850.-The same. Ecclesi- astical Law in the State of New York. New York, 1868. (Contains an account of the law, especially of civil enactments, in regard to all the more important religious societies in the state of New York.) IV. Journal. Journal of the proceedings of the Bishops, Clergy and Laity of the Protestant Episcopal Church in the United States of America. (Has appeared since 1784 every three years; con: tains in the later issues statistical accounts, the constitution in its form at the time being, and a systematically arranged collection of all the provincial canons prevailing; the date of the various regulations affecting the constitution and of the canons is given.) § 13] I W T H E UAVI TED STATES OF AMERICA I53 ascendency—the Roman catholics; in Carolina,” the quakers, until in 1701 episcopacy prevailed there also. It was thus natural that in the seventeenth century very few clergymen of the church of England were to be found in North America; " nor was local control by means of a bishop known. The consequence of this latter fact was that those who wished to officiate in North America in conformity with the church, had to seek Orders of English bishops, and to make one or two special journeys across the sea. As early as 1638 archbishop Laud suggested the appoint- ment of a separate bishop for North America, without, however, carrying his point. Lord Clarendon's effort in the same direction during the reign of Charles II remained, in like manner, without result. In spite of the facts that owing to the activity of the newly founded missionary societies the number of clergymen of the church multiplied and that the despatch of a bishop was repeatedly advo- cated, as, for instance, by archbishop Tenison in his will (1715) and in 1741 by Secker, bishop of Oxford, afterwards archbishop of Canterbury," yet no special bishop was sent out as long as the colonies were subject to England. About the year 1723. One Talbot, a missionary stationed in New Jersey, caused himself to be conse- crated by bishops of the English sect of nonjurors“ and, along with another bishop of the same sect, Welton by name, repaired to America. Welton returned at the bidding of the English autho- rities and Talbot died in a few years, seemingly after he had con- formed to the church of England.” Thus even this attempt to secure protestant bishops for America proved fruitless. After the declaration of independence (1776), the wish of the Americans naturally grew stronger to be no longer restricted to the bishop of London and the other English bishops as the sources from which they might obtain priest's or deacon’s orders. After the recognition of the independence of the United States (1783) there was another obstacle: the English rules of ordination required the civil Oath of Supremacy and allegiance to be taken; and it was believed in England that, even in the case of the subjects of now independent states, that requirement could not be dispensed with except by express statutory authorisation. Such authorisation was first given by 24 Geo. III sess. 2 (1784) c 35, to the bishop of London. The clergy of the episcopal church in Connecticut were the first * Founded in 1663, divided into North Carolina and South Carolina in 1782. * See a contemporaneous statement printed in Wilberforce, Høstory 93. * Cf. Porteus, The Works of Secker Ed. 1825, Introd. pp. xxxiii f. For further efforts of the kind compare Hawkins, Hist. Notices 375 ff. * On the sect of the nonjurors cf. § 7, note 81. - - * The nonjuring bishop Taylor consecrated Welton 1723–4 and soon after- wards Talbot and Welton together. The orders of the two latter were, however, not recognized as valid by the rest of the nonjurors. Welton on his recall repaired to Portugal, where in 1726 he died. Lathbury, History of the Non- jurors, London, 1845, p. 364. Talbot died in 1727. Hawkins, Historical Notices, 147.—Perceval, Am Apology for the Doctrine of Apostolºcal Succession with an Append?ac on the English orders, London, 1839; p. 224 has the note: Talbot took the Oaths and Subm?tted. - - I54 THE PROTESTA WT EPISCOPAL CH U R CH [I, 4 to take advantage of the altered circumstances. They chose one of their number, Seabury, as their bishop and sent him in 1783 to England to receive consecration. But in England he did not suc- ceed in removing the scruples which existed. He therefore addressed himself to the Scottish bishops and was consecrated by them in the , year 1784, upon which he returned to Connecticut to enter upon the duties of his office.” After a preliminary meeting in 1784, on the 1st of May, 1785, there assembled at Philadelphia the first American general conven- tion, consisting of deputies, both clerical and lay, from the states of New York, New Jersey, Pennsylvania, Maryland, Virginia and South Carolina. A resolution was passed to apply to the English bishops to consecrate ‘such persons as shall be chosen and recom- mended to them for that purpose from the conventions of this church in the respective states.’” In consequence of the request made to them, the English bishops, to remove once for all the legislative difficulties which hampered them in acceding to it, effected the passing of 26 Geo. III (1786) c 84. The act empowers the archbishop of Canterbury or the archbishop of York for the time being, with such other bishops as either may call to his assist- ance, to consecrate as bishops persons who are subjects of foreign states; but the archbishop must first obtain for each person to be Consecrated the royal licence by warrant, and must satisfy himself of the sufficiency in good learning, soundness of faith and purity of manners of each; on the other hand the king's licence to elect is not needed in such cases, nor his mandate for confirmation and consecration, nor the taking of the oaths of allegiance and Supre- macy nor of the oath of obedience to the archbishop. Further negotiations between the American convention and the English bishops led the former to agree to recall part of the already accepted changes in respect of the creeds and of the liturgy.” Subsequently the English archbishops and two English bishops consecrated (1787) William White and Samuel Provoost, who had been elected in the conventions as bishops of Pennsylvania and New York. Madison, elected in Virginia, was likewise consecrated (1790) by English bishops. In 1789 bishop Seabury and the episcopal church of New England had taken part in the general convention. In 1792 Sea- bury and the three bishops who had been consecrated in England jointly laid hands on a bishop for Maryland; from that time conse- cration of American bishops by American bishops became the con- tinuous practice.” * In 1784 John Wesley consecrated, though himself only a priest, one Dr. Coke as superintendent of the methodist communities in America. The title superintendent was soon changed to bishop. Wilberforce, History 179. * The resolution is printed in Perry, Hist, of Engl. Church III, 140 c 7, notes and illustrations. * As a result of these negotiations the American church restored the Nicene creed to its place, and also the ‘He descended into hell’ clause in the Apostles' creed. (The use of the clause, left optional at the time, was ordered in the revisions of 1886, 1889.) It, however, rejected the liturgical employment of the Athanasian creed. Wilberforce, Høst. 218, 230. - * Wilberforce, Hist, 232. $ 13] I W T H E UNITED STA TES OF AMERICA I55 The general convention of bishops, clergymen and laymen held at Philadelphia in 1789 passed resolutions which permanently determined the form of the protestant episcopal church in the United States of America. A constitution was agreed on, which, with later alterations in detail, is still in force. The convention also adopted a prayer-book for American use, which was closely related to the English book of common prayer.” According to the constitution devised, the general assembly, which meets for Ordinary sittings once every three years, consists of a house of deputies and a house of bishops. The former is com- posed of clerical and lay delegates sent by the dioceses. The voting in the house of deputies is by dioceses. Upon the motion of the lay or clerical representatives of a diocese, the voting is by Orders, that is the clergy and the laity vote separately; a resolution is only passed by the house of deputies when it is supported by majorities —reckoned by dioceses—of both orders. The house of bishops may ea pressly refuse assent to a resolution of the lower house; other- wise, the resolution is binding even without the express approval of the bishops. The general convention is regulated by a ‘presiding bishop.” Though he has certain small privileges, he does not possess archi- episcopal rights.” In 1893 there were in the United States fifty-three bishoprics with complete constitutions, seventeen in which the constitution was being developed. The American church has also sent missions to foreign lands, and * The American prayer-book of 1789 (The Book of Common Prayer . . . . according to the Use of the Protestant Episcopal Church in the United States of America) underwent frequent alterations in detail. Several times a Standard Prayer Book was published officially under the direction of the general con- vention (e.g. 1844, 1871). A thorough revision began to be made in 1880, and its results were accepted in 1886 and 1889 by the general convention. Procter, Båst, of Prayer Book c 5 appendix. * The constitution further lays down : Prayer-book, rules for ordination and articles of belief are the same for all dioceses. Dike the constitution itself, they can only be changed by two consecutive general conventions. Bishops may only be judged (and that according to more precise rules to be issued by the general convention) by bishops. The punishments for bishop, priest or deacon, viz. reprimand, suspension and degradation, can only be pronounced by a bishop. Before ordination the following declaration is to be subscribed: I do believe the Holy Scriptures of the Old and New Testament to be the word of God; and to contain all things necessary to salvation ; and I do solemnly engage to conform to the Doctrines and Worship of the Protestant Episcopal Church ºn the United States. From the canons (Digest of Canons, 1874) the following provisions may be mentioned: In dioceses with a complete constitution bishops are to be chosen by the diocesan convention and need, before they are consecrated, the confirma- tion of the house of deputies (in case it is not sitting, of a majority of the standing committees of the Several dioceses) and of the house of bishops. In every diocese there is a diocesan convention, also a standing committee chosen by that convention to advise the bishop. The standing committee chooses a president from its members. Several dioceses within One state may form a federate convention or council, whose rights can only be fixed by consent of the general convention, I56 THE PROTESTA WT EPISCOPAL CHURCH [I, 4 at an early period took the step of placing some of these missions under separate bishops. Thus American episcopal sees were founded in 1844 for China, in 1866 for Japan.” The first Roman catholic bishop was consecrated to Baltimore in 1789; sees of New York, Philadelphia, Boston etc. were afterwards established. * In 1893 there were the following bishoprics in the United States and the American missionary field (Church Year-Book 1894, pp. 359 ff.):— 1. Alabama 31. Newark 58. North Dakota. 2. Albany 32. New Hampshire 59. Northern California 3. Arkansas 33. New Jersey 60. Northern Michigan 4. California 34. New York 61. Northern Texas 5. Central New York 35. North Carolina. 62. Oklahama 6. Central Pennsyl- 36. Ohio 63. Olympia vania 37. Oregon 64. South Dakota. 7. Chicago 38. Pennsylvania 65. Southern Florida. 8. Colorado 39. Pittsburgh 66. Spokane 9. Connecticut 40. Quincy 67. The Platte 10. Delaware 41. Rhode Island 68. Western Colorado 11. East Carolina 42. South Carolina 69. Western Texas 12. Easton 43. Southern Ohio 70. Wyoming and Idaho 13. Florida, 44. Southern Virginia 71. China (Shanghai and 14. Fond du Lac 45. Springfield Yang Tse Valley 15. Georgia 46. Tennessee [see § 12 note 25 16. Indiana 47. Texas No. 63]) 17. Iowa 48. Vermont 72. Japan (see § 12 note 18. Kansas 49. Virginia 25 No. 64) 19. Kentucky 50. Western Michigan 73. Western Africa (Cape 20. Long Island 51. Western New York Palmas and Parts 21. Touisiana 52, West Missouri adjacent) 22. Maine 53. West Virginia [There are also mis- 23. Maryland sions for Haiti, Mexico, 24. Massachusetts Cuba, Brazil and for the 25. Michigan M788?onary Bishoprics. American churches in 26. Milwaukee 54, Alaska. Europe. A bishopric for 27. Minnesota 55. Montana Greece which existed in 28. Mississippi 56. Nevada, and Utah. 1891 seems not to have 29. Missouri 57. New Mexico and been continued.] 30, Nebraska Arizona Of these the oldest foundations (see conspectus prefixed to Wilberforce, Hawkins, Historical Notices, app. F.) are:—Connecticut (1784), Pennsylvania (1787), New York (1787), Virginia (1790), Maryland (1792), South Carolina (1795), New Hampshire and Massachusetts (1797; this district was expanded in 1811 into the ‘Eastern Diocese' by the addition of Rhode Island and Wer- mont), New Jersey (1815), Ohio (1819), North Carolina (1823), Vermont (1832), |Kentucky (1832), Tennessee (1834), Illinois (1835), Indiana, Wisconsin and Iowa (1835), Michigan (1836), Louisiana (1838), Western New York (1839), Georgia (1841), Maine and Rhode Island (1843), New Hampshire (1844), Alabama (1844), Missouri (1844), Arkansas (1844), Amoy [China] (1844), Turkish Domin- ions (1844). Many districts did not express their adhesion to the general convention at the time of the foundation of the see; others joined it before the foundation. II. Sources of (5ttlesiastical £atu. § 14. 1. G E N E R A L. DURING the Anglo-Saxon period civil and ecclesiastical authority worked everywhere in concert. In the absence of any conflict between the two, the fundamental questions as to the recognition of ecclesiastical laws by the state remained undecided." The idea that resolutions of wider communities are directly binding on a narrow, restricted one was not fully developed. Thus even the clergy did not perhaps account themselves legally bound by the resolutions of general councils.” They obeyed them, however, just as they observed the judgments of notable local Councils abroad, as express- ing the collective opinion of esteemed persons. The subordination of the clergy to the pope and his commands was more strict in the * Compare, for instance, Ine (king of Wessex, 688 to 726–28; perhaps the text is Alfred's revision of Ine's laws) c 1: First we bid that the servants of God duly observe the laws. Then we bid that the laws and ordinances of the whole people be likewise duly observed. Æthelred (council of Ensham, 1006–11) WI, c 51: And if for a spiritual penance (god-bótan) a money penance (feoh-bót) becomes payable, such penalty as wise temporal law-givers (wise worold-witan) fix for punishment, then shall this rightly and according as the bishops think fit be devoted to the purchase of prayers and to the profit of the poor and iº never to vain worldly ornaments, but as temporal penalty for spiritual wants (ac for worold-steóran to godcundam meðdan) etc. * This view is supported, for example, by the following occurrences: (i) At the council of Herutford, 673 (Beda IV, 5; printed in Haddan and Stubbs, Councils III, 118 ft.), Theodore, archbishop of Canterbury, asked those present sć consentirent, ea quae a patribus canon?ce Sunt antiquitus decreta custodère. They answered, optime omnibus placet, quaequae définierunt Sanctorum canomes patrum, nos quoque omnes alacrá animo libentissºme servare. Theodore then produced a book of canons (probably the collection of Dionysius Exiguus, H. and St. III, 121, note) and caused them to accept ten specially selected from the book. (That stress was laid on these resolutions is to be explained by the fact that only in 664 had the schism in the church been healed by the council of Streoneshalch.) (ii) Acceptance of the first five general councils at Haethfelth, 680 (Beda IV, 17, 18, in Haddam and Stubbs III, 141 ff): Suscepāmus sanctas et universales Quinque symodos beatorum et Deo acceptabºlºum patrum; £d est . . . , et synodum quae facta est ºn wrbe Roma, ºn tempore Martin? Papae (i.e. the Lateran council of 649, not a general council). . . (iii) Opposition of the western churches under Charlemagne at the mainly Frankish council of Frankfurt, 794, to the resolutions of the general council of Nicaea, 787, touch- ing the adoration of images. 157 - I58 SOURCES OF ECCL ES TASTICAL LA PV [II, 1. Anglo-Saxon kingdoms in which the church had been founded by Roman missionaries, that is in the southeast. The greater indepen- dence of the church in the northern kingdoms was first broken by the Council of Streoneshalch (664) and by the administration of arch- bishop Theodore of Canterbury (668–690). Instances occur of popes. issuing decrees upon their own sole authority; * but as a rule, when the missionary stage was passed, the supreme pontiff avoided coming to important decisions without the concurrence of the Anglo-Saxon clergy and of the executive of the state.” When he made the at- tempt, he did not always carry his point.” The canon law gained a hold in England through the ordinance of William I whereby it was laid down that the ecclesiastical courts in the cases referred to them by that ordinance should decide secundum canones et leges episcopales, whilst secular courts had to give judg- ment Secundum hundret, that is, according to the law of the land. By canones et leges episcopales was probably understood the whole body of church law, whether of native or of foreign origin, as it was comprised in the collections of Burchard of Worms and others, and disseminated in England mainly through the agency of the Norman bishops.” - Ecclesiastical law then of every kind was recognized by the state as authoritative, but within a sphere which the state itself marked out. Beyond that limit it was not acknowledged. This state of affairs lasted until the reformation. It might indeed be doubted how far John's submission to the suzerainty of the pope involved, for a time, the right of the latter to make ordinances in temporal matters. In point of fact, at all events, the secular courts from the first paid no regard to any possible right of the kind. And even the principle of papal control in things temporal was soon dismissed." As parlia- * E.g. the instructions of Gregory I and Honorius I as to the delimitation of the metropolitan districts. At that time, however, the country was still, for the most part, pagan; moreover, Gregory's instructions remained unexecuted.— Compare also the councils of Pincahala and Celchyth, 787 (Haddan and Stubbs, Counc, III, 447) c 8: Ut privilegia antiqua a sancta Romana Sede delata Eccle- s??s Omnibus conserventur. . . . On such privileges, the genuineness of which is, however, in some cases disputed, cf. Haddan and Stubbs III, 461 note k, and Stubbs, Introduction to Epistolae Cantwardenses (Rer. Bråt. Scr. No. 38, vol.II) pp. xxviiff. * Compare, for instance, § 33 near notes 13 ff. as to the events connected with the raising of Lichfield to an archbishopric and the subsequent abolition of this archbishopric. * An instance of failure is in the papal decision upon the first appeal of Wilfrid (678) against the division of his bishopric by archbishop Theodore, * Philipps, Engl. Rechtsgesch. I, 252 ff. Upon the several collections see Richter, Kºrchen recht $ 53. Burchard's collection was made between 1012 and 1022. Ivo of Chartres, to whom other considerable collections are ascribed, died in 1115 or 1117. The extent to which, e.g., the so-called leges Henrici I (a law-book, probably dating from 1110–18) use these collections of canon law is exhibited by the references in Schmid, Gesetze der Angelsachsen, which, however, are to be corrected according to the statements of Liebermann in Forschungen zur Deutschen Geschächte XVI, 582. * In the year 1866, at latest. Compare $28, note 1. On the refusal of the temporal magnates in 1236 to introduce as law of the land a legitimatio per § 14 - GE/W ERA L - I59 ment entered the lists against the temporal power of the pope, so also did it oppose the influence of the English church councils on civil law. Edward III in 1377 declared at the suit of the lower house that without its assent no law and no ordinance should be promulgated on petition of the clergy.” It was, of course, a fixed rule that civil courts in the sphere of their competence could only be guided by secular law. Thus the issue between the ecclesiastical and the civil tribunals turned solely on the question how far the former were competent.” The authorities of the church during this period regarded as bind- ing, in the majority of cases, all the laws of the church, general or English,” at variance with secular law or in agreement with it. In this period as in the preceding one we have the feature that resolutions of general councils were repeated at English synods. But this repetition perhaps implied no more than a publication or an emphasizing of legal forms already binding. Opposition on the part of the synod found expression merely in the shape of a petition to the pope for dispensation.” The collection of Gratian (1141–50) Subsequen's matrimonium, corresponding to the principle of church law, see § 60, note 96. * Petition of the commons 51 Ed. III (1376/77), Rotuli Parliamentorum II, 368, No. 46: Item suppliont les dites Communes au Roi lour Seigneur, que null Estatut ne Ordemance soit fait me grante au Petition du Clergie sº me soit par assent de v02 Communes; Ne que voz dites Communes me sołent obligez par mulles Constitutions g’āls font ſpur loºr avantage sam2 assent de voz détes Communes. Car euoc ne veullent estre obligez a null de voz Estatutz me Ordenances faitz Sanz lour assent. King's answer: Soft ceste matére declaree en, especial. Cf. Petition of the commons 18 Ed. III (1344), Rotuli Parliam. II, 149, No. 8: Item prie la Commune, que nulle Petition faite par la Clergie, que soft en decresce ou damage des Grantz ou de la Commune, soft grantez, tan gue Žl soºt trèez par le Roi et tout son Conseil, que sawm2 damage des Grauntz et de sa Commºtive bonement se peusse tenºr. Answer of the king and the magnates in parliament: Quant al oytisme Article, Il plest au Roi et a son Conseil que ens? Sožt.—As to the question whether in the period of transition from the beginning to the end of the fourteenth century the assent of the representatives of the towns and shires to ordinances issued on petition of the clergy was con- sidered requisite, see Stubbs, Comst. Hist. II, 626 f. c 17 § 293. * On this point compare $ 60. * Essential uniformity in legal matters for the northern and the southern province was established by a resolution of the northern convocation in 1463:— Memorandum quod praelat? et clerus in Convocatione, 1463, concedumt unami- ºmºter quod effectus constitutionum provincialium Cantuariensis Provinciae ante hatec tempora tent. et habit. constitution?bºls Provinciae Eboracensås mullo Tmodo repugnantium seu praejudicialium et mom aléter mec alºo modo admit- tanțur ; et quod hujusmodé constitutiones Provinciae Cantwardensis, et effectus earltºndem, ºtt praefertur, inter constitutiones Provinciae Eboracensis prout . Žndžget et decet ºnserantur, et cum eisdem de caetero servandae incorporentur et pro jure observentur. (Printed in Trevor, The Convocations of the two Provinces p. 84 after Reg. Bothe Arch. Ebor.)—A convocation of 1466 (archb. Nevill) adopted in like manner various constitutions of Canterbury. * For instance, at the council of Oxford, 1222, c 50 the resolutions of the fourth (general) Lateran council (1215) were accepted: . . . Lateranense concélèum, Sub Sanctae recordationis papa Innocențio celebratum, in praesta- tione decámarum et aliis capitulis firmiter praecipimus observar; . . . (Wilkins, Concºlia I, 585)—The popes recognized in general the right of the I6O SOURCES OF ECCLESIASTICAL LA W |II, 1 and the other books of canon law made their way into England soon after their appearance. Nevertheless the acceptance here of the general rules of church law as contained in such books was not absolutely unconditioned. Nay, to some of the provisions effect was not permanently given even by the ecclesiastical courts.” The dictum, moreover, was sometimes pronounced even at this period that ordinances and resolutions of a general council were under certain circumstances only binding if they had been formally adopted in England.” This was an after-effect of the views which had prevailed at an earlier time; and these earlier views were in course of the reformation again generally accepted. The reformation produced a change in the sources from which ecclesiastical law was derived. Henceforth became inoperative: (1) papal ordinances; this was a natural consequence of the transference of the supremacy to the English kings; (2) resolutions of general councils, it being now Commonly held that England was not bound by such resolutions unless English councils had expressed assent to them.* In lieu of lower authorities to raise objection for special reasons to regulations which in themselves were binding, and to call for the decision of the papal see. c 5 Decretals of Gregory IX (lib. Eactra) I, 3. Richter, Kärchen recht $166, note 6. Compare, e.g., Matthaeus Paris. Chron. Majora (Rer. Bråt. Scr. No. 57) III, 418 f., year 1237, upon the appeal on the part of the English bishops for a papal decision when the legate Otho, in accordance with the provisions of the Lateran council IV, wished to issue an ordinance against pluralities. Archbishop Peckham, in the introduction to his constitutions, published at the provincial synod of Lambeth, 1281, observes (Wilkins, Concilia II, 51): . . . . Et quia Lugdunense concºlºum (the 14th general, 1274) ultimo celebratum, eo enormºus, quo recentºus infring?tur ; me guis possit se in temerétate hujuSmod? per Žgnorantèam eaccusare, &psum volumus in principio recenser? ; mom solum ut omnibus innotescat, verum etiam, ut si quid in ipso videatur intolerabile istius region’s consuetudºn?, quae &n multis ab omnibus alº is est distincta, circa illud temperamentum apostolicae clementiae humilâter imploretur. * Examples of provisions of canon law not accepted in England will be found in Gibson, Codeac, Introduction p. 27. * Johannes de Actona, p. 37, gloss, to c 14. Const. Otho (1237), in which the bishops were directed to enforce the ordinance of a general council: Thºmc haec constitutio vel concilºum . . . nunquam acceptabatur a subditis in hac parte, ?gitur non videtwr arctare. He adds a somewhat long explanation of the cases in which the assent of smaller communities is requisite to make a general law valid in their district. * It was on this point that the first dispute of Henry VIII with the clergy turned (1515). Dr. Standish and Dr. Vesey maintained that England was not bound by canons which had never been adopted here. Cf. Perry, Hist. of Engl. Ch. II, 23 c 2 $13; also, p. 24, note 1, for the question how far the details of the quarrel are historically authenticated.—After the reformation the resolutions of all so-called general councils after the eighth general (ecumenical) council (the fourth of Constantinople, 869) were held not to be directly binding for the further reason that the eastern church, also a part of the universal church, was not represented thereat. Phillimore, Eccles. Law 1921.-The convocation of Canterbury in a declaration of July 20th, 1536 (Wilkins, Concilia III, 808) laid down that a true general council could only be summoned with the assent of all independent Christian princes: We think that neither the bishop of Rome, mor any one prince, of what estate, degree or preeminence soever he be, may by his own authority call, indict, or summon any general council, without the eacpress consent, assent, and agreement of the residue of christian princes, § 14] GENERAL I6 I these came royal Ordinances of ecclesiastical import, designated, for the most part, ‘injunctions.’ The higher church officers issued independently, now as before, their general mandates. Legislative powers were left to the convocations, but their resolutions required the king's licence and assent; * furthermore, it was provided that they were not entitled to make or put into execution any canon repugnant to the king's prerogative or the law of the land.” Such rules of ecclesiastical law as were already in force were to continue valid, in so far as they were not in conflict with royal pre- and especially such as have within their own realms and seign?ories ‘Imperium nerum,' that is to say, of such as have the whole intire and Supreme govern- ºnent and authority over all their subjects, without knowledging or recogn?zºng of any other Supreme power or authority; . . . —Cf. further art. 21 of thirty-nine articles, appendix XI. With reference to the Vatican council of 1870 the upper house of the convo- cation # Canterbury resolved (16th June, 1871; Chron. Of Conv. Cant. 1871, pp. 441 ff.):— That the Vatican Council has no just right to be termed an Oecu- nven £cal or General Council, and that none of its decrees have any claim for acceptance as canons of a General Council. e That the dogma of Papal Infallibility now set forth by the Vatican Council is contrary to Holy Scripture, and to the judgment of the ancient Church un?versal. o That the assumption of supremacy by the Bishop of Rome in conven 2ng the late Vatican Council contravenes canons of the universal Church. That there is one true Catholic and Apostolic Church, founded by our Lord and Saviour Jesus Christ; that of this true Catholic and Apostolic Church the Church of England and the Churches in communion with her are living 'members; and that the Church of England earnestly desires to maintainefirmly the Catholic faith as set forth by the Oecumenical Councils of the universal Church, and to be united upon those principles of doctrine and discipline in the bonds of brotherly love with all Churches in Christendom. The lower house of the province of Canterbury had on Feb. 15th, 1871, passed a resolution identical with the above excepting a few words in the last sentence of the paragraph, which run : to maintain firmly the Catholic faith and dºs- cipline as declared and settled by the undisputed Councils of the universal Church. Chron. of Conv. 1871, p. 143. Compare also the report of the com- mittee in Appendźac to Chron. of Conv. 1871, where it is declared that the members of the Vatican council were not free because they were bound by the oath of obedience to the bishop of Rome customary in the Roman catholic church, the words of the oath being : Papatum Romanum . . . adjutor ero ad retºn&ndum contra omnem homżnem and Haereticos, schismaticos, et rebelles Domžno nostro (Papae) pro posse persequaret impugnabo. * Compare $54, note 56. * 25 Hen. VIII (1533/4) c 19 (Act of Submission) s 3: Provyded alway that no canons constitucions or ordynaunce shalbe made or put in eacecucion within this Realme by auctorytie of the convocacion of the clergie, which shalbe contrayant or repugnant to the Kynges prerogatyve Royall or the customes lawes or statutes of this Realme ; . . . This act was repealed by 1 & 2 Ph?l. & Mary (1554 and 1554/5) c 8 s 3, revived by 1 Eliz. (1558/9) c 1 $2. According to an opinion of the judges (compare $ 54, note 56) canons are inoperative even after receiving royal assent if they offend in the respects indi- cated. The principle that laymen are not bound by any resolutions of church councils unless ratified by parliament was upheld by the courts especially during the struggle against the canons of 1604, and has remained since then a fixed basis of legal decisions. - FI. C. - M I62 SOURCES OF ECCLES IASTICAL LA W [II, 1 rogative or secular law.” At the same time it was proposed to subject all canons, constitutions and Ordinances to revision, and to publish them afresh after the objectionable ones had been discarded. With this object in view Henry VIII was empowered by 25 Hen. VIII (1533/4) c 19 s 2 to appoint a commission of thirty-two, six- teen of the clergy and sixteen members of the upper or lower house of parliament. As soon as the conclusions of this commission had received the royal assent and been published, the newly issued canons and no others were to have force. The time within which the com- mission was to be appointed was twice prolonged.” Only after this delay were the appointments made. For reasons now unknown, the determinations of the commission were never ratified by the king.” At a later date Edward VI was authorized to nominate a commission for the same purpose,” and he availed himself of the powers so conferred.” But again the work of the commission—we know not why—never received royal confirmation.” In the reign of * 25 Hen. VIII c. 19 s 7: Provided also that suche canons constitucions ordy- nawnces and Synodals provynciall be £ng all red y made, which be not con- traryant nor repugnant to the lawes statutes and customes of this Realme nor to the damage or hurte of the Kynges perogatyve Royall, shall nowe styll be wsed and eacecuted as they were afore the making of this acte, tyll suche tyme as they be vyewed serched or otherwyse ordered and determyned by the señd 32 persons . . . This act was repealed by 1 & 2 Phil. & Mar. c. 8 s 3, revived by 1 Eliz. c 1 s 2–A similar provision is found in 35 Hen. VIII (1543/4) c 16 s 2. Compare the articles of queen Mary, March 4th, 1554 (Cardwell, Doc. Ann. I, 111) art. 1: That every bishop and his officers, with all other having ecclesiastical jurisdiction, shall with all speed and diligence, and all manners and ways to them possible, put ºn eacecution all such canons and ecclesiastical laws heretofore in the time of King Henry VIII used within this realm of England, and the dominions of the same, not be? ng d? rect and eacpressly contrary to the laws and statutes of this realm.—In 37 Hen. VIII (1545) c 17 it is declared that by 25 Hen. VIII c. 19 those provisions which prevented lay and married doctors of civil law from exercising ecclesiastical jurisdiction were abolished as contrary to the royal prerogative. * 27 Hen. VIII (1535/6) c 15 An Acte whereby the Kynges Magestie shall have power to nominate 32 personnes of his Clergie and Lay fee for makyng of Ecclesiasticall Lawes (this act was repealed by 1 & 2 Phil. & Mar. [1554 and 1554/5] c 8 s 4); 35 Hen. VIII (1543/4) c 16 A Bill for theocamination of Canon Lawes by 32 personnes to be named by the Kºnges Majestée, s 1 prolongs the powers, not yet exercised, for the king's lifetime. * According to Strype, Cranmer I, 190 the commission ended its work; so that nothing was wanting except the king's confirmation. * 3 & 4 Ed. VI (1549/50) c 11 An Acte that the Känges Majestie maye nomi- nat 32 persons to peruse and make Eccles?asticall Lawes. * Edward's commission (11th Nov. 1551) appointing eight persons is printed in Cardwell, Doc. Ann. I, 95.-Strype, Cranmer I, 388 relates, on the authority. of an original document, that on October 6th, 1551, a commission of thirty-two persons was nominated, from whom were selected the eight named in the com- mission of Nov. 11th. Cardwell, The Reformation of the Ecclesiastical Laws p. viii, doubts the correctness of Strype's statement, basing his opinion on the language of the November commission. * According to Strype, Cranmer I, 389 the commission, on this occasion too, completed its work. Cardwell, Reform. of Eccl. Laws p. ix, assumes that the task was not finished, at all events in the three years for which 3 & 4 Ed. VI c 11 conferred powers. He supports this view by the fact that in the MS. cor- rected by Cranmer, which is still preserved, eight sections are wanting which \ § 15. THE BOOK OF COMMON PRA YER I63 Elizabeth a suggestion was raised that this work—the reformatio legum ecclesiasticarum —should be carried to a conclusion; but no legislation to that effect took place.” Since that time the plan of a general examination of the rules of ecclesiastical law has never again been adopted. § 15. 2. THE BOOK OF COMMON PRAYER." THE English prayer-book is not merely the chief authority upon the manner of celebrating divine service; it contains in its rubrics and are contained in the issue of 1571. A bill to prolong the authority was pre- pared, but never became law. See Cardwell, l.c. with note f. * Burnet, Høst. of Reformation Ed. 1865 II, 626, relates that, in the first parliament (1559) of Elizabeth, a bill for giving authority to thirty-two persons to revise the ecclesiastical laws was laid aside at the second reading in the house of commons and was not subsequently revived.— In 1571 a sketch of a revised code of ecclesiastical law, based on the labours of the earlier Commis- sions but with additions, was printed privately, but never received the force of law. Reprinted in Cardwell, The Reformation of the Eccles. Laws as attempted in the Reigns of King Henry VIII, King Edward VI and Queen Elizabeth, Oxford, 1850. The edition of 1571 was discussed in parliament the same year, but no final resolution was arrived at in respect thereto. Cardwell, l.C. p. xii. -g * I. Divine service before the Reformation. * Maskell, William. Monwmenta Ritwalia Ecclesiae Anglicanae. The Occasional Offices of the Church of England according to the old use of Salisbury the Prymer in English and other prayers and forms, with dissertations and notes. 3 vols. 2nd Ed. Oxford, 1882.-The same. The Ancient Liturgy of the Church of England, according to the uses of Sarum, York, Here- ford and Bangor, and the Roman Liturgy arranged in parallel columns, with preface and motes. 3rd Ed. Oxford, 1882.-Palmer, William. Origines Liturgicae, or Antiquities of the English Ritwal, and a dissertation on primitive liturgies. 2 vols. 4th Ed. London, 1845.- Warren, F. E. The Liturgy and Ritual of the Celtic Church. Oxford, 1881.--The same. The Leofric Missal, as used in the Cathedral of Eazeter during the episcopate of its first bishop, 1050–72; together with some account of the Red Book of Derby, the Missal of Robert de Jumièges and a few other early Manuscript Service Books of the English (=Anglo-Saxon) Chºwrch. Oxford, 1883. - II. Since the Reformation. History of prayer-book. Brice, Seward. The Law relating to Public Worship ; with especial regard to matters of Ritwal and Ornamentation, and to the means for securing the due observance thereof. Lon- don, 1875. (Contains the relevant civil and ecclesiastical enactments.)—Campion, W. M. and Beamont, W. T. The Prayer Book Interleaved, with historical illustrations and eſºplanatory notes arranged parallel to the teaſt. Last edition. London, 1888.-Cardwell, Edward. The two Books of Common Prayer set forth by authority of Parliament in the reign of King Edward VI compared with each other. Oxford, 1838. (The two texts printed side by side.)— As a continuation : A History of Conferences and other Proceedings connected with the revi- sion of the Book of Common Prayer from 1558 to 1690 (containing many documents). Oxford, 1840.-C'ay. An Historical Sketch of the Prayer Book. London, 1849.-The same. The Book of Common Prayer illustrated; so as to shew its various modifications, the date of its several parts, and the authority on which they rest. London, 1841.-Dowden, John. An Historical Account of the Scottish Communion Office and of the Communion Office of the Protestant Episcopal Church of the United States of America, with Liturgical Notes. Edin- burgh, London, New York, 1884.—Eyre and Spottiswoode (printers). The Book of Common Prayer from the original manuscript attached to the Act of Uniformity of 1662. With three appendices by James Cornford. London, 1893.—Gasquet, Francis Aidan and Bishop, Edmund. Edward VI amd the Book of Common Prayer. An ea'amination into its origin, and early, history with an Appendia of unpublished documents. London, 1890.-Hier u rgia A rv ſh; ca, n, a ; or documents and extracts illustrative of the Ritwal of the Church of England after the Reformation; edited by members of the Ecclesiological, late Cambridge Camden, Society. London, 1848.-Keeling, William. Liturgiae Britannicae, or the several editions of the Book of Common Prayer of the Church of England, from its compilation to the last I64 SOURCES OF ECCLESIASTICAL LAW [II, 2 in the catechism inserted in it statements which, apart from infer- ences to be drawn or supposed to be deducible therefrom as to doctrine, express or imply binding rules in regard to the consti- tution of the church. It is on this account that we are justified in dwelling on the history of its origin." - 1. An uniform prayer-book for England was first introduced by 2 & 3 Ed. VI (1548) c 1 (An Act for the Uniformity of Service and Administration of the Sacraments). The preliminary labours with this object in view had been begun in 1542, and regulations had been made (mostly by royal ordinance) upon various portions of the service to be adopted.” By 3 & 4 Ed. VI (1549/50) c 12 (An Act for the ordering of Ecclesiastical Ministers) the elaboration of rules, not contained in the prayer-book of 1548, for ‘the making and conse- crating of archbishops, bishops, priests, deacons and other ministers of the church' was entrusted to a commission to be named by the king, consisting of six prelates and six others “learned in God's law,” and the use of the form devised by them and set forth under the great seal before the 1st of April next ensuing, was prescribed beforehand. The ordinal was duly brought to the council on February the 28th in the same year. 2. The second prayer-book of Edward VI is a revision of the first prayer-book of 1548, with the ordination service of 1550 amended and introduced as an appendix. Its use was enforced by * On the old British liturgy (after 429) see Haddan and Stubbs, Counc. I, 138; on divine service in Anglo-Saxon times Phillips, Angelsächsische Rechts- geschächte $68. To an inquiry from Augustine pope Gregory made answer in 601 (Haddam and Stubbs III, 19); Novit fratermitas twa Romande eccles?ae con- suetuděnem, ºn gua se mem?n?t mutrātam. Sed mihā placet, s?ve ºn Romana, s?ve in Galliarum, seu in qualibet ecclesia aliquid invenist? quod plus omni- potent? Deo poss?t placere, Sollicite eligas, et ºn Anglorum eccles?a, quae adhuc ad fidem nova est, ºnstitutione praecipua, quae de mult's eccles??s collègere potułst?, ºnfundas. Non enºm pro locis res, sed pro bon's rebus loca amanda Sunt. Fºc Singulis ergo quibusque ecclesłłs, quae pia, quae religiosa, quae fecta Sunt el?ge, et haec quas? &m fasciculum collecta, apud Anglorum mentes ºn consuetudºmem depome. Accordingly Augustine arranged a service which in Some points differed from the Romish ritual. The use of the litan?a major was prescribed at the council of Clovesho, 747 (Haddam and Stubbs III, 362) c 16. The liturgy was at a later time altered in different ways in the several dioceses; thus special usus came into existence. Most widely spread during the middle ages was the usus Sarāsburgensis, composed about 1085 by Osmund, bishop of Salisbury (1078–99). The preamble to 2 & 3 Ed. VI c. 1 mentions specially as precursors the ‘uses of Sarum, of York, of Bangor and of Lincoln.” For more as to the Service-books in use before the reformation see Procter, Høst. of Prayer Book, appendix to chapter I. * Detailed information will be found in Procter, Høst. of Prayer Book c 2.- The first prayer-book of Edward VI rests on the preliminary labours of a com- mittee of the convocation of Canterbury. Probably it was accepted by both convocations. Compare Perry, Hist. of Engl. Church II, 196, note 2 c 11 § 22. wevision ; together with the Liturgy set forth, for the use of the Church of Scotland (1637); arranged to shew their respective variations. 2nd Ed. London, 1851.-Lathbury, Thomas. History of the Book of Common Prayer and other Books of authority. Oxford, London, 1858. –Procter. A History of the Book of Common Prayer. 18th Ed. London, 1889–Swainson, C. A. The Parliamentary History of the Act of Uniformity 13 & 14 Car. II c. 4, with illustrations from documents not hitherto published. London, 1875. § 15] THE BOOK OF COMMON PRA YER I65 5 & 6 Ed. VI (1551/2) c 1 (An Act for the Uniformity of Common Prayer and Administration of the Sacraments).” 3. By 1 Mar. st. 2 (1553) c 2 the three acts mentioned were re- pealed and divine service was ordered to be performed as in the last year of Henry VIII. - 4. A month after her accession Elizabeth by proclamation (1558) directed that, for the time being, the form of service ‘already used and by law received ’ should remain in force.* At the same time, however, she appointed a commission to revise the second prayer- book of Edward VI. By 1 Eliz. c 2 (Act of Uniformity, 1558/9) the second prayer-book of Edward VI, with some alterations to meet the wishes of the adherents of the old faith, was restored.” The ornaments of the church and of the ministers thereof were to be such as were in use by authority of parliament in the second year of king Edward VI (that is, in the time of the first prayer-book). But the right was reserved to the queen, with the advice of the high commission or of the archbishop of Canterbury, both to make other regulations as to the ornaments of the church and the ministers, and also to alter the service prescribed in the prayer-book by the addi- tion of new ceremonies." The only use the queen seems to have made of this authority was to issue in 1561 an ordinance empowering the high commissioners to deliberate upon the lessons appointed to be read and upon the proper ornamentation of the chancel, and to take the necessary measures for improving both forthwith." The consequence was a reform of the lectionary. * As to the preliminary labours and the question how far the convocations were concerned therein see Perry II, 208–212 c 12 $$ 8 ft. * The proclamation (27th December, 1558) is printed in Cardwell, Doc. Annals I, 176. - * Perry II, 261 c 15 § 13 (cf. also II, 501 c 32 notes and illustrations) holds against Procter c 3 that some of the alterations were not authorized by par- liament, but made by the queen and her council on publication.—5 Eliz. (1562/3) c 28 lays down that in Welsh dioceses the prayer-book shall be used in a Welsh translation.—On the introduction of the prayer-book into Ireland compare $ 11, notes 17, 20, 26. ° s 13: Provided alwales and bee it enacted, That suche Ornamentes of the Churche and of the Ministers therof, shall bee reteymed and bee in use as was Žn the Churche of Englande by aucthorite of Parliament in the seconde yere of the Reigne of king Edwarde VI, untill other order shalbe therin taken by thaucthorite of the Quenes Majestée, with the advise of her Commissioners appointed and aucthorised under the Greate Seale of Englande for Ecclesłas- ticall Causes, or of the Metropolytan of this Realme; And also that yf ther shall happen any Contempte or Irreverence to be used in the Ceremonies or Rites of the Churche by the misusing of thorders appointed in this Booke, the Queenes Majestie maye by the like advice of the said Commissioners or Metropolitan ordeyne and publishe suche further Ceremonies or Rites as maye bee most for thadvancement of Goddes glorye, the edifieng of his Church and the due Reverence of Christes holye Mästeries and Sacramentes. - * Cardwell, Doc. Ann. I, 260.-Procter, Hist. of Prayer Book p. 59, note 1, gives as also made under this authority an alteration in the collect for St. Mark's day, probably not later than 1564, and some inconsiderable verbal alterations, certainly not later than 1572–It has moreover been disputed whether another ordinance of Elizabeth's time, the advertisements of 1566 I66 Sources of ECCLESIASTICAL LAW [II, 2 . As question was raised whether the form of consecration * pub- lished separately and not expressly mentioned in the act had re- ceived legal sanction, this was expressly declared by 8 Eliz. (1566) C 1.9 5. James I, in connexion with the discussions at the Hampton Court conference, by ordinance dated 9th February, 1604, and ad- dressed to the ecclesiastical commissioners, approved the alteration of the prayer-book in certain minor points and ordered the book to be printed with these alterations." By proclamation of the 5th March, 1604, he enjoined the general use of this book of common prayer as ‘the only public form of serving of God, established and allowed to be in this realm.’” The ordinance mentioned is stated explicitly to be issued in virtue of the rights of supremacy and of the reservation made under 1 Eliz. c 2. Nevertheless it appears doubtful whether the ordinance and the proclamation were of bind- ing force. 6. During the first revolution, parliament passed provisional ordinances (the first on the 2nd of October, 1644) nominating for London and the neighbourhood and for the county of Lancaster commissions of presbyters with power ‘to examine and ordain by imposition of hands all those whom they shall judge qualified to be admitted into the sacred ministry.’ Similar ordinances followed, whose scope extended to the whole of England.” About the same time the Westminster assembly of divines” sum- moned by parliament was deliberating upon an amendment of the prayer-book in use and the establishment of a common form of service for all Great Britain. The ‘directory' agreed to by the assembly was introduced into England and Wales instead of the (printed in Cardwell, Doc. Ann. I, 287, erroneously under the year 1564; as to the date see Perry, Hist. of Engl. Ch. II, 289, note 2 c 17 § 6) are covered by the act 1 Eliz. c 2. It seems now, however, to be proved that the advertisements were issued by the archbishop without royal sanction, and consequently were invalid in So far as they are in opposition to the prayer-book. Compare Card- well, l.c. I, 287, note; Perry, l.c. II, 287 ff., 300 c 17 §§ 5 ft. III, 401–3 c.22 $$ 14 f. (Elphinstone v. Purchas, 1870), 488–91 c 29 $$ 5 ft. (Clifton v. Ridsdale, 1877), 492 ff. c 29 $$ 13 ff. * The Elizabethan form of consecration contained, as compared with that of Edward VI, only a change in the supremacy oath. * An Acte declaringe the manner of makinge and consecratinge of the Arch- bushopes and Busshops of this Realme to be good lawful and parfecte—s 1: g declared and enacted . . . that suche Order and Fourme for the consecrating of Archbyshops and Byshops, and for the making of Preistes Deacons and Minysters, as was set foorthe in the tyme of . . . kyng Edward the Syacte and added to the sayd Booke of Common Prayer and aucthorised by Parliament ºn the fifth and syacth yere of the sayd late kyng, shall stande and be in full Force and Effect . . . * Cardwell, Høst. of Conferences p. 217. The ordinance contains an exact statement of the several alterations. * Cardwell, Doc. Amn. II, 56 and Wilkins, Concilia IV, 377. * Neal, Hist. of the Puritans, Ed. of 1822, III, 126 ft. Ordinance of 8th September, 1645 (printed in Rushworth, Hist. Coll. pt. IV vol. I p. 212) and the ordinances mentioned in § 7, note 46. According to Neal, l.c. III, 124, the bishops had refused to ordain any who were not in the interest of the crown. * Compare $ 7, note 41. § 15] THE BOOK OF COMMON PRAYER I67 book of common prayer by a parliamentary ordinance of the 3rd of January, 1645.” An ordinance of the 23rd of August, 1645, added the threat of penalties for the use of the old or the non-use of the new service-book.” The king, on the other hand, by his proclama- tion of November the 13th forbade the adoption of the directory and threatened with punishment those who should lay aside the book of common prayer.” By a parliamentary ordinance of the 29th of August, 1648, the ordination of ministers by the classical assemblies, established in the meantime or still to be established, was more definitely regulated according to the proposals of the Westminster assembly of divines." When Cromwell had become protector he constituted, under date of March the 20th, 1654, commissioners for approbation and admission, to admit in non-ecclesiastical form those presented, nominated, chosen or appointed to any benefice by a patron.” 7. All the ordinances mentioned of the parliament and of Crom- well were treated after the restoration as null and void, because lacking the royal consent. But Charles II promised in his declara- tion of October the 25th, 1660, concerning ecclesiastical affairs, to tolerate deviations from the old prayer-book until a new revision of it could be made.” The Savoy conference (1661) between clergy of the episcopal church and puritan ministers, brought about by the * Printed in Scobell, l.c. : An ordinance for taking away the Book of Com- mom prayer and for establish?ng and putting in eacecution of the Dárectory for the publique worship of God. The text of the directory is incorporated in the ordinance, and is also printed in Neal, Høst. of Puritans, appendix VIII. The title runs: A Directory for Publique Prayer, Reading the Holy Scriptures, Singing of Psalmes, Preaching of the Word, Administration of the Sacraments, and other parts of the Publique Worship of God, Ordinary and Eactraordinary. The directory contains no ordinal.—In Scotland the directory was adopted by resolution of the general assembly, 3rd Feb. 1645 (Acts of General Assembly p. 115). * Scobell, l.c. : An Ordinance for the more effectual putting in eacecution the Directory for Publique Worship in all Parish Churches and Chappels within the Kingdom of England and Wales. * Proclamation printed in Rushworth, Historical Collections, part IV vol. I p. 207.-After the complete overthrow of the king, the bishops temporarily dispensed ministers from using the book of common prayer. Perry, Høst. Of Engl. Church II, 482 c 31 § 12. * Compare $ 7, note 49. * Ordinance of 20th March, 1645 (printed in Scobell): For appointing Com- missioners for approbation of Publique Preachers; supplemented by protector's ordinance of 2nd September, 1654 (Scobell, c 59); the two ordinances are ratified by act of the Cromwellian parliament 1656 c 10 (in Scobell). * Declaration printed in Cardwell, Doc. Ann. II, 234. c. 7: . . . though we do esteem the liturgy of the church of England, contained in the book of Common Prayer, and by law established, to be the best we have seem ; . . . . yet we will appoint an equal number of learned divines of both persuasions, to re- view the same, and to make such alterations as shall be thought most necessary, and some additional forms . . . suited unto the nature of the Several parts of worshºp, and that it be left to the minister's choice to use one or other at his discretion. In the mean time, and till this be dome, . . . ºn compassion to divers of our good subjects, who scruple the use of it as now it is, our will and pleasure is, that none be punished or troubled for not using it, until it be re- viewed, and effectually reformed, as aforesaid. I68 SOURCES OF ECCLES IASTICAL LA W [II, 2 king for the discussion of projected changes, yielded no result. On the other hand, 14 Car. II c. 4” (Act of Uniformity, 1662) adopted an amended prayer-book” based on a review of the old one by the convocations.” The changes, which extended to many details, were in a retrograde rather than a progressive direction. 8. The prayer-book of 1662 is still in use. Some minor altera- tions by the addition of forms for special occasions have been made by later royal ordinances.” The calendar prefixed to the prayer- book was altered by 24 Geo. II (1751) c 23, the act which introduced the Gregorian system into England. The prayer-book is moreover touched by two recent enactments, 34 & 35 Vict. (1871) c 37 Prayer Book [Table of Lessons] Act and 35 & 36 Vict, (1872) c 35 Act of Uniformity Amendment Act.” The former contains an amended table of lessons; the latter allows the use of certain shortened forms of morning and evening service, and lays down that, with the ap- proval of the Ordinary, special services not contained in the prayer- book, but which must only consist of parts of the Bible and the prayer-book and of anthems or hymns, may be used upon special Occasions or as additional to the usual devotions, and that preaching a sermon is admissible when ‘preceded by any service authorised by this Act, or by the Bidding Prayer, or by a collect taken from the Book of Common Prayer, with or without the Lord's Prayer.’ The manner of proceeding in disputes as to the form of worship to be observed is regulated by 37 & 88 Vict. c 85 (Public Worship Act, 1874).” - * The act contains variations, probably made by the king and his council before the book was brought into parliament, from the review of convocation. But these alterations were expressly approved by the southern convocation after the act was passed. Cf. Perry II, 486-501 c 32 $$ 1 ff.—As to the introduc- tion of the new prayer-book into Ireland cf. § 11, note 30. * To the form of consecration etc. appended to the prayer-book reference is made in art. 36 of the thirty-nine articles. * * The members of the lower and upper house of Canterbury, and the members of the upper house and plenipotentiaries of the lower house of York, subscribed the review on 20th December, 1661. (See Wilkins, Concilia IV, 566, 567 ff., Trevor, The Convocations of the two Provinces p. 113.) The bishops of the northern province had deliberated with the upper house of Canterbury. The co-operation of the lower house of York was only formal, by representatives sent to London. - * So especially the appointment of forms of prayer for commemorating special days, the king's birthday etc. for instance. For examples see Clay, The Book of Common Prayer Illustrated, London, 1841, pp. xv-xvii and Lathbury, History of Convoc. 314, notes d and e. As a modern illustration compare the royal ordinances of 21st June, 1837, and 17th January, 1859, printed in many editions of the prayer-book.-Compare also the ordering of special yearly services by 3 Jac. I (1605/6) c 1 (5th Nov.) and 12 Car. II (1660) c 14 (29th May). * * In the preamble to the latter it is mentioned that the act is passed after the opinion of the convocations of Canterbury and York have been taken. * The lower house of convocation had protested against the bill. Perry, Hist. of Engl. Ch. III, 483 c 28 $ 12. § 16] A RTICLES OF BAE LIFEF - I69 § 16. 3. ARTICLES OF BE LIE F.” FROM the time of the reformation the following articles of belief have been successively in vogue : — 1. The ten ‘articles about religion set out by the convocation, and published by the king's authority' (1536)." These articles, issued after the legislative recognition of the king's Supremacy (1534), constitute the first innovation in matters of belief. Accord- ing to article 1 the foundations of faith are the Bible, the three ancient creeds and the resolutions of the four oldest general coum- cils. Articles 2–5 relate to baptism, penance, the Sacrament of the altar and justification. These first five articles are taken princi- pally from the confession of Augsburg.” Three Sacraments are acknowledged, viz. baptism, penance and that of the altar. Articles 6–9 deal with the worshipping of images, the adoration of Saints and some other ceremonies; these are all retained, but the object of them is so explained that they appear harmless even from a protestant point of view. Article 10 repudiates the doctrine of pur- gatory, but allows prayer for the souls of the departed. 2. The ‘Six Article law (1539), passed to restrain further in- novations, the danger of which was exhibited by the rising of the northern counties, and which seemed undesirable as, after the death of Catherine (1536) and the failure of the negotiations with the German protestants (1538), a political rapprochement between England and Charles V had been effected. The chief articles of the act * are :— I. The doctrine of transubstantiation is to be approved. II. Communion in both kinds is not necessary ad salutem to all persons. * Printed in Wilkins, Concilia III, 817. The document represents itself as a publication by the king after previous ‘assent and agreement ' ' of our bishops and other the most discreet and best learned men of our clergy of thºs our WHOLE realm . . . assembled in our convocation.’ It is signed by Crum- well and members of the upper and of the lower house, of whom, however, but few belong to the northern province. The articles were originally printed in 1536 under the title: Articles devised by the känges highnes majestée to stably she Christen quietmes and unitie amonge us, and to avoyde contentious opinions ; which articles be also approved by the consent and determºnations of the hole clergée of this realme. * Ranke, Englische Geschächte 3rd Ed. I, 153. * 31 Hen. VIII (1539) c 14 An Acte abolishing diversity in Opymºons. * Browne, Edward Harold. An Eaposition of the Thirty-nine Articles, historical and doc- trinal. 13th Ed. London, 1887.-Hardwick, Charles. A History of the Articles of Religion. To which is added a series of documents, from 1536 to 1615; together with illustrations from contemporary sources. Cambridge & London, 1851. 3rd Ed. 1876. — Lamb, John. An Historical Account of the 39 Articles from the first promulgation of them in 1553 to their final establishment in 1571; with ea, a ct copies of the Latin a mºd English M a nºw- scripts etc. . . . Cambridge, London, Oxford, 1829.- Lloyd, Charles. . Formularies of Faith put forth by authority dwring the reign of Henry VIII, viz. Articles about Religion, 1536. The Institution of a Christian Man, 1537. A Necessary Doctrine and Erwdition for any Christian Man, 1543. Oxford, 1825. New edition. Oxford, 1856. - I70 SOURCES OF ECCLES IASTICAL LA W [II, 3 III. After the order of priesthood has been received marriage is not permissible. IV. Vows of chastity or widowhood, made by men or women, ought to be observed. W. It is meet and necessary that private masses be continued and admitted in the church. VI. Auricular confession is to be retained. Any person who upholds definite opinions in opposition to the first of these articles or merely believes such opinions to be true, is to be burned as a heretic and his property forfeited to the king. Cor- responding offences against articles II-VI are—in certain more serious cases forthwith, in less serious cases upon relapse—to be unished as felony with death and forfeiture of property. Although the details were subsequently somewhat modified, the main provisions of this act remained in force until the death of Henry VIII.4. Not before the new sovereign's reign was communion in both kinds introduced” by statute (1 Ed. VI [1547] c 1); and the six article law was entirely repealed by 1 Ed. VI c. 12 s 2." 3. The forty-two articles (1553)." They were published by royal authority, probably upon the ground of their acceptance by a resolution of the southern convocation. They mark the complete prevalence of protestant views and so form a supplement to the second prayer-book which had been finished shortly before. A part of these articles is based on propositions agreed by Cranmer and German theologians in 1538 at a conference held to establish uni- formity of belief.” The forty-two articles contained the answer of England to the fundamental resolutions framed at the first sessions of the council of Trent. 4. The eleven articles (1559).” They were drawn up by arch- * Compare $22, notes 19 and 20. * s 8: mot condempninge hereby the usage of ammy Churche owt of the Rºnges Majestées Dominions. * A further legislative determination of religious doctrines, but within the frame of the six articles, was made by 32 Hen. VIII (1540) c 26 and 34 & 35 Hen. VIII (1542/3) c 1. • * Printed in Cardwell, Synodalia p. 1, under the title: Articuli, de quibus in Symodo Lomdimensi, Ammo Dom. 1552 ad tollendam opiniomum dissensionem, et consensum verae religion's firmandum, inter Episcopos et alios eruditos wºros convenerat. Regia authoritate ºn lucem edit?. Upon the question whether the articles only rest on the king's authority or are to be regarded as a confirmation of a resolution of convocation, see Cardwell, l.c. note. * Perry, Hist. of Eng. Ch. II, 155 c 9 $ 24. For fuller information as to the preliminaries to the issue of the forty-two articles see Perry II, 207,214 c 12 §§ 7, 20. * Printed in Cardwell, Docwm. Annals I, 231 under the title: A declaration of certain principal articles of religion set out by the order of both arch- bishops metropolitans, and the rest of the bishops for the unºform?ty of doctrine, to be taught and holden of all parsons, vicars and curates, as well in testification of their common consent in the said doctrine to the stopping of the mouths of them, that go about to slander the minºsters of the church for diversity of judgment, as necessary for the instruction of their people ; to be Tead by the said parsons, vicars, and curates at their possession-taking, or first entry into their cures, and also after that, yearly at two several times, that is § 16] ARTICLES OF B ELI EF I7 I bishop Parker and other bishops and published by them to be used by the clergy subordinate to them. In these articles the principles of the English church as to various matters of constitution and doctrine are clearly defined, chiefly in opposition to Romish views. 5. The thirty-nine articles (1563). They rest even in minor details on the forty-two articles.” They were originally published by the queen in the form of a ratification of resolutions of convoca- tion ; * but the text as issued contained two deviations from that which convocation had sanctioned, so that in reality the articles probably had binding force only as a royal ordinance. Contrary to the wish of the queen, whose aim was to avoid as far as possible a final, legislative determination of doctrine, the house of commons in 1566, the whole parliament in 1571, adopted a bill making sub- scription of the thirty-nine articles of 1563 an essential condition before priest's or deacon's orders were granted or a benefice with cure of souls transferred. The queen yielded, and the bill became the Subscription Act (13 Eliz. [1571] c 12).” fo say, the Sunday meat following Easter day, and St. Michael the archangel, or on some other Sunday withºn one month after those feasts, immediately after the gospel. * A comparison of the forty-two articles with the thirty-nine will be found in Perry, l.c. p. 220 c 12, notes and illustrations (c). * Printed in Cardwell, Synodalia I, 34, from the original edition, under the heading: Articuli de quibus ºn symodo Londºnens? anno Domžm? fuocta ecclesiae Anglicamae computationem 1562 ad tollendam opinionum dissensionem, et firmandum ºn vera Religione consensum, inter Archiepiscopos Episcopos- que wiriusque Provinciae, nec non etiam universum Clerum conven’t. Regia authoritate ºn lucem edit. The same document (with trifling variations) is also printed in Wilkins, Comcilia IV, 233, where the signatures are given. Among these signatures are those of members of the upper and lower house of the Canterbury convocation, also of three bishops of the province of York (York, Durham, Chester), but not of members of the lower house of York. Nor is anything known of any resolution of the northern convocation touch- ing the draft of these articles. (Cf., however, Joyce, Synods p. 560. Trevor, Convocations p. 89. The report of a discussion possibly referring to these articles is printed in Trevor, l.c. p. 96 and in Wilkins, Comc. IV, 243.) With this view the last sentence of the articles, which is contradictory to the head- ing, agrees: Hos articulos . . . Archiepiscop? et Episcop? utriusque Pro- vânciae regnº Angliae in Sacra Prov in c : alº Symodo legitime congregat? wnamºm? assensu recip?unt et profitentur, . . . . universusque clerus In- ..ferioris domus eosdem etiam unanimiter et recep?t et professus est . . . * An Acte to refourme certayne Dysorders touching Ministers of the Churche. s 1. Every person under the degree of a bishop who shall pretend to be priest or minister by reason of any form of institution, consecration or ordering other than that set forth in the time of Edward VI and Elizabeth shall declare his Assent and subscribe to all the Artycles of Religion whº ch omely concerne the Confession of the true Christian Fażthe and the Doctrine of the Sacramentes, comprised in a Booke &mprºmºted entituled, Articles whereupon it was agreed by the Archbisshops and Bishops of both Provinces, and the whole Cleargie in the Convocation holden at Londom in the yere of our LOrde God a thousande five hundred sætie and two, according to the Computation of the Church of Englande, for the avoydymg of the diversities of Opinions and for the establish- Žng of Consent touchºng true Religion; put footh by the Queenes auctho- Tit?e ; . . . * s 3: And that no person shall hereafter be admytted to any Benefice with Cure, eaccept he . . . shall fyrst have subscribed the say de Articles . . . I72 SOURCES OF ECCLESIASTICAL LAW [II, 3 From the journals of parliament it is plain that by the “Articles of Religion’ which were to be subscribed in accordance with this act was meant ‘a little book printed in the year 1562’ [1563].” The ‘little book’ was a non-official English translation of the Latin thirty-nine articles of 1563 and contained only one of the two deviations of the published articles from those adopted by con- vocation.* For the better execution of the law at the southern convocation of 1571 the wording (Latin and English) of the articles was fixed, and the Latin text of 1571 was that to which subscription was afterwards enforced.” This text agrees—some inconsiderable verbal alterations excepted—with the convocation copy of 1563; but not with the ratified and published articles of 1563 or with the ‘little book.’” After the death of Elizabeth the articles were †. approved by a resolution of the southern convocation of 04. The act 14 Car. II (1662) c 4, Act of Uniformity, ss 13, 15 laid down, that certain officers of the universities and lecturers should also be bound to subscribe to the thirty-nine articles. These thirty-nine articles formed a substitute for all confessions of faith previously in vogue in the English church. In them the three ancient creeds are recognized as binding.” How far or s 4: . . . ; nor shalbe admitted to thorder of Deacon or Min österie (=priesthood), unles he shall fyrst subscribe to the sai de Artycles. With regard to the words in s 1 which onely, it was for some time dis- puted whether subscription was only required to those articles which relate to the doctrines of the church or to all. See more in Cardwell, Synodal?a I, 60, note. * For the statements of the parliamentary journals as to the debate on the bill see Cardwell, Syn. I, 56, after Lamb, Articles. * Cardwell, Synodalia I, 53. * Perry, Hist, of Engl. Ch. II, 301 c 17, notes and illustrations (B). The Latin text of 1571 is printed in appendix XI from Cardwell, Synodal?a I, 73.− Whether the northern convocation in 1571 passed a final resolution is not known. Wilkins, Conc. IV, 270. * See Cardwell, Synodalia I, 38 ff., note; 54, note; 76, note (after Lamb, Articles). The Latin text of 1571 does not contain the clause of the 20th article added by the queen to the resolutions of the convocation of 1563: Habet ecclesia ritus statuendi jus et in fidei controversić's auctoritatem; but it does contain the present 29th article, which the queen had struck out of the resolu- tions of convocation: De manducatione corpor’s Christi et &mpios illud non . mandu.care. In the ‘little book’ both passages are wanting (it contains only 38 articles); thus the Latin text of 1571 differs from the ‘little book’ in regard to the second point. (The English text of 1571 contains the addition in article 20 and also article 29.) * Acta Convoc. Cantwar. (printed in Cardwell, Syn. II, 583 and Wilkins, Conc. IV, 379): Decimo octavo die mensis Mač dominus reac articulos religion's anno 1562, promulgatos synodo mittät de novo approbandos et subscribendos : quod et?am factum est. It is not known that there was also a confirmation of the articles at this time by the provincial synod of York.-This approval is distinct from the reference to the thirty-nine articles in canon 5 of 1604 (ap- pendix XII). * Article 8 of the thirty-nine articles (appendix XI). The two houses of the convocation of Canterbury passed on May 9th, 1873, the following resolution (Chron. of Conv. Cant. 1873, pp. 405, 435):- For the removal of doubts, and to prevent disquietude in the use of the Creed § 16] A RTICLES OF BAE LIEF I73 whether the articles are to be supplemented from the prayer-book is a moot point.” No other formularies of belief have since ob- tained binding force; thus the so-called “Lambeth Articles' of 1595 remained a private expression of judgment.”” commonly called the Creed of St. Athan as jus, this Synod doth solemnly declare : 1. That the Confession of our Christian Faith, commonly called the Creed of St. Athanasius, doth not make any addition to the faith as contained ºn Holy Scripture, but warneth against errors which from time to time have arisen in the Church of Christ. - 2. That as Holy Scripture in divers places doth promise life to them that believe and declare the condemnation of them that believe not, so doth the Church in this confession declare the necessity for all who would be in a state of salvation of holding fast the Catholic faith, and the great peril of rejecting the same. Wherefore the warnings in this confession of faith are to be understood no otherwise than the like warnings in Holy Scripture, for we must receive God's threatenings even as His promises, in such wise as they are generally set forth in Holy Writ. Moreover, the Church doth not herein pronounce judgment on any particular person or persons, God alone being the Judge of all. . * Compare, for instance, the judgment of the judicial committee of the privy council in the case of Gorham v. bishop of Exeter (1850). * Printed in Cardwell, Docum. Annals II, 30. They confirm the doctrine of predestination. The matter of them was incorporated in the Irish articles of 1615. - * During the first revolution the thirty-nine articles were thrust aside by parliament's acceptance in 1643 of the covenant. The Westminster assembly, summoned by parliament, had already debated alterations of them, and on 11th Dec. 1646 laid hefore parliament the draft of a new confession of faith. Perry, Hºst. of Engl. Ch. II, 454 c 29 $6. A resolution of the English parlia- ment (20th June, 1648) expressed agreement with the doctrinal part of the Westminster confession. Neal, Hist. of Puritans Ed. 1822 III, 318 ft. After the restoration all these measures were considered null and void as lacking the king's assent. - In Scotland the general assembly had by resolution of 27th Aug. 1647 adopted the whole of the Westminster confession (Acts of Gen. Assembly p. 158). That confession (printed in Neal, Hist, of Puritans. Ed. 1822 W, pp. lxiii ff. appendix No. 8 and Acta Parl. Scotland IX, 117) was by act of 1690 No. 7 (Acta Parl. Scot. IX, 133) ratified and established as the public and avowed confession of the Scottish church. In 1879 the general assembly accepted a modified Statement of the doctrine of predestination. III. §elation of the Church of Čngland to other Christian Churches, § 17. 1. THE RELATION OF THE REFORMED -- CHURCH OF ENGLAND TO THE C H U R C H IN E N G L AND BE FORE THE RE FORMATION. IN English writers we are not seldom encountered by the contention that the development of the reformation period was in uninterrupted connexion with the past. For the most part such statements merely imply that the transition from old to new was effected in valid form. But frequently they are to be regarded as assertions that a material difference in character between the English church before and after the reformation does not exist. In neither of the two senses can the contention in this general form be recognized as true : on the contrary, it needs considerable limitations :— 1. As regards the form in which the change was made. According to constitutional law as it prevailed before the reforma- tion the state was not entitled to issue ordinances upon purely ecclesiastical matters; the exclusive right of the church to make such ordinances was not contested even by the civil powers." Nothing was in dispute between church and state before the re- formation save, as it were, certain frontier-lands, and it was only as to these frontier-lands that the state made good a right to legislate independently of the church and indeed in conflict with it. The recognition by the state of the exclusive right of the church authorities to make laws in purely church matters rested, it is true, originally and principally on the ordinance of William I, that is, on an act of the secular power only. But we shall not be far astray if we assume that, in the centuries which ensued down to the reforma- tion, that ordinance was regarded even by the civil powers not as * Compare $ 28, note 1. 174 § 17] BEFORE A W D AFTER THE REFORMA TTON I75 a special concession revocable by the will of the sovereign, but as the confirmation of a right inherent in the church without any such ordinance and not dependent on the consent of the state. Within the same limits as the independence of the ecclesiastical authorities in England, the power of the pope to govern and make rules had been recognized for centuries by decisive acts of the state, e.g. by the conclusion of agreements as to the exercise of such powers. England had, indeed, at latest with the declaration of independence of 1366,” shaken off the yoke of the universal temporal monarchy which it was the aim of the popes to establish; with respect to spiritual affairs she had, however, still remained subject to the universal domination of Rome. Now, seeing that at the beginning of the reformation England by resolution of her national representatives renounced for the future all acknowledgment of the papal authority, this step must be accounted revolutionary and indicative of a distinct breach with the past. A parallel case would be the declaration by a federal state that it would no longer obey the Ordinances of the central power in matters as to which such ordinances had hitherto been valid. - Side by side with this legal breach (Rechtsbruch) in respect of a material point in the constitution as hitherto recognized is to be placed a whole series of smaller breaches of contract. Thus, for example, 24 Hen. VIII c. 12 (restricting appeals to Rome) is in viola- tion of the treaty of Avranches in 1172; similarly the abolition of Peter pence involved a breach of repeated and express engage- sments made by English kings to the popes. But besides the breach with the central power at Rome, the reformation produced a change in the relations of the state to the local authorities of the church. It is true. that this change was effected in part with the acquiescence of the latter; but in part it resulted from the isolated action of the civil authorities without the co-operation of the authorities of the church, who hitherto had enjoyed independence in the matters concerned. During the days of Henry VIII and Edward VI the government was extremely cautious in this direction ; only in minor details did it ignore the absence of assent by the convocations or at least the convocation of Canterbury. But after the reaction under Mary, the revival in Elizabeth's reign of the most important reforming laws, and especially the introduction once more of the royal Supremacy and of the reformed prayer-book, took place by the sole act of the civil powers, convocation being either not consulted or expressedly hostile to the measures adopted. If then we admit that the reformation was accompanied in Eng- land as elsewhere by a disturbance of existing legal relations, yet ecclesiastical law as concerned with the English church of to-day by no means loses as a consequence its sure foundation. Ecclesiasti- cal law serves the purpose of mediating between two powers, the * Compare $4, note 117. I76 RELATION TO OTHER C H U R CHES [III, 1 state and the church, each of which claims independence of the other. It must therefore, as in similar case international law, act upon the principle that a condition of affairs maintained by force, if it continues, becomes legal. In England the statutes upon which the reformation rests remained permanently operative. They must, therefore, be treated as fundamental in any estimate of English ecclesiastical law at the present day, whether their origin was in true legal form or not. For the rest, the Rechtsbruch once made was rendered as imper- ceptible as possible by the power responsible for it: civil enactment permitted the execution of all ecclesiastical ordinances hitherto customary, in so far as they did not offend against the prerogatives of the crown or the laws and customs of the land.” This provision concealed a rupture, which nevertheless remained: for the ‘prero- gatives of the crown' and the ‘laws and customs of the land’ bore a totally different meaning after the reformation from that which they had before it, and the change in meaning had itself been brought about by a Rechtsbruch. 2. As regards the matter changed. The constitution of the church was only changed at the reforma- tion in England so far as seemed absolutely necessary to the attain- ment of the ends which the reformation proposed. Accordingly, the ecclesiastical offices in the country—except as affected by the dissolution of the monasteries—remained nearly unaltered. The real changes which ensued relate almost exclusively to the con- nexion of the national church with the pope; they consist in the complete abolition of all papal authority in England, and in the transference of almost all rights of government previously exercised by the pope to the English sovereign. But herein was involved an alteration of the constitution of the church in the very point which must be regarded as decisive. The peculiarity of the Romish church as that church had developed with the progress of time, lay not so much in the distinctive character of its offices and the determination of the rights and duties attached thereto, as in the existence of a central power outside the various nations, a power which claimed to stand above them and persistently sought to weaken all civil powers which did not yield to its ever-growing pretensions. Now, the reformation in eradicating this element of disunion and declaring all ecclesi- astical interference from without to be inadmissible, must be re- garded as having produced a fundamental change in the constitution of the church. If then from the standpoint of legal history the doctrine of continuous development must be rejected, adherence to that doc- trine was at the time deemed desirable as a matter of policy. Indeed, it was invented then to avoid as far as possible the appear- ance of innovation and to draw all imperceptibly into the new * Compare $ 14, note 17. § 18] B E FORE A W D A FTER THE REFORMATION I77 camp. Hence also the preambles to many of the statutes of the reformation, representing the new provisions as long the law of the land, of which they are mere explanations; and hence the parentheses to the same effect scattered about the enacting parts of the statutes in question. The doctrine having served its purpose in the struggle with the followers of the old faith, was utilized in the conflict with the presbyterians. As against them it was employed to strengthen the position of episcopacy, which was represented as the legal form of government taken over from prereformation times and rendered venerable by antiquity. Even at the present day this untenable doctrine of continuous development, although political reasons for maintaining it have long ceased to have weight, meets with the most general accept- ance. It is thus frequently assumed that the present established church is identical with the prereformation church of England ; and hence springs the vague idea that the church of England of to-day is more nearly akim to the present Roman Catholic church than to any other. This view further influences, not perhaps of legal necessity but as a matter of fact, the form which relations take to the Roman catholic and to other Christian churches of Our time. Such inferences can no more be justified than the primary consideration whence they are deduced. w § 18. 2. THE RELATION OF THE REFORMED C H U R C H OF ENGLAND TO OTHER CHR IST I A N C H U RC HES OF MO DE R N TIME S. THE legal basis of the relations of the church of England to other Christian churches is article 34 of 1563." Therein is ac- knowledged the right of every particular or national church to change its own traditions and ceremonies so long as nothing is ordained against “God’s word,” that is, the Bible. Subject to the condition specified, the church of England recognizes the equality of other churches existing side by side with itself. But a difficulty arose in reconciling this recognition of several churches, standing side by side with equal rights, to the language of the three ancient creeds adopted? by the church of England, in that these Creeds speak of one * catholic church and faith. To * Printed in appendix XI. Cf. also art. 19: Ecclesia Christ? visibil?s est coetus fidelium, in Quo verbum Dež pºt ru'm praedicatur, et sacramenta, quoad ea que necessario eacăgantur, Žuocta Christ; institutum recte ad- mºnºstramtur . . . * See article 8 of 1563 (appendix XI). * Apostles' creed in old form: Credo in . . . Sanctam Eccles?am . • ; in the full form : Credo in . . . Sanctam Ecclesiam Catholicam Sanctorum FI. C. N I78 RELATION TO OTHER C H U R CHES [III, 2 reconcile the apparent discrepancy the church of England has conceived the existence of a larger ‘catholic church consisting of all the Christian churches recognized as having rights equal to its own. The church of England calls itself also “catholic ** to characterize itself as a member of that larger community. Thus the word catholic used with reference to the church of England does not imply an exclusive claim to the quality of Catholicity, as, for example, it does in the doctrine of the Roman catholic church. Nor does the church of England in calling itself catholic aim—as is frequently assumed—at indicating a particularly close relationship to other churches which give themselves the same title. Lastly, it follows from what we have said that, as far as the ecclesiastical law of the church of England is concerned, the designation ‘Catholic forms no antithesis whatever to the designation ‘protestant.’ ” . A church which—as, for instance, that of England in the thirty-nine articles, art. 19 etc.—protests against the ceremonies and doctrines communionem. . . . —Nicene Creed: Credo . . . Et unam Sanctam Catholicam et Apostolicam Eccles?am . . . —Athanasius' creed: Quicumque vult salvus esse, ante Omnia opus habet, ut temeat Catholicam fidem : & Fides autem. Catholica haec est . . . Haec est fides Catholica, quam m?sº quisque fideliter firm?terque crediderit, salvus esse mom poterit. * The prelates of the English church and its offshoots, gathered in the pan- anglican conferences, entitled themselves in 1867, Bishops of Christ's Holy Cathol? c Church in visible communion with the united Church of England and Ireland, in 1878, Archbishops, bishops metropolitan, and other bishops of the Holy Catholic Church in full communion with the Church of England. * According to Phillimore, Eccles. Law 3 ff. the term ‘protestant ' has not been adopted by the church in any of its formularies. [Nor has it any the more, until quite modern times, designated itself “catholic' in the newer sense by which the term is limited to episcopal churches. The established church of England is implied to be protestant even in the final form of address agreed by the convocation of Canterbury in 1689. For details as to the framing of this address see Perry, Hist, of Eng. Ch. II, 547 c 36 $ 21.] The offshoot churches have, for the most part, expressly named themselves reformed episcopal churches or protestant episcopal churches. [The general convention of the church of Ireland in 1870 designated that church in one and the same declaration (printed in the Church Year-Book, 1883 p. 452) ‘Catholic and Apostolic" and ‘reformed and Protestant."] In the statutes the established church and its doctrine are chiefly spoken of as protestant. * Strictly speaking, it cannot be doubted (in spite of the opposite contention in Phillimore, l.c. 6) that when the English church is called protestant a general agreement, if not an agreement in detail, of position and doctrine with the protestant churches of the continent and Scotland, in opposition to the church of Rome, is indicated. Thus, for example, according to 1 Gul. III dº Mar. (1688) sess. 2 c 2, Bill of Rights, s 1 (art. IX), and 12 & 13 Gul. III (1700/1) c 2 s 1, to succeed are the ‘Heirs . . . being Protestants,’ no distinction being drawn between possible protestant churches to which they might belong ; according, however, to 12 & 13 Gul. III c. 2 s 3, whosoever shall hereafter come to the Possession of this Crown (that is: after having gained possession), shall joyn in Communion with the Church of England as by Law established. Compare further e.g. the text of the treaty of Berwick in 1586 (printed in § 10, note 26). There the English religion is implied to be in agreement with the religion of Scotland and with the religion of other princes (the protestant princes of the continent are meant). This common religion is designated “catholic.' ' (In Scotland, it is true, a constitution with ‘bishops' had then been adopted, but the ‘bishops’ had not been consecrated by laying on of hands.) § 18] OF MOD ERAW TIMES I79 of other catholic churches, may nevertheless be “catholic in the sense set forth above. - Though the church of England, according to article 34 of 1563, admits the possibility of the existence of churches with equal rights, nevertheless the condition attached, “so that nothing be ordained against God's word,' leaves room for dispute as to what churches fulfil the condition. The high church party, at present again in the ascendant in the English established church, lays special weight on the possession by the foreign church of the Office of bishop. Accordingly, it recognizes the equality only of such Christian churches as have an episcopal constitution and can point to due transmission from the earliest times (in theory, from the days of the apostles) of the episcopal office by the imposition of hands. - By this distinction a certain outward form of the church is pro- nounced essential, whilst what is of main import, its doctrine, is left unregarded. Moreover, the distinction is based, not on the form of the constitution as a whole, but on a single constituent of that form, to the ignoring of other equally important parts." Lastly, though the episcopal is the recognized constitution of the church of England, it cannot even be conceded that that constitu- tion is regarded in the fundamental formularies of the English church as the essential One of every Christian church. It is true that in the introduction to the form of Ordination attached to the prayer-book 7 the proposition—not historically sound, at least without limitation *—is laid down that from the time of the apostles there have been three Orders of ministers in Christ's church, viz. bishops, priests and deacons; it is not, however, contended there that the Bible prescribes an episcopal constitution. Nor does the profession of belief known as the thirty-nine articles contain the doctrine of the divine institution of episcopacy. Article 36 does not go beyond the statement that the prayer-book form of Ordina- tion contains all things necessary for consecration or ordination and has in it nothing which in itself is superstitious or impious; the question whether it contains anything which is not indeed impious or superstitious but is Superfluous or non-essential, is left Open. In article 23 de vocatione ministrorum it is not maintained that a bishop only can ordain ; on the contrary, a phrase is used—obviously by design—applicable also to a non-episcopal constitution, that the call is to be by “those persons to whom has been publicly committed * For example, no heed is paid to the fact that, regarded as a whole, the con- stitution of the church becomes essentially different when above the bishops there is a higher ecclesiastical power such as the papacy. The bestowing of episcopal orders furthermore obtains a totally different signification when it is the perfectly voluntary act of ecclesiastical authority from that which it has when the bestowal—as in the regular cases in England (25 Hen. VIII c. 20 s 6) —can be compelled by the civil powers under the heaviest penalties. * Printed in § 20, note 2. * For details warranting this statement see Edgar Loening, Die Gemeindever- fassung des Urchristentums, Halle, 1888. I8O RELA TI O W TO OTHER C H U R CHES [III, 2 in the church the power of calling ministers and sending them. into the vineyard of the Lord.’" - In point of fact the church of England at the present day is in a relation of full mutual recognition only with the churches of which she has been the mother. Furthermore, only those episcopal churches are practically treated as equals by the English church in which an uninterrupted descent of episcopal orders by imposition of hands is regarded as demonstrable," in particular," the Roman catholic,” the Greek catholic and the old catholic. The official acts ° The exact words are: . . . Atque illos legitime vocatos et missos eacºst!- mare debemus, qui per homines, quibus potestaş vocamdi ministros, atque omittend? &m vineam Domžn?, publice comcessa est in ecclesia, coaptat fuerºt, et ascătă în hoc opus. Canon 7 of 1604 (appendix XII) rejects only the conten- tion that episcopacy is in opposition to Scripture; it is not maintained that it is ordered in the Bible as the sole permissible constitution. Canon 55 of 1604 pre- scribes the prayer: Precam?mº pro Christ; Sancta eccles? a catholica, id est, pro univers o coetu christian? populi per orbem terrarum diffus? (?.e. without limitation to the churches with episcopal constitution).-In the Canons of 1640 only in an indirect manner and by the addition of a phrase of double meaning (applicable equally to human and divine law) was the attempt made to obtain acknowledgment of a divine institution of episcopacy. The Oath imposed by c 6 runs as follows:— I A. B. do swear that I do approve the doctrine, and discipline, or govern- ment established in the church of England, as containing all things mecessary to salvation ; and that I will not endeavour by myself or any other, directly on." Žndirectly to bring in any popish doctrine, contrary to that which is so estab: lished; nor will I ever give my consent to alter the government of this church. by archbishops, bishops, deans, and archdeacons, etc. as it stands now estab- lished, and as by right (the high church party understood by [divine] right) Žt ought to stand . . . The validity of these canons is, however, doubtful, and as early as 1640 a royal ordinance directed that the taking of the oath should not be enforced (compare $ 7, notes 32 and 33). * For instance, the bishops of some methodist sects are not recognized. Compare $ 13, note 10. * The bishops of ‘The Reformed Episcopal Church in England' (a sect origin- ated in opposition to ‘ritualistic excesses in the established church') are not recognized. Chronicle of Convocation of Canterbury, 1878 pp. 170, 175–83. As to the recognition of the bishops of the Moravian brothers no final decision has yet been reached. Cf. report of committee of third pananglican Conference (1888) in Schmidt, Ronferenz der Bischöfe etc. 1888, Augsburg, 1889 pp. 22, 65. * On the relations of the church of England to the Spanish and Portuguese reformed episcopal church and to similar small groups in France and Italy compare the resolution of the second pananglican conference, 1878, printed in Perry, Hist, of Eng. Church III, 507 c 30 $ 12, and the resolution of the third pananglican conference, 1888, in Schmidt, l.c. pp. 14, 64. In 1894 the arch- bishop of Dublin consecrated a bishop for reformed communities in Spain. On the relations of the church of England to the Swedish episcopal church and to the churches (not conferring episcopal consecration) in Norway and Denmark compare the resolution of the third pananglican conference, 1888, in Schmidt, l.c. pp. 14, 21, 60. * According to articles 22, 24, 28 the doctrines of purgatory and of transub- stantiation and the use of a ‘tongue not understanded of the people' are contrary to Scripture. So also according to the corresponding resolutions of both houses of the convocation of Canterbury, 15th Feb. and 16th June, 1871 (printed in § 14, note 14) is the doctrine of papal infallibility. ... Thus if we con- sider the terms of articles 34 and 19, it would appear not allowable from the standpoint of the English church to treat the Roman catholic church as having equal rights, though this is done in point of fact. § 18] OF MOD ERN TIMES 1S I of bishops, priests and other officers of these churches, done within Competence, are regarded by the English church as, in principle, valid.” Only in so far as the clergy of these foreign churches seek to hold preferment or office in the church of England, or in so far as these foreign churches encroach upon the territories of the English church, is a long series of reservations made.” With bishops of the Greek catholic and of the old catholic churches nego- tiations have taken place for full mutual recognition ; they have, however, borne but little fruit.” * As to the churches which know no episcopal succession pro- pagated by imposition of hands, particularly then, as to the protestant churches of the continent and of Scotland, the practice in regard to the recognition of their equality has varied from time to time. During the reign of Elizabeth and James I the clergy of non-episcopal churches outside England were, in the opinion of the day, accounted regularly ordained priests; * under Eliza- * Thus, for example, a new ordination is not required in the case of a Roman catholic priest passing over to the church of England. Cf. Phillimore, Eccles. Law 145, note (i), 2284 f., and the legal provisions quoted below in note 19.-The Roman catholic church on its part does not recognize the validity of orders conferred in the church of England since the time of Edward VI, basing its objection especially on the form of ordination then introduced. Iłichter, Jörchen recht $ 109, note 5. * Compare, in particular, at the present time 37 & 38 Vict. (1874) c 77 Colonial Clergy Act; also the preamble to 34 & 35 Vict, (1871) c 53: . . . whereas no ecclesiastical title of honour or dignity derived from any see, province, diocese, or deanery recognised by law, or from any city, town, place, or territory with- Žn this realm, can be validly created, nor can any such see, province, diocese or deanery be validly created, nor can any pre-eminence or coercive power be conferred otherwise than under the authority and by the favour of Her Majesty, her heirs and successors, and according to the laws of this Tealm; . . . * Compare Bruno Bauer, Einfluss des englischen Quâlcertatºms andf die deutsche Rultur und auf das englisch-russische Project einer Weltkirche, Berlin, 1878. Discussions of pananglican conferences, and reports of committees of the convocation of Canterbury ‘on intercommunion’ will be found in the Chronicle of Convocation. Relations with the old catholics of Holland, Germany and Austria (who in the last country have as yet had no bishop) and with the Christlcatholiken of Switzerland are determined more particularly by the reso- lutions of the third pamanglican conference (1888), in Schmidt, Konferenz der Bischöfe etc. 1888. Augsburg, 1889, pp. 14, 21, 22, 61 ff. 66 ff. * In the treaty of Berwick, 1586 (printed $ 10, note 26) the religion practised in Scotland and by the protestant princes of the continent is recognized without any reservation touching episcopacy. Bacon, Advertisements touching the Controversies of the Church of England (written probably about 1589; printed in The Works of F. B., ed. Spedding, Ellis and Heath VIII, 87) treats the denial of the validity of foreign mon-episcopal ordinations as a novelty : . . . Yea and some indiscreet per- sons have been bold in open preaching to use dishonourable and derogative speech and censure of the churches abroad; and that so far, as some of our men (as I have heard) Ordained in foreign parts have been pronounced to be no lawful ministers. - * When in 1610 the Scottish bishops, who had not been consecrated by laying on of hands, received consecration from English bishops, archbishop Bancroft declared it unnecessary to ordain them first as deacons and priests, on the ground that in places where episcopal ordination was not to be had, ordination I82 RELA TION TO OTHER C H U R CHES [III, 2. beth,” and temporarily after the restoration of episcopacy under Charles II,” priests who had not been ordained by bishops were allowed to officiate even within the church of England. After that time, however, the view became prevalent that churches with- out episcopal constitution were not to be recognized as being on a footing of equality, a view which obtains at the present day. It has, as we have endeavoured to show above, no support in the fundamental laws of the church of England. Nor is it any the more approved to this general extent in later civil enactments. There is only one point which the act of uniformity of Charles II decides as it should be decided according to the doctrine that non- episcopal churches are not entitled to recognition : it forbids, within the established church of England, any person to be admitted to a benefice who has not received ordination from a bishop.” That is still the law of the land. by a presbyter was to be regarded as valid. Spotiswood, Hist. of Church and State of Scotland Ed. 1851, III, 208, 209. Compare, however, Heylin, The History of the Presbyterians 2nd Ed. 1672, p. 382, who states that Bancroft based his decision on the argument, that there was no necessity of receiving the Order of priesthood, but that episcopal consecration might be given without it.— When, after the restoration under Charles II, the same question arose in com- nexion with the ordination of Scottish bishops, it was answered in an opposite SëIOSé. Bramhall, archbishop of Armagh, newly ordaining after the re-establishment of the episcopal constitution (1660) presbyterian ministers of his bishopric, left the validity of non-episcopal ordination undetermined, inserting in the letters of Orders (probably in every case; one case, at all events, is known) the clause: IWom amm?hilantes priores Ordines (s? quos habuát) mec validitatem aut invali- ditatem eorundem determinantes, multo minus ommes Ordines sacros Eccles?- arum Forinsecarum condemnantes, quos proprio Iudici relinquimus, Séd Solummodo Supplemtes, quicquid prints defuit per Canomes Ecclesiae Anglicanae requisitºlºm . . . . Vesey, The Works of Bramhall, Introduction (Life of B.), Edition 1677 [p. xlviii). * According to 13 Eliz. (1571) c 12 s 1 every person under the degree of a bishop who claims ‘to be a Priest dº Minister of Godes holy Word and Sacra- ments, by reason of any other fourme of Institution Consecration or Orderyng than the forms of Edward VI or Elizabeth, is to declare his assent to the thirty- nine articles. Upon this condition he is to remain in possession of his office and benefice. Nor is any other provision made by this act for new admissions to benefices.-For the fact that in Elizabeth's days clergy officiated in the church of England who had not been ordained by bishops, see ICeble, Hooker's Works, Introduction, Edition 1888, vol. I p. lxxxiv. * 12 Car. II (1660) c 17 enacts that, subject to the condition of taking the oath of allegiance and supremacy, every ecclesiastical person, Ordained by any Ecclesiastical persons before Dec. 25th, 1659, shall be restored to the office and benefice from which he may have been expelled during the civil wars. * 14 Car. II (1662) c 4. s 9: . . . from and after the Feast of St. Bartholomew 1662 no person who now is Incumbent and in possession of any Parsonage Vicarage or Benéfice and who is not already in Holy Orders by Episcop all Ordination or shall not before the said Feast day of St. Bartholomew be ordained Preist or Deacon according to the forme of Episcopall Ordination shall have hold or en- joye the said Parsonage etc. . . . (This involves a change in the act, cited in note 18, 12 Car. II [1660 c 17.) * s 10: . . . no person . . . shall . . . be capable to bee admitted to any Parsonage Vicarage Benefice or other Ecclesiastical Promotion or Dignity mor shall presume to consecrate and administer the Holy Sacrament of the § 19) PROCED URE A.G.4 INST HERE TICS I83 § 19. 3. PROCED URE AGAINST HE RET ICS." PROSECUTIONs for heresy were very rare in England until about the end of the fourteenth century." A definite mode of proceeding Lords Supper before such time as he shall be ordained Preist according to the forme and manner in and by the said Booke (prayer-book) prescribed un- lesse he have formerly beene made Preist by Episcop all Ordination s 11: Provided that the penalties in this Act shall not eact end to the For reimer's or Aliens of the For re? m. It eformed Churches allowed or to be allowed by the Kings Majestée . . . In the introduction to the form of ordination appended to the prayer-book the words are, with express limitation to the church of England: . . . no man Shall be accounted or taken to be a lawful Bishop, Priest or Deacon in the Chºt reh of England, or suffered to eacecute any of the said Functions, eaccept he be called, tried, eacamined, and admitted thereunto, according to the Form here- after following, or hath had formerly Episcopal Consecration or Ordination. Cf. also 37 & 88 Vict. (1874) c 77 Colonial Clergy Act, ss 3, 4. * The following instances of prosecutions for heresy in England before 1377 are collected for the most part by Stubbs, Hist. App. p. 52 l.c. and Comst. Høst. III, 365, note 1 c 19 $494 : — 1. The earliest recorded case (on the date see Stubbs, Comst. Hist, I, 505, note 1 c 12 $ 140) relates to a process at Oxford in 1166. William of Newburgh re- ports (Rer. Bråt. Scr. No. 82) I, 133: . . . comprehens?, tentique sunt in custodia publica. Reac . . . episcopale praecepit Oconiae concilium com- gregar: . . . Moniti, ut poemitentiam agerent, et corpor: ecclesiae un?rentºr, 0mmem consil?? salubråtatem spreverunt . . . Tunc episcopi . . . eosdem. publice promumtiatos haereticos corporal? disciplinae subdendos catholico princip; tradiderunt. Qui praecep?t haereticae infamiae characterem from tº- bºls eOrum inuri, et, spectante populo, virgis coèrcitos urbe expelli, districte prohibems me quis eos vel hospitão recipere, vel aliquo solatio comfovere prae- Sumeret. Similar reports in Rad. de Diceto, Ymagines Historiarum (Rer. Brit. Scr.) III, 318; Rad. de Coggeshale, Chrom. (Ber. Bråt. Scr. No. 66) 122; Walter Map, De Nugis Curialium (written about 1180–90; ed. Wright) 62. — Cf. Assisa Clarendon, 1166 (Stubbs, Select Charters p. 143) c 21: Prohibet etiam domżnus reºc, quod mullus in tota Anglia receptet in terra Sud vel soca Sua vel domo Subse, aliquem de secta illorum renegatorum qui eaccommunicati et Sig- mat; fuerunt apud Oacemeforde. Et s' quis eos receperit, ipse erit ºn miser?- cordia domini regis ; et domus, in qua ill; fuerint, portetur eactra villam et comburatur . . . [Cf. Howeden (Rer. Bråt. Scr. No. 51) II, 273, year 1182: . . . eral tumc quando Publican? comburebantur in pluribus locºs per regnum Franciae, quod reac mullo modo perm?s it in terra Sata, licet ibi essent perplurim?. According to Stubbs, preface to Howeden vol. II p. liv, the remark probably applies only to the continental possessions of Henry II.] 2. In 1210 one of the Albigenses was burned in London. It is not known whether there were formal proceedings in this case. We may surmise that in consequence of the interdict no ecclesiastical judgment was pronounced. (Com- pare also John's order to his servants (20th Nov. 1214] touching the extirpation of heretics in Gascogny. Rymer, Foedera 4th Ed. I, 126.) 3. In 1222 a deacon who had apostatised to judaism was degraded, delivered up to the temporal power, and burned or hanged. Bracton, Bk. III tract. 2 c 9 § 2 (printed in note 2); Wykes, Chron. (Rer. Brit. Scr. No. 36) IV, 63: primo a Hale, Matthew. Historia Placitorum Coronae. 2 vols. Tondon, 1736 (new edition by T)ogherty, London, 1800) I c. 30.—Stubbs. Constit. Hist. III, 365 f. c 19 $404.—Stubbs. His- torical Appendia, TI p. 54 to Report of Ecclesiastical Courts Commission, 1883 (Parliamentary Reports, vol. XXIV). I84 Me ELA TTOM TO OTHER C H U R CHES [III, 3 had apparently not yet been established. Councils of the church and prelates had recourse to imprisonment, degradation and de- livery to the temporal arm. The kings carried out in some cases the sentences of the ecclesiastical courts; in others they proceeded against heresy independently. During the second half of the thirteenth century the discovery of heretics was one of the tasks of the sheriff in the turnits vicecomitis. The legal writers of this time regard heresy as an offence against the law of the land, and name as the punishment of it, as of some other offences, death by burning.” degradatur, Saeculari judicio condemnatus, igne combustus est; Matth. Paris, Chron. Maj. (Rer. Brit. Scr. No. 57) III, 71; quem Falco statiºn arreptum, Sus- pendi fecit. 4. 1236. Instruction of Henry III to the sheriff of Yorkshire to apprehend and imprison until further orders from the king a heretic whose incarceration had been ordered by the prior of the Dominicans without authority; also, others suspected of heresy. Nothing is known of further procedure. Prynne, Records II, 475 (after Claus. 20 Hen. III m. 11 dorso). Hale, l.c. Ed. 1800, I, 394 (also after Claus. 20 Hen. III m. 11 dorso) mentions, that the goods of Ernald de Peregard, convicted of heresy, were confiscated for the use of the king. 5. 1240. A Carthusian at Cambridge was apprehended and sent before the legate for speaking disrespectfully of the pope. No further proceedings are reported. Matth. Paris, Chron. Maj. (Rer. Brit. Scr. No. 57) IV, 32. 6. 1241–2. The goods of Stephanus Peliter, convicted of heresy, were confis- cated for the use of the king. Hale, l.c. I, 394 after Claus. 26 Hen. III m. 15. 7. By letter of 18th April [1284] (Regist. Epist. Peckham : Rer, Brit. Scr. No. 77 ; II, 705) Pe2kham begs king Edward I not to order the release of the heretics, kept prisoners in London by the king's instructions, before ecclesiasti- cal examination. 8, 1286–88. A certain Tichard Clapwell was excommunicated by archbishop Peckham for heretical doctrines. He proceeded to Rome; was there bidden to hold his peace; afterwards he died insane. Arºmales de Dunstaplia (Rer. Brit. Scr. No. 36) III, 323, 341. Upon this case see also preface p. xxxv to vol. III Regist. Epist. Peckham (Ber. Brit. Scr. No. 77). 9. 1811 and 1312. The charges against the templars were investigated by provincial councils. The examination of the accused and further judicial pro- ceedings took place before special inquisitors under papal instructions. Cf. #º Lea, A History of the Inquisition of the Middle Ages, New York, 1888, III, 298. -- - (In Ireland heretics were first burned in 1324 and 1327. See Stokes, Ireland and the Anglo-Norman Church 375, note 1.) * 10. In 1830 during the persecution of the franciscans some of them were, if we may trust the Chrom. Monasterić de Melsa (Rer. Brit. Ser. No. 43) II, 323, burned in Anglia in quadam sylva. Stubbs, Const. Hist. II, 492, note 3 c 16 § 265, however, regards the fact as not sufficiently attested by this evidence. Compare also the royal warrant of arrest, dated 3rd Oct. 1833, in Rymer, Foedera 4th Ed. II, 870. 11. In 1836 a former franciscan, Ranulf, was brought as a heretic before the bishop of London and by him imprisoned at Stortford, domec deliberaret de €0 quid foret faciendum. Ranulf died in prison not long afterwards. Annales Pawlini (Rer. Bråt. Scr. No. 76) I, 365. * Glanvilla (about 1180–90) does not know the punishment of burning for any offence—in particular, not for incendiarism. Book XIV c 4. Bracton, De Legibus etc., lib. III tract. 2 c. 9 $ 2 (about 1230–57; Rep. Brit. Ser. No. 70, II, 300): . . . (Clericus, si) . . . convictus fuerit de apo- stasia, . . . primo degradetur, et posted per manum lafcalem comburatur, secundum quod accidit in concilio Oacomżensi, celebrato a bomae memoriae S. Cantuarèens: archiepiscopo, de quodam diacomo qui se apostatavºt pro qua- § 19) PROCED URE AGAIAWS T H E RETICS I85 Instances of prosecution multiplied rapidly after the rise of Wycliffe (that is, after about 1363) and the lollards, the sect whose tenets were based on his. At first in isolated cases the bishop who initiated process was allowed by royal writ to keep the condemned heretics in prison.” State legislation applicable to all cases began with 5 Ric. II st. 2 (1382) c 5.4 Under this act the prelates might Certify the chancellor of persons who preach heretical doctrines, or of the abettors of such persons; the chancellor was to give com- Imissions to the sheriffs and other ministers of the king to arrest and keep in prison the offenders till they justified themselves “according to the law and reason of holy church.” Moreover, dam Judea, gwi cum esset per episcopum degradatus, statim fuit ign; tra- ditus per manum laicalem. Fleta (about 1290) lib. I c 29 De Abjurationibus. § 7: Committentes autem. Sacrilegium per Ecclesiaſm tuer? mon debent, sed per Clerum judicamd? et degradandi : et hoc idem dicitur de Clericis Apostatis, Qwibus convictis, per Clerum statim degradentur, deindeque per Manum comburentwr Clericalem (?Lačcalem); lib. I c.35 § 2: Christian? autem. Apostatae, Sortilegi et hujus mod? detractarô debent et combur. Britton (about 1291–2) lib. I c 10 De Arsoºms: Aus? soët enquês de cevac ge feloumousement en tens de pes eynt autri ble2 on autrº mesowns arses ; et cewa: Q? de ceo Serovnt atteyntz so int a rs, issènt ge evac Sožnt puniz par meymes tele chose dunt il peccherent. Et meymes tiel jugement eyºt sorciers et sorce- Tesces, et ren yea, et sodomºtes, et mes crea untz apertement atteyntz. (Ac- cording to the note on the passage in MS. N ſprinted in Nichols's edition, I, 42, mote Z] the ‘inquirers of Holy Church are to conduct the examination of sorcerers, Sodomites, renegates and misbelievers and deliver the guilty to the king's court to be put to death ; nevertheless, if the king by inquest find any guilty of such sins, he may put them to death come bon. Mareschal de la Chrest?eneté. These notes were probably written between 1295 and 1316. Nichols, l.c. Introduction, p. lxi.) In lib. I c 30 $ 3 we read that at the turmus vicecomités inquiry is to be made among other things de renyez et mescreauntz. MŽrrow” aude Justices (end of 13th or beginning of 14th cent.) c 4 s 14: Le judgement de Heresy est quadruple, le un est eaccommengement, le autre degra- dation, le tierce disherison, et le quart d’estre arse en cemdres. s 15: Le judge- ament de arson se formist per pendre a la mort, quº soloit formär per arder; . . . * Cf. writ of Edward III of 20th March, 1370, to the bishop of London (in Rymer, Foedera 4th Ed. III, 889):- Quia accepimus, per inquisitionem, vestram, Quod Nicholaus de Drayton coram vol) is congrue convictus et pro he retico adjudicatus eacăstit; Quodque, in Sºto errore nephando . . . mequiter perseverans, ad fide? Catholicae unitatem redire non curavit mec curat in praesenti, licet saepius ad JOc excitatus et inductus, sententiam majoris eaccommunication?s in hac parte Žncurrendo, . . . ; Cum 'gītur, sancta mater ecclesia ita tales he reticos proseqwitur, ne swo vemeno alios inficiant, ut in carcerºbus custodiri praecipiat ; Super quo mob's suppl?cast is, ut vobis dictum. Nicholaum carcerall cus- todiae vestrae mancôpare, et à pswºm £m car cere vestro custo dire, quo- at sque errorem swum hujus modi mephandum revocaverit, et ad fide: catholicae wn?tatem redire volwerit, l: centº a m in hac parte special em conce dere d & gºvem u r ; Nos., . . . , quantum in mobis est, licentiam concedźmus specialem. * According to the bull of Urban VI, 30th March, 1382 (Rymer, Foedera 4th Tºd. IV, 144), confederations, leagues and conventions with schismatics or heretics are not binding. - * The preamble to the act sets forth that the measure was adopted by all the estates. c 5 runs :— . . Ordene est en cest parlement ge commissions du Roi sołent direct2 as 186 RELATION TO OTHER C H U R CHES |III, 3. by royal letters patent of July 12th, 1382, the bishops were em- powered to apprehend and detain all heretics until they recanted, or until the king and his council made other provision concerning them; the civil officers were instructed to execute the bishops” Orders in respect of these arrests and detentions." In the same year the commons preferred a request that 5 Ric, II st. 2 c 5 might. be repealed as not having had the assent of the lower house. The- king promised to grant their petition; nevertheless no entry that. the enactment was repealed was made in the rolls." In 1887 was. issued, this time in understanding with the house of commons, a new Order by the king to his officers, enjoining the incarceration of heretics and the confiscation of heretical books. In this order the Co-operation of the ecclesiastical authorities is not contemplated. But the bishops received a separate instruction to take action in their several dioceses according to canon law.” Yiscontz et autres Ministres du Itoi . . . apres et Solomc les certificacions de prelatz ent affaires en la Chancellarie de temps en temps darester toutz. tiew2 precheours et lours fawtours maintenours et abettown's et de les tem?r em. a rest et forte p r some tamtge ils se veullent justifier Selonc reson et la legſ de Se? mte Eglºse: et le Rož voet et commande ge le Chanceller face tieles. commissions a tow 2 les foºt 2 qāl Sera par les prelatz Ov ascum de euoc certi- fie et ent requis come dessuis est dit. According to Stubbs, Comst. Hist. II, 487, note 2 c 16 $265, the foregoing statute was passed in the session of 7th–22nd May. * Wilkins, Concilia III, 156: . . . Nos . . . praefato archiepiscopo. (of Canterbury), eiusque suffragame's, ad Ommes et singulos, qui dictas con- clusiones sic dammatas praedicare, Seu manutemere vellent, clam vel palam, Qibicumque inven??? possent, arrestandos, et prison's suis propriés, sew al?-, Orum pro €0rum beneplacito committendos, in eisdem detimendos, quousque ab errorum et haeresium pravitatibus res?p?scant, vel de hujus mod? arrestatis, per mos vel concilium mostrum aliter foret provisum, ductoritatem et licentiam, tenore praesentium, concedimus et committimus speciales. Mamdamites ºn- super et injungentes universis et singulis lige's ministris et subditis mostris (wt) . . . archiepiscopo, eiusque suffragame's, ac ministris Swis in eacecutione praesentium parednt, obediant humiliter, et intendant. . . . " In the session of 6th–24th Oct. 1382 the commons voted a petition that the enactment might be repealed (Rot. Parl. III, 141): . . . Laquiel me fu?st wnques assental me grante par les Communes, mes ce qe fužst parle de ce, fußst Sanz assent de lour; Qe celui Estatut soit amnienti, qar il m'estoit mie lour entent d’estre justifiez, me obliger lour me lowr successours as Prelats pluis ge lours awmcestres m'ont este en temps passez, Answer : Y plest au Roi. Why no entry of the repeal appears in the rolls is not known. Stubbs, Const. Hist. II, 493, note 1, 630, c. 16 $265, c. 17 § 293. In the statutes of the reformation period 5 Ric, II St. 2 c 5 is treated as valid; thus, for example, it is confirmed in 25 Hen. VIII (1533/4) c 14 s 2. * Wilkins, Concilia III, 204. King's mandate of 30th March, 1887, to the sheriff of Nottingham and other officials : . . . assignavīmºus v0s e ad omnes et singulos libros . . . praedictos . . . investigandos, capi- endos, et arrestandos . . . ; ac ulterius ad proclamandum, me quis i. sub poema imprisomamenti et for isfactura omnium, quae mobis for isfacere poterit, aliquos hujus modi libros . . . de caetero emere vel vendere, Sent aliq was hujus modi pravas et mefarias opiniones manutemere et docere prae- sum at quovăsmodo ; et ad Ommes illos, quos post proclamationem et inhibiti- onem praedictas inven?retis in contrarium facientes sămăliter arrestandos, et prison's mostris mancipandos, in eisdem detimendos, quousque pro €orum. deliberatione aléter duoceramºus ordinandum. to º - Henr. de Knyghton, Chronicle (edited by Twysden. Cf. appendix XIV, II, 1 c No. 92) 2708: . . . Reac vero samo consilio tocinus parliament; in hac parte § 19) PROCED URE AGAINST HERE TICS 187 More stringent measures were not taken until the following reigns. 2 Hen. IV (1400/1) c 15, promulgated upon petition both of the clergy and of the commons,” prescribed as the punishment for diffusing heretical doctrines confinement in the diocesan's prison ‘as long as to his discretion should seem expedient’; for refusing to abjure or for relapse, death by burning. It allowed the arrest of the accused by and upon the initiative of the diocesan, and made the royal officers, when sentence had been passed, mere instruments in the execution of that sentence.” Shortly before the promulga- tion of this act the king in an isolated case gave orders for the burning of a person condemned by convocation for heresy (26th February, 1401)." attens, jussit archiepiscopo Cantuariensi caeterisque Episcopis Regni ut offi- cium Suum singuli ºn Suis dioces?bus secundum jura camonica acrºus et fer- Ventºus exercerent, delinquentes castigarent, librosque eorum Anglicos plenius examinarent, errata exterminarent populumque in unitatem fide? orthodoacae "educere studerent, . . . Et jussit rex station absºle dilatione literas suas patentes in Singulos comitatus regni velocius mitti, et in quolibet comitatu, certos inquisitores de hujusmodé libris et eorum fautoribus instituit, praeci- piens eis ut remedium celerius appomerent, rebelles proacimo carcer; mancî- parent donec reac eis mitteret. Sed eacecutio tarda et quasi mulla affuit. . . . "The petition of the commons had run (Rot. Parl. III, 473): Item priount les Communes geºgamt ascum Homme ou Femme, de quel estat ou condition Q'il 80%t, 80?t pris et emprisome pur Lollerie, qe maintenant soit mesme en respons, et eit tºel juggement come il ad deservie, en ensample d'autres de tiel male secte, pur legerement cesser lour malveis Predications et lour tenºr a Foy Christien. Answer: Le Rož le voet. 10 . locł Diocesanus . . . psam persomam . . . possit facere arrestar? et sub salva custodia in sºlºs carceråbus detåner?, quousque abjuraverit . . . Ita quod dictus Diocesanus per se vel Commis- Sarios Suos contra hujus mod? personas sic arestatas et sub salva custodia. ºrémanentes ad Ommem. juris effectum publice et judicialiter procedat, et nego- cium hujus mod? infra tres menses post dictam arestacionem, impedimento legitimo cessante, terminet juacta canonicas sance?ones. Et s' aliqua persona ºn aliquo casu. Superiºus eacpressato coram loci Diocesano sew Commissariis Sºtº's canon?ce fuerit convicta, tumc idem Diocesanus dictam personam sic con- victam pro modo culpe et secumdum qualitatem delict; possit in Swis carcer?- bus facere custodiri prout et quamdīu discrecion? sue videbitur eacpedire; ac Qulterius eandem personam, preterquam in casibus quibus secundum camom?cas Samcciones relinqui debeat Curiae seculari, ad finem pecuniarium Domžno Regº Solvendum pomere, prout hujus mod? finis eidem Diocesano pro modo et qual?- tate delict competens vided tur; . . . Et s' aliqua persona . . . coram locł Diocesano vel Commissariis suis convicta fuerit, et hujus modž nephandas Sectam predicaciones doctrinas opiniomes scolas et informaciones debite abju- Tare recusaverit, aut pen locł Diocesanatºm vel Commissarios Suos post abju- Tacionem pers eandem personam factam pronunciata fuerit relapsa, Žta Quod Secundum canonicas Samcciones relinqui debeat Curiae seculari, super gºt 0. cred a tur locº Džo c e s a mo sent Com m is sarà is sw is in hac parte, tumc Vicecomes illius locł, et Major et Vicecomites sew. Vicecomes aut Major et Ballºvë Cºvitatis Ville vel Burg; ejusdem Comitatus, dicto Diocesano sew dictis Commissar??s magès propºnqui, in Sentenciis per dictum Diocesamum aut Comm?ssarios Suos contra personas hujus mod? et àpsarum quaml?bet profe- 7'endès, cum ad hoc per dictum Diocesanum aut Commissarios ejusdem fuerºnt Tequisitº, personaliter sånt presentes; et personas Žllas et quamlibet earundem, post hujw87modž sentencias prelatas recipiant, et easdem cor a m pop ulo 77). em. Żment 2 loco comb ur à facá ant, . . . * The order is printed in Tymer, Foedera 3rd Ed. III pt. IV, 197. On the I88 RELATION TO OTHER CHURCHES [III, 3 In the year 1406 a new enactment against the lollards was agreed by king and parliament. This was to have validity until the next parliament. Provision was made in it for the pronouncing of judgment by the king and the peers, without the co-operation of ecclesiastical courts. The enactment was not put on the rolls, for what reason is unknown.” At the convocation of the southern province at London in 1409 elaborate measures were voted to prevent the spread of heretical doctrines, and more precise rules were given for the manner in which the prosecution of transgressors before the bishop's court was to ensue.” A new and severe act, 2 Hen. V st. 1 (1414) c 7, was passed after the suppression of a lollard rising. By it to the earlier penalties against Obdurate or relapsing heretics is added forfeiture of the property of the executed. Lands and tenements are to fall to the feudal lord ; goods and chattels, to the king. The procedure is discussions which preceded cf. Stubbs, Const. Hist. III, 32 f. c 18 $ 308.-Ac- ecording to Stubbs, l.c. III, 370 c 19 $ 404—against Blackstone, Comm. IV, 46— this is the only known case of a writ de haeretico comburendo before 2 Hem. IV -c 15. In that act the necessity of a royal order is not laid down, yet it seems, in point of fact, to have been obtained. (Cf., for instance, in the case of Badby the king's order, dated 5th March, 1410, in Rymer, Foedera 3rd Ed. IV pt. I p. 169.) 25 Hen. VIII c. 14 (cf. below, note 20) expressly required the procuring of a writ de haeretico comburendo. From the time after the repeal of the latter ..act cf. e.g. the royal Order of 1556 touching the burning of Cranmer, printed in Cardwell, Doc. Ann. I, 168; an order (1558) in Wilkins IV, 177; the orders of .1612 in regard to the burning of Legatt and Wightman in Somers, Tracts II, .400, 403. * Rotuli Parliamentorum III, 583: Item, mesme le jour, le dit Monsieur Johan (the speaker of the commons) myst avaunt en I’arlement un Petition :touchant les Lollardes, et autres parlours et controvours des Novelac et des Men Songes, et pria en moun des ditz Communes, qe mesme la Petition purroit estre enactez et enrolle2 en Rolle de Parlement, et tenuz pur Estatužt tan q'al proschein Parlement: Quel prier le Roy, de l'advys et assent des Seigneurs em. Parlement, graciousement ottroža. De quel Petition le tenure s'ensuit en cestes parols : . . .. Q'en cas Q'ascum homme out femme . . . preche, publie, ou maînteigne motoirement, ou tiegne, use, ou eacerc?ze ascºln's Escoles d'ascum Secte ow. Doctrine desore en avaunt encountre les su's ditz Foye Catholike, et sacramenta de Seinte Esglèse, et la determination d'êcelle; ow preche, publée, ow maynteigne motoirement, ou escrive, ou publée, ascume cédule par ’ont le poeple purra estre moevez pun oustir ow tollir les temporeloc Possessions de suis ditz Prelatz et Ministres de seinte Esglèse . . . ; ou preche . . . . qe Richard madgaºrs Roy, qi mort est, Serroit en ple?me vie . . . ; ou ge publée ..ascume pretense faua`e Prophecie a votre poeple, en commocion et affraye d'êcelle ; Ils . . . sočent arestuz . . . pur les aver corporelment au prosche?” Parlement lors ensuant, pur respoundre, receyver, et attendre tielac jugementz come ēls aweront deservāz, et de evac serrount remduz par Vous et vos heirs et Wes Paires du votre Rožaume ; . . . Cf. Stubbs, Const. Hist. III, 371 c. 19 § 404. * These ‘constitutions’ are printed in Wilkins, Concilla III, 314. The royal decree, issued with the assent of the estates (printed Wilkins, l.c. p. 328 and Mansi XXVI, 1042) does not belong to this council, but is identical with the parliamentary act 2 Hen. IV c. 15.-For attempts in the parliament of 1410 to secure a relaxation of the act 2 Hen. IV c. 15 by having the offenders committed to the royal and not to the bishops' prison, see Stubbs, Comst. Hºst. III, 65, note -4 c 18 $ 3.16. * § 19 - PROCEDURE AGAINST HERETICS I89. supplemented as follows: the royal officers are to assist the bishop. in making arrests; the king’s judges are independently to make inquest of heretics; but suspects are always to be delivered up to the ecclesiastical judges, who give judgment after process before themselves.” - This legislation remained operative until the reformation. In all these laws and Ordinances the execution of punishment. On a heretic depends on the initiative of the diocesan, or of the episcopal court. In this manner England was preserved from the rise of special ânquisitores haereticae pravitatis,” and the prosecution of offenders was thus less harsh. The right of the diocesans to take cognizance of heresy extended—by delegation from the pope—to exempt dis- tricts." Besides the bishops and their courts the provincial synods were sometimes engaged in prosecuting heretics; but they seldom appear as pronouncing judgment." Henry VIII, in a proclamation of the year 1530, impressed on his officers the provisions of earlier laws against heresy and gave certain 14 . por tant qe la conusamce des Heresies errours ou Lollardries apparteignent as Juges de Seinte Esglèse et nemye as Juges seculers. © tº * Upon occasion of the prosecution of the templars (1309 ft.) the pope sent a commission for special inquisitors in England, Scotland and Ireland. The king gave them safe-conducts, empowered them to proceed per legem ecclesiasticam and instructed the royal officers to assist them. Moreover he entrusted a special official with the supervision of the whole proceeding and with the duty of supporting the inquisitors. Tymer, Foedera 4th Ed. II, 93, 94, 100, 104, 111, 183; Historical Papers from Northern Registers (Rer. Brit. Scr. No. 61) 194 f.-Letter of Benedict XII to Edward III, 6th Nov. 1335 (Theiner, Monumenta p. 269 No. 532): . . . Sicut accepimus in eddem Hybern?a et Regno aliaque terra twº domżnº. Anglie mom Sunt inquisitores hereseos, mec eac officio inquisition?s sue pravitatis hereseos ?bādem invenir? et pumārž soleant, propter quod intra et privilegia Żnquisition?s eiusdem pravitatis incognita et Žnusćtata änäbä eſcistere dinoscuntur, . . . ; Wyclif, De Eucharistia (ed. Toserth for the Wyclif Society. 1892) 139 : . . . benedictus Domžmus Tegnum mostrum liberatum est ab Žsta ºnquis?cłome heretice pravitatis, Wyclif, Sermons (ed. Loserth for the Wyclif Society. 1887 ff.) III, 519: Twob?!?ores reges Anglèe mom sºmebant ºn mom?ne pape žnfrare ºn regnum swum wocatos inquisitores heretice pravitatis, . . . —According to Shirley, In- troduction to Fascicul; Zºzangorum (Rer. Bråt. Scr. No. 5) it is doubtful whether the carmelite, Thomas Netter of Walden, was appointed on petition of parliament soon after the council of Pisa inquisitor-general in England.—Cf. also Hinschius, Kärchen recht W, 456, note 4. - * Cf. Lyndwood, Provinciale Book V tit. 5 p. 296 de haereticis, Gloss on Ordinaráž : Episcopi in suis dioecesibºts quº habent ordinariam jurisdic- tionem circa mom eacemptos suae dioecesis. Circa eacemptos vero in sua. dioeces; eacăstemtes habent jurisdictionem delegatam, a Papa . . . Cognitio & haeres's duobus tantum judicibus ºn jure permittitur viz. Episcopo locł, et Inquisitor; haereticae pravitatis a sede Apostolica deputato. * The constitution, dated 1st July, 1416, of Henry Chichele, archbishop of Canterbury (Wilkins, Concilia III, 378) prescribes that bishops, archdeacons and commissaries are to make inquest for heretics within their several dis- tricts at least twice a year. After the bishops have given judgment, they are to report the judgment and its execution to the next convocation, and to give up the records of the proceedings to the archbishop's official for safekeeping.— For the various cases of heresy known between 1877 and 1466 and the proce- dure in each see Stubbs, Høst. Append. II pp. 54 f. to Ecclesiastical Courts Commission, 1883. - • 2 I90 RELATION TO OTHER C H U R CHES [[II, 3 supplementary rules for dealing with heretics.” Three years later 25 Hen. VIII (1533/4) c 14, whilst retaining the penal provisions before in force, introduced an alteration of procedure which was in favour of the accused.” According to this act, trial is still by the ecclesiastical courts; but it must be public. Further, at least two lawful witnesses are required. Lastly, it is expressly declared that the king's writ de haeretico comburendo must be obtained before an offender is executed.” # The rapid progress of freer church views compelled the king, who desired no reformation in matters of faith, to take further steps. 31 Hen. VIII (1539) C 8 gave proclamations made by the king and his council the force of law, the power so conferred being intended to be particularly wide in cases of heresy.” At the same time the six article law was passed, 31 Hen. VIII (1539) c 14. It con- tains in its penal provisions a note of increased severity, in that it punishes, not merely upon refusal to abjure or upon relapse, but On the first expression of heterodox opinion. On the other hand, it is in so far more lenient that under it only the utterance of definite opinions offending against the doctrine of transubstantiation is punished as heresy, that is with death by burning. Speaking against five other leading doctrines is threatened with the punish- ment of death as felony Only when it is done in public preaching, school or meeting, when stubbornly persisted in, or when there is relapse; otherwise the punishment is lighter.” The procedure is essentially altered in that the execution of the law is entrusted to royal commissions with punitive powers.” Side by side with the six article law there next appeared on the statute book 34 & 35 * Printed Wilkins, Conc. III, 737. No one is to spread heretical doctrines by preaching, writing, holding meetings or keeping schools; no one (curates ºn their parishes, persons privileged, and other by the law of the church only eaccept) shall preach without the licence of the bishop of the diocese. Heretical books shall be delivered up. Transgressors shall be arrested on the bishop's motion and remain in prison until they have purged themselves of their errors or abjure. On convicted persons the bishop may impose a fine to be paid to the king, or may keep them in prison. If abjuration is refused (in the docu- ment the word not is missing before abjure) or the heretic be pronounced to have relapsed, then the civil officer shall be present at the sentence given by the bishop and carry it into execution. The justices are to search out heretics, apprehend them and deliver them to the bishop for judgment.—In the same year another proclamation, milder in tone, was issued by the king, intended to promote the surrender of heretical books. Printed in Wilkins, Conc. III, 740. * 2 Hen. IV c. 15 is repealed by s 1 (the language of the act is, however, not quite clear); by s 2, 5 Ric. II st. 2 c 5 and 2 Hen. V st. 1 c 7 are confirmed in so far as not contrary to the new act; S 7 declares that speaking against the pope and his decrees is not heresy. * Compare above, note 11. * s2, sub finem. * On the six article law compare $ 16°. According to the words of the act the mere ‘holding” of the opinions condemned is punishable. The later amend- ing acts quoted in § 22, note 20, also passed in Henry VIII's reign, do not affect the main provisions given above. * SS 7 ff. The archbishops, bishops and their chancellors or commissaries were to be appointed members of the commissions. * $ 19] PROCED URE AGAINST HERE TICS I9 I Hen. VIII (1542/3) * c 1. Dealing with the denial of doctrines, which had been promulgated by the king in definite form since 1540 or which should be promulgated by him in his lifetime, it reserves the punishment of death for ecclesiastical persons who 'stubbornly refuse submission or relapse a second time, but does not assign that punishment to lay persons even upon refusal to abjure or repeated relapse.” Procedure is to be before the bishop and two justices of the peace, or before two members of the council, or before royal commissioners. The reign of Edward VI began with the repeal by 1 Ed. VI (1547) c. 12 of all laws before passed touching matters of belief.” Nevertheless, the burning within the next few years of an ana- baptist and of a socinian for heresy is on record.” By 1 & 2 Phil. & Mar. (1554 and 1554/5) c 6* the three older * Cf. also 32 Hen. VIII (1540) c 26 Concerning Christes Religion, which enacts: that all and every determinations declarations decrees diffinitions resolutions and Ordenaumces, as according to Goddis wounde and Christes gospell by his Majesties advice and confirmation by his lettres patentis undre his Graces greate seale shall at anny tyme hereafter be made sett furth declared decreed diffined resolved and ordeyned, by the said Archebishops bishops and doctours (a commission appointed by the king) move appointed or other per- Sonnes hereafter to be appoincted by his roîal Majesty or ellis by the hole clergie of England, ºn and upport the maters of Christes religion and christien faith and the lawfull rites ceremonies and observations of the same, shalbe in all and every poincte . . . . . by all his Graces subjects . . . fully be leved obeyed observèd and perfowrmed . . . w pom the paymes and penalties ther?” to be comprised . . . provided . . . that nothing shalbe doon ordeyn?d defymed or provided by auctoritie of this acte, whiche shalbe Tepugnant or contrariant to the lawes and statutes of this Realme; . . . —The act had reference (according to Perry, Hist, of Engl. Chitreh II, 170 c 10 § 17) to the intended revision of The Institution of a Christian Man, published in 1537 (cf. On this book Ś 6, note 26). The product of that revision, The Neces- sary Erudition of any Christian Man (cf. § 6, note 27), was, however, first published in 1543 and fell under 34 & 35 Hen. VIII c. 1. * S 17 enacts that an ecclesiastical person shall— On the first offence . & ... recant. On refusal to recant or on a second offence . abjure and bear a faggot. On refusal to abjure or on a third offence be burned as a heretic and forfeit goods and chattels. A lay person shall— On the first offence . c & g tº recant and be imprisoned for twenty days. On refusal to recant or on a second offence . abjure and bear a faggot. On refusal to abjure or on a third offence . forfeit goods and chattels and be imprisoned for life. * S 2 repeals: 5 Ric. II st. 2 c 5. 2 Hen. Vist. 1 c 7, 25 Hen. VIII c. 14, 31 Hen. |WIII c. 14, 34 & 35 Hen. VIII c. 1, 35 Hen. VIII c. 5 (this last act had modified Some provisions of the preceding one as to procedure) and all and every other Acte concerning doctrine and matters of Religion. * * Perry, Høst. of Engl. Ch. II, 200 c 11 § 30: in May, 1549, Joanna Bocher, On 15th April, 1551, George van Paris. The sentences of the courts which sat under royal commission and with Cranmer as president are printed in Wilkins, Conc. IV, 42–45. - f * An Acte for the remueng of three Estatutes made for the punishement of Herestes; it revives 5 Ric. II st. 2 c 5; 2 Hen. IV c. 15; 2 Hen. Vist. 1 c 7. I92 RELATION TO OTHER C H U R CHES [III, 3 enactments against heresy which had been in existence before Henry VIII's time were revived, but not similar statutes made in his reign. Elizabeth in 1 Eliz. (1558/9 c 1) repealed the act of Mary just mentioned and the three older acts specified therein.” The idea of heresy is not however thereby abandoned; on the contrary, it is expressly defined, essentially as being whatever is in contradiction to ‘the authority of the canonical Scriptures or ‘the first four general councils.” Moreover, arrest by the civil powers of those excommunicated by the ecclesiastical authorities for heresy or erroneous doctrines still remained.” In spite of the fact that the heresy laws proper were repealed and that no act of parliament imposed such a penalty,” in 1575 there were two cases,” and in 1579. One case, of persons burned to death for the anabaptist heresy.” - From the reign of James I again, we have accounts of two cases (1612) in which heretics were burned. The old procedure was followed in them : the bishop's court (the bishop with assessors) pronounced sentence, the king directed his chancellor to send the writ de haeretico comburendo to the secular executive officer, and the latter carried it into effect.” The right of the ecclesiastical courts to inflict fines and imprisonment for heresy was generally recognized even at this time. - The still dangerous weapon was not finally wrested from the * An Acte restoring to the Crowne thauncyemi Jurisdiction over the State Ecclesiasticall and Spirituall, and abolysh?ng all Forreàne Power repugmaunt to the same : s 6. - 30 s 8 Correccion of Heresies belongs also to the royal prerogative; the power to exercise it can be.conferred on commissioners (it is part of the high commis- sion). s 20 enacts: The . . . commissioners . . . shall not ºn any wise have Auct/lorëtie or Power to order determine or adjudge anny Matter or Cause to bee Heresie but omelye Suche as heretofore have been determined ordred or adjudged to bee Heresłe by thauctſ oritee of the Canonicall Scrip- tures, or by the first fowre generall Councelles (cf. however art. 21 in appendix XI), or any of them, or by any other generall Councell wherin the same was declared Heres?e by theºcpresse and playne woordes of the sayd Canonicall Scriptures, or suche as hereafter shall bee ord redd judged or deter- mºned to be e Heresye by the High e Cou'rte of Parly a memt of thºs Real me with e th as sent of the Clergie in the ºr Con vocacº on ; . . . * 5 Eliz. (1562/3) c 23 s 7: in cases of Heresie . . . or Errow,' in Matters of Religyon or Doctryne mowe receyved . . . in the . . . Churche of Englande. (More fully in § 61, note 19.) * Compare also Coke, Reports XII, 56 ff. According to Coke, Reports XII, 98 four judges in 9 Jac. I gave an opinion that the issue of a writ de haeretico combwrendo was still allowable (Coke held it mot allowable. Compare, how- ever, Coke Instit. III, 39 ff.), but that it was safer to effect the condemnation of the heretic through the high commission court. * Fuller, Church. Hist. Ed. 1845, IV, 390. The order for the burning is in Rymer, Foedera 3rd Ed. WI pt. IV, 161. Wilkins, Conc. IV, 281. * Perry, Hist. of Engl. Church II, 315, note 3 c 19 $ 3. * Fuller, Church Hist. Ed. 1845, W, 422 f. Gardiner, History of England from the Accession of James I, II, 43. The king's orders to burn are in Somers, Tracts II, 400, 403. In a third case there was also a condemnation; the king, however, merely caused the condemned to be thrown into prison, where he died. Tuller, l.c. 424. § 19 PROCED URE AGA TWS T HERE TICS I93 ecclesiastical authorities even by the first revolution. The act abolishing the high commission court, 16 sq. Car, I (1640 ft.) c 11, forbade the infliction of fine, imprisonment or corporal punishment in any matter belonging to ecclesiastical cognizance.” During the ascendency of the presbyterians in the English house a parlia- mentary ordinance, dated May the 2nd, 1648, threatened stubborn opposition to certain doctrines with heavy penalties to be imposed by secular judges.” But on the restoration a return was made to the previous state of the law, in that 13 Car. II (1661) st. 1 c 12 repealed the above mentioned provision of 16 Car. I c 11, and further declared that nothing in that act took away the Ordinary powers of the bishops and their officers, but that these powers still Continued.* . - Some years later 29 Car. II (1677) c. 9 abolished the punishment of death as a consequence of condemnation by any ecclesiastical authority. But the power to punish heresy and similar offences by purely ecclesiastical penalties was neither to be abridged nor taken away. * Cf. § 7, note 36. * Cf. Ordinance of the long parliament, dated 2nd May, 1648, For the punish- Žng of Blasphem?es and Heresies, with the several penalties therein expressed. Stubborn maintenance and publication of opinions against certain specified doctrines [principally those of the triune God, the resurrection, the last judg- ment, and that the Bible is the Word of God] are to be punished, if abjuration is refused, as felony with death without benefit of clergy. In case of abjura- tion, the abjurer is to remain in prison until he gives surety, himself and two Others, that he will not in future maintain or publish such opinions. Re- lapse is to be punished as felony with death without benefit of clergy. In case of publication or stubborn maintenance of certain other heresies [viz. that all are saved; worship of images; purgatory; that no one is obliged to believe more than he can comprehend ; against the ten commandments; against the Sacramental character of baptism and the communion; against infant baptism; in favour of rebaptism; against the permissibility of the English (then presby- terian) church Service and against the character of her clergy as true clergy; against the government of the church by presbyteries; against the power of the state (in ecclesiastical matters) as determined by law in England; against taking up arms in a righteous cause for public defence], the offender is to be called on to revoke before the congregation. If he refuses, imprisonment until Sureties given, as above. Ordinance of rump, 9th August, 1650, Against several Atheistical, Blasphe- mous and Eacecrable Opinions, derogatory to the honor of God, and destructive to human Society. This ordinance is directed rather against immoral than irreligious doctrines. * Compare $ 7, note 69. * An Act for takeing away the Writt De Heretico cumburendo. s 1: Bee it enacted . . . That the Writt commonly called Breve de Here- tico Comburendo with all Processe and Proceedings thereupon in order to the eacecuteing such Writt or following or depending thereupon and all punish- ºnent by death in pursuance of any Ecclesiasticall Censures be from henceforth ºttterly taken away and abolished. tº s 2: Provided alwayes That nothing in this Act shall extend or be construed to take away or abridge the Jurisdiction of Protestant Arch-Bishops or Bishops or any other Judges of any Ecclesiasticall Courts in cases of Atheisme Blas. ſphemy Heres?e or Schisme and other dammable Doctrines and Opºon's bºtt that they may proceede to punish the same according to his Majestyés, Eccle- SČastácall Lawes by Eaccommunication. Deprivation Degradation and other H. C., O I94 PROCED URE AGAI WST HERE TICS [III 3 Since the end of the seventeenth century the competence of the ecclesiastical courts to inflict penalties for non-submission to the doctrines of the established church has gradually been still further restricted,” without, however, being entirely destroyed. At present ecclesiastical process against laymen is almost wholly obsolete, both generally and for heresy in particular; but against the clergy for disciplinary purposes appeal is still sometimes made to ecclesiastical tribunals.4 Ecclesiasticall Censures mot eactending to death ºn such sort and moe other as they might have dome before the make?ng of this Act. - * 1 Gul. & 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. III (1697/8) c 35 cf. § 61, note 23. IV. (ſht Clergy and their Örötts. 2. § 20. 1. G E N E RAL.” 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 office is, according to the prevailing opinion in the church of England, a perfectly distinct One, not merely special dignity combined with the priestly office.” The five lower orders of the Roman catholic church, ostiarius, lector, exorcista, acolutha and subdiaconus, 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, Angelsächsische Rechtsgeschächte § 61. * Introduction to prayer-book form of ordination : It is evident unto all mem. diligently reading the holy Scripture and ancient Authors, that from the Apostles' time there have been these Orders of Mžnisters 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 . . . eaccept he be called, tried, eacamined and admitted thereunto, according to the Form hereafter following, or hath had formerly Episcopal Consecration or Ordination. * For the canon law see Richter, Kärchen recht $103, note 11. In England it was disputed, e.g. by Aelfric in a letter to bishop Wulfsin (the so-called camones Aelfricë, 992–1001, printed in Thorpe, Ancient Laws etc. 441 ff.) that a separate episcopal order was to be distinguished. c 17: . . . . N's na mare betwya: maesse-preoste and bisceop, buton baet se bisceop bºč gesett to hadžgemme preos- tas, and to bisceopgemme cºld, and to halgyenne Cyrcan, and to gymenne Godes gerihta, forban be hit waere to maenºgfeald, gif aelc maesse-preost swa dyde, and hy habbağ demne had, beah se offer sij wurčor. (“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 The Institution of a Christian Man, composed by a committee of bishops and approved by the king (1537). Perry, Høst. of Eng. Church II, 152 c 9 $19, a Blunt, The Book of Church Law, Book III c. 1.-Phillimore, Eccles. Law 108 f. } 105 I96 T H E 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 holder 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." Orders 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 V/ct. c 44 s 15, Incumbents Resignation Act, 1871).-Compare also the prohibition 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-book form of consecrating; cf. also 25 Hen. VIII (1533/4) c 20 ss 3, 4 (appendix X), 26 Hem. VIII (1534) c 14s 5 ($ 39, note 4). On the canon law see Richter, Kirchenrecht $ 184, note 23. For England Gregory I had answered in 601 upon the inquiry of Augustine (Haddam and Stubbs, Counc. III, 21): Et guidem in Anglorum ecclesia, in qua adhuc solus tu Episcopus ºn- venºris, ordinare Episcopum non aléter mºs; sine Episcopis potes . . . Cum. e . fuerint Episcopé in propinquis sibà locis ordinati, per omnia Episco- porum ordinatio sine adgregatis tribus vel quatuor Episcopis fier? nom debet. —For Scotland see § 10, note 6a. According to Haddan and Stubbs I, 155, among the ancient Britons and Irish consecration by one bishop was the usage ; on the other hand see Loofs, Antiquae Britonum Scotorumque ecclesiae quales fuerint 7mores p. 25. For the East Indies consecration by only two bishops is allowed by 3 & 4 Gul. IV (1833) 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 jºinion of priests and that of deacons, of certain persons besides the 1SnOp. - * See article 25 (appendix XI). § 20 G EAW ERA L I97 outwardly at least, do not. Following, however, the provisions of canon law," 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 irregularitates ea defectu and ea delicto of baptized men.” Instead of them, the Only requirements, apart from the conditions as tg age just mentioned, are that the bishop * The history of these provisions will be found in Tichter, Kirchenrecht § 108; for England compare Phillimore, Eccles. Law 120. * By these rules the Roman titulus beneficii and, with limitation to masters of arts, the titulus patrimon?” are maintained; the titulus mensae is abolished. * Prayer-book form of ordination : . . . It must be declared unto the Deacon, that he must continue in that Office of a Deacon the space of a whole gear (eaccept 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 mone shall be admitted a Deacon, eaccept he be Twenty-three years of age, amless he have a Faculty. And every man which is to be admitted a Priest shall be full Four-and-twenty years old. And every man which is to be or- dained or consecrated Bishop shall be fully Thirty years of age ; 13 Eliz. (1571) c 12 s 4: And that mone shalbe made Mynäster (here equivalent to “priest') or admitted to precche or mynister the Sacraments, being under thage of foure and twenty yeres, nor unles he fyrst bring to the Bisshop of that Diocesse, from Men knowne to the Bishop to be of sound Religion, a Testimon?all both of his honest lyfe and of his professing the Doctry n2 eacpressed in the said Artycles; nor unless he be able to aunswere and render to the Ordynary an Accompt of his faith in Latyme, according to the said Articles, or have special Gyfte and Habilitie to be a Precher; mor shalbe admitted to thorder of Deacon or Månäs- terie, unles he shall fyrst subscribe to the saide Artycles; 44 Geo. III (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, no person shall be admitted a deacon before he shall have attained the age of 23 years compleaf, 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 Richter, Kärchenrecht § 104, note 2; for the irregularitates, the same authority $$ 105–7. . 198 THE CLERGY A M D THE I Jº 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 T)eclarations and Oaths to be taken by the Clergy of the Established Church of Eng- * Rubric in ordinal: And the Bishop knowing either by himself, or by suffi- cient testimony, any Person to be a man of virtuous conversation, and without crime; and, after eacamánation 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. Law 114 f. * Canon 34 of 1604; compare 13 Eliz. c. 12 s 4 (above, note 14). By resolu- tion of the upper house 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, 368. Many other recommendations are contained in it. * Canon 35 of 1604 (appendix XII) treats of the examination to be under- gone prior to ordination. * Canon 34 of 1604. Blunt, The Book of Church Law 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) GE WERA L I99 land,’ affect 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.**a 23 - 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. But 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 such 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- ** 28 & 29 Vºcł. C 122 S 4. * As to the oath of canonical obedience cf, 28 & 29 Vict. c 122 s 12, and 31 & 32 Vict. c. 72 s 14*. * Canon 34 of 1604. Phillimore, Eccles. Law 123, 137. Richter, Kärchen- arecht $$ 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. Tetters testimonial are always exacted, and if they are signed by clergy who do not belong to the 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). - * The words of conferment are, in the case of a deacon : Take thou Authority to eacecute the Office of a Deacon. . . . Take thout Authority to read the Gospel in the Church of God, and to preach the same, if thou be thereto licensed by the Bishop himself (cf. note 28); in the case of a priest: Receive the holy Ghost for the Office and Work of a Priest in the Church of God, . . . Whose sins thou dost forgive, they are forgiven ; and 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 shalt be lawfully appointed thereunto. ... - * See the words of the ordinal quoted in note 25; in respect to the eucharist cf. also 14 Car. II c. 4, Act of Uniformity, s 10 (note 27). * 14 Car. II (1662) c 4, Uniformity Act, s 10: . . . no person . e shall . . . be capable to bee admitted to any Parsonage Vicarage Benéfice 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 Elżz. (1571) c 12 s 3 is thus amended. 2OO PARTICIPA TI O W 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.”29 The possession of deacon's or priest's orders is attested by letters of orders. § 21. 2. PARTICIPATION OF THE CLERGY IN THE DE LIBERATIONS OF PAR- LIAM E N T.& IN Anglo-Saxon times 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 appertaineth to the Office of a Deacon, ºn the Church where he shall be appointed 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 impotent people of the Parish, to intimate their estates, names, and places where they dwell, unto the Curate, that by his eachortation they may be relieved with the alms of the Parishioners and others. * Cf. Phillimore, Eccles. Law 134, 314. * Compare, however, Stubbs, Comst. Hist. I, 139 c 6 $ 52. * This is deducible e.g. from the introductions to the laws of Ine (688 to 726–8) and Aethelstan (924–940) II (and Godes beówa). * Examples of the number of abbots present are brought together in Stubbs, Const, Høst, I, 139, note 3, 140 c 6 $ 52. - * Ginéist, Engl. Verfassumgsgeschichte §§ 22, 24, 29.-Stubbs, Const. Hist. c 15 §§ 186, 198, 200; c 20 $$ 428–30, 432.-For the parliamentary sittings of the clergy after the time of Ed- ward I 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. III 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 Mumiments 'relating to the swit and service due and performed to the king’s High Court of Parliament and the Cowmcils 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. II).- Prynne, William. Brief Register, Kalendar and Survey of the several Kinds and Forms of Par- liamentargWrits, 4 parts. 1659–64. (Pt. I contains writs of summons from the years 1205–1483. Pt. III has the separate title Brevia Parliamentaria Rediviva.)—Report of the Lords' Com- mittees on the Dignity of a Peer of the Realm. 4 vols. 1819 ft. (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 appendićes II–IV to the First Report and the Reports 2-4, here irrelevant.) § 21] IAW - THE DELIBERA TI ONS OF PARLIAM E/WT 2O I 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.”” * It is disputed whether the bishops in the middle ages sat in the national council merely as secular barons or as ecclesiastical dignitaries. See Stubbs, 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 Rochester (Eadmer, Høst. Nov. f. Rer. Brit. Scr. No. 81; p. 2), as also Anselm the next bishop Radulfus (Eadmer, l.c. 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 Rymer, Foedera 4th Ed. T, 126) conveyed to the arch- bishop of Canterbury the patronage in respect of the bishopric of Rochester, inclusive of the right to invest the bishop with the temporalities. Nevertheless, the bishop of Rochester appeared at the national council. On the position of the bishop of Llandaff after the attachment of Wales to England see Coke, Imst, IV, 283; on the position of the bishop of Sodor and Man, $33, note 25. * Gneist, Engl. 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, Verfassumgsgesch. § 5.—Stubbs, Comst. Hist. I, 398 ft. 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, Comst. Hist. I, 608 c 13 $ 159), of inviting these prominent persons by Separate writs; general summonses were issued through the sheriffs.—The presence of Secundae digm?tatis baromes at the coun- cil of Northampton, 1164, is attested by William Fitzstephen (Rer. Bråt. Scr. No. 67) III, 67. * Stubbs, Comst. Hist. I, 610 c 13 $ 159.-Benedict (Rer. Brit. Scr. No. 49) I, 145: Wenerunt etiam illuc (to the council of London, March, 1177) tot ab- bates, tot decanã, tot archèdèacon? quot sub mumero mon cadebant. Venerumt etéam illuc comºtes et barones regmá, quorum mon est numerus. Et congregatis 2O2 P4 RTICIPA TION OF THE CLERGY [IV, 2 After the beginning of the 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 1213. 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 pressut 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 &n (awla) 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, Comst. Hist. II, 96 c 14 § 177.)—It is to a church Council rather than a national that we must refer the passage in Roger de Wendover, Flores Historiarum (Rer. Brit. Scr. No. 84) II, 83; Eodem anno (1213), octavo Kalendas Septembrås, convenerunt in civitate Londončarum apud sanctum Pawlum Stephanus, Cantuariens's archiepiscopus, cum episcopis, ab- batibus, prioribus, decam?s et baronibus regmi, ubå archiepiscopus indulsit tam ecclesłłs conventualibus quam presbyteris saecularibus, ut horas camon?- cas in eccles??s sºlºs, audžentibus parochian's, suppressa voce cantarent, * The archbishops and bishops received separate writs of summons. Other ecclesiastical persons who were to attend were generally also invited by special writ. Instances, however, occur—analogous to general summons through the sheriff—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): Reac episcopo Saris- buriens. Mandamus vobis rogantes quatemus Omni occasione et dilatione postposités, Sicut nos et honorem nostrum diligētēs, sités admos apud Londonias dźe Domºn?ca proacºma ante Ascensionem Domžná, mobiscum tractatură de mag- nºs et arduº's negotić's mostris et communi regn? Tostri utilitate, quon?am super h??s quae a rege Franciae per nuncios mostros et suos mobis mandata sunt, unde per Deč. gratºam bonum speramus provenire, vestrum expedit habere consil- Żum et allorum magnatum terrae mostrae quos ad diem illum et locum fecimus convocar? : vos etiam eac parte mostra et vestra abbates et priores com- ventwales totº us dioces? S v estra e citan'ſ fact at is ut concilio praed: cto nobº scu m inters int, sicut diligunt nos et communem regmá altilitatem. -- * Cf. § 4, near notes 74 ft.—Riess, Geschächte des Wahlrechts 2wm Englischem Parlament, Leipzig, 1885, pp. 1–14 seeks to show that in these older times the chief aim of every summoning of representatives of the counties, etc. was, not that they might grant taxes, but to control the local officers of the king and to enrol the elected representatives for service in the collection of taxes. § * For similar cases in 1222 and 1227 see Stubbs, Comst. Hist. II, 222 c 15 208. * The summons to the knights (1254) is printed in Stubbs, Sel. Ch. 376 after Report on the Dºgnity of a Peer, app. I p. 13. Report of queen Eleanor and Richard of Cornwall to the king, who was on the continent, 14th Feb. 1254, printed in Shirley, Royal Letters (Rer. Brit. Scr. No. 27) II, 101:— .* habito tractatu cum praelatés et magmatibus . . . . super subsidio vestro, videlicet in quºndena S. Hilarić proacimo praeterit: . . . ; respond- § 21] IAW T H E DELIBERA TIONS OF PAR LIA MENT 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 clergy. 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 mob's archiepiscopé et episcopi, quod s? reac Castellionis venerit contra vos in Wascom?am singul? eorum de bomżs propré's vobis subvenient, e sed de awa, i lào clericoru m sworu m, wob's faciendo m 'hºl face re pottl- eru mt, sº me as sensu e o 'w male m clerº cor wºm, . . . Praetered . . . omnes comites et barones regmi vestri potentes ad trans- fretandum ad vos venient in Wasconiam cum toto posse suo ; sed deal??s laïcis ad vos mon transfretaturès non cred&mws aliquod attacélèum ad opus vestrum? obt?mere, mis? . . . Domination? 'gītur vestrae innotescat quod cu m cler & cºs et la : c’ s p r a 6- d : ct is habitu rô su’m us tractatu m apud Westmonasterium in quºndema Paschat?'s proacimo futur? Super a waſ Ālāo praed: ct o, . . . * Annales de Burton (Rer. Bråt. Scr. No. 36; Annales Monastic?) I, 360 fſ. : . . Post festum Sanctæ Michael's autem, tenuit reac parliamentum suum, apud Westmonasterium, convocatés àbādem episcopis, abbatibus, et prioribus, com?tibus, et baronibus, et totius regn? majoribus; . . . Episcopi vero, abbates, priores, et procuratores quº & b & dem pro wºn & versitate affit- eru mt, molentes hujus mod?, eacaction? adquiescere, sed potius decermentes fore resistendum et contradicemdum, rationibus et gravaminibus in scriptis redac- t’s et allegates, per fideles et discretos nuncios electos eadeºn gravamina summo Pontific; sub sigillis destinarunt. Quorum tenor talis est:— . * Proc wratores clericoru m benefic? at or u m arch & d ? a comatus Lºn colm ? ae pro tot a com m wºn it ate propomunt, e ‘ Propomunt procuratores subdź to ru m eccles & a ru m, Co v čnt rems is et L7 chfeldems is dº oeces is ; . . .” De sºngwl is d? oeces & b us tot? us reg nº cons? m éles 7 b : dem con- ..fect? sunt articulº, et swimmo Pontifică pro universitate similiter destimat: wt supradictatºm est. - * The dates are collected in Stubbs, Const. Hist. II, 231 ff. c 15 $ 214. * The summons is printed in Stubbs, Select Charters 418: Reac decano et capº- tulo Eboracens; salutem. Cum praeſatos et magmates regn: noströ jam vocar? fecerimus quod sint ad mos apud Wintom 7 a.m. primo d'ê e Jún šč proacimo wenturi ad tractandum mobiscum super mostris et regn: nostr; negot? is quae sène eorum praesentia finaliter eacpler? molumnus, vobis mandamus in fide et d?- lectione quibus mobis teneméné, firm iter injungentes quatemus modès Omnibus dºtos de dº scret? or ? bus com can on 3 c 3 S vestrº's ad dºctos dºem et locum? mittatis quº plenam habeant potestatem vice vestra ad tractandum mob is cum wºn a cum praefatós prael at is et magmatºbºts super negotić's anted?ctès, et ad faciendum momâne vestro quae vos ips? facere posset's s? praesentes ibidemy essetis. Et hoc . . . mullatents omittatis. T. R. apud Gloucestriam, XV die Mač. This summons was issued by the king, then a prisoner in the hands of Montfort. (On 28th 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 1265, which sat from January to March, and to which representa- tives of the shires and towns were summoned. 204 PARTICIPA TI O W 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.” 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 contrary, 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 460 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 (Rer. Brit. Scr. No. 77) II, 486 and Wilkins, Conc. 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 ft. - * Stubbs, Select Charters 484: Reac . . . Cantuariens; archiepiscopo Salutem. (Similarly to each of the other bishops) . . . vobis manda- mus, . . . quod die Domenica procłma post festum Samcti Martim? apud Westmonasterium personaliter intersités. Praemum entes priorem et capitulum ecclesiae vestrae, arch?diacomos, totumque clerum vestrae dioecesis, facientes quod £idem prior et archidiacom? in propriás person is suffs, et dictum capitulum per umum demgue clerus per duos procuratores idomeos, plenam et sufficientem potestatem ab ºpsis capitulo et clero habentes, uma vobiscum inter- sint, mod?s omnibus tumc *bidem ad tractandatºm, ord in and um et facá em- dum, mob is cu m et cu m, ceter is prael at is et procerib w8 et al??s ām- col is regn? no strº. 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 appear 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 tractandum una vobiscum et ceteris praelatis ac clero ejusdem regnº (Stubbs, Sel, Charters 480, from Report on the Dignity of a Peer, app. I p. 59). * Compare Stubbs, Sel. Charters 483. Bartholomaeus de Cotton (Rer. Brăţ. Scr. No. 16) 299. Similarly, for example, the clergy appeared in parliament in 1296, but again deliberated apart. B. de Cotton, 314. * So e.g. in 1304. But whilst referring to the royal order, the archbishop summons the clergy to appear before hºmself on the Sunday before the meeting § 21] I W T H E JOE L J B ERA TI O WS OF PAR LIAM E/WT 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, Rights, appendix XIV c). Summons of the archbishop by the king's order to the parliament of Dec. 1311 in Wilkins II, 408. On the form of the summons to the parliament of 1812 see below, note 25. * Compare $ 54, near note 21. * Atterbury, Rights 236 ft. Joyce, Synods 278, 279.--Stubbs, Comst. Hist. III, 417 c 20 $ 420.-In the parliament of Carlisle (1307) the lower clergy were represented by dignitaries and by delegates. (List in Rotulº Parliamentorum. I, 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 ft.). In some instances during Richard II'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 Hody, l.c.). 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, different persons were chosen as representatives for parliament and con- vocation and such cases are also found later. Joyce, l.c., after Atterbury, Rights, Addenda, pp. 616–626. Compare also in Wilkins II, 534 the eacecutio episcop? Lincolnáensis as a consequence of a summons by the archbishop to a provincial council (1826): only a short time was left but the archiepiscopal summons could be obeyed, si dictus clerus procuratoribus su's pro parliamento jam destimatis, ad consentiemdum de hºs, quae ºn dºcto concilºo provincial? . . . ordinar? contigerit sew conced?, potestatem liberam transmiserit et mandatum speciale. Even from post-reformation times elections of representatives in parliament by ecclesiastical electoral bodies are given in Atterbury, Rights, Addenda 616–626 (Joyce, l.c.) as follows: 1529 (Exeter, the register of which was most accessible to Atterbury), 1536 (York), 1538 (Exeter), 1539 (York), 1541, 1542 (Exeter), 1544 . (Exeter and London), 1545, 1547, 1552, 1553, 1554 (Exeter), 1570 (Salisbury), 1572 (Exeter), 1584 (Salisbury), 1588 (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, quatemats . . . . . s?tàs ºn propria persona vestra apud Westmonaster? wºm. . . . . Cora m fě delib us most rés ad hoc deputandis, ad tractandum cum eſsdem Super competent; antocilio a clero provinciae vestrae Cantwar, mobis impendendo . . . prout in proacámo parliamento mostro apwd Westm. habito, tam per clerum, quam per communita- 2O6 PARTICIPA TION 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-clause 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).” The same procedure was repeated in the following years; after 1332 (6 Ed. III) it became fixed, and from that time forth the praemunientes-clause 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 tem regm; mostri eactitit concordatum ; et prout per praedictos fideles mostros eritis requisiti. Et ad eundem diem venºre faciatis coram dictis fidelibus mostris, suffragame0s vestros, decanos et priores etc. . . . (In Atterbury, Rights, app. XIII the summons is dated 27th, by Wilkins l.c. 25th March.) * Atterbury, Rights 231. The writs to the several bishops (also to the arch- bishops) with praemºnientes-clause are printed in Dugdale, Summons 97; the instruction to each of the archbishops to summon the inferior clergy is printed in Atterbury, Iºghts, 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 the absent archbishop of York. This writ (printed in Dugdale, Summons 78) runs : . . . mandamus, rogantes; Quod praemum?at's decanos et priores ecclesiarum cathedralium, ac etiam capituli, necnon abbates, archi- diaconos actotum clerum vestrae dioeceseos toti usque vestrae provinciae Cam tº a rē em S is, quod . . . I’arliamento in Octabis Sanctæ Martin? proacimo futuro . . . . . . each?beant se praesentes. * Atterbury, Rights 236. For examples of writs with praemum?entes-clause from the year 1328 see Wilkins II, 545. * Upon the earlier cases of 1304 and 1311 see note 21. In 1321, for example, the archbishop by the king's command summons the inferior clergy quod com- pareant in . . . . parliamento apud Westmonasterium prout hactenus fier; consuevit . . . . (Wilkins II, 506). In 1829 the king issued to every bishop a writ containing a praemum?entes-clause; molentes tamen negotia mostra praedicta prae defectu praemum?tionum praedictarum, sº forsan minus rite facta fuerint, aliqualiter retardari (this clause was customary under Edward II and Edward III. Atterbury, Rights 237), he calls on the archbishop to Summon for himself the clergy of his province to parliament (commune consºlium regm?). Upon this the archbishop issues a summons to appear before himself (compareant coram mobis), Wilkins II, 557–Bxample of a similar double summons, dated 15th May, 1321, in Atterbury, Rights, app. XIV e and Palgrave, Parl. Writs II, div. II, 234 No. 1, 236 No. 6. * Compare $ 54, note 14, - § 21] I W T H E DEL I B ERA TIONS OF PARLIAMENT 2O: Z 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, sº fier? possit, assumatur et co-optetur in inferiorem domum parliament; sicut ab antiquo fier; 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, l.c. III, 445, note 1 c 20 $ 426.-See also the petition of the lower house, 1381 (Rotul; Parl. III, 100), in which the wish is expressed that in a particular case there might deliberate les Prelatz par evac mesmes, les grantz Seigneurs Temporeloc par euge mesmes, les Chivalers par entac, les Justices par evac, et touz autres Estatz singulerement. * The following are the most important laws to which the prelates are not mentioned as consenting or against which they even protested : Stat. Karl?oll 35 Ed. I (1306/7) : post deliberacionem plenariam et tractatum cum Comžtibus, Baronibus, proceribus, et aliis mobilibus, ac com/mum?tatibus . . . de consensu eorum. [So with the resolution on which this is based, 33 Ed. I : de consilio Comitum, Baronatºm, Magmatum, procerum, et allorum mobiläum, et regmi sui communitatum.] Stat. de Provisoribus 25 Ed. III (1350/1) st. 42 (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 both 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 19 $ 392.) Stat. contra admullatores Iudiciorum Curiae Regis 27 Ed. III (1353) st. 1 c 12 (In the text we read: assentu est et acorde par motre . . . Seigneur le Roi et les grantz et communes. It was passed at a consilium which Prelatz, Grantz et Communes attended. Cf. Rot. Parliament. II, 252 [No. 33], 253 [No. 42], 257 [No. 16].) According to the text of 38 Ed. III st. 2 c 1 the acts against the encroachments of the pope, particu- larly those in 25 Ed. III and 27 Ed. III were through it confirmed by the king : de lassentement et eacpresse volunte et concorde des Ducs, Contes, Barons, Nobles et communes. Who assented to the other parts of the act is not shown by the text of it. Cf. here Rotulò Parl. II, 285: As queles Ordinances [the act 38 Ed. III st. 2 issºnt lues les Ducs, Countes, Barons, et Communes Se assenteront bien s? âl plust au Roi, les Prelatz tout dis fesantz lour Protestations de réen assenter me faire ge purpa estre out tourner em prejudice de loºr Estat Ou Dignète. 3 Ric, II (1379/80) c 3 [in text of act: le Roi par ladvis et commune assent de fouz les seigneurs temporels. The act was passed under incitement from the king and on the petition of the commons. Rot. Parl. III, 71 (No. 4), 82 f. (No. 37)]. 7 Ric, II (1383) c 12 [in text of act : assemtuz est . . . par 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 Rfc. II c. 3, 13 Ric. II (1389/90) st. 2 cc 2 and 3 [assent des grantz de son rožalme. The protest of the archbishops of Canterbury and York in the name of the whole clergy was at their wish entered on the rolls. Iłotuli Parliamentorum III, 264: . . . quod molumus mec intendômus al?cu? Statuto in present? Parliamento numc moviter edito, mec antiquo pretenso Žnnovato, quatemus Statuta hujus mod?, sew eorum aliquod, in restrictionem I’otestatis Apostolice, aut in subversionem, enervationem, Seu derogationem, Ecclesiastice Libertatis tendere dinoscuntur, quomodolžbet consentire, set eisdem 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 me affermer qe motre Sečnt Piere le Pape me poet eaccommenger Evesques me quil poet faire translacions des prelatz Solomc la ley de Sečnte Esglèse.] In reformation times the spiritual magnates did not assent to the uniformity act 1 Eliz. (1558/9) c 2 (see note in Statutes of the Realm). Cf. further the protest of the archbishop of Canterbury in Wilkins, Comc. III, 746 and the precedents in Coke, Inst. II, 585–87. * National synod of London, 1075 (Wilkins, Concilia I, 363): Eac concil's Eliberitano et Toletano XI; ut mullus episcopus, vel abbas, seu quilibet eac clero, homżnem occidendum, vel membrås truncandum judicet, vel judºcantºbºts suae auctor?tatis favorem commodet. Const. Clarendon, 1164, c 11: . . . sicut barones caeteri debent interesse judici's curiae domżnº regis cum baronibus, usque perveniatur Żm judicio ad diminutionem membrorum vel ad mortem. Canomes concil?? Sub Richardo Cantwardens; archiepiscopo habit? (according to Wilkins' assumption: Westminster, 1173; Wilkins, Concilia I, 474) c 17: Clerici public's mumerºbus mom fungantur, mec causas Samgućnºs agant. Council of Westminster, 1175 (Wilkins, Concil. I, 476): Eac concilio Toletano III. Hiis qui in sacris ordinibus constituti sunt, judicium sanguin's agitare mon licet. Unde prohibemus, me aut per se membrorum truncationes faciant, awt inferendas judicent . . . -- Council of Oxford, 1222 (Wilkins, Concilia I, 585) c 8: . . . ne cleric; beneficiat; aut in sacris ordānābus constituti, ad villarum procurationes admittamtur ; viz. att mom sint semescall? and ball?v? tal?um administration?tm. occasione quarum laïcis in reddendis ratiocânăis obligentur ; mec jurisdictiones eacerceant seculares, praesertim illas, quibus judicium sanguān’s est anneacum. 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 & 15 Ed. III, 5 Hem. IV, 3 & 5 Hen. V in Phillimore, Eccles. 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 peers had absented themselves when the said judgments were given, por loneste et salvacion de lour estat; but no precedent was to be drawn therefrom. [By 21 Ric. II (1397/8) c 12 all the acts of the parliament of 11 Ric. II are declared to be unlawful (but according to the contents of the statute, for other reasons than the non-participation of the prelates). 1 Hem. IV (1899) c 3 repeals all the acts of the parliament of 21 Röc. II, and c 4 expressly confirms the enactments of the parliament in 11 Ric. II. But cf. Rotuli Parl. III, 348 touching the parliament of 21 Ric. II: . . . les Communes monstrerent au Roy, Coment devant ces heures pluseurs Juggementz, Ordemances, faitz en temps des progenitours notre § 21] I W T H E DEL I B ERA TI OMS OF PARLIAMEN T 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. III) 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 united, prevent the passing of any Seigneur le Roy en Parlement, ount este repellez et admullez, pur ceo qe l'Estat de Clergie me feust present en Parlement a la faisaunce des ditz Juggementz et Ordemances. Et pur ceo prierent au Roi, qe . . . les Prelatz et le Clergie ferroient un Procuratour, avec poair sufficeant pur consenter en leur noun as toutz choses et ordenamees a justifiers em cest present Parlement.]—In 1641 twelve bishops declared that they had been kept from the house by the menaces of the crowd, and that all proceedings in their absence were void. (Cf. § 7, note 38.) This served as the basis of a charge of high treason against the bishops for having attempted to form a special spiritual estate as a third part of parliament. * According to Stubbs, Comst. 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 see Stubbs, l.c. III, 404 ft. 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 l.c. III, 454 c 20 $ 428. * Gneist, Verfassumgsgesch. p. 348. For more on the cases of 1319 and 1341 see Parry, Parliaments 2nd Ed. p. 83, note p, p. 112, note m.—On possession in frankalmoign see Coke, Inst. I, 93 ff. and F. W. Maitland, Frankalmoigm in the 12th and 13th centuries in The Law Quarterly Review, 1891, p. 354. Accord- ing to Ellis, Introduction to Domesday I, 258, possession in this kind did not free from the trinoda mecessitas. Cf. also the distinctions in Bracton (Rer. Brit. Scr. No. 70) I, 112: . . . est en?m libera eleemosºma et magis libera eleemosłma, . . . ; I, 216: Poterit etiam fier; donatio in liberam eleemosymam, sicut ecclesłłs cathedralibus, conventualibus, parochialibus, värås religiosis, et quandoque in liberam eleemosynam et perpetuam, et quo casu, m on eac- cusatur ille, quº accº p?t, a praestat? one servit??. Sº autem fiat domatio in liberam, puram, et perpetuam eleemosynam, eaccusatur; IV, 372: e sć ecclesiás 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, mag is libera) vel alio tempore . . . S. autem. terra data fuerit eccles??s cathedralibus vel conventualibus . . . quamvis hujus modi terrae demtur in liberam eleemos imam, mom solum damtur ecclesås sed et person is temendae 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, Comst. Hist. II, 178, note 2 c 15 § 186; III, 408, note 1 c 20 $ 417), as was once (in 31 Ed. I) the archbishop of Dublin. Gneist, Verfassumgsgesch. p. 348. For summons to archbishop of Dublin see Peers Report, app. I, 156. h * * For example, at the meeting of the reformation parliament of 1529 the upper house consisted of 44 temporal and 48 spiritual peers; the number of the latter being made up thus: 2 archbishops, 16 bishops, 2 “guardians of spiritual- H.C. P 2IO g- PARTICIPA TION 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. I (1640 ft.) c 27.” But this act was re- pealed on the restoration of the monarchy by 13 Car. II (1661) st. 1 C 2.41 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. III (1801) c 63 enacted ‘that no person having been ordained ities,’ 23 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 monastery. Gneist, Verfassungsgesch. p. 477, note. 40. Cf. § 7, note 39. As to the time when the priors of the great orders.dis- appeared from parliament, see Stubbs, Comst. Hist. III, 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 Geo. II (1745) c 18 ss 1, 5. 43 Resolution of a mixed committee of both houses, 21 Hen. VIII. Atterbury, Rights 72 (after Moor, Rep. p. 781). On Oct. 12th, 1553, a committee was appointed by the commons to examine into certain elections. On Oct. 13th, 1553, it is declared by the Commissioners, that Alex. Nowell, being Prebendary Žn Westminster, and thereby having voice in the Convocation-house, cannot be a Member of this House; and so agreed by the House; and 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 view, on the 8th Feb. 1621; his return void; and a mew writ to issue for a mew elec- tion (Journal, Commons, 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, Commons, 17th Jan. 1661). * Coke, Inst. IV, 47, maintains that no clergyman, even of the lowest degree, is eligible, in that the clergy belong to another body, viz. to convocation. So, on § 21] I W T H E DELIBERA TIONS OF PARLIAMENT *2] I 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 praemunientes-clause 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 union of Ireland with England, 39 & 40 Geo. III (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- fringement 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 this reason. (See Phillimore, Eccles. Law 632, notes: fſ.) * An Act to remove doubts respecting the eligibility of persons in holy orders to sit ºn the house of commons. ºr * Compare e.g. the writ of summons for 1866 printed in Joyce, Handbook of Convocations, London, 1887, p. 189. - * The bishop of Sodor and Man was not summoned, because Man does not belong to the kingdom of England. Cf. § 38, note 25. .* - . * No. of temporal peers at the accession of Geo. I, 181; at that of Geo. III, 372; now above 500. Gneist, Verfassungsgesch. p. 675. t - * Cf. § 11, note 32. ' * * . . * * - "To exercise pressure on the upper house, frequent proposals were made in the '20s and '30s to exclude the bishops wholly from it. . . . . . . . . . . . 2 [2 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3. same act laid down that the 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 number 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 CLER GY. - 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. But these prohibitions had not been strictly carried into effect." 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 upwards were tolerated in England as elsewhere in the west.” In the seventh and eighth centuries * 10 & 11 Vict. (1847) c. 108 s 2; St. Albans Act 38 & 39 Vict. (1875) c 34 s 7; Truro Act 39 & 40 Vict. (1876) c 54 ss 5, 6; Bishoprics Act 41 & 42 Vict. (1878) c 68; Bristol 47 & 48 Vict. (1884) c 66, the case being brought under the Bishoprics Act 1878. * 32 & 33 Vict. (1869) c 42; cf. § 11, note 36. * Richter, Kirchenrecht $ 116; Hinschius, Kirchen recht I, § 19. - * Gregory I’s answer to Augustine's first question (Haddan and Stubbs, Councils III, 19; also printed in Gratian, Decret. I, dist. 32 c 3): . . . si qui vero sunt cleric; eactra sacros ordines constituti, qui se continere mom possunt, sortirò Macores debent, et stipendia sua eacterius accēpere. In canon law ordines majores (= sacri) and ordines mºnores are distinguished. In the earlier part of the middle ages sub-deacon's orders were reckoned among ordines mºmores. According to the Decretals of Gregory IX (Liber Eactra) I, 14 c 9 they were included by Urban II (1088–99) in ordines sacri. Compare Richter, IVärchemrecht $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, The Saacoms in Ingland, Book II c. 9 Ed. 1876, II, 444 ff.; two examples from Domesday- Book. (1086) will be found in Ellis, Introduction to Domesday, 1833, I, 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 diocese of Llandaff were ordered only to marry with the pope's consent. This led to disturbances, with the effect that the priests were again allowed to marry without restriction. Haddan;and $22 HISTORY OF THE CELIBACY OF THE CLERGY 213 priests and deacons were only forbidden to make a second marriage, or a marriage with a woman marrying for the second time, or with a 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 (959–88) 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, Comst. Hist, I, 243 f. c. 8 $84. * Compare, in particular, the following rules:— -- Poenitentiale Theodoró (probably dating from the time of Theodorus, 668– 90; printed in Haddan and Stubbs, Counc, III, 173 ff.):— - . Book 1 c 9 De his qui degraduntur vel ordinari mon possunt. § 4 Si quis presbiter aut diaconus wagorem eactºr a meam duaterit, in con- scient? a populi, deponatwr. § 5 S. adulterium perpetraverit cum illa et à n conscientº a devenit populºs, projeciatur eactra aecclesiam et penitedt inter laicos quamaliw včacerit. - [In the corresponding passage of the Poenitentiale Egbert (its authenticity is tolerably certain and it is to be referred to Egbert, archbishop of York, 732–66; printed in Haddam and Stubbs III, 413 ff.) the word eactranea is, in the form in which the penitential has been transmitted to us, left out. The passage runs:— c 4 $ 7 S. presbyter vel diaconus ºvel momachus watorem dwaterit in con- scientia populi, deponatur. . . § 8 S. adulterium perpetraverit cum ea et in conscientia populi devemerit, proiciatur eactra aecclesiam et inter laïcis penitedt quamdžu vivºt. Eactramed in the extract from Poem. 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. Poenitentiale Theodorº, Book II c. 4 § 11: Non licet baptizatis cum catécumán's manducare neque osculum eis dare, quanto magis gentilibus; c 12 Š 9 . . . cujus wator est ºnfidelis et gentilis et mom potest converti, dimittatur. Councils of Celchyth and Pincahala, 787 (Haddan and Stubbs III, 455) c 15: Interdicumtur omnibus injusta connubia, et incaestuosa, tam cum ancillis Dei, vel aliis illicits person's, quam cwm. propºnquès et consanguèmeis, vel alient gem is tacorºbus ; . . . - Dialogus Egbertà (universally regarded as genuine, 732–66, printed in Haddan and Stubbs, Counc. III, 403):- c 15 Interrogatio: Pro quibus criminibus nullus sacerdos potest fier: vel pro quibus jam pridem ordinatus deponttur 3 - Responsºo : Hujus mod: twmc ordinatio Episcopi, presbiteri, vel diaconi, rata esse décètur: si nullo gravč facánore probatur infectus; st secundam non habwét ſuavorem], mec a mari to relict am ; . . . * Poenitentiale Theodori (Haddam and Stubbs, Councils III, 173 ff.), Book I c 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 (1017–1037) II c. 54. Compare also Freeman, Hist. of Norman Conquest 3rd Ed. I, 624 ft. appendix X. (Only a legitimum connubium is allowed by the council of Herutford, 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: I’oenitentiale Theodori, Book I c 14 § 1: In primo conjugio presbiter debet missam agere et benedicere ambos . . . — Be wifmannes 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 (924 [925]-40) or Eadmund (940–946). In it an account is given of , the whole procedure on 214 HISTORY OF THE CELIBACY OF THE CLERGY (IV, 3 stricter school of thought arose, the followers of which aimed at compelling the celibacy of the clergy in the higher orders. Con- mected ºthere with 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 bäm giftan Sceal maesse-preſist ºbeſºn mid rihte, se sceal mid Godes blétsunge heora gesommunge gederian an edlºe 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 Aelfric to bishop Wulfsin (the so-called camones Aelfrici, 992–1001; printed in Thorpe [Record Commission] Aricient Laws etc. 441 ff. c 9): . . . Se la ewed a mot swa-beah, be baes apostoles leafe, oëre sièe wiftgam, gyf his wif him aetfylä, ac ba cdmories forbeodač ba blets ung a baer-to, and gesetton. ddedbóte swylcum mannum to donme. (“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, 1076, Parker, De Antiquitate Britannicae Ecclesiae etc. Lämbeth, 1572, p. 98: eac lib. Constitutionum Ecclesiae Włgorn. p. 101; printed also in Wilkins, Concilia I, 367: Praetered statutum est, ut mullus filiam Suam vel cognatam det alicut absºle benedic- tione Sacerdotall. Sº aliter fecerit, non ut legitimum coniugium sed ut form?- catorium iudicabitur.—Council of London, 1102 (Wilkins I, 382) c 23: Utfides 2nter virum et amulierem, occulte et sºme testibus, de conjugio data, sº ab alterutro negata fuerit, irrita habeatur. On the gradual introduction of priestly co-operation in the conclusion of marriages in England and Scotland see Friedberg, Das Recht der Eheschliessung, Leipzig, 1865, pp. 33 ff., 309 ff—- In regard to Ireland see, for example, Benedict (Rer. Brit. Scr. No. 49) I, 28: . . . Praetered praecepérunt in eodem concilio (that of Cashel, 1171, after the partial conquest of the country by the English) ut laic; qué watores habere vellent, eas 'sibi' copularent jure ecclesiastico. Plerºgue enim illorum quot volebant watores habebant, et etiami cogmatas suas germanas habere solebant sib’ vasores. * Edmund (940–46). I c 1: Be gehädedra mamma claénisse, baet is aérest, Baet bà halgam hādas . . . . hedra claénesse healdan be heora håde, swā wer- hádes swó wif-hádés. (“Of the purity of the clergy. This is the first [thing], that those holy orders . . . 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.” cam. sub Edgar. (959–75) rege, c. 8: And we laerah, baet aenig preost Silfvilles me forlaete Öa circan, êe he to gebletsod waes, ac haebbe him Ša to riht aewe. (“And we teach that mo priest should willingly leave the church, to which he was consecrated; but should have her for his true wife.”) c 60: And we laerab, baet aenig preost me lufige wifmamma meawyste ealles to sw? be, ac lufige his riht aewe, Baet Žs his cirice. (“And we teach that no priest should love the proximity. (Beischlaf) of women too much ; but should love his true wife, that is his church.”) can, poemºtent. Sub Edgar. (penitential perhaps from the tenth century, merely repeats earlier provisions, mostly of Frankish origin) c 30: Gifinae sse-preost obbe munuc haemed Öinge drihh obbe aewebrych, faeste Y gear and reowsige aefre. Diacon VII, cleric VI, laewdeman V, swa be 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") [haemed= Beischlaf, is, as a rule, employed in the sense of unlawful Be?schlaf; wnräht-haemed appears to designate not merely Beischlaf of the unmarried; but Beischlaf which is for special reasons unlawful; riht-haemed = marriage. ' Schmid, Ges; d. Angelsachsen, Glossary s. v. haemed]. c 31: Gif maesse-preost obbe minuc obje diacom riht wif haefºle, aer he gehadod waere, and h; j § 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 hade femcge, and siphan Öurh haemed Öingc h; eft underfenge, faeste heora aelc swa be manslihte, and reowsian swibe. (“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 (Ber. Brit. Scr. No. 63). p. cwii, note 2, this canon is taken from the fourth book of the Pseudo-Egbertime penitentials, which again is from the Pseudo-Theodore; which takes it from the Poenitentiale Romanum, 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: Ful. georne hi witan, baet hi mágan mid rihte burh haémed-bºng wifes gemāmam.. (“Full well they [the mass-priests] know that they have not with right through concubinage (Beischlaf) intercourse with a woman [wif-mulier or ºtºcor), and let him who will abstain from this, and preserve his chastity, 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 WI (Council. of Ensham, 1006–11, 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) co 28–30 [here the prohibition is—it is not seemly for the servant of the altar mán binge. me to wife me to worold-wige] and Knut (1017–37) I c 6 pr. and § 2. For private sources wherein similar admonitions are contained are to be compared:— Letter of Aelfric to bishop Wulfsin (the so-called canones Aelfrici, 992– 1001, printed in Thorpe's Ancient Laws etc. pp. 441 ff) co 5, 6, 17. Letter of Aelfric to archbishop Wulstan, agreeing to a great extent with the preceding (in Thorpe, l.c. p. 452) co 9 ft., cc 31 ff., 43.—c 33 runs: L. we me m a go m e o w nºt meadºw m g a 77 yd an to claen vesse, ac we mynggai) eow swa Öeah, baet ge claemmesse healdan . . . (“Beloved we cannot now. forcibly compel you to chastity, but we admonish you, nevertheless, that ye observe chasity.”) Ecclesiastical Institutes (Thorpe, l.c. pp. 466 ff.) c 12. t Institutes of Polity (an Anglo-Saxon treatise, printed in Thorpe [Record Com- mission], Monumenta Ecclesiastica) c 23: Be gehadodum. Mannum. (Of the clergy) . . . baet syndon ba aew-brecan, be burh heal?cme had cric-aēwe tunderfemgam, and syöö'an haet abraecan. Nis nanum weafod bene alyfed baet he wifian mote, ac is aelcum forboden, nºt is beah Baera ealles to feld be home aew-bryce wyrcač and geworht habbač . . . . Laewedum men is aele wif forboden, butan his riht ačwe . . . Ciric is sacerdes aeve. (“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 adultery. . . To a layman every woman is forbidden, except his lawful wife. . . . The church is a priest's spouse.”) - Compare further the Instituta Knut (Schmid, appendix XX; a law-book, probably written shortly after 1110) III c. 63: . . . clericus, qui discendo tantum profecerat, ºtt ordines haberet et in castitate Christo serviret, is tumc judicabitur libertatem habere debere . . . [In the Anglo-Saxon treatise Be. leód-gebinów.m. and lage (Schmid, append. V) c 7, whence the preceding is translated, the words corresponding to in castitate are wanting]; Leges Henric; I (a law-book; probably written 1110–18) c 57 § 9 (printed below, § 60, 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 VIII ce 19–21; Knut I c 5. - - - 2I6 HISTORY OF THE CELIBACY OF THE CLERGY (IV, 3. threatened with the imposition of ecclesiastical penances, not, however, with loss of office.7 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.8 - g * About the time of the conquest the movement against marriages * The contrary is often maintained on the ground of a report (in Wilkins I, 27) of a council alleged to have been held in 712 or 714 by archbishop Brith- wald, at which resolutions were passed de abdicamdis Sacerdotum ua-oribus; 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 arbitrary additions to documents (Haddan and Stubbs III, 280, note). The account of the assembly of 969 is taken from the Wita St. Oswaldà, printed in Historians of the Church of York (Rer. Bråt. Scr. No. 71) II, 505 and mentioned by Hardy, Descriptive Catalogue of Materials etc. (Rer, Brit. Scr. No. 26) vol. I No. 1207, co 6, 7 : . . . Non multo vero post, comète Ailwêno amplas possessiones concedente, S. Oswaldus infa'a q w in q wen- m? wºn aedificavit insigne ibidem monasterium, et ammo Doming 974 solemniter dedicawit, Edmothwm, momachum abbatem constituit. Per idem tempus aucto- ºritate Joannis papae Dunstanus archiepiscopus, coacto generall concilio, statuit et decreto firmavit, ut canonicë omnes, presbyteri, diacomż, subdiacomº aut caste viverent, a wt eccles & as Q was ten ebant dº mºtterent. Habebat autem regem. Edgarum in hoc negotio fidelem adjutorem, et firmum defensorem. Hujus enim decret; eacecutio Oswaldo Wigormiens; episcopo, et Ethelwoldo Wintoniens? episcopo commissa est. . . . According to Hardy, l.c. this Vita, 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. Oswald. - Eadmer in his Vita St. Oswald; 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. Oswald; c. 7 (in Historians York, l.c. II, 493, Hardy, l.c. vol. I No. 1210), reports: Per idem temporis, eac sanctione et awctoritate Johannis Apostolicae sedis antistitis, Beatus Dunstanus archiepis- copus Cantuariae et primnastotius Britanniae, cujus paulo superius mentiomem fecimus, coacto general; concilio statuit, et statuendo decretum confirmavit ; widelicet ut canonici Ommes, diaconi et subdiacomº omnes aut caste viverent, aut eccles? as q was ten ebant wºn a cu m rebus ad eas pert à ment ibws perderent. Habebat autem regem. Edgarum in hoc negotio fidelem fawtorem, constantem adjutorem, firmum defensorem. Quº reac, ipsius patris consilio wtems, curam eacequendi decret: hujus super totum regnum duobus viris injum- acit, Oswaldo Scilicet episcopo Wigormiensi et Aethelwaldo Wintoniensé. 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 (l.c. I, 392 ff.), or in the biographies of Dunstan by his contemporaries and by Eadmer (in Memorials of St. Dunstan ; Rer. Brit. Scr. No. 63). Most nearly resembling it is the statement of Eadmer in Vita St. Dunstan? (Memo- sºals etc. l.c. 211): . . . Ordo clericalis ea tempestate plurimum erat cor- a'uptus, et canonic; cum presbyteris plebium voluptatibus carnis plus aequo Žnserviebant. Quod malum Dunstanus corrègere cupiens, fretus (this word is wanting in one MS.) auctoritate Johannis apostolicae sedis antistitis, apud regem obtinuit quatemus canonic qui caste vivere mollent ecclesiás quas tene- bant depellerentur, et momach? loco eorum intromitterentwr. Praesidebat ea tempestate Wentanae ecclesiae praeswl Aethelwoldus, t 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. ° Norðhymbra preſista lagu (time of origin not precisely known ; according to the common view, end of tenth century; Schmid, appendix II) c 33: Gºf prečst cºcénam forlaéte, and oë're mime, amathema 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 Roman councils, particularly those of 1059 ° and 1074.” In England it was, at first, only decided—at the council of Win- chester (1076) 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 office, 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: loss 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. 19 Mansi, Concilia XX, 402 ff. 434. * Matthew Parker, De Antiquitate Britannicae Ecclesiae et Privilegiis Ecclesiae Cantwardensis, cum Archiepiscopis eiusdem 70. Lambeth, 1572, p. 98: Eac lib. Constitutionwm, Ecclesiae Włgorn. p. 101 (after Parker, also printed in Wilkins, Concilia I, 367): Seacto anno celebratur Concilium apud |Winton. in haec verba. Ammo ab incarnatione Domžn? 1076 indictione 14 . . . £n kalend. Aprilis habita est Synodus Wºntoniae convocata ab eodem Cant. Ecclesiae Primate. . . . Decretumque est ut mullus Canonicus watorem Jiabeat. Sacerdotum (Wilkins: Sacerdotes) vero ºn castellis vel in vices habi- tantium (Wilkins: habitantes) habentes watores non cogantwr ut dimēttant, Avon habentes interdicantur ut habeant, et deinceps caveant Episcopi, ut sacer- dotes vel diacomos non praeswºmant ordinare, mºst privas profited mtur, wt watores won habeamt. . . . Cf. letter of Lanfranc to bishop Herfast of Norwich in . Epistola Lanfranci (Migne, Patrologiae Cursus vol. 150 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 de form?catione 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, 1102 (Wilkins, Concilia I, 382)c 5: Ut nullus archidiaconus, presbyter, diacomus canonicus wagorem ducat, vel ductam retineat. Subdiaconus vero quilibet, qué canonicus mom est, sº post professionem castitatis watorem dwacerit, eaderm regula consträngatur. c 6: Ut presbyter quamdžw illicitam. conversationem mulierås habuerit, mom sit legalès, nec missam celebret; mec sé celebraverit, ejus missa audiatur. c 7: Ut mullus ad subdiacomatum, aut supra, ordinetwr sine professione castëtatis. Henry of Huntingdon (Rer. Brăt. 2I8 . HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3. 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 apud Londončam, in quo prohibuit Sacerdotibus watores Anglorum, amte a mon prohibitas. (Cf. here Eadmer, Hist. Nov. ; Rer. Bråt. Scr. No. 81; p. 193: Multi mempe presbyterorum statuta concilii Lundomiensis, necne vindictam quam in eos rea: eacercuerat . . . postponentes, swas feminas retinebant, aut certe duoceramt. quas privas mom habebant.] - Resolution of the bishops assembled for the curia regis at London, Whitsun- tide. 1108, in presentia . . . . regis Henrici, assensw. Omnium baromum. Suorum (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 Quadrápart?tus Book II c. 18, whence it is here printed ; other versions in Florentius Wigormiensis, Chrom. II, 57 and Ead- mer, Hist, Nov. 194) c 1: Statutum est, ut presbyteri, diacon?, subdiacom? caste wivant et foeminas in domibus swis mon habeamţ preter proacima consanguin?tate sibi čunctas secundum hoc quod sancta Nicema simodus definºvit. c.5: Illi . awtem presbíteri, qui . . . preelegerint cum wagoribus suis [Florentius and Eadmer have mulieribus instead of wacoribus suès] habitare, a divino officio re- motº [Florentius and Eadmer add: omnique ecclesiastico beneficio privati) eactra: chorum pomamtur, infames pronunciati. [Eadmer, not Florentius, adds: c 10: Omnia vero mobilia lapsorum posthac presbyterorum, diacomorum, sub-. diacomorum, et camonicorum tradentur episcop?s, et concubimae cum rebus suès, welut adulterae.] Council of London of 9th Sept. 1125, under the legate, John of Crema. (Wilkins, Concilia I, 408) c 13: Presbyteris, diaconibus, subdiaconibus, canonic's watorum, concubinarum, et omnium omnēmo foeminarum contubernia auctor?-, tate apostolica inhibemus, praeter matrem, aut sororem, vel amitam, sive illas mulieres, quae Ommºno careant suspicione. Quº decret: hujus violator eactiterit confessus vel convictus, ružmam proprić ordinºs patiatur. National council of Westminster, 1127 (Wilkins, Concilia I, 410) c 5: Presbyteris, diaconibus, subdiacomżbus et omnibus canonic's contubernia muli- erwm illicitarum penitus interdicëmus. Quods; concubinis (quod absit) vel conjugibus adhaeserint, ecclesiastico priventur ordine, honore simul, et benefi- cio. Presbyteros vero parochiales (s? qui tales fuerint) eactra chorum ejęcimus, et infames esse decernimus. c. 7 relates to the punishment of priests’ concu- bines. - Council of London, 1129 (Henry of Huntingdom ; Rer. Brit. Scr. No. 74;. Book VII $ 40 p. 250): Reac . . . in Angliam rediit. Tenuit igitur conci- lium maocłmum ad Kalendas August apud Londoniam, de Macoribus sacerdo-. tum prohibendis. Intererant . . . (here follow the names of two archbishops. and ten bishops) . . . Verum reac decepit eos simplicitate Willelmº archº- episcopi. Concesserumt mamque regà justitiam de Macoribus sacerdotum, et Żmprovid? habit; sunt, quod postea patuit, cum res summo dedecore terminata: est. Accepit emim reac pecuniam infinitam de presbyteris, et redemit eos. Legatine council of Westminster, 1138 (Wilkins, Concilia I, 415) c 8: Sanc- torum patrum vestigiºs inhaeremtes, presbyteros, diacomos, subdiacomos wºoratos, aut concubinarios ecclesiasticis officiis et beneficiis privamus . . . Canomes conciliš sub Richardo, archiep. Cant. (Westminster, 1173? Wilkins, Concilia I, 474) c 3: Cleric; focarias mon habeant. c 4: Conjugate ecclesias mon habeant, sew ecclesiastica beneficia. Council of Westminster, 1175 (Wilkins, Concilia I, 476): Eac decretal; epis- tola Alexandri papae III ad Rogerum, Wigorn. episcopum. Siquès Sacerdos vel cler?cus in sacris ordānābus constitutus ecclesiam vel ecclesiasticum benefi- cium habens, publice formicariam habeat, et semel, secundo, et tertºo common?- tws, formicariam swam mom dimiserit . . . , omni officio et beneficio ecclesiastico spolietur. Sº qui vero infra subdiacomatum constituti matrimon?a contraºcerºnt, ab wo:oribus suis, misè de communi consensu ad religionem transire voluer?nt, § 22] HISTORY OF THE CELI BACY OF THE CLERGy 2I9, priests.“ The enforgement of the prohibition to marry was opera- tive from the end of the twelfth century ; om the other hand, the et íbí ín Dei servitio vìgìlanter permanere, nullatenus separentur ; sed cum vtacoribus víventes, ecclesiastica beneficía mullo minodo percípíamt. Quâ autem, în . subdiaconatu, vel supra, ad matrímonía convolaverìnt, mulíeres etìam ìnvìtas: et renitentes relínquant... *. - • . . . . . . . ! Whem Immocent placed the country under am interdict, John seized the women , of the clergy and exacted heavy ransOm for their release. lRoger de Wendover, IFlores Historiarum (Rer. Brìt. Scr. No. 84) II, 47, year 1208: . . . presby- terorum et clerícorum focaríae per totam Anglíam a mêmêstrìs regís captae suiìt et graviter ad se redímendum compulsae.; . .. . . . . . . : ; *' Council of Oagford, 1222 (Wilkins, Comcìlìa I, 585) c 28: . . . me clerící beneficíatí vel în sacris ordíníbus constítutí, ïn hospítíís suìs publìce comcubí- Tmas temere praesumant, nec alêbâ, cum scandalo publ á cu m accessum habeamt ad easdem. Et si forte concubìnae eorum, commonìtìone publice proposita, ab- eisdem non recesserìnt, ab ecclesia Deâ, quam ìnfamare praesumunt, eæpellantur, mec admìttantur ad ecclesíastíca sacramenta . . . Ipsos etíam clericos per subtractìonem Qffieę et benefic?? . . . volumus coercer?. ' ' ' - Coumcil of London, 1225 (Wilkims I, 607): Comcubìmae sacerdotum et clerí- corum, quê ínfra sacros ordines constitutâ et beneficiatę sunt, ecclesiastica, careant sepultura . . . . Item mon recìpìantur ad osculum pacis, nec panem : benedíctum, percipiant în ecclesia, quamdiu concubínaríí eas detìnemt în domî- bus $uís vel publ êce eactra domos . . . - Constitutiom of the archbishop of Camterbury Edmumd, 1236 (Wilkins I, 685) c 8: . . . ín generali concílío statutum est, quod clerící, praesertím ín sae- ris ordíníbus constitutâ, quâ deprehensâ fuerìnt ìncomtínentíae vitío laborare,. et pro hac causa suspensâ, qffic?um suum eacequâ praesumpserìnt ; nom solum ecclesíastícís beneficãås spolíentur, verum etíam pro hac duplicâ culpa perpetuo. deponantur ; . . . c 4: Concubînae sacerdotum frequemter momeamtur . . . , ut vel matrìmonìum contrahant, vel ut claustrum ìngredíantur, vel, sícut pub-* l êc e peccaverunt, publíce agant poenítentìam . . . Constitution of legate Otho, 1287 (Wilkins, Concìlìa I, 649) c 15: De uacoratis: a benéficiis amovendis. c 16: De comcubênês clerícoram : removendis . . . ' statuìmus . . . , ut mósà clerîcâ et maocime în sacris ordánibus comstitutâ, quã £n, domibus suìs vel alíemís detínent publ à ce comcubênas, eas a se prorsus re-- qmoveant înfra mensem, ?psas vel alías de caetero nullatemvis detemturâ, ab Qffic?o. et beneficio sânt suspensâ, ita quod usquequo super hoc dìgne satísfecerínt, de beneficiis ecclesíastícís se mullatemus ìntrom áttamt ; alíoquám ípso jure ípsos- decernímus ípsís fore prívatos. - - Episcopal constitution of Worcester, 1240 (Wilkins, Concil. I, 672). ' The arch- deacoms are to make inquest, . . . am alíquí eorum (clericâ benéficiat?) fuerínt uacorati, vel concubêmas publ à ce temuerínt âm, domibus suìs, vel alíb?, . . . . . Constitutiom of legate Othobom, 1268 (Wilkins, Concílía II, 1) c 8 confirms.' Otho's constitution cited above, amd adds provisions against. such concubines amd persoms who harbour them. - ** Coumcil of Londom, 1102 (Wilkins, Concilia I, 882) c 8: Ut filíí presbyter- orum mom sint haeredes ecclesiarum patrum suorum. - - Pope Paschal II, however, gave Anselm by letter of 80th May, 1107 (in : Eadmer, Hist. Nov. ; Rer. Bröt. Scr. No. 81; 185) the right of dispensation in regard to this prohibitiom, quîa în Anglorum regmo tanta huju$modi plenátudo* est, ut major peme et melìor clericorum pars ìm hac specie- cemseatur. 4• . • Legatine coumci] of Londom, 1126 (Wilkins, Concilia I, 408): Sancámus prae- terea, me quis ecclesîam síbí síve praebendam paterna vendícet haereditate, . . . „Ëulºs legatine council ofTWestmámster, 1188 c 6 (Wilkins, Comcílía. I,. 5). - - - - - Canones sub Richardo archíep. Camtuar. (Council of Westmêmster, 1173?. Wilkins I, 474) c 5: Fílê mon succedant patríbus ám ecclesêês. . . . . , . , ' Counci1 of Westmónster, 1175 (Wilkins, Concìlia I, 476): Eac decretalâ epis- tola Aleaeandrì papae III. ad Rogerum, Wigorm. epíscopum.— . . . . Decre- 220 HISTORY OF THE CELIBACY OF THE CLERGY [IV, 3 rules 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 ------------ -------------, ------- * *-ºs---------- wimus eteam, ejusdem epistolae auctoritate, me filić sacerdotum in paternis ecclesi is amodo personae instituantur, mec eas qualibet occasione media mon &ntercedente 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: . . . Ips? quo- que filić (of holders of benefices by secret marriages) ad ecclesias et ecclesiastica. beneficia et ecclesiasticos ordines, velut inhabiles, mullatenus admittantwr, nisi fuerit cum e?s, eacăgentibus eorum meritis, canomáce dispensatum per Romanum pontificem. c 17: Lècet . . . in eis (sc. beneficiès) etiam sát interdicta suc- cessio Sobolis bene matae; quidam tamen de nefario coitu procreat? . . . in beneficia hujus modi, quae patres eorum nullo medio tenwerunt, irrumpere . . . . non formidant. Hoc . . . prohibemus . . . Constitution of Peckham published at the council of Lambeth, 1281 (Wil- kins, Concilia II, 51) c 25: Cwm a jure sit inhibitum, me absºle dispensatione apostolica praeficiantwr filić presbyterorum aut rectorum in ecclesiis, in quibus patres eorum immediate sew proacimo ministrarunt, et constet insa beneficia vacare, si contrarium de facto fuerit attemptatum ; praecipimus, ut praelate de eccles? is sic vacantibus diligenter inquirant, et juacta juris eacăgentiam de e?s non differant ordinare, cautius praecaventes de caetero, wt tales ad hujus- -mod: beneficia mullo titulo admittant, . . . * According to Stubbs, Const. Hist. III, 385 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, Sève bigamºus, . . . de caetero jurisdictionem spiritualem eacerceat qualemcwnque, mec in causis correctionwm, scèlicet cum ad correctionem animae, vel ubi eac judicis proceditur officio, scriba sew registrarius, aut registri correctionum hujwsmodé custos quomodolžbet eacăstat; . . . * Proclamation of beginning of 1535 (Wilkins, Concilia I, 776): Finally, his "majestée wrºderstanding, that a few number of this his realme being priests, as well religious as other, have taken wives, and marryed themselves, . . . ; 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 Juighness 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- sumptuously proceed in the same, that they nor any of them shall minister any sacrament or other ministry mysticall, nor have any office, dignity, cure, privilege, profitt or commoditye heretofore accustumed, and belonging to the clergie of this realme, but shall utterly after such marriages be eacpelled 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 indigmation, and suffer further punishment and imprisonment at his grace's will and pleasure.— § 22] HISTORY OF THE CELIBACY OF THE CLERGY 22I 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 Ben. VIII c. 14, as fundamental and secured by heavy penalties against attack or violation.” In spite of all which, the king allowe 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 concubines by priests, somewhat modified by 32 Hen. VIII (1540).c 10.20 A later act, 37 Hen. VIII (1545) c 17, declared that ecclesiastical prohibitions against the exercise of ecclesiastical juris- Similarly proclamations of 16th November, 1588 (Strype, Crammer Ed. 1812 I, 98) and of 1539 (Wilkins III, 847). The proclamations had the force of law, as can be seen from 31 Hen. VIII (1539) c 8 [An Acte that Proclamacions made by the King shall be obeyed]. * Perry, Hist. of Engl. Ch. II, 156 c 9 $$ 24 f. * 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 any priest who marries thereafter is to be punished as a felon with death and forfeiture of property. * 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 kepe her as his Concubyne, as by paying for her bourde maynteyming her with money array or any other giftes or meanes, he forfeits his goods and chattels, as also his ecclesiastical offices and benefices, and is to be imprisoned during the king's pleasure. - - t 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. zº * An Acte for moderacion of Incontinence for Tristes. 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 Hem. VIII (1540) c 15; in other respects it was confirmed by 34 & 35 Hen. VIII (1542/3) c 1 $ 21 and by 35 Hen. VIII c. 5; the last enactment, however, mitigated the procedure in favour of the accuséd and fixed a short limit of time within which indictment must be.—The assump- tion of Perry, Hist. of Engl. Ch. II, 173 c 10 $ 22, that the six article law was intended to be modified by 34 & 35 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 laymen and married men were to be regarded as abolished,” 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.” During 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 office.” wd 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, revived, 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 Raigme of Könge Edwarde the Syacthe. * Articles of queen Mary, 4th March, 1554 (Cardwell, Doc. Amm. I, 111):— Art. 7. Item, That every bishop, and all the other persons aforesaid, proceed- Žng summarily, and with all celerity and speed, may, and shall deprive, or declare deprived, and amove according to their learning and discretion all such persons from their benefices and ecclesiastical promotions, 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 abused 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 also divorced every one from his said woman, and due punishment otherwise taken for the offence therein. § 22] PIISTORY OF THE CELIBA CY 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 (Cardwell, Doc. Amn. I, 178) c 29: Item, Although there be no prohibition by the word of God, nor any eacample 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 many 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 manner of woman without the advice and allowance first had upon good eacamánation by the bishop of the same diocese, and two justices of the peace of the same shºre, dwelling neart to the place, where the same woman hath made her most 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 manner 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 ºf any master or dean, or any head of any college shall purpose to marry, 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 himderance 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 . e 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 Diacom’s mullo mandato divino prae- ceptum est, wt aut coelibatum voveant, aut a matrimonio abstineamt. Lºcet Žgitur etiam illis, ut caeteris omnibus Christianis, wbé hoc ad pietatem magis facere iudicaverint, pro suo 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 accomplished by 1 Jac. I (1603/4) c 25 s 8. t . The rules which forbade a son to succeed immediately to hi 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.” * * . * 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, Codeac 796, three hundred such dispensations were given between 1660 and 1712. Cf. Phillimore, Eccl. Law 404. V. The stberal Authorities in the Church, 1. THE KING. A. MEDIEVAL POWERS. a. In relation to foreign influences. S 23 S º 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." Upon 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 Rome 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 appellar? Subsidium) and of the decision of the Roman episcopal council, under the presidency of pope Agatho (Statuimus atque decermºmus) will be found in Haddan and Stubbs, Counc. III, 136. * Haddan and Stubbs, Counc. III, 253 : . . . fiducialiter sedem appello. apostolicam : vestrum autem quisquês depomere meum dignitat's gradum. praesumit, a me hodge invitatus mecum pergat illuc ad ºudicium. For two. intervening appeals to the pope by Wilfrid see Haddan and Stubbs, Counc. III, 254, note. - * Adelard, Vita S. Dunstan? (Memorials of Dunstan ; Rer. Brit. Scr. No. 63) p. 67: . . . quidam illustrium pro illicito matrimonio Saep?us ab eo redargutus, sed mon correctus, gladio tandem evangelico est a Christo divºsus. Qu? Rom a m a dºens dominum apostolicum pro se Dunstamo Script's Satis- face're Optimužt. Håc Dunstanus . . . mover? nom potwit : sed ºpso apos- tolºco mente altior in se solidus perstätät, ‘Scias,' inquiens legato, ‘nec capités pleasione me a Domžnº me? auctor?tate movemdum.’ - - * For the period up to the reformation see Stubbs, Const. Hist. III, 360 f. c 19 $403. H.C. t - . 225 - * - Q 226 MEDIE VAL POWERS OF THE KING [V, 1A appeal was furnished in 1052 by archbishop Robert of Canterbury.* But in all these cases there was no question of a tribunal with jurisdiction 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 the leaders of the Anglo-Saxon party, when they returned in arms to England, and was then declared an outlaw by the national council (Anglo-Saacon Chronicle, Rer. Bråt. Scr. No. 23; I, 319–21). William of Malmesbury, Gest. Pont. (Rer. Bråt. Scr. No. 52) 35: . . . judětić deliberationem (at the council) preveniens, Romam évêt. Unde cum epistol's Žnnocentiae et restitution's suae allegatricibus rediens, finem vitae apud Gºme- givm (Jumièges) invenit. No notice was taken in England of his appeal to the pope; and Stigand was appointed archbishop in place of the absent Robert. 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. Richter, Kärchen recht § 210. - * William I had before the conquest taken proceedings at Rome touching his marriage (Stubbs, Const. Hist. III, 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: * sène sua jussione apostolicum molebat recip? aut appellar? 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 juréjurando promittas quod nunquam amplius Sedem Sancti Petri vel ejus vicarium pro quavis quae tibi queat ingeri causa appelles, aut sub omni celerºtate de terra Sua (the king's) recedas. Anselm refused the oath. Eadmer, Hºst. Nov. (Rer. Bråt. 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 bishop's plea is rejected. The bishop appeals to the see of Rome against this ruling as uncanonical. Upon this the curia deliberates anew and pronounces by the mouth of the original accuser the sentence : Domine episcope, regis Curia et barones ºst; vobis pro justo judicant, quando sibi (the king) vos Tespondere mon vult's de his de quibus vos per me appellavāt, sed de placito $700 invitatis eum Romam, quod vos feodum vestrum inde foråsfacitis. 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 Willelmi episcopi primă per Willelmum regem filium Willelmi magni regis, in Rer. Bråt. Scr. No. 75, I, 170 ft.) * Letter to Henry I (Eadmer, Hist. Nov. ; Rer. Brit. Scr. No. 81; p. 229): Nullus £nde (from England) clamor, mullum inde judicium, ad sedem apos- tol?cam destimatur. Letter to Henry I and the English bishops (l.c. 233): Vos Oppress's apostolicae sedis appellationem subtrah?tis, cum Sanctorum patrum. Concºlºs decretàsque sancătum sit ab omnibus oppress's ad Romanam ecclesiam appellandum. — Cf. Hugo Cantor (The Historians of the Church of York, Rer. Bråt. Scr. No. 71) II, 212: Reac . . . abeuntibus archiepiscopis pro- h?bendo &mperavāt, si dominus papa concordiam inter se provisam, concedere et confirmare mollet, me &nde placătarent ; sºn autem, ad eccles?as swas mon 3'évérterental”. (The archbishops were formally summoned to Rome in the matter of the dispute about precedence. Summons l.c. 210; it is dated 13th April, 1125.) - * 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- bishop 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- Cºls I, 334). 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 3 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, Comst. Hist. III, 311 c 19 $38i.—Henry of Huntingdon (Rer. Brit. Scr. No. 74) 282, contemporary with Stephen, writes: Anno XVI (i.e. 1151) Theo- baldus Cantuariensis archiepiscopus, apostolicae sedis legatus, tenužt concélèum générale apud Lundoniam in media Quadragesima, ubi reac Stephanus et filius, 228 r- iſ EDfE WAL 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 egclesiastical, 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 suus Eustachius et Angliae proceres interfuerumt, totumque illud concilium. . movis appellation?bus infremduit. In Anglº a ma mg we appellationes ºn. w sw m on er ant, dome c e as Hem ricus Wim to m 'ems is ep is cop us, du m. legatus esset (i.e. 1139–43), 'm a lo sºlo cru de liter intrºls it ; in eodem. mamque comcillo ad Roman? pontific's audientiam ten appellatus est. Stubbs, Comst. Hist. III, 361 c 19 $ 403 Supposes that the 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 Rome. 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 Rome. * c 8: . . . . Si archiepiscopus defuerit (defecerit) in justitia eachibenda, ad domżnºm regem perven?endum est postremo ut praecepto £psius in curia archiepiscop? controversia terminetwºr, ita quod mom debeat ulterius procedere absque assensu domżnº reg’s (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 Høst. Becket. Rer. Brit. Scr. No. 67, V, 205): In appellation?bus eac antiqua regn? Suº constitutione 3d s?b% vindicat homorès et omeris, ut ob cºv? lem causam mullus clericorum regmi sui éjusdem regn? fines eaceat, mis? am &psius auctor?tate et mandato jus swum obtimere queat, privus experiendo cognoscat. Quod si mec sic obtinuerit, ad eaccellentiam, vestram, pso in mullo reclamante, cum volet quilibet appellabit. In quo s? jurº vel honor; vestro praejudicatur in aliquo, id se totius ecclesiae regmi Suº com- silio correcturum ºn proacimo, juvante Domžno, pollècetur. Temporarily, during the struggle with Becket, Henry forbade all appeals to Rome. See his order to the various sheriffs, Christmas, 1164 (Materials for Høst. Becket. Rer. Brit. Scr. No. 67, V, 152): Praecipio tibi quod, s? aliquis clericus vel laicus ºn bailia tua Romanam curiam appellaverit, eum capias, et firmäter custodias donec voluntatem mean percipias [praecipiam *] . . . Ordinance of Henry II, probably in 1169 (Hoveden, Rer. Brit. Scr. No. 51, I, 231; for the date see p. 232, note, and Materials for Høst. Becket; Rer. Bråt. Scr. No. 67; VII, 147, note, 150, note), c 4: Item general?ter interdictum est, me aliquis appellet ad dominum. papam, vel ad Cantuárdensem archiepiscopum, . . . On a national assem- bly at Clarendon, 1166 (Vita St. Thomae by Edward Grim, a contemporary. of Becket, in Materials, l.c. II, 405): Audiens interea reac quod episcopos. Angliae domimus papa mandasset, Claremdunam coegit concilium, ubi jura- mentum eacegºt a pontificibus me quês eorum pro quavis appellatione patria. egrederetur, memo mandatum doming papae susciperet. Et quidem ºn hunc modum episcop? promiserunt, a laïcis vero juratum est. Clamatum est eac ore regis, quod Siquis pro quocumque negotio sedem apostolicam appellasset, Omnia quae illius essent scriberentur ad opus regis, et épse truderetur in carcerem. * Cf. § 4, notes 50, 51. § 23; 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 Richard 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.” * Henry III and his successors claimed as the privilege of England that the decision of appeals addressed to the pope should take place ºn England. If those to whom the pope delegated his decision lived in England, the king could exert influence upon them. Such delegation was very customary, but did not always take place. (Cf. Stubbs, Const. Hist. III, 362 c 19 $ 403 and Stubbs, append. I, 30, Report of Royal Commission on Eccl. Courts, 1883, Reports XXIV.) We find references to the privilege in question in Prynne, Records II, 628 (Writ of Henry III, 26th Apr. 1244: Cwm a sede Apostolica mobis specialiter sit indultum, me quês de Regno mostro in foro Ecclesiastico, eactra Regnum, 2008trum, 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. (Rer. Bråt. Scr. No. 36.) III, 170, year 1246. See also below, § 24 note 9 sub finem, and $ 4 note 119 No. 5. Cf. further the letter of Edward II, dated 26th Jan. 1320, to the abbot of St Albans, in Rymer, Foedera 4th Ed. II, 416: . . . considerantes quod cognácio hujusmodé trans- gressionum (namely contra pacem mostram), infra regnum mostrum factarum, ad mos racione regie dignitatis mostre, in eodem regno discut:enda pertimet; et quod ullus de eodem regno, super hº is quor wºm, cog nºt i o ad nos per- tº net, trah? nom debeat in causam eactra 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 (Rotul; Clausarum I, 629), Bracton, Book V tract. 5 c. 19 $ 14 (Rer. Bråt. Scr. No. 70; VI, 314 and agreement of 1234 in appendix to Bracton, l.c. 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 twº tºo. Cf. preface to Regist. Epist. Peckham, vol. II p. cwii and instructions of the archbishop of Canterbury, 1808, in Spelman, Comcilia II, 457. * The following are the enactments relevant here:— .* I. Immediately connected with enactments touching provisions:— 25 Ed. III (1350/1) st. 4 Statutum de Provisoribus [confirmed by 38 Ed. III (1363/4) st. 2 c 1 and 13 Ric. 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, avant qāls sołent delivres facent pleine renunciacion, et troevent sufficeante seurete qāls mattempteront tiele chose 23O JM ED I E VA L P0 VV EſPS OF TH E K I /VG [V, 1A In 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 nul proces sueront par eux ne par autre devers muly en la dite Court de Rome, me nule part aillours, por mules tieles em- prisonement2 ou renunciacions, me mule autre chose dependant de e2loc. (Printed at length in appendix VIII.) 88 Ed. III (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 bartV. 13 Ric. II (1389/90) st. 2 c 3 : Item ordeigne est et etabli qe si ascun pOrt : Ou envoie deim2 le 7'oialme . . .. notre . . .. Roy ClSCum, Somonces Sentences ou excomengement2 envers ascun persone de quel comdicion qil Soit a cause de la mociom . . .. fesance assent ou e3ce- 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. III (1353) st. 1 Statutum contra adnullatores Iudiciorum Curiae . Regis. c 1 : . . . assentu est et acorde, par notre dit Seigneur le Roi et les grant2 et communes susditz, qe totes gent2 de la ligeance le Roi, de quele condicion qils soient, qi trehent nulli hors du Roialme, en plee dount la con à ssance appart à ent a la Court le R 0 à, ou des choses dont nt juge ment 2 s ont r en du 2 en la Court le Ro à, ou qe suent en autri Court a deffaire ont empescher les juggement2 renduz en la Court le Roi, eient jour . . .. destre devant le Roi et son con- Seil, ou 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. III (1363/4) st. 2 c 1. Those are to be punished who procure summonses from Rome against king or subjects : S u r c au SeS do unt la cogn à SS a nce et fà mable discuss à on appa rt à emt a m ot re Se à g- m entr le Roi, et a Sa Courte roi ale et a ut rement ; . . . 16 Rèc. 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 tenu2 de droit de faire execntcion de plus o u rs a ut res m and e m e nt 2 notre Seigneur le Roi, . . .. Mes ore tarde diverses processes sont fait2 par le Seint piere le Pape et sensures descomengement sur certeins Evesques Dengle- terre p o r c e o q i ls ont nt fa it ex ecu c i o n d e S t à eux m an de ment 2 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 nad hieu nully terrien Soveraigne, mes immediate subgit a Dieu en toutes choses tuchant2 la regalie de mesme la Corome et a mully autre, seroit submuys ct Pape, . . .. Sur quoi . . .. le Roy del aSSemt . . . ad Or- deigme et eStablie, qe si ascun purchace ou pursue ou face purchacer Ont p?t7'Suer en la Court de Rome ou aillours ascunS t # e uac translacions, proceSSeS et Sentences de escomengement2 bulles instrument2 ou autre chOSe quelconqe, qe touche le Roi notre seigneur encountre luy Sa corone et regalie ont Son Roialme c o m e dev a unt est d à t, 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 I 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 (1532/3) 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 causes 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 #. VIII (1533/4) c 19, the prohibition was made of universal application.* - The two acts just mentioned of Henry VIII were repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3,” but revived by 1 Elż2, (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 courts 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 K—— * This act is commonly entitled the Statute for Restražnt of Appeals. The title in the Statutes of the Realm 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 me used but wythin this Realme. s 1 runs : . . . enacted that all Cawses testamentarče, Causes of Matrº momy and Džvorces, * * g hites of Tithes, Oblacions and Obv enc ions, the knowlege wherof © appertey meth to the Spºr it wall Jurisdict 7 on of this Realme, all rede commensed . . . or hereafter commyng ºn contemcºon. . . . shalbe frome hensforth harde examined discussed clerely finally and diffing- tyvely adjudged and determyned within the Kºnges Jurisdiccion and Auctoritie and mot elleswhere * g ** s 4: . . . that . . . no manner of appeales Shalbe had pro- woked or made, out of this Realme or out of any of the Kynges Domymyons, to the Byshop of Rome nor to the See of Rome, in any causes or matters hap- penyng to be in contencion . . . ; but that all maner of appelles of what m at ure or cond icº on. Soo ever they be of, or what cause or matter so o ever they concer me, Shalbe made . . . . after Suche maner forme 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 c. 12 tº º -- \ * An Acte repealing all Statutes Articles and I’rovisions made against the See Apostolick of Rome since 20 Hen. VIII, and also for thestablishment of all Spyrytuall and Ecclesiasticall Possessions and Hereditamentes conveyed to the Layetye. - - ', * An Acte restoring to the Crowne thawncyent Jurisdiction over the State Ecclesiasticall and Spirituall, and abolyshing all Forreine Power repugnaunt to the Same. . . * , . . . . . . . . . . , *. *- : * - • * * *.*.*, *, ºn 232 M E DIE VAL PO JV ERS OF THE KI VG [V, 1A civil authority whose verdicts were subject to mo revisiom. 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 primciple has beem maimtained that in all cases judgment shall belong, in the last resOrt, to a civil tribunal, superior to all ecclesiastical courts. The precise constitution of that tribunal has, however, undergone many changes in later times.'7 § 24. 2. Restrictions of the papal legates.* During the Anglo-Saxon period legates were on several Occasions, though im comparison with later periods seldom, despatched to England, sometimes by the king's desire, sometimes for Other causes and without consultimg him.' It is recorded that under William I it was a recognized rule that the pope might only send legates at the sovereigm's request.* *" Cf. om this point § 62. * The passage in the reports of the legates to the pope, 787 (Haddam and Stubbs, Coumc. III, 448): . . . ut scitis, a tempore sancti Augustinę pontífi- cãs Sacerdos Romanus nullus ílluc mássus est, nísí nos is not tO be takem as meamimg that George and Theophylact were the first legates sent to England since Augustine : for omly legates of priestly rank are spoken of, and ålluc refers probably to Northumbria, amd mot to all England. And yet Augustine himself had not traversed the morth.—Compare, for example, the mention of a previous emissary in the report of the coumcil at Rome, 679 (Haddam amd Stubbs III, 134): . . . ìnvenerunt . . . vêrum venerabilem, Johannem, archęcanta- torem ecclesíae sanctâ apostolâ Petrę, et abbatem monasterò? beat? Martêmô, qu? a Roma per jussionem, Papae Agathonîs în Britanníam est dêrectus. Beda, Híst. Eccles. lV, c 18 § 805: Intererat huic synodo (Haethfelth, 680) pariterque catholícae fidei decreta firmabat, vêr venerabìlìs Johannes archęcantator.— Por further cases of the despatch of legates im Anglo-Saxom times see Einhard, Ann., to year 808 (Haddam and Stubbs III, 561): Interea I3eac Nordanhumbro- rum, de Brittanía ínsula, momême Eardulf, regno et patría pulsus, ad ámpera- torem, dum adhuc Novásmagâ (Nimwegen) moraretur venit, et patefacto adventus suâ negotio, Romam prqficáscátur, Romaque redíens per legatos Eomanâ pontìficìs et domìnì ìmperatorís ín regnum suum reducãtur. Prae- erat tunc temporís Ecclesíae Romanae Leo Tertêus, cujus legatus ad Brittaníam dìrectus est Aldulfus diaconus de îpsa Brittania, et cum eo ab ìmperatore qmóssâ abbates duo Hrotfridus notarius et Nantharius abbas de Samcto Aude- maro, Moreover the signature, not in a, prominent place, to the minutes of the council of Clovesho, 824 (Haddam and Stubbs III, 593): Nothhelm praeco a domno Eugenìo Papa. William of Malmesbury, Gesta Pontíficum (Rer. Bröt. Acr. No. 52) 252, year 1062: Consecutę sunt abeuntes (from Rome) IĘomanorum, legatí, quâ sanctíssímum Wlstanum per consensum, Aldredi Wigornie ordina- verunt epìscopum. (Cf. also Florentius Wigorniensis, Chronìcon [Momum. Hìst. Brìtann.] I, 610: pro responsis ecclesíastícís ad regem Anglorum missô.) * Eadmer, Hist. Nov. (Rer. Bröt. Scr. Nö. 81). p. 258, om the negotiatioms of EHenry I with pope Calixtus II im 1119: Acta ígítur sunt multa ínter îllos, quorum, gratia par erat tantas personas convenísse, Inter quae reac a papa ?mpetravit ut omnes consuetudínes quas pater s u u s (?.e. William I) ? m. a Stubbs, Comst. History III, 306 ff. c 19 § 380.—Friedberg, De finium, imter ecclesiam, et civitatem, regwmdorum, judicio etc. 154 ff. § 24] I W 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 by 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 habwe rat et in Normannia sibi concederet, et maacłme ut meminem aliquando legati officio ºn Anglia fung? permitteret, sº non èpse, aliqua prae- cipua querela eacºgente, et quae ab archiepiscopo Cantwarżorum caeterisque episcopis regmi terminari mom posset, hoc fier? postularet a papa.—After the conquest there had appeared (1070) in England papal legates of whose services William had availed himself in deposing the native bishops. On their depar- ture Lanfranc was authorized by the pope to give final decision in two pending cases. Tetter of the pope to William I, 1072, in Wilkins, Concilia I, 326: In causis autem pertractandis et diffingendès ita Sibi (the archbishop) vestrae [in Rymer, Foedera 4th Ed. I, 1 is mostrae) et apostolicae auctoritatis vicem ded:- mus, ut quicquid . . . . determinaverit, quasi in mostra praesentia diffini- tum, dežnceps firmum et indissolubile tened tur. - * Hugo of Flavigny (printed more fully in § 4, note 17) : . . . . conventi- omem fecerat cum eo Albanens's episcopus (cardinal bishop of Albana, legate in England 1095), quem primum illo miserat papa, me legatus Romanus ad Angliam mitteretur misè quem reac praeciperet, . . . * Eadmer, Hist. Nov. (Iter. Bråt. Scr. No. 81) 126, printed in § 34, note 13. * Eadmer, Hist, Nov. (Rer. Bråt. Scr. No. 81) 239: Sed reac Henricus a mitz- quis Angliae consºlet wal?mº bus praejudicium inferré mom sustèmens, Żllum ab ingressu Angliae detimebat, . . . William of Malmesbury, Gesta Pontificum (Rer. Bråt. Scr. No. 52) 128: Nam et in principio regmi Henricº venerat Angliam ad eacercendam legationem Guido Piemmensis archiepiscopus, qui posted fuit apostolicus; tumc Anselmus ; mec multo post guidam Petrus. Ommesque reversi mullo effectu re?, grandi praeda sui, Petrus maaci’me, * Crebra ergo ad Angliam commeabat legatio Romanorum insidžantium imbecil- litati Radulfi, set effugabantur Ommes cautela Henric. Nolebat enºm ille in Angliam praeter consuetudinem antiquam recipere legatum mis? Cantuarien- sem archiepiscopum, illique libenter refrångebant impetum, propter violentiam denariorum. Cf. also Florentius Wigormiensis, Chron. (ed. Thorpe) II, 69. * Cf. § 34, near note 10. ° Eadmer, Hist. Nov. 258, printed above, note 2. Cf. Simeon of Durham, Hist. Regum (Rer. Brit. Scr. No. 75) II, 276, year 1125: Johannes Cremensis accepta ab Apostolico Super Britanniam legatione, cum diu in Normammia. retentus esset a rege, tam de m perm issus 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 I, 317): Literis istis tibi notum facere volumnus, quod Johannes, ecclesiae 234 MEDIEVAL POWERS OF THE KING [V, 1A office was mostly, and afterwards until the reformation constantly, combined with 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 Romande presbyter cardinalis atque legatus, ordinatione, most raque con- Twº ventº a concilium celebrare disposuit. . . . Hugo Cantor (The Historians of the Church of York; Rer. Brit. Scr. No. 71) II, 210: Legatus (John of Crema) tota fere Anglia circuita et perambulata usque prope Scotiam, in Nativitate Beatae Mariae Concilium Londoniae celebravăt, quod in tem- pore regu m utrºus Q we Willel mº Rom a mºts legatus mºung waſm. je ce?" at. The bull of 5th June, 1190 (Rad. de Diceto; Rer. Brit. Scr. No. 68; II, 83) touching the transfer of the legatine office to the bishop of Ely sets forth that this is done juacta . . ... desiderium et postulationem. . . . . Ricard? regis Anglorum. * For more on the combination of legatine powers with the archbishopric . See § 34, near notes 12 ft. * Hoveden (Rer. Brit. Scr. No. 51) II, 98; July, 1176: . . . Quà (Vivianus) cum in Angliam venºret, domżnus reac Angliae misit ad eum Ricardum Wºn- tom?ensem et Gaufridum Elżemsem episcopos, et interrogavit eum, cujus auctor?tate ausus erał Żntrare regnum suum sine licentia illius. His 'gitur Žnterrogationibus praedictus cardinalis plurimum territus, de satisfactione Żuravit regi, quod "pse mihál ageret, in legatione sua contra voluntatem illius, et Sºc data est ed licentia transeumdž usque in Scotiam. According to Benedict (Rer. Brit. Scr. No. 49) I, 118, Vivian had to swear: quod nihil ageret in legatione Sua, Quod esset contra 'psum (the king) et regnum Sºlum. King John ordained: *It mullus de regno . . . legatum vel mºuntium sedis apostolicae gº Tecºpere 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, 1245 (Matth. Paris, Chronica Majora; Rer. Bråt. Scr. No. 57; IV, 441; printed therefrom by Rymer, Foedera 4th Ed. I, 362; from a document in the Exchequer, with some deviations, in Cole, Documents 351) : . . . gra- wamur . . . . , quod magister Martinus praefatum regnum, Sine domin? Regis licentia, cum majore potestate quam unquam vidžmus habere legatum a domżno Rege postulatum, muper ångressus (lºcet mon utens legation?s insign??s, amultiplicato tamen legation's officio) movas quotidie proferens potestates inau- ditas, eaccedens eaccessit, . . . privilegio Regis admodum derogamdo, per quod e? a sede apostolica specialiter indulgetur, me quis in Anglia legationis fungatur officio, mºst a domżno Rege specialāter postulatus [in Cole is added: et me quis eactra regnum trahatur in causam]. Resolution of the English mag- nates, 1264 (in Marca, De concordia Sacerdotii et imperić. Book V c. 56 S 13): quod nullum legatum debent admittere, mis? fuerit petitus a Rege et regmº com- amunºtate. - - * Clement V begs, under date 21st Nov. 1307, a safe cônduct, 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] I W RELATION TO FOREIGN I WFL UEWCES 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 cause the despatch of legates to be discontinued.” § 25. 3. Restriction on the introduction of bulls. 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 Rymer, l.c. II, 117 (for papal inquisitors of the templars, 13th Oct. 1310), II, 993 (for a muncio, 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- vč80 . . . quod . . . quicquam, quod in Regis sev Populi Sui pragju- d?cium cedere valeat, mom attemptent . . . ), pt. IV p. 194 (for nuncios on their way to Scotland, 29th April, 1433, with a similar reservation). * Cf. Stubbs, Const. Hist. III, 309, note 3 c 19 $ 380. The protest of the king's proctor (printed in Foxe, Acts and Monuments Ed. 1843 ff. III, 717, note) runs : . . . . dictus christianissimus primceps, domimus meus supremus, Sułgue inclyfissim? progenitores dicti regmi Angliae reges fuerunt et sunt, tam Special? priviległo, quam consuetudine laudabili legitimeque praescripta, Tecmon a tempore et per tempus (cuffus confrar?? memoria homżavum mom eacºst?t) pacifice et inconcusse observata, sufficienter dotati, legitimeque munità, quod Tºllus apostol?cae Sed's legatus ven?re debeat in regnum suum Angliae, aut alčas suas terras et dom?nia, misi ad regis Angliae pro tempore eacistentis vocationem, petitionem, requisitionem, invitationem, sew rogatum, tº protestor . . . quod mom fuži, aut est intention's praefat? . . . prim- cºpis . . . . ac dictorum dominorum meorum de consilio, . . . ingres- sum hujus modi dict reverendissim? patris, ut legati in Angliam, authoritate Tatēficare, vel approbare, Seu 'psum ut legatum sedis apostolicae ºn Angliam, contra leges, jura, consuetudines, libertates et privilegia praedicta quovăsmodo admittere sew recogmoscere; * - * Compare $ 6, note 51. * 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 Vºct. (1848) c 108 declared that the English government might have diplomatic intercourse with the ‘Sovereign of the Roman 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- ozsäon Act. * Cf. Richter, Kirchenrecht $48, note 9. * Eadmer, Håst. Nov. (Rer. Bråt. Ser. No. 81) 9: . . . Non . . . pati volebat Quemguam in Omni dominatione sua . . . ejus (the pope's) litteras st priºnºtus Sibi Ostensae mom fuissent ullo pacto suscipere . . . . (printed more fully in § 4, note 12.) - * * * * * * * - 236 JÌ £ÌDIÆ VA L ΡOJV ERS ÖF TH E R IVG [V, 1A communications from Rome, Or send them thither, or obey papal decrees.* The same right was exercised by Hemry I.* Probably im this respect, as in many others, the reigm of Stephen proved detri- mental to the king's prerogative. During the course of the fieree struggle with the pope under IHenry II, Ordimances were issued which forbade absolutely the bringimg of papal missives into the lamd.° But these ordinamces vere 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 mo 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 * Letter of Anselm, 1099—1100: . . . sêne sua jussione . . . nolebat ut epóstolam, eò (the pope) mitterem, aut ab eo missam, recìperem, vel decretís ejus obediremn. Hugo of Flavigny, year 1096: Quae res in tantum adoleverat, ut ç 'nullus esset în Anglia archiepìscopus, episcopus, abbas, nedum monachus aut clerícus, quę litteras apostolicas suscipere auderet, nedum, obedêre, nîsî reac íuberet. (Both passages printed more fully in § 4, note 17.) * Letter of Paschal II to Henry I (Eadmer, Hist. Nov. ; Rer. Bröt. Scr. No. 81; 229): Sedis enìm apostolicae nuncę vel litterae praeter jussum regîae ^majestatis nullam ên potestate tua susceptìonem, aut adótum promerentur.— Hugo Cantor (The Historìams qf the Church qf York, Rer. Bröt. Scr. No. 71) II, 198, year 1122: Paululum ante Adventum Domînî venât quâdam de urbe I3oma {íteras domini papae deferens utrâque archìepíscopo Angliae ; . . . nostro (the archbishop of York) sábó mássas tradídít, . . . ' Non defuit quâ (de) latore regí díceret archiepiscopum, literas domînî papae devotione ad Com- «cílíum habuísse, quod eae regnâ consuetudìne absque conscìentìa et lócentía regis suscepísse non debuerat ; unde reac alíquantum commotus mandavit e? quatènus super hoc rectítudínem facturus ìn pro3cima Purìficatione Samctae Maríae ad curíam venêret, et literarum, bajulum ad se adduceret . . . archíepêscopus ad regem venìens satês laetabunde susceptus est, nec de satís- .factíone pro líterís acceptós, nec de portítorís earum adductìone reae archiepís- CQp^tm^, causattvtS eSt . . . • ° Ordinance of Henry II, probably im 1169 (Hovedem [Rer. Brìt. Ser. No. 51] ' I, 231; om various readings of this document amd om the date cf. l.c. I, 232, mote and Materials for History Becket ; Rer. Bröt. Scr. No. 67; VII, 147, mote, 150, note) :— - I. S? quìs ìnventus fuerit ferens litteras vel mandatum domînî papae vel Cantuaríensís archiepìscopi, contínens ìnterdíctum Chrístíanítatís ín Anglía, capìatur, et de eo, sine dílatíone fiat justátía sicut de regìs traditore et regná. III. Item ìnterdictum est, me alíquís ferat mandatum alìquod domênâ papae, vel Cantuaríensís. Et sí quís talís ínventus fuerit, capíatur et retìne- (ttmt7*. Eenedict (Rer. Bröt. Scr. No. 49) I, 24: In 1171, the king, fearing am interdict, *® per commune edictum praecepit justítís et ballâvês satìs Normannìae, «et nomêmatám ballivis portatum maris, quod nullo modo permìtterent aliquem, et momêmatám clerícum vel peregrínum transfretare în Anglìam, másá príus data securitate quod nullum malum, vel damnum regí vel regno Angliae quaereret. . . . Et sám ílí modo sicut ín Normannia fecerat, praecepît per commume edóctum justítíís et ballâvês portuum, marìs Angliae quod me mânem permitterent ám, Normannìam transfretare, mîsâ data príus securítate quod malum regi vel regno suo non, quaereret. Praecepít etíam, quod sí quís ín Angliam, applícuísset portans litteras summè pontífícís, vel alíquod gravamen ^egmo, caperetur tamquam publícus hostês. § 25 7 W RELATION TO FOREIGN I WFLUENCES 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 [reac) per literas suas, me. quis veniens de curia portans literas bullatas de prov is? on bus faciend is: praecepto Papali, ad eactorquendum pecuniam d e ecclesia Anglieand et: depauperandum regnum, permitteretur vagarº per terram ad praefatos ; et: s: quis talis inveniretur, Caperetur, carcer; regis retrudendus. Portus autem, hoc praecipiens portuum custodibus, fecit custodërë . . . Order of Edward II, 8th Nov. 1307 (Rymer, Foedera 4th Ed. II, 13): Reac. dilecto et fideli suo Roberto de Kendale, constabulario, castri sui Dovor' et custod? Quinque Portuum Suorum, Salutem. r Quia intelleºmus quod mommulli, jura nostra et corone mostre intendentes pro viribus impugnare, bullas et alias litteras diversas, usque in regnum mostrum, a partibus transmarini's deferre indies mon desistunt; per quas mobis et predicte corone nostre maximum prejudicium poterit de facil; evenire. Nos volentes hujus modi periculºs decetero obviară ş de consilio mostro, ordinavimus, quod bulle Seu littere al?que, per q was mob is a ut jurº most ro regio prejudº car? poter? t quoquo modo, infra idem regnum, vel. abánde ad partes transmarinas, mob's ºnconsultás, mºm?me deferantur: vobis- Žgitur mandamus, firmiter injungentes, Quod Ommes et singulos a partibus- transmarinºs, usque in regnum nostrum al?cub? in balliva vestra trans- fretantes, vel eacinde redeumtes, diligenter scrutar; ; et Ommes bullas ac alias: litteras, si quas secum detulerint, per guas citationes vel executiones alique fieri, sew jurisdictio aliqua, ºn 1708tr? et juris corone nostre prejudicium, eacercer; poterunt, vel ecºam facte fuerint, arestari, et nos de tenoribus bullarum, et litterarum illarum, de verbo ad verbum, sine dilatione aliqua cerciorari, easque salvo custodiri faciatis, domec de tenoribus illès per vos cerciorati fuerimus, et aliud inde vobis duocerimus demandandum : et hoc sicut vos. 2ndempnes conservare volueritis, mullatenus Omēttatis. Order of 12th May, 1326 (Rymer, Foedera 4th Ed. II, 627) provides for the better 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. III (1343)]; . . . Par go? not re. Seigneur le Roi en ce present Parlement, a la suite de la dite Communaltee, de son Rožalme . . . Par assent des Counts, Barons et Nobles et de la: Communaltee de Son Rožalme ad purveu, ordečgnez, acordez, juggez, et considerez, . . . Qe mul, de quel estat ou condition Q'il soit, soët il Alyen ow. Denzein, port desore, me facz porter, deinz le Rožalme d'Engleterre, sur la greve forfaiture du Roi, Lettres, Bulles Proces, Reservations, Instrumentz, ow ascumes autres choses prejudici eles a w Ro: O M & Son Poe ple, pur les. lºverer as Ercevesqes, Evesqes, Abbes, Prêours, Counts, Barouns, ou ascuns. autres deinz le dºt Rožalme, et qe mul par vertue des tº evac Provisions ow. Reservations resceive Benéficz de Sečnte Esglise; . . . Order of 5th April, 1344 (Rymer, Foedera 4th Ed. III, 11): Reac majori et ballévis de Sandwico salutem. Quia datum est mob’s intelligă quod vos duos. fratres, ordin's Carmelētarum, per dominum Summum Pontificem in episcopos moviter consecratos, et in portu de Sandwico cum bullès et literås, mobżs. praejudicial? bus, applicantes, arestátēs, et sic in aresto tenetis ; Scire vos volumnus quod mon est, mec unquam fuit intention is nostrae, quod, wirtute alicuffus mandati nostri vobis direct?, arestare posset's aliquem &m. ordinem episcopalem constitutum ; Et ideo vobis mandamus quod stat?m &psos episcopos cum servčentºbus sués, s? sic arestati sãnt, dearestetis, et àpsos, quo voluerint; abłre libere permittatis; 238 M E DIE VA L ' PO WV E RS * O F * THE : R I VC- - [V, 1A gated im.the lamd.' As late as the fifteenth century, in the year 1427, for example, during the regency for Henry VI we fimd am instance of the seizure of papal bulls, in Order to render the proceed- ings of the pope, Martim V, against Chichele inoperative.* In like Literas tamen hujusmodi, nobis praejudícíales, quas per ìpsos, vel suos, ánfra regnum nostrum delatas ìnvenerátis, sanas et íntegras coram concílío qnostro London' tran$míttatís. Order of Edward III, 21st August, 1376, to Sudbury, archbishop of Canterbury (Wilkins III, 107): . . . Quia datum est nobìs ìntellígí, diversas literas, ôullas, et alia Scrípta quam plura nobís et regno nostro Angliae, ac subdótás mostrìs ejusdem, praej ud í c ? al í a contánentía, vobis a partís eaeterîs êm aregnum et potestatem nostra eacecutíoní demandand. fore transmíttenda . . vobìs mandamus quod literas, bullas, et Scripta quaecumque nobis, ac regno et subdítís nostris, ut praedáctum est, p r aejwd ? c ? al îa,'s? quae vobís deferrę contígerít, statêm cum ea receperítís, nobís et concílío mostro salvo et secure qm áttatis ; . . . (the subordinates of the archbishop are to do the same, if such documents come into their hands) . . . ; ut nos, visis et eacaminatis coram, dicto consílío nostro huju$modè lìterìs et scríptís, ulteríus ómde fierí facíamus, quod justum fuerit et ratíonís ; publícatíoní omnium, líterarum, et aliorum scriptorum hujusmodò, ac eacecutíoná ênde per vos, seu îpsas persomas ecclesìasticas în dioecesâ vestra facíendae, quousque alíud a mobìs et ípso concìlìo nostro înde habuerìtìs ìn mandatis, supersedeatís, et superseder? demandetìs sub perículo, quod íncúmbãt. " Compare e.g. the letters of the justiciar (regent during the king's absence) IRanulfus de Glamvilla, dated July, 1187, to the abbot òf Battle (who had been entrusted by the pope With the executiom of a papal mandate against the arch- hishop of Canterbury). Praecípio tìbì eæ parte domênâ regìs, per fidem quam, ei debes, et per sacramentum, quod eâ fecêstâ, ut nullo modo procedas ìn causa quae vertitur ínter monachos Cantuaríenses et dománum Cantuaríensem, archíepíscopum, donec [ênde] mecum locutus fuerìs . . . , and to the con- vent of Camterbury : Prohìbeo vobís eac parte d0mânâ regis, me aliquo modo attam ànâ contra domínum Camtuaríensem archíepìscopum alìqua perquásátíone quam contra eum quaesístís, donec mecum ìnde locuti fuerítís o e (Epístolae Cantuarìenses; Rer. Bröt. Ser. No. 88; II, 46). Letter of Richard I to'the English bishops, 14th June, 1198 (Epíst. Cant. l,c. II, 405): . . . Quìa ìgìtur non credámus has litteras (the papal mandate) de conscíentía domíní papae emanasse, sí verítatem re? gestae pleníus agnovísset, . . . ; cum etíam, mandatum^ ístud ím praejudícíum, dignìtatis nostrae et líbertatís regni nostri elícitum sët, eo scílícet quod regìbus, episcopis, comìtìòus, baroná- , bajs, eæ antìqua et diu obtenta regnâ Anglíae consuetudine, liceat passím án, solo proprio ecclesíam conventualem construere; vobis mandamus et firmiter praecìpìmus quatenus, sicut vos et honorem nostrum et libertatem regnâ nostrâ áílígífis, et possessiones vestras et libertates et dígnítates ecclesiarum vestrarum, £llaesas conservarê curatís, S? quod huju$modâ mandatum, domênê papae . . dórectum sât, eâ ad praesens ηοη obtemperetìs . . . ; Complaint of Innocent III in a, letter (V, No. 160) of 20th Feb. 1202 to John (Migne, Patrologìae Cursus, vol. 214 p. 1175): . . . cum ín regno tuo causas ecclesόastìcas commóttêmus cognoscendas, tu prohíbes delegatìs, ne în earum cognátíone procedant, jurìsdìctìonem nostram, ímpedíens . . . ; letter of Edward II to the archbishop of York, 16th Feb. 1818 (Northerm Regísters ; Rer. Bröt. Scr. INo. 61, p. 271). 8 Chichele to Martim (Wilkins III, 474): Quae . . . mom mêsê alíorum relatione perceperam, cum bullas, ut dicitur, super praemissìs transmissas nunquam perlegerìm, nee aperêre obstantibus mandatís regìs ausus eram, ę sed în archâvês regíís usque quo reg?um, concîlêum convocatum, eætíterít, remanent custodítae . . . Royal mamdate to the archbishop, 1427 (Wilkins III, 486): . . . vobís sub fide qua nobís tenem ênâ mandamus et $ub poenís ín statutís praedíctás contentâs: quod omnes et sángulas bullas et Jóteras hujusm0d? . . . . . Salvo et Secure custodíatís, et eas absque nofìfica- § 26] IN RELATION TO FOREIGN INFLUENCES 239 manner queen Mary in 1557 ordered the seizure of the bulls directed against Reginald Pole, archbishop of Canterbury.” To carry into effect the statutes against provisors and of prae- munire, and, at a later date, of the first reforming acts of Henry VIII, it was requisite to declare null and void every form of papal injunction aimed at those who were engaged in the execution of the enactments in question. Clauses of this purport are numerous in the acts. - After the pope had excommunicated queen Elizabeth and for- bidden obedience to her under pain of excommunication, there was finally passed in 1571 an unconditional prohibition against the bringing in or publishing of papal bulls of what kind soever." § 26. 4. Restraint upon ecclesiastical officials as to leaving the realm. Many cases recorded by the historians of the twelfth century show that, under the first Norman kings, bishops who wished to go abroad, in particular to Rome or to church Councils held outside the kingdom, were compelled to seek first the king's permission, the granting of which permission was made dependent on the taking of solemn vows to do nothing abroad prejudicial to the interests of the state." In the constitutions of Clarendon (1164) we thus find it tione, publicatione, sew aligua eaccusatione earundem facienda, coram mobis et concilio mostro, . . . deferatis . . . &mdilate, ºtt his inspectis, ulterius Žn hac parte facia'mus, prout Secundum legem et consuetuděnem regni fore viderømus faczendum. * Cf. § 6, note 51. * Compare especially 13 Eliz. (1571) c_2 An Acte agaynste the bringing in and putting in Eacecution of Bulls and other Instruments from the Sea of JR07)76. 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; Orels yf any person or persons have obtaymed or gotten synce the last daye of the Parlia- 'ment holden in the fyrst Yere of the Queenes Majestées Raigme, or . . . . shall obtayne or get from the Sayd Bysshop of Rome or any his Successors or Sea. of Rome, a my maner of Bull Writinge or Instrument written or prymted, contayn yng a my Thºng e Matter or Cause whatsoever; Or shall publishe or by any Wales or Meanes put in Ure any suche Bull Writyng or Instrument, That them all and every suche Acte . . . shalbe demed and adjudged . . . to be Hyghe Treason e * Anselm, for example, in 1097 begs the king's permission to go to Rome. Leave, several times refused, was granted after urgent request. Eadmer, Håst. Nov. (Rer. Brit. Scr. No. 81) 79–86; letter of Anselm to Paschal II (printed in $ 4, note 17).-According to Eadmer, l.c. 255, Thurstan, archbishop of York, was not allowed to go to the papal council of Rheims (1119), domec interposita fide gua e? (the king) sicut domino suo astrictus eral ill; 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. Bråt. Scr. No. 71) II, 161 Thurstan on this occasion only promised: . . . . . Šta me agam gºod quae Sunt Déč Deo, et quae regis regi areddam,_Alexander III in a letter, dated 18th March, 1163, to Henry. II 240 ME DIE VA L POWERS OF THE K I WG |V, 1A 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 III'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 Rymer, Foedera 4th Ed. I, 44), having regard to the intention of the king, formed after discussion in the national assembly, to send all archbishops and bishops to the coming council of Tours, assured him : . . . ut propter hoc tºbě aut posterås twis mullum detrimentum vel incommodum debeat provenire, megue, occasione ista, mova consuetudo in regnum tuum possit Žnduct, vel ºpsius regni dignitas minorari. The need of royal permission to travel abroad was not confined to the clergy. Cf. Quadrépartitus (a law- book, about 1114, edited by Liebermann, Halle, 1892, p. 146) Book II Prae- Jatºo $$ 1, 2: Regem Anglie singular; majestate regn? Sui dominum esse, man?- feste veritat's intuitus et singulorum denique cogmovit effectus. Quod tº situs quoque patrie confidenter adjuvat, mature beneficiès et maris vicinitate conclusus, ut sºme gratuita dominorum licencia mullus eacătuş, mull? relingw- amtur 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. § 23, note 8) c 2: Item mullus clericus, vel monachus, vel conversus alicuffus religi- onès, permittatur transfretare, vel redire in Angliam, misi de transfretatione habeat litteras justētiarum, et de reditu litteras regis. Et si aliquis aliter. Żmventus fuerit, capìatur et retineatur. * Cf. § 4, notes 50, 51. * c 42 (printed in appendix VII) salva fide mostra. * Cf. letter of Honorius III to Henry III, 18th January, 1224, in Royal Letters (Rer. Brit. Scr. No. 27) I, 218: . . . Ad haec, cum idem episcopus (Peter des Roches of Winchester) disposuerit ad mostram ven?re praesentiam, tractatum mobiscum super eacecutione votá, quod de transeundo in subsidium. Terrae Sanctae, suscepto sigmo crucis, emisit, aliásque suis et ecclesłae Sude megotiis habiturus, et his quº volunt ad partes accede re cism (trºmas, egress us, Sicut ferumt, mom pate at, absº we twa l ; cent? a spec 2 al 2, praefatum episcopum cum comitatu suo libenter venire permittas ad mos et ad Romanam ecclesiam matrem suam, mec impediri per aliquos aliguatellus patiaris, quia haec mom magis in suam quam in mostram et apostolicae Sed?s Žnjuriam redundaret . . . * 5 Ric. 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 persomes del rożalme, great mer- chants and king's soldiers.—Cf. further 12 Ric, II (1388) c 15, which, however, is only directed against leaving the land to obtain papal provisions: Item ge nulle liege du Roy de quel estat out condicion gil soft greindre ou meindre passe l6 § 27] I W RELATION TO THE WATIONAL CHURCH 24I From the reformation period there belongs here an act of Henry VIII's reign, forbidding attendance at church councils which met abroad.” - S 27 S g 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 Rome. 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 or annul their decisions.” Attempts of the councils to determine meer memvoie hors du roialme Dengleterre par licence ou Sanz licence, sans especial congle du Roy mesmes, por soy providre ou purchacer ascum benefice . . .-Royal protection (1433) valid for a year, to the prelates journeying to the council of Basel in Rymer, Foedera 3rd Ed. IV, pt. IV pp. 194 f. From a later time cf. 13 Eliz. (1571) c 3. 7 25 Hen. VIII (1533/4) c 21 s 14: Nor that any person religious or other resiant in any the Kymges Domynyons shall fromhemsforth departe out of the Kynges Domynyons to or for any visitacion congregacion or assemble for Re- ligeon, but that all Suche visytacyons comgregatyoms and assembles shalbe within the Kymges 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. Atton (33 Eliz.) in Coke, Reports W, 1 ff. * Compare $ 54, near notes 16 ft. - - from the time of William I to that of Henry I. Compare $ 54, near notes 23 ff. * Gneist, Engl. Verfassungsgeschichte §§ 14, 24. H.C. IR 242 ME DIE VAL POIVERS OF THE KING [V, 1A crown rights were vigorously opposed by the kings." For the rest, 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 26th May, 1206 (Rymer, Foedera 4th Ed. I, 94):— Reac archiepiscopis, episcopis, abbatibus, archidiaconis, et Omni clero apud Sanctum, Albanum ad consºlium convocato, salutem. Conquerente universitate comitum, baronwm, militum, et aliorum fidelium nostrorum audiwłmus, quod mom solum in laicorum gravem permáciem, sed eciam in totius regn? nostrº intollerabile dispendium, super Romáscotto praeter: consuetudinem solvendo, et all is pluribus inconsuetis eacactionibus, authoritate swimmi Pontific’s consilium intre et consilium celebrare decrevistis. e |Wob's . . . . precise mandamus et expresse prohibemus, me super praedictis vel aliquibus aliis concilium aliquod, authoritate aliqua in fide qua mobis tenemºni, tened tis, vel contra regn: noströ consuetuděmem aliquod novum statuatis, set sicut nos et honorem nostrum et communem regmi tranquillétatem diligētēs, a celebracione hujus concilii et a praedictis tractatibus ad praesens supersedeatis, quousque cum universitate vestra super hoc colloquium habu- 27???US ; . . . Rot. Parl. 18 Hen. III (1233/4) 2 part. m. 17 (printed in Coke, Inst. IV, 322): Mandatum est Omnibus episcopis qui conventuri sunt apud Gloucestriam die Sabbath? in crastino Sanctae Katherinae firmiter inhibendo quod sicut Baronias suas (quas de Rege tement) diligunt, mullo modo praeswºmant consilium temere de aliquibus quae ad coronam Regis pertiment, vel quae personam Regis vel statum suum, vel statum concilić swº contingunt. Scituri pro certo quod sº fecerint, Reac inde Sé capiet ad Barončas suas. Teste Rege e e Compare also, for example, the report on a similar occurrence at the legatine council of 1237 (Matth. Paris, Chron. Maj. ; Rer. Bråt. 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. Brăt. Ser. No. 77; I, 235, 236; also in Wilkins, Conc, II, 50 and Rymer, 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 II, 224); of Edward II, 1309 (Wilkins II, 312); of 30th Nov. 1821 (Wilkins II, 509); of Edward III, 2nd Sept. 1832 (Rymer, Foedera 4th Ed. II, 845). - 5 Cf. § 23. * In the Anglo-Saxon period the ecclesiastical authorities could probably execute their own decrees. (Cf. especially the provisions 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 Ś 3 in appendix I); but early in Henry III's time it had become at any rate the rule to request of the central (royal) authorities a breve de eac- communicato capiendo addressed to the sheriff. The forms for the bishop's § 27] IV 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 it 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 Bracton (circ. 1230–57), Book V tract. 5 c 11 (Rer. Brit. Scr. No. 70; VI, 218 ft.) and c 23 (WI, 370 f). 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. l.c. c. 9 $ 1 (VI, 204): . . . s? judeac ecclesiasticus (in a cause in which he is not competent) . . . . judicavérit, judicium suum eacecution? mandare non poterit, quia mom est vicecomes mec alºus mºnister, quº in eacecutione facłenda e obtemperet, et si èpse eacequi volu- erit, locum habebit contra £psum assisa novae disseysimae, et contra eum qui Sequitur, . . . . ; l.c. c. 13 $ 6 (VI, 240): Iudex vero ecclesiasticus si judicave. *it de laico feodo, non poterit sententiam demandare eacecutioni, quia si èllam demandaverit vicecomité exequendam, mom erit e? parendum. [Similarly but without express mention of the vicecomes, Book IV tract. 1 c 27 § 1; III, 352.]— 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 P. Cole, Documents 355): to art. 9: Ad requis?cionem Episcoporum consuevit Reac aliquando de gracº a special & cwm s? b : placw it eaccom- amunicatos facere capi et detimer', quousque ab &psis caucio vel emenda prestäta južsset mec eos liberavit mis? per Episcopos ultra caucłomem àdomeam sew emendam ab ºpsis eaccommunicatis oblatam malicãose detånerentur. In quo Casu scribere solet Reac ministris Swis per quos eaccommunicatos &psos cap: Jecerit ut personal?ter wma cum dictis incarceratis ad Prelatos ?psos accede- Tent. Et Sº Prelate predict; in presencia ministrorum &psorum caucionem £doneam sew emendam ab ipsis eaccommunicatis accēpere recusarent, tune quasi maliciose detentos &psi ministri eos liberarent, aliter autem per Regem. mon liberantwr, to art. 10: Quod eaccommunicati quandoque non capiumtur ad ºrequêsicłonem Prelatorum ; respondet Reac ut supra, facit enim hoc cum videt expedire gºt? &n h ac parte nullo jure se reputat art at wºm. Quam- doque écèam mºtuntur Prelaté jus proprium ipsius Regis per hujus modi Capcionem, usurpare. Cf. also council of Merton, 1258 (Wilkins, Conc. I, 737 after Ann. Burton): Praeterea cum eaccommunicati, et de mandato praelatorum Secundum consuetudºnem capti, et carcer? mancipati, aliquando per regem, et quandoque per vice.comºtem, alºosque ballivos, sine consensu praelatorum, et satisfactione congrua liberentur, plerumque etiam hujus modă eaccommunicati Tºon captamtur, neque de psis capiend's literae regiae concedantwr; . . . furth r, petition of the clergy 1279–85 and king's answer (Northern Registers; Iter. Brit. Scr. No. 61, p. 70) c 17. For examples of requests to imprison excom- municated persons see Regist. Epist. Peckham (Rer. Brit. Scr: No. 77) I, 153, 350. Archbishop Peckham, by letter of 11th Nov. 1286 (Reg. Epist. Peckham III, 936), 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 combwrendo 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 (Hoveden I, 232, cf. § 23, note 8) C 7: Item Lundon?ensis et Norewicensis episcop? summoneantur, quod sint Coram justițiis regis ad rectum faciendum, quod contra statuta regmi interdiae- 244 MEDIE VA L POWERS OF THE K I WG [V, 1A 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 officials 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 of the supreme civil courts and was by them quietly, but persistently and effectually, applied.” In certain erunt terram comitis IIugonis, et in Žpsum sententiam tulerumt; language of IHenry II to bishop John of Norwich, 1175–89 (Giraldus, Vita S. Remigi; ; Rer. Brit. Scr. No. 21; VII, 70); complaint of the clergy, 1237 (Ann. de Burton; Rer. Bråt. Ser. No. 36; Annales Monastic? I, 256): Item, dicumt balliwi domin: regis quod mom possunt vel debent eaccommunicari dum sunt in servito domin? regis, pro aliquo delicto in balliva sua commisso, et de eaccommunicatione regi conquerumtur. 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 (about 1245? Cole, Documents 354), art. 2: De eaccommunicacion- 7bus, suspensionibus et interdictis Prelatorum quando per ea feodalia Regis sew libertates ?ps?us aut ejus jurisdicciomem usurpare presumumt sew eacecu- ciones sue jurisdiction's impediumt, arguit eos Reac in foro suo ratione usurpa- cion's et impediment; predict: ; 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 Glanvilla, Book XII c 21: Reac illis Judicibus ecclesiasticis Salutem : Prohibeo vobis me temeatis placătum in Curia Christianitatis quod est inter N. et R. de laico Feodo praedict: R.; unde àpse queritur quod N. eum trahºt Žn placătum in Curia Christianitatis coram vobis, quia placitum illud spectat ad Coromam et digmitatem mean. Teste etc.; c 22: Reac Vicecomiti salutem : Prohibe R. me sequatuºr placºtum in Curia Christianitatis quod est inter N. et àpsum de laïco Feodo ipsius praedict; R. in villa ipsa, unde ipse queritur quod praefatus N. inde eum traocit in placitum in Curia Chris- tianitatis coram Judicibus illés. Et s' praefatus R. fecerit te securum de clamore suo prosequendo, tunc pome per vadium et salvos plegios praedictum N. quod sit coram me vel Justică is mei's ea die, ostensurus quare traacit eum Żn placitum in Curia Christianitatis de laico Feodo suo in illa villa, de Sicut Žllud placitum spectat ad Coronam et dignitatem mean. 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 ft.). 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 (Amm. de Burton ; Rer. Brit. Scr. No. 36; Amm. Monastic: ‘I, 254): Item, quod per solos judices saeculares mom determinetur dealiqua causa, utrum debeat dici ecclesiastica vel saecularis. It was chiefly this instrument 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 ecclesiastical officials who disregarded the pro- hibition served upon them, compare e.g. the complaints of the clergy at the pro- vincial council of London, 1257 (Wilkins, Concilia I, 726) c 30: ' Item in quibus § 27] I W RELATION TO THE AWA TI OMA L CH U R CH 245 circumstances the royal courts had even the right of compelling ecclesiastical officials to take action.” It is true that the person of ecclesiastics was in many cases 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 ~f~ omnibus casibus et similibus, si judex ecclesiasticus contra prohibitionem regiam procedat, attachiatur comparens coram justiciariis, compellitur judea: eachibere acta sua, wt per ea decermant, wirwm negotium pertèneat ad forwm. ecclesiasticum, vel seculare. Et si vided twr eis, quod pertºneat ad forum regium, querelatur judeºc, qui, sī confitedtur se post prohibitionem processisse, amerciatur; si meget, indicitur ei purgatio per judicem secularem ad testi- anonium duorum vilissimorum ribaldorum. Et s' purgare se moluerit, in- carceratur, domec justițiari is sacramentum praestiterit Corporale, quod mon processerit contra prohibitionem ; et si facere molwerit, in carcere retiretur såmåliter actor, si sequatur. Fleta, Book VI c. 14 § 8: Et s' terra vel aliud £n Foro petatur Ecclesiastico et Regia Prohibitio intervenerit me procedatur ābādem, et Judeº procedere timueritan res de qua agitur mere spiritualis sit mecne, tutum est Judici supersedere litemque suspendere domec discussum. fuerit a Justiciariis locum Regis tementibus, utrum licite procedere valeat in causa necme; qui sã in causa illicita praesumptuose processerit et inde éon- wincatur, dampna querent restituere condempmabitur adhābāţa taxatione Justit., et gaolae committetur donec pro voluntate Regis ab inde redimatur. For more as to the procedure and the forms employed see Bracton, Book V tract. 5 cc 12 f. (VI, 224 ft.); cf. l.c. VI, 234: . . . si laicus fuerit, . . . gaolae committatur sicut praesumptor contra regiam dignitatem ac sº crimen laesae majestatis commisèsset. Sº awtem cler?cus a lº quando cum €0 mºtºus agitur de gratia ob reverentiam ordini's clericalis. The inquiry, after prohibition, of the ecclesiastical judges to the justiciaries whether cognizance is theirs or not is called consultatio. See more in Bracton, Book V tract. 5 c. 8 (WI, 196). * By writ of mandamus, fieri facias de bonis ecclesiasticis, venire facias, quare non admisit etc. - * Compare $69, near notes 39 ff. * On the Anglo-Saxon period compare Gneist, Engl. Verfassungsgesch. § 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. 52 sq., against Stubbs, Comst. Hist, I, 386, note 1 c 11 § 123 and Gneist, Verfassungsgesch.), For this view is to be cited, in particular, Historia Elżensis (written probably soon after the middle 246 MEDIE VA L POWERS OF THE KIAWG [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 12th cent. ; edited by Stewart for the Anglia Christiana, 1848) pp. 274, 276: Interim reac Scottorum Malcolmus e? occurrens (1072) homo suus devem?t, jusserat emim tam, abbatibus quam episcopis totius Angliae debita militiae obsequža transmitti, constituitgue ut eac tume regibus Anglorum jure perpetuo ſin eacpeditione militum eac ipsis praesidia impendi, et memo licet auctor?tate plurima submiacus huēc edicto praeswºmat obsistere . . . , William II debitum servitum quod pater suus impositerat ab ecclesłis violenter eacăgăt, . . . ; JHøst. Mom. Abingdom. (Rer. Brit. Scr. No. 2) II, 3: . . . cum jam regis edicto in Ammalibus annotaretur quot de episcopiis, quotve de abbati's ad pub- licam rem talendam milites . . . eacăgerentur . . . ; Matth. Paris, Chr0m. Maj. (Rer. Brit. Scr. No. 57) II, 6, year 1070: Episcopatus quoque et abbatias 0mmes quae baromías tenebant et eatenus ab omni servitute saeculari libertatem habuerant (only true with a limitation) sub servitute statućt militari, in rotulans singulos episcopatus et abbatias pro volumtate sua, quot milites sibi et succes- soribus Swis, hostilitatis tempore, volužt a singul?s eachiberi. For a correspond- ing proceeding of William II against monasteries cf. Giraldus, De Inst. Princ. (Rer. Bråt. 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 Eacchequer 2nd Ed. London, 1769, I, 653 ff.—Compare also writ of Edward I, 20th August, 1297 (printed above, } 4 note 96): . . . pur ceo qe clercs par fet darmes me se do?vent def- endre, & ſº * As examples compare writ of Henry III, 19th July, 1257, to the bishops (Rymer, Foedera 4th Ed. I, 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 singul: tam praelaté quam alić, in pro- préis personis venire debeamt ad defensionem coronae, et regmi mostri. Writ of Edward III, 6th July, 1369, to the several bishops (Rymer’s Foedera 4th Ed. III, 876): . . . Cum in ultimo parliamento mostro, de assemsat vestro, ac aliorum praelatorum, magmatum, et communitatis regmi nostri, ordinatum et concordatum fuisset, quod Ommes homines, de dicto regno mostro Angliae, tam clericº quam laicº, videlicet, quilibet eorum juacta statum, possessiones, et facultates suas, armarentur et arrañarentur, ad profic?scendum, pro salvatione et defensione sanctae ecclesiae et dict regmi, contra hostes mostros, si quº in- gredi praesumpserint idem regnum ; . . . . Vobis in fide et dilectione, quibus Anobis temem?n?, firm iter injungāmus et mandamus, rogamdo quatinus . . . omnes abbates, priores, religiosos, et al?as personas ecclesiasticas quascumque dioecesis vestrae, quacumque dilatione postposita, armari et arraiari, et armis competentibus, videlicet, quemlibet eorum, inter aetates praedictas, juacta statum, possessiones, et facultates suas, mum?r?', et eos in millemis, centervis et vintents, pom? faciatis, its quod prompt; sint et parati ad proficiscendum, uma cum all is fidelibus mostris, contra dictos inimicos mostros, infra regmum mos- trum . . . With the preceding writ, that of Edward III to the several bishops, dated 16th June, 1372 (Rymer, Foedera 4th Ed. III, 947 and Wilkins, Comcilia III, 91) agrees almost verbatim. Writ of Edward III to the bishop of Winchester, 20th July, 1373 (Rymer, Foedera 4th Ed. III, 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 Tichard II, 25th July, 1377, to the various archbishops and bishops (Rymer, Foedera 3rd Ed. III, pt. III 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 Arraſſ- andum, et Arrêar? et Armarº facáendum ; the prelates and the clerus are bound 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 Wintena, that they may be ready at the king's command to march forth to war infra dictum Regnum § 27] I W RELATION TO THE WATIONAL 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 tawation. 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 aua`ilia and scutagia to the same extent as the other feudatories. These aua`ilia, or aids, were originally payments to the overlord on certain important Occa- sions, whilst scutages * 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 mostrum. An example of the execution of a writ (1886) 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 writ of Henry IV, 27th Jan. 1400, upon occasion of a threatening French invasion, in Rymer, Foedera 3rd Ed. III, 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 Tymer, 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 Rymer, Foedera 3rd Ed. IV, pt. III 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, Comcilia 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. 1839, to repel the French).] • . * Gneist, Eng. Verfassungsgesch. § 25a, 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, l.c. I’eprint 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 trimoda necessitas (Brycgbote, Burhbote, Fyrd). Cf. Gneist, Eng. Verfassumgsgesch. § 5 p. 63, note a. * The first known mention of scutage as a recurring tax is in a document of Henry I, 1127. Round, l.c. Reprint p. 33. * . * Compare $4, note 21. 248 ME DIE VA L POWERS OF THE KING: [V, 1A Sources was thenceforth subject to the vote of the national assembly, 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 8,S Fº For more on this right see Phillimore, Eccles. Law 1487. . § 41. * According to the law of the church (cf. e.g. Gratian, Decretum II caus. XII quaest. W) 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 their assent to a testamentary disposal by the bishops of their effects. Cf. the charter of Stephen, 1136 (app. II): Si quis episcopus vel abbas vel alia ecclesiastica persona ante mor- tem, swam rationabiliter swa distribuerét vel distribuenda statuerit, firmwm manere concedo. Sº vero morte praeoccupatus fuerit, pro salute animae ejus ecclesiae comsilio eaderm 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 Ammal. Burton (Rer. Bråt. Scr. No. 36; Annales Monastic?) I, 254 the petition handed by the English clergy to legate Otho in 1237 that he might deliver it to the king: Item (petunt) me testamentum episcoporum et allorum impediatur. Resolution of the council of London, 1257 (Wilkins, Concilia I, 724): Item quod dominus reac non impediat testa- menta episcoporum, mec eactendat manum ad bladum, quod semimaverint, vel ad alia boma episcoporum défunctorum. Complaint of the clergy at the same council (Wilkins, Concilia I, 726) c 23: . . . dominus . . . reac mon permittit eacecutores testamentorum eorundem episcoporum de bom?s ipsorum administrare, quousque causa cognita èpsčus facinoris, gratiam mereantur Super his obtimere. According to Coke, l.c., who finds his oldest instance in the time of Edward II, but thinks that the usage is older (cf. e.g. the documents from the years 1227–33 in Rer. Bråt. 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 with saddle and bridle; 2. a 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 Spolien recht (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 cf. § 60, near notes 118 ff. In Scotland (see Robertson, Ecclesiae Scoticanae statuta I, 100, note 1) this Spolien recht 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] c 13: . . . in Scotia episcopé mom testantwr, Sed reac occupat 0mnia boma sua.) In 1867–71 David II with the consent of parliament re- nounced the right, as did his successor after him. In connexion here with were issued corresponding papal bulls, Nevertheless the right was again exercised § 27] IN RELATION TO THE WATIONAL 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 an 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 Richter, Kºrchen- arecht $ 316, note 12.—On the heriot which in Anglo-Saxon times even bishops paid the king, compare Gneist, Engl. Verfassumgsgesch. § 2, note 4a. * The undue extension of these rights was checked by 3 Ed. I (1275) Stat. of Westminster art. 1, 2 Ed. II (1309) De prisis injustis mom capiendis a Vörös Jºcclesiasticis sew aliis, 9 Ed. II st. 1 (1315/6) Articul: Cleri c 11, 10 Ed. II (1316) De statuto pro Clero inviolabiliter observando, 14 Ed. III (1340) st. 4 c 1 and by later enactments. Cf. also Vocke, Geschächte der Steuerm des britischem Reichs, Leipzig, 1866, pp. 130 ft. Stubbs, Comst. Hist. II, 564 ft. 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) Articulº Cler: c 11, also 1 Ed. III (1326||7) st. 2 c 10: Et por ce qe Ercevesqes, Evesqes, Abbees, Préours, Dames de religion et autres ownt este avant ces howres grandement grevez par priers des Roys, qe lor unt prie par grandes manaces pur lour Clerks et autres lor servantz, por grosses empensions, provendes, Eglises et Corodies, issènt qāls me poent riem domer me faire a cewa: qe lour avoient Servi, me a lor amys, a grant charge et damage de evac; Le Rož me voet desore prèer, ames la ow £l de vera. & - * This is the view of Stubbs, Const. Hist, I, 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. * Comst. Clarendom (append. IV) c 12: . . . . faciet electus homagium et fidelitatem domino regi, sicut ligio domino, de vita sua et de membris, et de Jomore swo terreno, salvo ordine swo, privisquam 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 favour 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 by the church. 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: ... . . Episcop; vero consecrat; homagium facere mom solent domino Regi etiam de baroni is suis, Sed fidelitatem cum juramentis interpo- sités ºps? praestare solent. Elect? vero in episcopos ante consecrationem suam. homagia sua facere solent. Bracton (Rer. Bråt. Scr. No. 70) I, 622: dum tamen elect? ºn episcopos post consecrationem homagintm mom facianſ, quicquid fecerint ante, sed tamtum fidelētatem. — Cf. Fleta, Book III c 16 §§ 11–13; further, above $ 20, note 22. * The so-called presentementz par le Rož en autré droit par aumcien 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. III (1351/2) St. 6 Ordinatio pro Clero ce 1 and 3; 13 Ric. II (1389/90) st. 1 c 4; 4 Hen. IV (1402) c 22. But the first of these acts contains a reservation not touched by later ones: sauvant au dit Roi et a ses he?rs toutz tiels presentementz en autré drożff 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 eccles??s cathedralibus sew conventualibus de- beamţ esse liberae, tot et tales preces regales intervenºunt, quibus electores per- territà, Saepius divinae humamam praeferunt volumtatem. Eodem modo fit de ecclesi is vel praebendis, ad opus regalium clericorum, cum eas vacare con- ting it. Complaint in 1309 (Wilkins II, 321): Item s? vacet aliqua dignitas, wbi electio est facienda, petitur, quod electores libere possint eligere absºue ºncursione timoris a quacumque potestate seculari, et quod cessent preces eff oppressiones ºn hac parte. - * Cf. e.g. 25 Ed. III (1350/1) st. 4 Stat. de Provisoribus : . . . . Esglèse, provende, ou autre benefice qe Sont del avowerie des genz de Seinte esglèse, domt le Rol est avowe paramount &mmediat . . . ‘Immediat' supplies the oppo- sition to the case of lay patronage. § 28] THE SUPREMACY OF THE SOVEREIGN 25 ſ 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 requisite. 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. J3. THE SUPREMACY OF THE SOWEREIGN 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.' All these resolutions are merely in repudia- * Conditions for the granting of the permit, apparently to be connected with mortmain legislation (cf. the king's licence [1291 P] mentioned in Rer. Brit. Scr. No. 45 p. liii, note 3) are laid down in 15 Rºc. II (1391) c 6 and 4 Hem. IV (1402) c 12.—15 Ric, II c. 6 refers to the necessity of the licence as something already existing; 4 Hem. IV enacts, among other things, the nullity of all appropriations without licence since 1 Rºc. II. * On the other regulations see § 4, note 68. Relevant also are 7. Ed. I (1279) de Religiosis; 13 Ed. I (1285) St. Westminster II c.32 and later acts. * Relevant especially are : Bracton (circ. 1230–57) Book V tract. 5 c 15 § 2. (Rer. Brit. Scr. No. 70; VI, 248) : . . . sicut domimus papa in spiritual?- bus super omnibus habeat ordinariam jurisdictionem, ita habet reac in regno, suo ordinariam in temporalibus. Similarly c 19 $ 2 (VI, 296).-Letter of the barons assembled in the parliament of Lincoln, 1801, for themselves and tota). communitas, to the pope (§ 4, note 69). —Resolution of parliament of 1866 against the pope's claim to tribute (§ 4, note 117).-16 Ric. II (1392/3) c 5 Stat. of Praemumºre, preamble: . . . et ensy la Corome Dengleterre qad este s? frank de tout temps qe le mad hieu mully terriem soveraigme, mes immediate. subgit a Dieu em toutes choses tºuch antz la regal?e de mesme la Corome et a mully autre, seroët submwys a Pape, . . .-Articles of accusation before. parliament at the deposition of Richard II, 1399 (Rot. Parl. III, 419) No. 10: Item quamvis Corona Regn? Anglie et Jura e jusdem Corome, ip- 252 THE SUPREMACY OF THE SOVEREIGN [V, 1B tion of papal pretensions to decide in questions of patronage, to enjoy 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,” then in the first supremacy act 26 Hen. VIII (1534) (C 1.45 - swºm q we Itegºn wºm, fuerint ab omnē tempore retroacto adeo libera, quod Domžmus Summus Pontifex, mec aliquis alius eactra Regnum &psum, se intro- ‘mittere debeat de eisdem, tamen praefatus Reac ad roborationem Statutorum sworum erroneorum supplicavit Domino Pape, quod Statuta in ultimo Parlia- mento Suo ordinata confirmaret. Super quo dictus Reac Litteras Apostolicas Żmpetravit, in quibus graves censure proferumtur contra quoscumque qui dictis Statutis in aliquo comtravenire presumpserint. Que omnia contra Coronam et Dignitatem Regiam, ac contra Statuta et Libertates dicti Regni tendere dinoscuntwr.—For the fact that the supreme judicial power of the pope in purely ecclesiastical matters was not disputed at this time, see § 23, inote 11. —Cf. also the authorities given to ambassadors from the English kings to newly felected popes. Authority of Henry VI, 16th May, 1459 (Rymer, Foedera 3rd Ed. W, part II p. 84: . . . . Itaque, in ejusdem interioris mostrae Devotionis Suae Sanctitat eacpressiorem declarationem, vos Oratores mostros et Nuncios speciales ad praestandum Obedient £am dig mam, atque debitam Devo- tionem, Sanctissimo in Christo Patri Pio Papae Secundo, vero et indubitato Christ; Vicario, Eachibendam Constitušmus, . . . ) and of Richard III, 16th Dec. 1484 (l.c. W pt. III p. 157: . . . . Dantes . . . potestatem • ? pro Nobis et Nomine mostro, Devotionem, quam in Sanctam Sedem Apostolicam ac ipsius Praesidentem modermum Sanctissimum Dominum mostrum Domi- mum Innocentium Papam Octavum gerimus et habemus, Filialemque et Catholic am Obedientiam, a Reg 7 bus Angliae Romanis Pontifici- ôws ab ant? quo debit am et praesta rā cons wetam, pro Nobis Eachibendi, Praestandi, et Faciemdi, * A tº * Grant of a sum of money to the king by the southern convocation 22nd March, 1581 (Wilkins III, 742). In brackets: (cujus [scil. cleri Anglican?] sim- gularem protectorem unicum et Supremum dominum, et quantum per Christ: legem licet, etiam Supremum caput psius majestatem recognoscimus). In May, 1531, there was a grant by the northern convocation with the same clause (Wilkins III, 744). r “s 1: . . . It may ther fore please your . . . . Majestie . . . , for as moche as your Majestie is supreme hede of the Church of Englonde, as the Prelates and Clergie of your Realme 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 awctoryte to refourme and redresse all errowrs 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 therof . . . . be it enacted by auctorite of this present Parlia- ment that the Kyng our Soveraign Lorde his heires and successours Kynges of the Realme shalbe takyn acceptyd and reputed the omely supreme heed in er the of the Ch wºre he of England callyd Anglicana Ecclesia, and shall have and enjoye anneaced and wnyted to the Ymperyall Crowne of the Realme § 28] AS I W TRODUCED BY THE REFORMA TI OM 253 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. 6 Mar. (1554 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 prehemymences jurisdiccions privileges auctorities yºmunytjes profitis and commodities to the said digmytle of Supreme heed of the same Churche belongymg and apperteyn- !ymg: And that our said Soveraigme Lorde his heires and successours Kynges of this Realme shall have full power and auctoritie from tyme to tyme to visite represse redresse reform e ordre correct rest ray me and a mem de all such e errow rs he resies abuses offences contemptes. and enorm y tº es what so ever they be, whiche by any mamer spºr it wall auctoryte or jurisdiccion ought or maie lawfullye be reformyd re- pressyd Ordred redressyd correctyd restraymed 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 to the king's question: Am Romanus pontifex habeat aliquam majorem juris- dictionem collatam Sibi a Deo in S. Scriptura in hoc regno Angliae, quam aliws quivās externus episcopus 2 (Wilkins, Concilia III,769, 771, 775, 782). * First by what is called the second supremacy act or ‘Treason Act ’26 Hem. VIII (1584) c. 13 Am Acte wherby divers offences be made high treason . . . [it was repealed by 1 Ed. VI (1547) c 12 s 1: An Acte for the Repeale of certaine Statutes concerninge Treasons, Felonyes etc. and not again revived]; then, cf. in particular 28 Hen. VIII (1536) c 10 An Act eactymguysshing the auctoryte of the Busshop of Rome. (Repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s A and not revived but replaced by 1 Eliz. (1558/9) c 1 ss 9–18.] * First by 28 Hen. VIII (1536) c 10 s 6 (oaths of allegiance had been intro- duced earlier). - - * An Acte repealing all Statutes Articles and Provisions made against the See Apostolick of Rome since 20 Hem. 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 all clauses sentences and articles of every other Statute . . . . made sº them ce 20 Hem. 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 aucthoritée hereof from hemsforthe utterly voide . . . ° S 1 repeals 1 & 2 Phil. & Mar. c. 8 in those respects with which we are her concerned. (In another respect that act is upheld by s 16.) According to s 4 the acts repealed by 1 & 2 Phil. d: Mar. c. 8 remain without force in so far as they are not revived by the present statute. s 7 then determines the negative side of the king's supremacy by excluding all foreign superiority. S 8 enacts positively . . . . that suche Jurisdictions Privileges Superiorities and Pre- heminences Spirituall and Ecclesiasticall, as by any Spirituall or Eccle- s? a st: call Power or Auct horite hathe heretofore bene or may lawfully 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. VIII (1543/4) c 3, an 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. Ó 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 VI, yet took into account the Offence which the title supreme head of the 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 be eacercised or used for the Visitacion of the Ecclesiasticall State and Persons, and for Reformacion Order and Correccion of the same and of all maner of Errours Heres?es Scismes Abuses Offences Contemptes and Enormvities, shall for ever by aucthorite of this present Parliament be united and anneaced to the Imperiall Crowne of this Realme; ſº * 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. VIII (1534).—Cf. also (quoted in Stubbs, Hist. Append. to Report of Eccles. Courts Comm. 1883): Memorandum quod quinto decimo die Januaré: ammo regmi regis Henric; Octavi vices'mo Seacto (i.e. 1535), idem dominus reac decrevit et ordinavit stilum et titulum swum regium, tam in chart's et literis Swis patentibus quam in brevibus Qwibuscumque in Omnibus et sºngwlis curiès swis infra regnum swum Angliae et infra omnia et singula dominia et terras eī subjecta fieri et scribi dečnceps sub ea quae Sequitur forma, videlicet : Henricus octavus Dei gratia Angliae et Franciae reac, fidei defensor et domimus Hiberniae, et in terra supremum caput Anglicanae Ecclesiae. 13 The Bill for the Känges Stile. The full title is to run : Henry VIII by the grace of God Kyng of Englonde Fraunce and Irelande Défendour of the faithe, and of the Churche of Englonde, and also of Irelande in earthe the su- preme Hedde. - 14 Collier, Eccles. Hist., Record lxviii bis, prints after Regist. Bonner fol. 346 a licence to preach, dated 20th Nov. 1553, and given by the queen in accordance with her ordinance of 18th Aug. 1553. It begins: Marča etc. . . . Supre- mum 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. 1° S 19 of act just cited. - 17 This designation is contained in the supremacy oath 1 Eliz. c 1 s 9. Oath is to be taken . . . that the Quenes Highnes is thomelye Supreme Gov- er now r of this Realme and of all other her Highnes Dominions and Countreis, as well in all Spirit wall or Eccles fast & call Thºnges or Causes as Temporall, & § 28] AS TAV TRODUCED BY THE REFORMATION 255 involved in the supremacy. Even the 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 the potestas 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 1533 to Tunstall, bishop of Durham.” When in Henry's reign and in his successor's the * On the difference between the two see Richter, Kirchen recht $91. His $95 deals with the difference, contained in German protestant professions of faith, between the rights of governments and a power of the keys attaching to the church, this power being divided into potestas ordin’s and potestas jurisdic- tionis. The potestas jurisdiction?s in the protestant sense is much narrower than in the Roman catholic. For the protestant conception the chief refer- €11C0S 3.re – Confessio Augustana (1530) art. XXVIII (abusus VII): . . . Sic autem sentiumt (the protestants), potestatem clavium sew potestatem Episco- porum, juacta evangelºw.m., potestatem esse sew mandatum. Dež praedicamdź evangelić, remittendi et retinend? peccata, et administrandë Sacramenta Porro Secundum evangelium, sew, ut logwwntur, de & wºre dévéno, mulla jurisdic- tio competit Episcopis wit Episcopis, hoc est his, quibus est commissum minis- terium verb: et sacramentorum, mºs; remittere peccata, item cognoscere doctrinam, et doctrinam ab evangelio dissentientem rejčcere, et émpios, quorum nota est impietas, eaccludere a communione ecclesiae, sºme vi humana, Sed verbO. Melanchthon, Apologia Confessionis Augustanae (1531) art. XXVIII $12: Et placet mobis vetus partitio potestatis, in potestatem ordini's et potestatem juris- dictionis. Habet igitur Episcopus potestatem ord & mºs, hoc est ministerium, verbi et sacramentorum, habet et potestatem ż wrisdiction?s, hoc est auctori- tatem eaccommunicandi obnoxios public's criminibus, et rursus absolvendi eos, sº convers? petant absolutionem. . . . * Printed in Wilkins, Concilia III, 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 temporal, and concerning this present life only, in those we (as we be called) be indeed ºn 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 Žnstruments 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 versantwr in his, quae homºnum potestate non subjčcć- 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 ordinis. 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 Crumwell 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 king's right to issue independently temporary ordinances touch- ing spiritual matters. In both reigns the right was chiefly exercised by 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,” (declared by 5 Eliz. [1562/3] c 1* to be authoritative wntur; in quibus s? male versantur Sène scandalo, Deum ultorem habent, s? cum scandalo, homºmum cognitio et vindicta est' . . . ... 2 * Cf. § 6, notes 23 and 41. * Cf. § 6, note 42. * Cf. above, note 9. * An admonition to simple men deceived by malicious (Cardwell, Doc. Ann. I, 199): . . . her majestée forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which most sim?sterly and maliciously labour to motify 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 challenge authority and power of mºnºs- 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 by King Henry VIII and King Edward VI, which is, and was of ancient § 2S] As INTRODUCED BY THE REFORMATION 257 in the interpretation of the supremacy oath),” as also in the thirty- nine articles.” g The only question which arises is what 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? The 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 1559, and conse- quently the second supremacy act of Elizabeth, referring as it does time due to the imperial crown of this realm ; that is, under God to have the sovereignty and rule over all manner of person's born within these her realms, dominions and countries, of what estate, either ecclesiastical or temporal, soever they be, so as no other foreign power shall or ought to have any superiority over them . te ,” * An Acte for thassurance of the Quenes Majesties Royall power over all Estates and Subjectes with?m her Highnes Domžnions. - s 11: Provided also, that thothe eacpressed in the Sayd Acte made in the Sayd. first yere shalbe taken and eacpounded in suché forme as ys setfoorthe ºn an Admonicàom amneoced to the Quenes Majesties Injunctions published ºn the first yere of her Majestées Reigne; that is to Saye, to confesse and acknowledge in her Majestie her Heires and Successours, mone other aucthoritee then that was chalenged and lately used by the noble King Henry Theight and Kºng Edwarde the Sgºte, as in the sayd Admonicion more playmly maye appeare. 25 Årt. 37: . . . Cwm Regiae Małestat? summam gubernationem tribu- Żmus, quibus tºulis intelligimus, animos quorundam calumniatorum offendi, mon damus Regibus moºris, aut verb: Dei, aut Sacramentorum administra- tionem, quod etiam injunctiones ab Elizabetha Regina nostra, nuper editae, apertissème testamtur. Sed eam tantum praerogativām, miamº-3% sacrès Scrºp- turis a Deo &pso, omnibus piès Principibus, videmus semper fuisse attributam, hoc est, ut omnes status, atque ordines fide? Sude a Deo commissos,  Žll: ecclesiastic? s?nt, sive civiles, in officio contômeant, et contumaces ac delin- quentes, gladio cºv?!? 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 civill Magistrate, in the Irish articles of 1615 (see § 11, note 24). It contains the following statement: mu. 58. We do professe that the Supreme government of all estates with?n the said realms and dominions, in all causes as well eccles?- astical as temporal, doth of right appertain to the king's highness. Neither do we give unto him hereby the admºnistration of the word and sacra- ments, 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 committed to his charge by God, wether they be ecclesiastical or civil, within their duty, 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 eactendeth to all men as well clergy as laity, ºn all things temporal ; but 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 respeciful obedience to the civil authority, regularly and legitimately constituted. IH.C. S 4. 258 THE SUPREMACY OF THE SO VEREIGN [V, 1B to them for its interpretation, gave merely a temporal power over ecclesiastical persons.” The 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 go fern 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, we 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 1559 and the second Supremacy act of Elizabeth describe the power claimed as being the Sāme as that claimed and exercised by Henry VIII and Edward VI; 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 ecclesi- 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 different 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 * 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 p?? principes apwd Judaeos et christiani imperatores in prºmºtiva ec- clesia obtinuerwnt, and canon 36° l.c. (now revoked), where the king is desig- nated unicus et Supremus gubernator hujus regn: . . . tam in Omnibus spiritualibus sive ecclesiasticis rebus aut causis, quam in secularibus. § 28] AS I W TRODUCED BY THE REFORMA TI OM 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, supremacy 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 meaning. 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 ecclesiastical potestas jurisdictionis; 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 with 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 difficult 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 desirability 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 ecclesiastical matter See § 15, note 23. 260 CIVIL AUTHORITIES OF THE REFORMATION TIME [V, 2A, 2. CIVIL AUTHORITIES FOR THE A D MINISTRATION OF T H E C H U R C H. A. ATUTHORITIES OF THE REFORMATION TIME. § 29. a. Authorities for administering the revenues of the state from various ecclesiastical sources. BEFORE the reformation the revenues drawn by the crown from ec- clesiastical sources 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 (1535/6) 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 wested 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 patent vested the powers of both in a new authority, “the Court of Augmentation and Revenues of the Ring's Crown.” Doubt having arisen as to the validity of these let- ters patent, they were expressly confirmed by 7 Ed. VI (1552/3) c 2.4 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 Hem. VIII (1539) c 13 placed under this court the monastic property which passed to the crown after 4th Feb. 27 Hen. VIII owing to voluntary dissolution (not that owing to forfeiture)—both it and the earlier act are supplemented by 32 Hem. VIII (1540) c 20, which relates to franchises of former monasteries; 37 Hen. VIII (1545) c 4 S 7 assigns to its charge the property of various foundations falling to the crown under the act. * After preliminary steps in 14 & 15 Hen. VIII c 15 and 27 Hen. VIII c. 62 this court received a fixed constitution by 33 Hem. VIII (1541/2) c 39. s 34 of the latter act continues the competence of the earlier Court of Augment- (LC? O??.S. * 1 Ed. VI (1547) c. 14 S 19 conferred on this court the administration of the property of various foundations to be confiscated under the act. * S 1 of the act. $ 30] HIGH COMMISSION FOR ECCſ. ESTASTICAL CA US ES 26 I of the King's Crown,” as also of two other civil financial courts (the ‘Court of the King's Wards’ and the ‘Court of the Duchy of Lancaster’).” The young king died before any such letters patent were issued; but similar powers were given to his successor by 1 Mar. St. 2 (1553) c 10, and the queen availed herself of them, abol- ishing both the ‘Court of Augmentation and Revenues of the King's Crown' and the ‘Court of First Fruits and Tenths’ and vesting their competence in the ‘Court of Exchequer.'" By 2 & 3 Phil. & Mar. (1555) c 4 the obligation to pay first-fruits and tithes was abolished, and the surrender of property in possession of the crown as a result of the confiscations was directed. 1 Eliz. (1558/9) c 4 repealed this act and revoked the direction to surrender; she did not establish again the several courts, but vested their powers anew in the court of exchequer." § 30. b. High commission for ecclesiastical causes.” From 1535 to 1540 Henry VIII exercised the rights vested in him by the reform legislation generally and by the supremacy act of 1534 in particular, in so far as he did not personally avail himself of them, through ‘a vicegerent, vicar-general and special and chief commissary,’ whom he himself appointed, or through officials whom he or his vicar-general or both invested with special powers for particular Occasions." During the latter years of Henry's reign, the whole of Edward's and the beginning of Mary's, the privy council conducted the Supreme administration of ecclesiastical affairs. Apart from it, commissions of varying constitution were nominated mostly for temporary purposes (visitations, the deposition and re- ° S 2 of the act. * By four letters patent, two of the 23rd, two of the 24th Jam, in 1 Mar. Cf. 1 Eliz. c. 4 s 1. * Charles II by letters patent of 24th Jan. in the thirty-first year of his reign bestowed the office of Remembrancer of First Fruits and Tenths in the Exchequer on Marmaduke Gibbs, his heirs and assignees. 3 Geo. I c 10 An Act for the better collecting and levying the Revenues of the Tenths of the Clergy created the office of a Receiver (Collector) of the Tenths, to be appointed by the Ring. Thus there was an Office of First Fruits which was part of the Eocchequer and at the head of which stood the Remembrancer of First Fruits and Tenths, and also an Office of Tenths, managed by the Receiver of Tenths. 1 & 2 Vict. (1838) c 20 An Act for the Consolidation of the Offices of First Fruits, Tenths, and Queen Anne's Bounty abolished the two offices and the two officials just named, and entrusted the collection of first fruits and tenths to the treasurer of Queen Anne's Bounty. * The appointment of Crumwell as vicar-general and his empowerment to bestow authority on others were by letters patent of 1535. These letters patent are no longer in existence. Burnet, Hist. of Reform Ed. 1865 I, 293, is of opinion that two commissions to Crumwell, one first immediately after the supremacy act, the Second and more comprehensive two years later, are to be * Gneist, Englische Verſossungsgeschichte $ 31–Reeves, Hist. of English Law Ed. 1814 ff. W., 216–218, Ed. 1869, III, 788 ft.—Stubbs, Historical Appendia, I, pp. 49 f. , Report of Royal Commission on Ecclesiastical Courts, 1883 (Parliamentary Reports, 1883, vol. XXIV). 262 CI WIL. A U THORITIES OF THE REFORMATION TIME [V, 2A institution of bishops etc.)” In the first supremacy act of Elizabeth, which again conveyed to the crown the rights surrendered under Mary, the sovereign was expressly empowered to appoint commis: sioners for the exercise of the powers attached to the Supremacy.” distinguished. (The second does not exist any more than the first.) In Wil- kins, Comcilia III, 784 (the year assigned is 1535) a long commission is given, confirming in their powers sub-commissaries appointed by Crumwell. Ref- erence is made therein to an earlier commission to Crumwell: Cum. Żtaque mos alias praedilectum mobis Thomam Crumwell, secretarium nostrum prº- marium, et rotulorum mostrorum magistrum, s?ve custodem mostrum, ad causas ecclesiasticas quascumque mostra auctorºtate, utº suprem? capitãs dictae ecclesiae Anglicanae quomodolibet tractamdas seu ventilamdas atque ad eacer- cendam eacpediemdam et eacequendam omnem et Omnimodam jurisdictionem, auctoritatem sive potestatem ecclesiasticam, quae mob's tanguam Supremo capit? hºtiusmod? competit, aut quovº's modo competere possit, aut debeat, wbilibet infra regnum mostrum Angliae et loca quaecumque mob's subjecta, vicem gerentem, vicarium generalem, ac commissarium specialem et princi- palem, cum potestate alium vel alios commissarium sive commissarios ad praemissa vel eorum aliqua ordinanda et deputamda, per alias litteras mostras patentes, sigillo mostro maiore communitas, constituerimus, deputaverimus et ordinaverimus, prout eac tenore litterarum mostrarum huius mod: plenius liquet; . . . For the commission at the first visitation of monasteries, 1535, see Wilkins III, 786.-According to Ranke, Engl. Gesch. Book II, c. 4 3rd Ed. pp. 132, 146, pope Clement, escaped from imprisonment by the emperor, had appointed Wolsey, already minister, legate and archbishop, to be vicar-general in the English church, so that Henry had a precedent for the appointment he gave to Crumwell.—After the execution of Crumwell (1540) no one else was advanced to the office of vicar-general, Burnet, Hist, of Reform. Ed. 1865 II, 40. * Power to appoint commissions for the exercise of the rights, hitherto vested in the pope, over exempt monasteries, is given by 25 Hem. VIII (1533/4) c 21 SS 14, 17. To carry out the six article law commissioners with punitive powers were established by 31 Hem. VIII (1539) c 14 ss 7 ff. and 32 Hem. VIII (1549) c 15. The act against heresy, 34 & 35 Hem. VIII (1542/3) c 1 authorizes (S 17) the establishment of commissioners with punitive powers; whilst 37 Hem. VIII (1545) c 4 S 6 and 1 Ed. VI (1547) c. 14 s 8 empower the appointment. of commissioners in respect of the confiscation of colleges, chapels, chantries etc., and the management of their property. For the first general visitation under Edward VI (1547) six commissions were appointed, each consisting of a layman, a clergyman and a subordinate official; to each of the commissions a Separate district was assigned. Compare further the more general commission of Edward VI ad observandum librum precum communium etc., 18th Jan. 1551, in Cardwell, Doc. Ann. I, 91. For commissions in Mary's time see Card- well, l.c. I, 223, note. The model of Mary’s commissions was brought from the Low Countries, where Philip had endeavoured to establish the inquisition. Elizabeth, in her turn, copied Mary's warrant. (Cardwell, l.c.) * Eliz. (1558/9) c 1 s 8: . . . enacted . . . . that your Highnes your Heires and Successoures Könges or Quenes of this Realme, shall have full power and auctivoritee by vertue of this Acte by lettres Patentes under the Greate Seale of Englande, to assign name and aucthorise . . . . Suche per- 80m or persons . . . as your Majestée your Heires or Successoures shal& thinke meete teacercise use occupie and eacecute under your Highnes you,' Heires and Successoures all mammer of Jurisdictions Privileges and Pre- heminences in any wise touching or concerning any Spirituall or Ecclesiasti- call Jurisdiccion . . . and to visite refourme redres order correcte and amende all such Erroures Heresies Scismes Abuses Offences Contemptes and Enormitees whatsoever, whiche by any mamer Spirituall or Ecclesiasticall Power Auctſ oritee or Jurisdiccion can or maye lawfullye bee refourmed ordered redressed corrected, restrained or amended . . . ; And that suche person or persons . . . shall have full I’ower and Aucthorite . § 30] HIGH COMMISSION FOR ECCLESIASTICAL CA USES 263 In virtue of this authorization Elizabeth, in 1559, nominated several commissions for temporary purposes in the old way.” Shortly afterwards she issued for the first time a warrant of a more perma- ment character to ensure the execution of the acts of uniformity and supremacy. The commission received as the sphere in which its chief functions were to be exercised the whole kingdom; in respect of other functions its powers were confined to the city of London.” By the repetition of similar commissions a permanent, Supreme court for ecclesiastical affairs was formed, the principal task of which was to consist in maintaining the unity of faith. Its competence extended to a variety of matters: besides being an administrative body it was, above all, a disciplinary court in regard to the Officials of the church, and, in general, a penal court in case of Offences com- mitted by clergy or laity against the statutes enacted to give effect to the reformation and to suppress heterodox protestants. Its pro- cedure was inquisitorial. Its power of inflicting fines or imprison- ment was further extended in the following reigns. The members constituting it were bishops, privy councillors and others of the clergy and the laity.” The commission was not always the same for the whole realm : sometimes separate commissions were appointed for the two archbishoprics, and sometimes a single diocese had its own commission assigned it." These separate commissions were all included in the designation, “the High Commission Court.’ teacercise use and eacecute all the Premisses according to the temour and effecte of the said lettres Patentes; tº º * The commission of 24th June, 1559 (and therefore after the passing of the supremacy act), for the visitation of the dioceses of York, Chester, Durham and Carlisle is printed in Cardwell, Doc. Amm. I, 247. In it there is no direct refer- ence to the Supremacy, only a general reference to the royal power. According to Strype, Ammals I, 165 (Ed. 1824, pp. 247 f.) separate commissioners were appointed on 20th June, 1559, to visit Eaton (Eton) college and the university of Cambridge; on 18th July, to visit the dioceses of Llandaff, St. David's, Bangor, St. Asaph, Hereford, Worcester; on 19th July, 1559, for Salisbury, Bristol, Iºxeter, Bath and Wells, Gloucester; on 22nd July, for Oxford, Lincoln, Peter- borough, Coventry and Lichfield; on 21st Aug. 1559, for Norwich, Ely; on 18th June, 1559, royal visitors were already officiating in London. * The first of these more permanent commissions dates from 19th July, 1559 (printed in Cardwell, Doc. Amm. I, 223). The members of the high commis- sioners are the ecclesiastical commissioners of older times. For further war- rants of high commission see Cardwell, l.c. preface, pp. 13 ff. and I, 223, note; also, Stubbs, Høst. App. l.c.—A high commission court for Ireland was created in 1563.-Corresponding courts for Scotland (one for each archiepiscopal pro- vince) were first established in 1610. The commission of 1610 is printed in Acts and Proceedings of the General Assemblies of the Kirk of Scotland (pub- lications of the Bannatyne Club) III, 1078. The commission of 1615, uniting the two courts into one, is in the same collection, III, 1108. Cf. also on the royal commissions in Scotland allowed in 1584 and abolished in 1592 $ 10, notes 25 and 27.-After the restoration a new high commission for Scotland was established by warrant of 16th Jan. 1664. The warrant is printed in Wodrow, History of Sufferings of Church of Scotland Ed. 1721 I, 192. * The constitution of the court varied. In 1583 it consisted of 44 commis- Saries, among them 12 archbishops and bishops, a still larger number of privy councillors and other persons clerical and lay. (Gneist, Verfassumgsgesch. 497.) * Examples in Stubbs, Hist. App. I pp. 49 f. to Report of Eccles. Courts Com- mission, 1883. 264 CIVIL AUTHORITIES OF THE REFORMATION TIME [V, 2A The severity with which the high commission court pursued every expression of dissent caused it in the reigns of James I and Charles I to incur the hatred of the people. By act of July the 5th, 1641 (16 Sq. Car. I c 11) it was abolished, and the establishment in the future of any new authority with like powers was forbidden.” After the restoration these provisions were maintained in force, but with the reservation that the king's rights of supremacy were not thereby to be impaired." In spite of the prohibition just mentioned, James II in 1686 set up, in virtue of his supremacy, a commission” with the same exten- sive powers as the earlier high commission. The court also entered on its functions.” But by the end of 1688 the king had to bring himself to abolish it once more.” After his expulsion it was ex- pressly declared in the bill of rights (1689) that any such attempt to revive the court was illegal.” * An Act for repeal of a branch of a Statute prºmo Elizabethe concerning Commissioners for causes Ecclesiasticall. s 1 repeals the provisions, quoted in note 3, above, of 1 Eliz. c. 1. S 4 enacts: . . . that . . . no new Court shall be erected ordeined or appointed within this Realme of England or Domžnion of Wales which shall or may have the like power jurisdiction or authoritie as the said High Commission Court now hath or pretendeth to have But that all and every such Letters Patents Commissions and Grants made or to be made by his Majestie his Heires or Successors and all powers and authorities granted or pretended or mentioned to be granted thereby and all Acts Sentences and Decrees to be made by vertue or colour thereof shall be utterly void and of Twome effect. - - * An 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 Primo Elizabethe concerning Commissioners for Causes Ecclesiasticall. s 2. 16 sq. Car. I c 11 is repealed (eaccepting what concerns the High Com- mission Court or the new erection of some such like Court by Commission). s 3. The repealed part of 1 Eliz. c 1 s 18 is not to be revived by this act. * Printed in Kennet, History of England 2nd Ed. III, 452, and Cobbett and Howell, State Trials XI, 1143. According to Clarke, Life of James II, II, 90, the commission dates from 3rd Aug. 1686. According to Kennet, l.c. III, 454, note a, commissions of like import, but with a change in the persons commis- sioned, were given on Nov. 22nd, 1686, and probably on 12th Jan. 1687. * Taking action, for example, against Compton, bishop of London, against the vice-chancellor of Cambridge university and against the fellows of Mag- dalen College, Oxford. — As commissaries were appointed three bishops, the three highest secular officials and one chief justice. Sancroft, originally named as one of the bishops, declined to accept. Another took his place. In 1688 another bishop, Sprat of Rochester, resigned his office. * * The abolition of the commission was upon the representations of Sancroft and the bishops, and was intended to attach them to James as against William of Orange, whose invasion was then impending. * 1 Gul. & Mar. sess, 2 c 2 under I, 3 (WI, XI): that the commission for erecting the late Court of Commissioners for Ecclesiastical Causes and all other commissions and courts of like mature are illegal and perm?cious. § 31] THE GOVERNORS OF THE BOUNTY OF QUEEN AWAWE 265 B. AUTHORITIES OF THE PRESENT TIME. § 31. - The governors of the bounty of queen Anne." During the reformation the dues of first-fruits and tenths," which had to be paid by certain officers of the church, were conferred on the crown.” Queen Anne, ever friendly to the church, desired to devote these moneys once more to ecclesiastical purposes. In accord- ance with her wish 2 & 3 Ann. (1703) c 20 was passed, empowering her to establish by letters patent a corporation and to settle upon it for ever all the revenue of first-fruits and tenths, to be applied in augmenting the maintenance of poor parsons, vicars, curates etc. Officiating in the church of England.” Under these powers the * These tenths have no connexion with tithes, which are paid by parishioners to the holder of a living. - º “, * The payment of first-fruits to the pope was abolished by 23 Hem. VIII (1531/2) c 20 s 1 ſprinted in § 6, note 9). This act was put in force by royal letters patent of 9th July, 25 Hen. VIII. It was confirmed by 25 Hen. VIII (1533/4) c 20 s 1. By 26 Hem. VIII (1534) c 3 ss 1 and 8 first-fruits and tenths were conferred on the crown. This act was, except that the penalties for non- payment of tenths were somewhat mitigated, confirmed by 2 & 3 Ed. VI (1548) c 20 and amended in minor points by 7 Ed. VI (1552/3) c 4. Some other acts which supplement or amend are recited in the preamble to 1 Eliz. c. 4, 23 Hen. VIII c. 20 and 25 Hen. VIII c. 20 were repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 3. By 2 & 3 Phil. & Mar. (1555) c 4 the crown renounced both dues. The tenths were to be paid (into the hands of an ecclesiastical commis- sion to be appointed by Pole) only so long as they should be required for the payment of the rents and pensions which the crown had undertaken, at the , dissolution of the monasteries and subsequently, to discharge. 1 Eliz. (1558/9) c 1 s 2 revived 23 Hen, VIII c. 20 and 25 Hen. VIII c. 20, 1 Eliz. c. 4 confirmed 26 Hem. VIII c. 3 and the supplementary acts in so far as they were in force on Aug. 8th 2 & 3 Phil. & Mar., thus making the dues again payable. By an or- dinance of the rump parliament, dated 8th June, 1649, tenths and first-fruits (as also “all Tythes appropriate, Oblations, Obventions, Pensions, Portions of Tythes appropriate, Offerings, Fee-farm Rents, issuing out of Tythes') of the abolished archbishoprics, bishoprics and chapters were to be vested in trustees and applied to the remuneration of ministers, schoolmasters and insufficiently paid university officers, and to the repayment of appropriated tithes to the parishes originally entitled to them. Cf. also the ordinance of the rump, dated 5th April, 1650, that of the protector dated 2nd Sept. 1654 (Scobell c 49) and act of parliament of 1656 c 10. All these enactments became void at the restoration, but dispositions of property made under them were partly confirmed by 12 Car. II (1660) c 11 ss 44, 48. * 2 & 3 Ann. c 20 An Act for the makeing more effectuall Her Majesties Gracious Intencions for the Augmentacion of the Maintenance of the Poor Clergy by enabling Her Majesty to grant in Perpetuity the Revenues of the First Fruits and Tenths and also for enabling any other Persons to make Grants for the same Purpose. s 1: . . . That it shall and may be lawyfull for the Queen's most Eaccellent Majestée by Her Letters Patents under the Great Seal of England to incorporate such Persons as Her Majesty shall therein nominate or appoint to be One Body Politick and Corporate to have a Common Seal and perpetuall Succession. And alsoe at Her Majestées Will and Pleasure by the same or any other Letter Patents to grant limitt or settle to or upon the said Corporacion and their Successors for ever all the Revenue of First Fruits and Yearly perpetuall Tenths * Phillimore, Eccles. Law 2069 f. 266 CIVIL AUTHORITIES OF THE PRESENT TIME [V, 2B, queen by letters patent of the 3rd of November, 1704,4 created a corporation bearing the name of “The Governors of the Bounty of Queen Anne, for the Augmentation of the Maintenance of the Poor Clergy.” It was to consist of the archbishops, bishops,” deans, speaker of the house of commons, master of the rolls, privy Coun- cillors, lieutenants and custodes rotulorum of the counties, the judges, the queen's serjeants at law, attorney and solicitor-general, advo- cate-general, chancellors and vice-chancellors of the two universities, mayor and aldermen of London, and mayors of the respective cities, for the time being, and was to have power to admit into its body such persons as shall contribute to the objects of the foundation. To the corporation was assigned for ever the income of first-fruits and tenths, to be disposed of as the act directed. The first letters patent were supplemented and changed in minor points by a charter of March 5th, 1714. The administration of the bounty is further regulated by 1 Geo. I st. 2 (1714/5) c 10, which contains a clause ratifying agreements made by the governors with private benefac- tors, and another which substitutes, for convenience sake, royal consent under sign manual for royal consent under the great seal to rules made by the governors of the bounty." 1 & 2 Vict. (1838) c 20 abolished the office for the collection of first-fruits and tenths and vested its powers in the treasurer and governors of queen Anne's bounty." The same act directed that the governors should make in writing a return of expenditure and receipts, should pre- Sent it to her majesty in council and to both houses of parliament, and should keep a copy open to public inspection at the office of the secretary.” Besides first-fruits and tenths certain inconsiderable of all Dignities Offices Benefices and Promotions Spirituall whatsoever to be applyed and disposed of to and for the Augmentacion of the Maintenance of such Parsons Vicars Curates and Mănăsters officiateing in any Church or Chapell within the Ringdome of England Dominion of Wales and Towne of Berwick upon Tweed where the Liturgy and Rites of the Church of England as now by Law established are or shall be used or observed with such lawfull Powers Authorities Direccions Lim?ttacions and Appointments and under such Rules and Restriccions and in such Mammer and Forme as shall be therein expressed . . . * These letters patent are repeated in abstract in the preamble to 3 & 4 Włct. (1840) c 20. - * According to 1 & 2 Vict. (1838) c 20 s 16 every bishop of a newly created See is eac officio a member of the corporation. ° 1 Geo. I st. 2 (1714) c 10 Am Act for making more effectual her late Majesty's gracious intentions for augmenting the maintenance of the poor clergy. S 3: & That all such rules, methods, orders, directions and constitutions, as shall, from time to time, be by the . . . governors agreed upon, prepared and proposed to his Majesty, his heirs and successors, according to the true intention of the said letters patent of incorporation, and by his Majesty, his heirs and successors, approved under his or their sign manual, Shall be as good, valid and effectual rules, methods, directions, orders and constitutions, for the purposes aforesaid, as ºf the same were made or established wnder the great seal . . . ...—Cf. also 1 & 2 Vict. (1838) c. 20 s 19. 7 Compare $ 29, note 7. The office is now called ‘Queen Anne's Bounty and First-Fruits and Tenths Office.’ & S 18. § 31] THE GOVERNORS OF THE BOUNTY OF QUEEN ANNE 267 sources of income have been assigned by statute to the corporation.” As a temporary measure it also received a substantial assistance from the state.” Its capital has been increased by private benefac- tions for general or particular objects; moreover, the governors may accept endowments for churches and chapels erected under the church building acts, the trustees of such endowments being em- powered to assign them to the governors.” - According to the rules and orders made the augmentations granted are ‘by the way of purchase and not by the way of pension.’” In many cases land is bought. Frequently only a capital” is employed, which is held in trust * by the governors, invested in their names and the interest paid to the holder of the augmented benefice.” - Besides its work in augmenting poor benefices, originally its sole province, a new form of activity has been given it by later enact- ments; it has been empowered to grant loans to the holders of benefices for building or repairing parsonages, for other permanent improvements of livings, for making good the dilapidations of a pre- decessor and the like purposes.” These loans may be made by the ° E.g., fines for breaches of 1 & 2 Vict. c 106 (s 119 of the act) and of the Colonial Clergy Act 37 & 88 Vict. c. 77 (s 7 of the act). - * £100,000 a year for 11 years. Perry, Hist, of Engl. Ch. III, 175, note 3 c 10 $ 6. * * 2 & 3 Väct. c 49 s 12. * The rules are printed in Phillimore, Eccl. Law 2071; the words quoted are from rule 1. - * The governors, as a rule, add £200 to £200 contributed privately. * The sum thus retained in the administration of the governors is now about £4,500,000. & - * For the outlines of the present system of administration see the reports of the bishops of London and Hereford presented Feb. 11th, 1887, to the upper house of the convocation of Canterbury, Chronicle of Convocation, 1887, Sum- mary p. viii, printed also in the Church Year-Book for 1891 p. 432. * The first such enactment is:— 17 Geo. III (1777) c 53 s 12: It shall and may be lawful for the governors e to advance and lend any sum or sums of money, mot eacceeding the sumº of £100, in respect of each living or benefice, out of the money which has arisem, or shall from time to time arise, from that bounty, for promoting and assist- Žng the several purposes of this act, with respect to any such livings or benefices as Shall mot eacceed the clear annual improved value of £50; and such mort- gage and security shall be made for the repayment of the principal sums so to be advanced, as are here?mbefore mentiomed, but mo à mterest shall be paid for the same ; and in cases where the ammual value of such living or benefice shall eacceed the sum of £50, that it shall and may be lawful for the said governors to advance and lend, for the purposes of this act, any sum mot eacceeding two gears income of such living or benefice upon such mortgage and security as aforesaid, and subject to the several regulations of this act, and to receive 7 nterest for the same, not eacceeding four per cent. Further regulations affecting this part of the work of the governors of the bounty and partly altering the above are contained in : 21 Geo.III c. 66; 7 Geo. IV c. 66; 1 & 2 Vict. c 23; 1 & 2 Vict. c 106; 19 & 20 Vict. c 50 s 15; 28 & 29 Yict. c 69; 34 & 35 Vict. c 43 Ecclesiastical Dilapidations Act 1871; 35 & 36 Włct. c. 96; 44 & 45 Vict. c 25 Incumbents of Benefices Loams Eactension Act 1881; 49 & 50 Vict. c 34 Inc. of Benef. Loans Eactems. Act 1886; 50 Vict, sess. 2: c 8 Inc, of Benef. Loams Eactens. Act 1886 Amendment Act 1887. 268 CIVIL AUTHORITIES OF THE PRESENT TIME [V, 2B governors out of the trust capital to the clergy on the security of their benefices.” r Lastly, various acts have conferred on the governors of queen Anne's bounty certain rights of control calculated for the preserva- tion of the substance of a benefice, the house of residence and lands. Thus the purchase money derived from the sale of an inconveniently situated house of residence is to be paid into the hands of the gover- mors,” as also are to be paid, or may be paid :—enfranchisement money for the use of any spiritual person; * the income of a bene- fice under sequestration, the stipends of the curate or curates being first deducted, until the cost of dilapidations has been discharged; * the sum recovered by a new incumbent from his predecessor for dilapidations; * sums received from an insurance office for buildings insured under the ecclesiastical dilapidations act and destroyed or damaged by fire.” The incumbents are required under the act just mentioned to insure the buildings on the lands of the benefice against fire. The insurance is to be effected in the joint names of the incumbent and the governors in some office selected by the in- cumbent, to the satisfaction of the governors, in at least three fifths of the value of the buildings.” § 32. Ecclesiastical commissioners for England." By 58 Geo. III (1818) c 45* a sum not exceeding £1,000,000 was set apart from state funds to promote the building of new churches, and the king was empowered to appoint by letters patent commis- isioners for ten years to execute the purposes of the act. These commissioners received the name “His Majesty's Commissioners for building New Churches’ and were incorporated by 59 Geo. III (1819) c 134.” Five years later 5 Geo. IV c. 103* granted an additional * See report of two bishops in 1887, cited above, note 15. , is 1 & 2 Vict. c 23 s 7; 1 & 2 Vict. c 29 s 8; 2 & 3 Vict. c 49 ss 14, 17. 1921 & 22 Vºcł. C 94 S 17. * * 84 & 35 Vict. c. 43 Ecclesiastical Dilapidations Act 1871, ss 20 f. ** 34 & 35 Vict. c. 43 SS 37 ff. ** 34 & 35 Vict, c. 43 s 56. ** 34 & 35 Vict, C 43 S 54. * An Act for building and promoting the building of additional Churches in populous Parishes. * An Act to amend and render more effectual an Act passed in the last Ses- ision of Parliament, for building and promoting the building of additional Churches in populous Parishes. - - ° An Act to make further Provision, and to amend and render more effectual Three Acts passed in the 58" and 59% Years of His late Majesty, and in the 3° Year of His present Majesty, for building and promoting the building of additional Churches in populous Parishes. a Gneist, Englisches Verwaltungsrecht 3rd Ed. § 173.−Phillimore, Ecclesiastical Law 2090 fſ. —General Index to Orders of Her Majesty in Council ratifying Schemes and Representations of the Ecclesiastical Commissioners for England ; and also to Instruments for making grants to Benefices and Churches. Made wp to the 31st October, 1868. London, 1870; Eyre & Spot- ‘tiswoode. [Cf. also the extracts from Orders in Council down to 1842 in Burn, Ecclesiastical Law 9th Ed. IV, 729 f.] § 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- sioners (Transfer of Power) Act 4 it was abolished and its rights, privileges and property were vested in the ecclesiastical Com- IYA1SSIOIlêI'S. 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 ea 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 Wict. (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 appoint 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, jor building and promoting the building of additional Churches in populous Parishes. * In connexion with the questions of parliamentary reform and the granting of full civil rights to protestant dissenters and Roman catholics, the un- equal distribution of property among the various officers of the church was the object of vigorous attacks during the thirties and forties. Thus a royal colm- 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 Revenues.’ 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. III, 170 ft. cc 10, 11, especially p, 202. .* 6 & 7 Gul. IV c. 77'ss 1–6. * 3 & 4 Vict. c 113 s 78 : . . . That in addition to the Commissioners mamed ºn . . . 6 & 7 Gul. IV c. 77 . . . the following Persons shall be Ecclesiastical Commissioners . . . ; 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's Court of Common Pleas, the Lord Chief Baron of Her Majesty's Court of Eac- chequer, the Judge of the Prerogative Court of the Archbishop of Canterbury, the Judge of the High Court of Admiralty for the Time being 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 ea 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.” 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 Rolls, 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 appointed by the Lord Archbishop of Canterbury for the Time being, . . . Cf. ss 79 ft. * 13 & 14 Vict. c. 94 ss 1, 2, 7. 9 13 & 14 Vict. c. 94 s 8. 10 13 & 14 Vict, c. 94 S 12. 11 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 sinecure rectories, equalizing the incomes of bishops, of archdeacons, of holders of livings belonging to the same patron under 6 & 7 Gul. IV c. 77 and 3 & 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 3 & 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. Exchanging be- tween ecclesiastical corporations and the commissioners under 29 & 30 Vºct. c 111 s 4. Apportioning of income of benefices belonging to one patron under 3 & 4 Vict. c 113 S 74. - * Estates of bishoprics vested in commissioners under 6 & 7 Gul. IV c. 77; § 32] ECCLESIASTICAL COMMISSIONERS FOR ENGLAND 271 3. Management 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 canonries, the estates of newly endowed arch- deaconries under 3 & 4 Vict. c 113 and other acts. Co-operation in the sale of advowsons etc. by corporations under 5 & 6 Gul. IV c. 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 59. - * 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; 24 & 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 ft. Pº. 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). Wested 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, Ripon, Rochester, St. Asaph, St. David's, Salisbury. 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 vicar's choral, Wells, vicars choral, Westminster, chapter, Windsor, S. George, York, vicars choral; so from the outset the estates of the chapter of Southwell. Partly : Bristol, chapter, Ely, chapter, Exeter, chapter and vicars choral, Lichfield, chapter, Lincoln, chapter, Llandaff, 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 Wict. c 108 and 21 & 22 Vict. c 57 The Ecclesiastical Leasing Act, 1858, further, 23 & 24 Vict. c 124 s 8 (bishoprics), 31 & 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 augmented by the commissioners, and to loans for such pur- poses (1 & 2 Vict. c 23, 3 & 4 Vict. c 113 s 59, 5 & 6 Włct. c 26). They approve loans and advance money 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 and 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 be enfranchised under 21 & 22 Vict. c. 94 and belongs to a manor belonging 272 A RC HB I SHOPS A W D BISHOPS [W, 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. ORIGIN OF THE WARIOUS ARCHBISHOPRICS AND |BISHOPERICS. IN the period before the Anglo-Saxon settlement, and even later in ICeltic districts, the existence of metropolitans cannot be demon- strated with any degree of certainty." - When Augustine in the spring of 597 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 P’) by the archbishop of Arles, 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. c 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, 7. Statistics will be found in the Church Year-B00k, which appears annually. (E.g. for 1880–90 and for 1891 in the vol. for 1893, p. 528.) 17 By 6 & 7 Vict. c. 37 s 22, and 7 & 8 Vict. c 104 s 11, for new churches and augmenting benefices; by 19 & 20 Vict. c 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 I, 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 archiepiscopal 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. Richter, Kirchenrecht § 13, note 1, § 24, note 15. According to Haddan and Stubbs III, 3 the follow- ing designations of Augustine occur : Arch?ep?Scopus gent? 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- tºwarāorum ecclesiae (Augustºm. Quaest. in Beda Book I c. 27)—Doruvermensis Archiepiscopus (epitaph of Augustine in Beda Book II c 3). * Beda, Hist. Eccles. Book I c 27 § 58: Intered vir, Domini Augustimus venºt Arelas, et ab archiepiscopo ejusdem civitatis Aether?0, juacta quod jussa Sanct: § 33 ORIGIAW OF A RC H B ISHOPRICS AAW D BISHO PRICS 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 per 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 (624), Justus (627 ?) patris Gregor?? acceperamt, archiepiscopus gent? Anglorum ordinatus est; tº º —Greg. Epist. VII, 30 (Haddan and Stubbs III, 12): Quº (Augustinus) data a me licentia a Germaniarum Episcopis (i.e. by the Frankish bishops) Episcopus factus est . . . . * Answer of Gregory to the seventh question of Augustine, Qualiter debemus cum Gall?arum Britanniarumque Episcopis agere? . . . . Britanniarum vero omnes Episcopos tuae fratermitat committimus, ut indocti doceamtur, ºnfirm? persuasione roborentur, pervers? 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 Rome 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): . . . Tua vero frater- nºtas mom Solum eos Episcopos quos ordinaverit, megue hos tantum-modo qui per Eburacae Episcopum fuerint ordinati, sed etiam Ommes Brittamiae Sacer- dotes habeat . . . subjectos . . . * Second letter of Gregory to Augustine, 601 (Haddam and Stubbs III, 29): •. w8wm tºbě palli? . . . concedimus: 'ta ut per loca singula duodecim Episcopos ordines, qui tuae subjaceant ditioni, quatemus Lundomiensis civitatis Episcopus Semper in posterum a synodo propria debeat consecrari, atque homoris pallium ab hac sancta et Apostolica . . . sede percipiat. Ad Eburacam vero civitatem te volumus Episcopum mºttere, quem 7pse judi- caver's ordinare; ita dumtaacat, ut si eaden civitas cum finitimis locis verbum Deč recepérêt, 'pse quoque duodecim Episcopos ordinet, et metropolitan? honore perfruatur; quia ei quoque, si vita comes fuerit, pallium tribuere ſº dispon?mºus, quem tamentuae fratermitatis volumus disposition; subjacere : post obitum vero tuum ita Episcopis quos ordinaverit praesit, ut Lumdomiensis Episcopº nullo modo dition? subjacedt. Sit vero inter Lundoniae et Eburacae cºvitat's Episcopos in posterum honorés àta distinctio, ut pse prior habeatur quº prºus fuerit ordinatus: - H.C. T 274 . A RCH BISHOPS AND BISHOPS IV, 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 successor 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 Iona, settled in the island of Lin- disfarne (635) 19 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 Epistolae Cantuarienses (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 (Haddam and Stubbs III, 84): Et tam juacta vestram petitionem quam filiorum mostrorum regum. vobis per praesentem nostram praeceptionem, vice beat Petró apostolorum principis, auctoritatem tribuimus, ut quando unum eac vobis Diving ad sé jusserit gratia vocari, is qui superstes fuerit, alterum in loco defunct debeat Episcopium ordinare. Pro qua etiam re singula vestrae dilection: pallia e tº dăreacámus . . . A letter to the like effect written at the same time to Eadwine of Northumbria will be found l.c. III, 83. ° Cf. § 1, near note 7. 19 Haddan and Stubbs III, 91. $ 33) ORIGIN OF ARCH BISHOPRICS AND BISHOPRICS 275 the bishopric (also in 664). On Wilfrid's return, Ceadda retired into a monastery, and afterwards became 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, Hist. Eccles. Book IV, c 3 $ 259.-In 678 the diocese of Northumbria was divided, Lindisfarne and Hexham being chosen as the seat of the northern bishopric, York of the southern. Beda, Book IV c. 12 $288. Haddan and Stubbs III, 125. .* - - * A document, professing to be of the year 680, in which is the signature of Wilfrid as ‘archbishop of York,' is not genuine. (Wilkins I, 50; Haddan and Stubbs, Counc. III, 160.) - * Letter of Coenwulf to pope Leo III and answer of the latter (both in 798) printed in Haddan and Stubbs III, 521 ff. - * Annulling of the division by bull of Leo, in virtue solely of his right as pope, and his announcement thereof to Coenwulf (both in 802), Haddan and Stubbs III, 536 f. * Resolution at Clovesho in Haddan and Stubbs 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 Swis paroch??s redintegraretur . . . et honorabili Archiepiscopo Aethel- heardo in patriam, pervenient? per omnia redderetur, et Coenwºlfus R eac p : us Merc? or wºm, it a comple vºt cu'm Senator : bus Swis, tº - 276 ARCH B I SHOPS A W D 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 Roman 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 Radulf de Diceto, Abbrev. Chrom. (Rer. Brit. Scr. No. 68) I, 255, year 1142: Lucius papa pallium mºsºt Henrico Wºmtomżems? episcopo, cu% proposalerat assºgmare septem episcopos. Matth. Paris, Chron. Maj. (Rer. Brit. Scr. No. 57) II, 176 borrows this and adds: volens apud Wintonian movum archiepiscopum constituere. Cf. Amm. de Wintomia (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 f. * For an enumeration of the older sees in the province of York see a letter of 1120 in Haddan and Stubbs II, 204. * Lappenberg, Geschächte von England, Hamburg, 1834, I, 470. * William of Malmesb., Gest. Pont. (Rer. Brit. Scr. No. 52) p. 40, year 1071: In cuius (pope Alexander's) praesentia Thomas calumniam movit de primatu Dorobermens's ecclesiae, et de subjectione trium episcoporum Dorcensis sive Lincoliensis, Wigormiensis, Licitfeldems is qui nunc est Cestrensis . . . Similarly Milo Crispinus (died circ. 1114), Vita Lamframcº (ed. Giles) p. 302. On the condition of the province of York from the tenth to the twelfth century cf. Stubbs in Hoveden (Rer. Bråt. 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 l.c. p. xxxv, note 1. * Cf. § 34, note 5. * The document is printed in § 34, note 6. But see there the contention of Eſugo 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 (Rer. Brit. Scr. No. 74) 212: Provinciam tamen Ländisse archiepiscopus Eboracensis calumpniabatun eac antiqua temporum serie. , Florent. Wigor- niensis, year 1092 (ed. Thorpe II, 30); Antistes etiam Remigius, gºt? licentia Teg's Wöllelmº senioris, episcopalem sedem de Dorcaceastra mutaverat ad Lindicolámam, constructam in ea ecclesiam pontifical? cathedra digmam § 33] ORIGIN OF A RC H B ISHO PRICS A WJD BISHOPRICS 277 assigning the earlier kingdom of Northumbria 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 London (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 Eboracensis archiepiscopus illi con- tradčcendo resistebat, affirmans eam in sua parochia esse constructam . . . Hugo Cantor (The Historians of the Church of York, Rer. Brit. Scr. No. 71) II, 105: In crastinum (5th Dec. 1093) Thomas archiepiscopus Cantuaria 3'éCéSSurus, loquens cum Anselmo archiepiscopo . . . interdiacit e? . . . Ave Robertum Bloeth, Lincolnáensis ecclesiae electum, Lincolnáensem ordinaret. episcopum . . . Lincolimum oppidum, et magnam partem provinciae Lindissº dicebat fuisse ét jure esse debere parochiam Eboracensis ecclesiae, et Žnjuria Žllº ereptamt esse cum tribus villès, scillcet Stou, et Lowdham et Nºw werca. . . . The document of William II relating to the renunciation of this claim by the archbishop of York (about 1093–94) is printed in Rer. Brit. Scr. No. 71, III, 21. In the year 1125 there were discussions as to the handing Over of St. Asaph, Bangor and Chester to the province of York. Haddam and Stubbs, Counc. I, 316. * Benedict of Peterborough (Rer. Iłrit. Scr. No. 49) I, 89: In hoc autem Concilºo cleric. Roger: Eboracensis archiepiscop; . . . calumniató sunt ex parte Eboracensis archiepiscop', episcopatum Lincoln?ensem, et episcopatum Cestrensem, et episcopatum. Włgornensem, et episcopatum He- . refordensem, de jure pertimere debere ad metropolitanam Eboracensivtºmy ecclesiam. g * The king had previously by letters patent of 16th July, 33 Hen. VIII, established the bishopric of Chester assigning to it, in particular, the monastery of St. Werberge at Chester and the archdeaconry of Richmond, which until then had belonged to the diocese of York, and subjecting it to the archbishop of Canterbury. - * On the ecclesiastical and political history of Man cf. Joseph Train, An IIistorical and Statistical Account of the Isle of Man, from the earliest times to the present date, 2 vols., Douglas, 1845, and William Prynne, Animadversions fo the Fourth part of Coke's Institutes pp. 201, 384. On the history of the bishopric compare, further, William Harrison, Am. Account of the Diocese of Sodor and Man in Publications of the Manac 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 Cumming, The Isle of Man, London, 1848, appendix P, Robert Keith, Hist. Catalogue of the Scottish Bishops Ed. 1824, pp. 293 ff, Le Neve, Fast; Eccles. Anglic. Ed. 1854, III, 321 ff. and . (from the end of the eleventh century) in Stubbs, IRegistrum Sacrum Anglicanum, pp. 150, 183. * 3. The island was perhaps for a time occupied by the Romans. After their departure it was subject at one time to the Irish or Scotch Scoti, at another to the Welsh, and temporarily to king Eadwine of Northumbria. With the beginning 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 1156 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 usurper 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 ARCH BISHOPS AND BISHOPS [V, 3A 33 Hen. VIII (1541/2) c 31. At the present time the province of as a fief (21st Sept. 1219). (Document in Rymer, Foedera 4th Ed. I, 156; cf. I, 157.) Reginald was overthrown in 1224. In 1230 Olaf, king of Man, did homage to the king of Norway. Magnus, third in succession from Olaf (1252–1265), did homage to Alexander III 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 and Stubbs, Counc. II, pp. 164, 189, Will. of Newburgh (Rer. Brit. Scr. No. 82) I, 72 ft., Robert of Torigni (l.c. No.82) IV, 167. According to the last-mentioned; Wimund, consecrated 1109–14, was the first bishop. [Camden, Britamia, 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 (Jaffé, Itegesta No. 2574).] Several bishops of Man were consecrated by the archbishop of York, not, however, always without opposition from other quarters. In 1154 pope Anastasius IV confirmed the establishment (1148) of an archbishopric in Trondhjem (Norway), to which, among others, the bishop of the insulae Suthrače was made subject (Haddam and Stubbs, Counc. II, 229 ft.). This bishopric was, it would seem, identical with the bishopric of Man. The designation of the bishop as Sodoréensis is probably derived originally from Sudereys (=southern [isles]). [According to Twiss, l c. (without statement of authorities) Honorius TV (1285–87) placed the bishop of Man under the archbishop of Dublin. But the bishops consecrated for Man in 1805, 1821, 1328, 1834 were consecrated by the Norwegian bishops. Stubbs, Registrum. 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 different cases; concerned were at different times—the monks of Furness in Lancashire, the people and clergy of Man, the sovereign of Man and the pope) see Stubbs, l.c., Moore, l.c. 59, 67; cf. also part of a bull of Coelestin III, 22nd June, 1194, in W. P. Ward, Isle of Man p. 31. t - w g 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. Simultaneously, the local royal 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 N 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 (1843–4) and was crowned king; in 1893 he sold the island and the royal 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 episcop? 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 1899 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 Rymer, Foedera. 3rd Ed. III, 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 uma cum Patronatu Ep?s- § 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. f 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 Arles (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, copatus to sir John Stanley, first for life, then in fee to him and his heirs for ever. (Coke, Inst. IV, 283 and preamble to 5 Geo. III c 26; cf. the document, dated [3rd June 1405, in Rymer, 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 century to the reforma- tion, were subject to any archbishop at all, and if so to which, cannot be precisely ascertained. [According to Twiss, l.c., Man was, on the creation of the archbishopric of St. Andrews, assigned thereto and the attachment to York (by act of 1542) made because 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 sive Insularum by Polydorus Vergilius, Angl. Hist, Book IX: hujus sedes in Mona insuld locata est; whilst in reality the bishopric, separated from Man since at latest 1880, 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 Mama: 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 inheritance of Man, a new grant was made by letters patent of the latter sovereign. On the manner of appointment to the bishopric under Henry VIII and later, see the report of the royal 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 5 Geo. III (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, Tincoln, 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 of the several, bishoprics in the British districts see Haddan and Stubbs, Counc. I, 142 ft., 702 ft. - - & 280 A RC H B ISHOPS AAW D B IS HOPS [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 regulated and extended the system of suffragan bishops; ” then, by 31 Hen. VIII (1539) 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 Rochester (on the probably incorrect assumption that the division of ICent 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 680.-On the oldest episcopal sees cf. Stubbs, Comst. 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 the time of Bdward the confessor (1042–66) is given in Freeman, History of the Norman Conquest II, 82. - * Cf. § 39, note 4. * Cf. § 37, note 19. * Gloucester, Bristol, Peterborough, Oxford, Chester, Westminster. (The latter was from the dissolution of monasteries a collegiate church; from 1540, a bishopric; from 1550, a collegiate church ; from 1556–1560, a monastery; in accordance with an unprinted act of 1 Eliz. it was by royal letters patent of 21st May, 1560, again transformed into a collegiate church.)—A map exhibiting the division of England into bishoprics in 26 Heiv. VIII and the changes down to 34 Hen. VIII will be found in Hunter (Record Commission), An Introduction to the Valor Ecclesiasticus of King Henry VIII, London, 1834. Cf. also on boundaries of bishoprics and sites of monasteries the map in Ch. H. Pearson, IIistorical Maps 2nd Ed. London, 1870, p. 58. * By 7 Ed. VI (1552/3) c 10 a part of the county palatine and bishopric of Turham 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 Acte for the Dissolucion of the Bysshoppräck of Durham, and also for the newe erecting of the same Bysshoppºike and one other at Newcastell, vested the possessions of the hitherto existing bishopric in the king and made pro- visions for the new creation of two sees. But the act, before its execution, was repealed by 1 Mar. st. 3 (1554) c 3, and the bishopric of Durham left intact. § 34] PRECEDENCE OF CAN TERBURY AS AGAINST YORK 28I in Scotland there were considerable alterations during the period indicated; moreover, in 1784 began the new creation of Anglican episcopal sees for the (now independent) United States and for the English colonies. In England itself 6 & 7 Gul. IV (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 mot 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 ARCHIBISHOPS OF YORK, a 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 *7 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) c 36 s 2. A map, showing the boundaries of the dioceses in 1854, is found in front of the First Report of the IRoyal Cathedral Commission (Parliamentary Reports, 1854, vol. XXV). * The first bishop of Ripon was consecrated in 1836. The creation of Man- chester was in 1848 in accordance with 10 & 11 Vict, (1847) c. 108. Cf. Perry, 2 . Hist, of Engl. Ch. III, 295, notes and illustrations 1 c 16 $ 3. Power to unite Carlisle and Man was revoked 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 accordance with 38 & 39 Vict. (1875) c 34; Truro by 39 & 40 Vict. (1876) c 54 [cf. Truro Chapter Act 41 & 42 Vict. (1878) c 44; Truro Bishopric and Chapter Acts Amendment Act 50 Vict, sess. 2 (1887) c.12); the four other bishoprics by 41 & 42 Vict. (1878) c 68 [cf. Newcastle Chapter Act 47 & 48 Vict. (1884) c 33]. 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 exhibited in particular by Eadmer, Hist. Nov. (Iter. Brit. Scr. No. 81), by William of Malmesbury, Gesta Pontific. (Rer. Brit. Scr. No. 52) and in a short statement printed in Rer. Brăt. Scr. No. 71, III, 10; that of York by Hugo Sottovagina, precentor of York (in Iter. Brit. Scr. No. 71). In addition to their statements a large number of a Hinschius, Kirchenrecht I, 616 f. 282 ARCH B ISHOPS AND BISHOPS - [W, 3B; 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 : Ut Ecclesia Christi in Doro- bernia aliarum Ecclesiarum regm? mostrº mater sit et Domèna, . . . (printed in Spelman, Concilia I,432 “e M. S. Cod. Eccl. Cant.’ and in Wilkins, Comcilia IV, 775. The document is dated 958; in it Edgar is entitled Reac Anglorum, Dun- stan arch?pontifex. But Dunstan only became archbishop in 959, and it is only from that year, after the union of the parts of the kingdom held by Eadwi and Edgar, that the latter is designated by writers Reac Anglorum. Spelman l.c.). Osbern, Vita Dunstan? (Rer. Brit. Scr. No. 63) p. 108 reports: gº Teac Edgarus . . . Dunstanum . . . primae metrópolis Anglorum primatem ac patriarcham ºnstituit. p. 109: Dunstanus . . . a Roman0. pontifice . . . universae Anglorum gent; necnon et aliis regionibus Anglo- 'rum regno suppositis patriarcha destimatus, . . . Similar expressions are, however, not found 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 Eboracensis after the name of the bishop in the document is a forgery. (Haddam and Stubbs, Counc. III, 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 Pontificum (Rer. Brit, Scr. No. 52) Book I $$ 25–42. For the documents see also Eadmer, l.c. 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 Sergius 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 bishops, 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 Tanfranc 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. III, 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) II, 113: Denique decanus, quando fuit Romae cum Girardo archiepiscopo, sicut inse testatur, a cancellario Romanae ecclesiae diligenter perscrutatus est de contentione harum ecclesiarum, quid inde Roma semtiret, et q \tº d in de- cret is su is haberet, at ille diacit, Roma m mec aliud sentire, mec habere quam quod in registro Beat? Gregor? : scriptum est. See also Hugo, l.c. 204—In the questionable letters compare especially the express alteration of Gregory's regulations in what professes the letter of Boniface W to Justus, archbishop of Canterbury (624-5): (Haddan and Stubbs, Counc. III, 74): . . . firmamus, ut in Dorobernia civitate (i.e. Canterbury) semper in posterum metropolitanus totius Britanniae locus habeatur, omnesque provinciae regn? Anglorum praefati loci metropolitanae Ecclesiae subjiciantur immutilata perpetuaque stabilitate decermºmus. - - - § 34] PRECEDENCE OF CAN TERBURY AS AGAINST YORK 283. promised obedience to Lanfranc, with the reservation attached, that he would only obey the successors of Lanfranc if the pope decided to that effect." The two archbishops now journeyed to Rome and appealed for papal determination of the issue. But the pope referred the question 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 Thomas's declaration are in William of Malmesbury, Gest. Pont, l.c. p. 42, according to a document of Lanfranc, and also in Rer. Brit Scº. No. 71, III, 13: . . . tibi quidem sine conditione, successoribus vero twis conditionaliter obtemperaturum me esse promºsi. According to Hugo Cantor, l.c. 101, the declaration ran: Tibi subjectus ero, quamdiu via eris, successor?bºts. twis mimime, mis; judicante summo 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 meeting was a purely ecclesiastical assembly, the Windsor, a general gemot of the whole nation. Perry, Hist, of Engl. Ch. I, 164, note 3 c 11 § 6 makes the former general, the latter ecclesiastical. * Report of Lanfranc to Alexander in Epist. Lanfrancă (ed. Giles) No. 5, p. 23. But according to Hugo Cantor, l.c. 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, l.c. p. 252 (according to Rule p. lvi inserted by Eadmer after the first edition of his work]; 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, l.c. p. 42 [with- out signatures): . . . Et tandem aliquando diversis diversarum Scriptu- rarum auctoritatibus probatum atque ostensum est, quod Eboracensis ecclesia. Cantuariens; debeat subiacere, eiusque archiepiscop', ut primatºs totius Britanniae, dispositionibus in is quae ad Christianam religionem pertºrient Žn omnibus oboedère. Subjectionem vero Dumelmensis, hoc est Lºnd'sfarmens?s, episcopi atque omnium regionum a terminis Lăcăfeldensis episcop? et Humbrae magni fluvii usque ad eactremos Scotiae fines, et quicquid eachac parte praedict: fluminis ad parochiam Eboracensis ecclesiae jure competit, Cantuarien878. metropolitanus Eboracensi archiepiscopo ejusque successoribus in perpetuum. obtimere concessit. Ita wt si Camtuariensis arch? episcopus concilium COgere: voluerit, ubicumque visum ei fuerit, Eboracensis archiepiscopus swº praesentiam. cum omnibus sºbi subjectis ad mutum ejus each?beat et éjus canonic's disposº- tionibus obediens eacistat. Quod autem. Eboracensis, archiepiscopus profes- sionem Cantuariens; archiepiscopo facere etiam cum sacramento debeat, Lanfrancus Dorobermensis archiepiscopus eac antiqua antecessorum, com: suetudine Ostendit, sed ob amorem regis Thomae Eboracens; arch? episcopo. sacramentum relaxavit, scriptamque tantum professionem recepit ; mon praejudicans successoribus swis, quº sacramentum cum professione a succes: soribus Thomae eacăgere voluerint. Si archiepiscopus Cantuariensis vitam. finierit, Eboracensis archiepiscopus Doroberniam veniet, et eum qui electus: fuerit cum caeteris praefatae ecclesiae episcopis, ut primatem proprium, jure consecrabit. Quod sº Eboracensis archiepiscopus obierit, is qui eſſ successurus eligitur, accepto a rege archiepiscopatus dono, Cantuariam vel ubi Cantuari- ens: archiepiscopo placuerit accedet, et ab ipso ordinationem more canonico susci pºet . & - . . . . * 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, l.c. 110, 114, Gerard promised Anselm soon afterwards: se reversurum (from Rome) quicquid juste debebat eſſ facturum. At the council of Westminster (1102) Gerard, according to the same writer, overturned the raised seat prepared 284 ARCH B TS HOPS AAW D 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, refused 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 Rheims, 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. Meanwhile William of Corbeuil had become archbishop of Canter- bury. With the end of the year 1125 both archbishops appeared in Rome 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, l.c. 187, Gerard, however, promised in 1107 Sua manu imposita manué Anselmö, interposita fide sua . . . , se eandem Subjectionem et oboed?entiam éps? et successoribus ejus in archiepiscopatu, eachibitwrum, quam Herefordens; ecclesiae ab eo sacramdus antistes ill; pro- m?serat. Hugo Cantor makes no mention of such an occurrence. Cf. also William of Malmesbury, Gest. Pont. 259, and Rer. Brit. Scr. No. 71, III, 15. * According to Eadmer, l.c. 210, who gives the words, the only reservation was of allegiance to the king and obedience to the pope. Hugo Cantor, l.c. 124, States that it was expressly declared and put on record through the king that no prejudice was to be dome 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. III 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, l.c. 257 : To the protest of the archdeacon of Canterbury that only the archbishop of Canterbury—mot the pope—had the right to consecrate Thurstan, the pope replies: Nullam injustitiam ecclesiae Cantuariens? facere arolumus, Sed, salva justitia et dignitate illius, quod proposwimus eacsequenvur. Similarly William of Malmesbury, Gesta Pontificum (Rer. Brit. Scr. No. 52) p.262 Book III $124. According to Hugo Cantor, l.c. 165, the pope's utterance ran : Quod facio, semper salva justitia Cantuariensis ecclesiae, si qua est, facio. * Undated bull of Honorius II to Thurstan in Wilkins, Conc. I, 407 (eac reg. Grenefeld arch. Ebor. [in the years 1806–15] fol. 46. Wilkins seems to assume that this bull was given to the legate John of Crema in 1125 to bring with him, and that the council of London, held by the legate on 9th Sept. 1125 followed): Antiquam same Eboracensås ecclesiae dignitatem integram conservard auctore JDeo cup?entes, auctoritate apostolica prohibemus, me ulterius aut Cantuari- tensås archiepiscopus Eboracensis professionem quamlibet eacăgat, aut Ebora- censis Cantuariens; each?beat; neque, quod penitus a beato Gregorio prohibitum est, wilo modo Eboracensis Camtuarèensis dition? Subjaceat, sed ºuatta €jusdemº patris constitutionem, ista inter eos honoris distinctio in perpetuum conser- aretur, ºtt prior habeatur, qui prior fuerit ordinatus . . . —According to T[ugo Cantor, l.c. 214, the presence of the archbishops at Rome led to no final decision before the papal court: Multorum intercessionibus, et de die in dicºm § 84] PRECEDENCE OF CAN TERBURY AS AGA IVST YORK 285 archbishop of Camterbury by nomination as papal legate '* (25th Jamuary, 1126) received for himself personally—not for his succes- sors—the character of a superior as compared with the archbishop Of York.18 d ílatíoníbus et suspensíoníbus viae obtentum est ut sal v a c u í que causa eis regredí líceret. With this would agree the statement of Simeon of Durham (I?er. Brit. Scr. No. 75) II, 281: Willelmus quidem legatus Apostolící per Amgliam, sed Turstìnus ín statat quo fuerat revertátur.—Cf. also below, note 14, om the confirmatiom of the bull of Honorius givem above and of am earlier hull of Calixtus (1119—24) by a bull of Alexander III in 1176. ** Bull of Honorius II to bishops, abbots, barons and clergy in England and Scotlamd (Wilkins I, 409; On the date see Haddam and Stubbs, Coum c. II, 28): • ; charìssìmo fratrì mostro Guîlîelmo, Cantuarìensì archiepìscopo, ín Anglia et Scotia commisêmus, quatenus constítutus îllîc a nobis apostolicae sedis legatus, . . . corrígenda corrìgere, et firmanda valeat . . . con- firmare . . . Dat. Lateram. 8 cal. Febr. ** The archbishops of Canterbury had even before 1126 claimed the rights of legates. They accounted themselves, in virtue of the right attached to the dignity of archbishop of Canterbury and without special papal nomination, legati mati. Letter of Anselm to Paschal II (Migne, Patrologîae Cursus vol. 159 p. 201. Among the letters of Anselm, Book IV, No. 2): . . . Quamdo Romae fuî, ostendí praefato domino papae (Urbam II) de legatíone Romana super regnum, Angliae, quam ípsíus regni homìnes asseverant ab antiquìs temporibus usque ad mostrum tempus *Ecclesìam Cantuariensem tenuìsse . . . Legatíonem vero quam usque ad nostrum tempus, Secundum praedictum testímoníum, Ecclesiâ tenuerat, m?h? domnus papa non abstulât. Audívâ tamen quod, dum eram pro fidelítate sedis apostolicae în eacsólío, legatíonem ìpsam archiepìscopo Vîennensâ vestra commendavit auctorítas . . . Quapropter suppleac oro : * . , me meo tempore Ecclesía . . . prêvetur ea dígnítate quam amte me ìn antecessoribus meis se possedisse a vestra sede pronuntíat. Eadmer, Hìst. Nov. (Rer. Brìt. Scr. No. 81) p. 126: Eodem ammo venít ám, Angliam, Guido archiepìscopus Viennensís, functus, ut dícebat, legatìone totíus Britannìae e0c praecepto et auctoritate apostolicae sedis (year 1100). Quod, per Angliam audítum ìm admóratíonem omnibus venìt, ìnaudítum sc?7?cet în Britannia cunctâ scientes, quemlìbet homìnum super se vìces apostolìcas gerere, ■?sâ solum archiepìscopum Camtuarìae. Quapropter sìcut venít íta reversus est, a memême pro legato susceptus, nec în alíquo legat? Qfficío functus. [Cf. also Eadmer, l.c. 76, vìcìs apostolicae . . . auctoritate.] •* Gervasius, Actus Pontíficum (Rer. Brìt. Scr. No. 78) II, 882: Totâ ením regno Anglorum et circumjacentíbus regîonîbus cunctis motíssímum est, eatenus a prêmo Cantuaríensí metropolitano sanctissìmò, vìdelicet Augustêno, usque ad ?stum, Willelmum, omnes ìpsìus Augustênâ successores, monachos, prìmates, et patriarchas momêmatos et habìtos, mec ullíus umquam Romanâ legatâ ditiom? addîctos. It appears that the archbishops, by laying stress om their position as legat? nati, sought to assure themselves of a certain independemce of the pope and a, right to object to the sending of other legates. But their position remained undefined, and the popes seem not to have generally recognized it. According to Richter, Kêrchenrecht § 128 the terms legatus natus and prìmas were, from the false decretals of Isidore (about the middle of the minth century), used as equivalent, to designate the relation of the holder of the titles respectively to those above him and those below him. Trom later times cf. the bull of Martim V to Chichele, archbishop of Canter- bury in 1426, in which the latiter was suspended from his legatime office (Wilkins, Concílía III, 484): . . . ad nostram . . . pervenît motìtìam, quod tu, quę ad defensìonem ecclesìae juríum, et honorum, sedis apostolícae ? m. p rov ê m c í a tua Ca m tua rìem s â legatus natus eacístís, . . . Pole, after. he had become archbishop (1556) calls himself at first sometimes legatus natus, 286 ARCHBISHOPS AND BISHOPS [W, 3B Erom this time onward the contention that the archbishops of York should acknowledge those of Canterbury as their ecclesiastical superiors apart from the legatine capacity of the latter and that they had to swear obedience to them, was never very strongly urged and, from the end of the twelfth century, not renewed.” That the conferment of legatine powers by the pope made the recipient the superior of the other archbishop, was always acknow- ledged by both archbishops. The archbishops of Canterbury now endeavoured to ensure their ascendency by the indirect means which William of Corbeuil had essayed : they desired the legation for each new occupant of the see. But the archbishops of Canter- bury during the twelfth century in general only received the com- mission after long delays.” Not until the beginning of the thirteenth sometimes legatus a latere [the latter e.g. in a document of 8th Jan. 1557 (Wilkins, Comcilia IV, 148), the former in a document of 8th April, 1556 (Wilkins, Comcilia IV, 143)]; after the pope had deposed him from his office as legate (cf. § 6, note 51), he only uses legatus matus [e.g. in documents of 20th July, 1557 (Wilkins IV, 153), 10th Dec. 1557 (Wilkins IV, 155), 25th March, 1558. (Wilkins IV, 171)]; in his will, dated 4th Oct. 1558 (Epist, Poli, Brixiae, 1744 f. V, 181) he calls himself Apostolicae Sedis Legatus. * On the discussions on the occasion of Becket's consecration to the arch- bishopric of Canterbury (1162) cf. Gervasius, Chronica (Rer. Bråt. Ser. No. 73) I, 170: Archiepiscopus enim. Eboracensis per internuntios licet absens dicebat, consecrationem illam sábi de jure dignitatis antiquae contingere, seque ad eacequendum esse paratum s? Tovo electo caeterisque placeret. Fatentur quoque episcopi (of the Southern province) Eboracensem archiepiscopum de jure antiquo debere Cantuariensem electum consecrare, quod et eidem de facil: concéderent, sº tamen Cantuariens' ecclesiae juste restitueret quam injuste subtraocerat, canonicam scèlicet Subjectionem et tam debitam quam privilegia- tam, professionem. This the archbishop of York refused ; the consecration then took place without his co-operation. The rule laid down by Honorius in the bull cited above (note 11) was repeated in almost the same terms in a bull of Alexander III in 1176 (Rad. de Diceto, Ymagines. Hist. ; Rer. Brit. Scr. No. 68; I, 406): Calìacti, Honorii, Innocentić et Eugenii Romanorum pontificum vestigiis inhaerentes, Cf. also the resolutions of the convocation of the northern province at Ripon, 1306 (Wilkins, Conc. II, 285): . . . Cum taque Eborum archi- episcopus Angliae primas, praeter Romanum pontificem, in spiritualibus superiorem mon habeat, ac ipsa mater Eborum ecclesia homore primatiae ăllustretur, gaudeat plenius, ut est notum ; hac sacra synodal? constitutione proinde duºcimus statuendum, ut mullus clericus, vel laicus, secularis, vel ºreligiosus, sew etiam quaecumque universitas . . . in causa, lite, vel negotio, cujuscumque re? nomine, vel 'psius occasione, in Twostris dioeces?, vel provincia eacistentis sit constitutus, vel etiam in quacumque alia causa, vel negotéo . . . quae vel quod eac nostra dioeces?, vel provincia trahit originem, sew, cujuscumque nomine reus, in mostris dioeces?, vel provincia forum sortirò poterit, . . . curiam Cantuariensem . . . provocet vel appellet, Séu. archiepiscopo Cantuariens?, officială ejusdem curiae, vel etiam cuicumque al??, awctoritate alicuffuseorum, mon eac delegatione apostolica procedent?, ?n hujuS- mod? appellationibus, seu provocation?bus obediat quovºsmodo ; . . . - * Stubbs, Const. Hist. III, 307 f. c. 19 $380, deals with legation committed to the archbishops; from him the following dates in the twelfth and thirteenth centuries are for the most part taken :— - On the death of William of Corbeuil (1136), bishop Alberic of Ostia, was sent temporarily to England. On 8th Jan. 1139, Theobald was consecrated archbishop of Canterbury: not he, but his rival in the contest for the episcopal seat, Henry, bishop of Winchester, was appointed legate. [1st March, 1189. § 34] PRECEDENCE OF CAN TERBURY AS AGAINST YORK 287 century does it appear to have become customary for them to be invested with legatine powers as soon as their election was recog- William of Malmesbury, Hist. Nov. Book II $471 : Lectum est prºmo in con- cilio decretum Innocentić papae, quo jam a Kalendès Martić, sº bene com- 'memºn?, partes sollācātudini's suae idem apostolicus domino episcopo Winton?- ems? jure legation's in Anglia injumacerat. Cf. also John of Salisbury, Epist. 89, Ann. de Wintonia (Rer. Brit. Scr. No. 36) II, 50, John of Hexham (Rer. Bråt. Scr. No. 75) II, 300.] The legation of Henry of Winchester was ex- tinguished by the death of Innocent II (1130–43) and was not renewed by the following popes, Coelestin II (1143–44), Lucius II (1144–45) and Eugenius III (1145–53). The last mentioned, in or before 1150, bestowed the office on arch- bishop Theobald. Becket, who came next (consecrated in 1162), did not receive the commission in his first years of office. But in connexion with his quarrel with the king, the latter succeeded in inducing the pope to send him, though with reservations, a document conferring legatine authority on Roger, arch- bishop of York. The actual conferment of legatine powers did not, however, take place. (See below, note 18.) On 24th April, 1166, Becket was appointed legate, but even then the province of York was excepted from the exercise of his powers. The document appointing him is in Materials for the History of Becket; Rer. Brit. Scr. No. 67; W, 328: . . . nos tibi legationem totius Angliae, eaccepto episcopatu Eboracens?, benigno favore concedimus. te Cf. further the separate—conferment of the primacy in the bull of Alexander III to Becket (printed in Materials for Hist, of Becket; Rer. Brit. Scr. No. 67; W, 324 and Wilkins, Conc. I, 446; the bull bears the date 8th April, 1167; on the questions whether this date is false and whether the bull is to be assigned to 1166 or 1167 see Robertson in Materials, l.c., note a and Stubbs, note 1 to Ralf de Diceto, Ymagines Historiarum, Rer. Brit. Ser. No. 68, I, 330): Thoma archiepiscope, de fratrum mostrorum consºlio tufts justis petitionibus debita benignitate duºmus annuendum, atque praedecessorum mostrorum felicis recordationis Paschal's et Eugenii, Romanorum pontificum, vestigº is 2nhaerentes, tam tº b : quam twº s leg it?’m is successor & b w8 Cantwardensis ecclesiae p r &m at wºm ita plenum conced?mºus Sicut a Lanfranco et Anselmo alážsque psorum praedecessoribus constat fºsse possesswºm . . . (Cf. for similar, earlier conferments, note 20, below.) On the following archbishop of Canterbury, Richard of Dover, the legation was bestowed directly after his coronation, apparently only for the province of Canterbury, the right of primas being conferred separately. (Report of bishop designate of Bath to Henry II, 5th May, 1174, in Benedict [Rer. Brit. Scr. No. 49] I, 69: doming papae duritia adeo est emollāta, Quod domână Cantuariensås elect: electionem solemniter in praesentia Omnium confºrmav čt ; ewmgue etiam confirmatum, Domžnica sequent? Consecrav ćt. Consecrato pallºw m dée tertia dedēt, et modèci temporis spatio eaccurrente prºm at 7 a.m. addādāt. Nos praetered desiderantes £psum habere plenissºm.am potestatem vindictam ec- cles?asticam eacercend? in homºmes regm' vestr; . . . , multa sollācātudźme obtºn wºmus Quod dom?nus papa efdem prov ºn c : ae suae legation em. &m- dulsit.) The succeeding archbishop Baldwin likewise became at once papal legate. He, like Richard I, took part in the crusade, leaving England on 6th March, 1190. William Longchamp, bishop of Ely, was in March, 1190, ap- pointed chief justiciar and regent, on 5th June in the same year he was also made papal legate for all England (bull in Rad. de Diceto, Rer. Bråt. Scr. No. 68, II, 83). The death of pope Clement III (end of March, 1191) put an end to his legation. On the questions whether Coelestin III renewed the com- mission and how long Longchamp remained legate see Stubbs, in Epistolae Cantwardenses, Rer. Brit. Scr. No. 38, vol. II, p. lxxxiii, note 1. Archbishop Baldwin died on the crusade. The following archbishop of Canterbury, Reginald Fitz Jocelin, died a few weeks after his appointment to the see. After him Hubert Walther (consecrated 1193) became archbishop, but did not receive the legation—it was for all England—until 18th March, 1195 (bull in Rad. de Diceto, l.c. II, 125 and Howeden, Rer. Brit. Scr. No. 51, III, 290) and 288 ARCH B ISHOPS AAW D BISHOPS [V, 3B nized in Rome.” The countermeasure of the archbishops of York was to endeavour to induce the pope to confine the legation of the archbishops of Canterbury to the province of Canterbury; 17 more- over, some archbishops of York even in the twelfth and thirteenth centuries obtained legatine powers for themselves,” and, after John of Thoresby (archbishop of York from 1352 to 1373) had been ap- only remained legate up to the death of Coelestin III (1198). Stephen Langton, the successor of Hubert Walther, was appointed to the legatine office. In 1221 he received from Honorius III (1216–1227) the promise that after the recall of the legatus a latere Pandulf, no other such legatus should be sent to England during his (Langton's) lifetime. Ammales de Dunstaplia (Amm. Monastic: ; Rer. Brit. Scr. No. 36) III, 74: Eodem ammo (1221) Stephanus, Cantuariensis archiepiscopus, Roman profectus, cum gloria et homore reversus est. Et tº go Żmpetravit . . . . quod legatus ºn vita èps?us mequaquam ºn Anglia. mitteretur. Pandulf was recalled in the summer of 1221.-Cf. also the ordin- ance of Clement IV (1265–68) in Lib. Seactus I tit. XV c 2: Legatos, quibus in certis provinci is committitur legation is officium . . . ordinarios repu- tantes, praesent? declaramºus edicto, commissum tibi a praedecessore mostro legation?s officium meguaguam per åpsius obitum eacspirasse. * Stubbs, Comst. Hist. III, 308 c 19 $380. * Compare e.g. above, note 15 in regard to Becket (totius Angliae, eaccepto episcopatu Eboracens?) and Richard of Dover (provincide suae lega- tionem). In the appointment of Hubert declaration is made that it is to hold good in spite of privilege of York conflicting there with. * 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 angry, 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 the 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 document and gave no new legatine appointment. Letters of Alex- ander III to Becket, Mat, for Hist. Becket, l.c. W, 85 and 87. Reports of Becket's agent at the papal court, l.c. W, 80 and 94, Letter of the bishop of Poitou to Becket, l.c. W, 112. Roger de Hoveden (Rer. Brit. Scr. No. 54) I, 223. Gervasius, Chronic. (Rer. Brit. Scr. No. 73) I, 181.—It is not quite clear whether Roger was subsequently, on the ground of the appointment never delivered, regarded nevertheless by the pope as legate. He is not designated legate, e.g. in letters of Alexander III to him in 1166 (Materials, l.c. W, 823) and 16th Sept. 1170 (l.c. VII, 364); on the other hand he is for the most part so designated in letters of 117O and afterwards (e.g. Alexander III to Roger, 18th Feb. 1170, Materials VII, 213; Becket to Roger, 1170, Materials VII, 263, 324; Roger to the bishop of Durham and others, 1171, Materials VII, 504; Alexander III to Roger, 1175–6, Materials VII, 568; Alexander III to Roger, 1176, Haddan and Stubbs, Counc. II, 244). The legation in Scotland was apparently only conferred on him in 1181 (Haddam 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 11.)—Archbishop Walter de Gray of York (1215-55) is designated apostolicae sedis legatus in a MS. printed in Wilkins, Conc. I, 698, - - * $34] PRECEDENCE OF CAN TERBURY 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 Canterbury.” 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 archiepiscopal cross borne in front even in the neighbour's province.” The controversy * According to Stubbs, Comst. Hist. III, 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, Conc. III, 662, Thomas Rotheram and Thomas, Savage were not legates. - - * Letter of Paschal II to Anselm, 15th April, 1102 (Jaffé 5908, Wilkins, Comc. I. 379 f.): . . . . Quem [scil. primatum] . . . ita fratermitatº tuate plenum, et ºntegrum confirmamus, sicut a twis constat praedecessor:bus ſuisse pos- Sessùm ; hoc personaliter adjicientes, ut quamdiu regno ill? religionem tuam. d?véna miser?cordia conservaverit, mullius unquam legat?, Sed nostro tanțum. debeas subesse judicio. Paschal II to Anselm, 16th Nov. 1103 (Jaffé 5955, Eadmer, Høst. Nov. 154) : . . . Quondam . . . Cantuáràems?s écclesiae primatum ita tâbâ plenum concessimus, sicut a twis constat praedecessoribus .ſºlºsse possesswºm. Nunc autem, petitionibus twis ammuentes, tam tºb? gºt a m t?!?s leg it? m is successori bus eundem primatum, et quicquid dignitatis. Séu potestatis eidem sanctae Camţuarżems; sew, Dorobermens? ecclesia.0 pertimere: Cognoscºtur, . . . confirmamus, sicut a temporibus Beat? Augustºn? prae- decessores twos habwisse apostolicae sedis auctor?tate constºterºt.—Eugenius. III (1145–53) to Theobald in Registr. Cant. A 34 (quoted Materials, Ref. Brăt. Scr. No. 67 W, 324); Alexander III to Becket and Richard 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 metropolitama; but in consequence of the opposition of archbishop Thomas I of York, this had been changed to tot?us: Britanniae primas. According to Hugo Cantor, l.c. 104, 113, the phrase origin- ally ran primas totăus Britanniae; but Thomas ultimately consecrated Anselm, only as metropolita (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 Rome, Christmas, 1126, a dispute arose upon occasion of a royal coronation. Gervasius, Act. Pontificum (Rer. Brºt. Scr. No. 73) II, 382: Willelmus archiepiscopus in Angliam reversus ºn Nativ:- tate Domžná regem coronavăţ Henricum apūd Windlesore, ubi cum Eboracensås €p?scopus aequalitate Cantuariensis archiepiscopi regem vellet Coromare, judºcło omnium repulsus, est, et ad eum coronam regm; non pertinére wna. Omnium sententia concorditer promulgatur. Lator insuper crucis, Quam ºn II. C. U 290 ARCH B ISHOPS A W D BISHOPS [V, 3B. lasted until the middle of the fourteenth century. Meanwhile the Teg's Capellam se coram fecit deferri, eactra capellam cum cruce ejectus est. In similar words Gervasius, Gesta Izegwm (Rer. Brit. Scr. No. 73) II, 70. Ac- º to Hugo Cantor, l.c. 217, the archbishop of York yielded of his own a,CCOTOl. In 1163 the archbishop of York appealed to the pope, because Becket had sought to prevent him erecting his cross in the southern province. (Letter of Becket to pope Alexander, Materials for Hist. Becket, Rer. Brit. Scr. No. 67, W, 44. Cf. l.c. W, 47, 60, 67, 68, 69, 82, 131.) The question of precedence was discussed without result at the council of I,0ndon (Westminster) 1175 (Benedict, Rer. Brit. Scr. No. 49, I, 89. Howeden, l.c. No. 51, II, 77). The archbishop of York therefore again appealed to the pope against the archbishop of Canterbury. The king, however, arranged in 1175 at Winchester, the legate Hugo being present, a year's peace between the archbishops, within which time the archbishop of Rouen and the neighbouring French bishops were to arbitrate. (So Benedict I, 104 in the text approved in the Iter. Brit. Scr. edition. But according to another reading and to Hoveden [Rer. Brit. Scr. No. 51] II, 86 the five years' peace was then concluded; they then 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. Gervasius, Chronic. (Rer. Brit. Scr. No. 73) I, 258, Acta Pont. l.c. II, 398; Benedict, l.c. I, 112; Howeden, l.c. II, 92; William of Newburgh (Rer. Brit. Scr. No. 82) I, 203; Rad. de Diceto (Rer. Bråt. 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, l.c. I, 118. Howeden, l.c. 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 hospitatus fuerat, a divino suspendit officio et a campanarum somitu (Benedict, Ičer. Brit. Scr. 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 (Howeden, Rer. Brit. Scr. 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. t In 1221 Langton received a papal privilege, Ammal. de Dunstaplia (Rer. Brăt. Scr. No. 36; Ann. Monastic?) III, 74: Eodem ammo (1221) Stephanus, Cantuari- ensis archiepiscopus, Roman profectus, cum gloria et homore reversus est. Jºt, me Eboracensis eactra provinciam Suam ºn Anglia crucem 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. Scr. No. 57) III, 416. ... • In 1279, after a long respite, the controversy was revived. Archbishop Wick- wane of York, on his return from Rome, caused his cross to be carried before him on his progress through the province of Canterbury. The archbishop of 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. Annales de Oseneia and Chrom. Thom. Wykes (Rer. Bråt. Ser. No. 36; Ann. Monastic?) IV, 281; Flores Historiarum (the so-called Matth. Westmonas- teräensis ; Rer. Bråt. Scr. No. 95) III, 52 in the Merton MSS. ; mandate of the rural dean of Brading (Brathing) to the clergy of his deanery, March, 1280: tupon the authority of the official of Canterbury, if the archbishop of York passed through their parish bearing his cross erect, then all such places in the $34, PRECEDENCE OF CAN TERBURY 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 archdeaconry of Middlesex were to be placed under ecclesiastic interdict ; no one was to sell to him, or communicate with him in any way, or beg his bless- iſig or ring the bells to greet him (Rer. Brit. Scr. No. 61, p. 59); report of Wickwane to the pope, 1st April, 1280 (Rer. Brit. Scr. No. 61, p. 60). Similar orders of the archbishop of Canterbury, 24th Dec. 1284, to the archdeacon of Canterbury (Rer, Brit. Scr. No. 77; III, 869), 12th April, 1285, to the official of the bishop of Chichester (Rer. Brit. Scr. III, 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. Ser. No. 77, III, 945), of 8th March, 1288, to the archdeacons and other ecclesiastical officials of Canterbury, London and Rochester (I’er. 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 (1306) to his com- missary (Wilkins II, 284). Compare also letters of Edward I, 31st Dec. 1804, to the pope and the cardinals in favour of the claim of York (Rymer, Foedera. 4th Ed. I, 969). r In 1812 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 (Wilkins, Conc. II, 448). - In 1817 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. Paulin; ; Rer. Bråt. Ser. No. 77; I, 281). In 1825 the archbishop of Canterbury excommunicated the archbishop of York for having caused his cross to be borne before him in the Southern º (Report in Wilkins, Conc. 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 parliamenta et tractatus dict: patris mostri, et haered wºn suorum, quae infra dictam Eboratºm provin- ciam teneri contingeret, et praefatus Eborum archiepiscopus, et &psius suc- cessores, ad hujus mod: parliamenta et tractatus, infra dictam Cantuarèensem, provinciaſm temenda . . . venientes, cruces suas ante se erectas portarent, absque perturbatione inibi faciemda (Rymer, Foedera 4th Ed. II, 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 primas the right of assisting at the king's coronation (Hoveden, Iter. Brit. Scr. No. 51; IV, 90). - * On the date compare Raine, Fast; Eboracenses, Léves of the Archbishops . of York, London, 1863, I, 457, note s. 292 ARCH B ISHOPS A W D, 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 1514–5, 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- time 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, Conc. III, 31 after reg. Islip. In the former both archbishops entitle themselves papal legates; moreover, the archbishop of Canterbury, designates himself tot?us: 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 Becket ; 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 parliament’s autem, tractatibus, et consºliès regis, quando Cant. et Ebor, archiepiscop? simul praesentes fuerint, quicumque Cant, archiepiscopus, quia ecclesia Cant. anti- quior, et praeem?mention fore dignoscitur, ad domini regis deactram assidebit, et praefatus Ebor, archiepiscopus eacăstems pro tempore ad simistram o In concil's vero, convocationibus, sew locis aliis quibuscumque, in quibus Cant. et Ebor, archiepiscopos convenire continget, dominus Cant, archiepiscopus pro tempore existems, primum locum seu sedem eminentiorem ; Ebor. vero alium locum Secundum em?ment?orem, obt?mere debebunt. * Cavendish (contemporary with Wolsey), Life of Wolsey, in Wordsworth, Ecclesiastical Biography 4th Ed. London, 1853, I, 481. * Decretals of Gregory IX (Lib. Eactra) 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, Conc. III, 484: . . te a legatione dictae sedis . . . duocłmus 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, Kärchenrecht I, 328- Compare also the bull of Gregory IV, 27th March, 1371 (Wilkins, Conc. III, 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] PRECEDEVCE OF CAN TER BURY 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 archbishops, 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 ft. 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 be appointed by the sovereign to administer the corona- "tion oath.* -- tract from proceedings of Southern convocation, November, 1534 (Wilkins, Concilia III, 769): Archiepiscopus . . . voluit et mandavit, quod in omni- bus et singul?s procuratori's eachibitis coram eo in hac convocatione . . . . et in posterwm in eaclem convocatione each?bendis inseratur hoc verbum ‘metro- politanus' et deleatur ab isdem 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. VIII (1539) c 10 An Acte for the placing of the Lordes of the Parliament, and is as follows: the king's vicegerent Thomas Crumwell and all who shall succeed to this office, the archbishop of Canterbury, the arch- bishop of York, the bishops of Dondon, Durham, Winchester; and them all the other Bisshoppes of both provinces of Canterburie and Yorke shall syſt and be placed on the same side after their auncyentes as it hath bene accustomed. . . * Phillimore, 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 II's time letter of Alexander III to Roger, arch- bishop of York, 13th July, 1162 (printed in Materials for the History of Becket, Rer. Brit. Scr. No. 67, W, 21) in which the pope ratifies to the archbishop of York and his successors the right (not the eacclusive right) to crown the king. By letter of 5th April, 1166 (Materials, l.c. W, 823) Alexander subsequently for- bade 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 : quomiam. . . . hoc ad officium tww.m. pertènet. (Letter of Alex- ander III to archbishop of York in Materials, l.c. VI, 206. Genuineness and date of letter disputed.) By letter of 4th Nov. 1176 (this is the date in Hardy, Syllabus to Rymer; Jaffé, No. 13250, assigns it to 1175–79; printed in Rymer, Foedera 4th Ed. I, 26, under the year 1170) Alexander III confirmed to arch- bishop Tichard of Canterbury the right of crowning the king in the southerm province. -- # , º, - * 1 Gul. & Mar. sess. 1 c 6 An Act for Establishing the Coronation Oath, SS 2, 4. . - 294 ARCH BISHOPS AWD BISHOPS - [V, 3G § 35. C, RIGHTS 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 arch oishop 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 dioceses, sede vacante or when 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. Under 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 judge 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. VIII (1533/4) c 20, in appendix X. * Compare $41, near note 10. . - * - * Canons 33 and 35 of 1604 (appendix XII). For judgments and opinions in favour of the archbishop's right to deprive see Phillimore, Eccles. Law 84–93. Modern instances of deprivation by archbishops: bishop Watson of St. David's, 1695; bishop of Clogher (Ireland), 1822; bishop Colenso of Natal, 1867. On the Fº in the last mentioned case see Perry, Hist. of Engl. Ch. III, 376 ff. 'o 21 $$ 7 ff. ' ' ' ' ' ' ' - * t * Cf. § 63.−Until 1874 each archbishop appointed independently a judge for the archiepiscopal court of his province. * Compare $$ 55, 56. * Phillimore, Ecclesiastical Law 21 ff. § 36] RIGHTS AWD DU TIES OF THE BISHOPS 295 § 36. D. RIGHTS AND DUTIES OF THE BISHOPS, a 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 by 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 $ 57. * 4 & 5 Vict. (1841), c 39 s 28 enacted : . . . that any bishop or archdeacon may hold visitations of the clergy within the limits of his diocese or arch- deaconry, and at such visitations may admit churchwardens, receive present- ments, and do all other acts, matters, and things by custom appertaining to the visitations of bishops and archdeacoms 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 c. 77; 3 & 4 Vict. c 113); and any bishop may consecrate amy-mew church or chapel or any new burial ground within his diocese. The provision has been repealed as obsolete by 37 & 88 Vict. (1874) c 96. • * - & Canon 36 of 43% (appendix XII). For further details see under the several offices. • * - a Phillimore, Eócles. 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 Gul. 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." r 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. Phillimore, Eccles. Law p. 240. * Cf. § 42, notes 16, 20. * Cf. § 43, near note 25. 7 How far the temporal courts may review episcopal decisions is in some respects disputed. The legal 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 152 ff. * Compare $45. - . . " On this question see Phillimore, Eccl. Law 84, 1210, 1212 c ; cf., however, Gibson, Codeac, 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 continues with such competence as it before possessed. The ‘Clergy Discipline Act,” 55 & 56 Vict. (1892) c 32 prescribes (partly in amendment of 3 & 4 Wict. 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. III 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, Pasch. 11 Gul. III in the case of Bishop of St. David's v. Lucy (motion for a prohibition granted in proceed- -ings before the archbishop of Canterbury personally, 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 himself, and sit judge himself; and so may 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, I, 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, Håst. 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 mo bishop shall grant any patent to any chancellor, commissary, or official, for any longer term than the life of the grantee only, nor otherwise than with eacpress reservá- tion to himself and his successors, of the power to eacecute 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. 10 Cf. § 57. * Cf. § 21, near notes 50 fſ. 298 - CHAPTERS [V, 4 festivals, and to hold there divine service on the chief holy days.” To their official duties belong also confirming, ordaining, and con- secrating churches and burial grounds. § 37. 4. CHAPTE R.S." FROM 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 the 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, Conc. I, 585) c 1; const. of Otho, , 1237 (l.c. I, 649) c 22; const. Othobon, 1268 (l.c. 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, l.c. - - * Cf. § 3, note 6. * Cf. Hinschius, Kirchenrecht II, 52 f . The canons who adopted the rule of Chrodegang remained canonic; Saecºtla res. a E. W. Benson, The Relation of the Chapter to the Bishop. E. A. Freeman, The Cathedral Churches of the Old Fowndation. Both in Essays on Cathedrals, ed. J. S. Bowson, London, 1872.—Reports of the Royal Cathedral Commission in Parliamentary Papers, 1854, vol. XXV, 1854–5, vol. XV.-Phillimore, Ecclesiastical Law 147 ff.-For the ſº period: Stubbs, Introduction to Epistolae Cantúarienses (Rer. Brit. Scr. No. 38, vol. II). . . . . . . . . . . . . . . . . . ' § 37] CHAPTERS 299 that, a completely monastic rule. Bishops Aethelwold of Win- chester and Oswald of Winchester in particular, supported probably by archbishop Dunstan of Canterbury," whose policy in general 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 continent 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 canonic?. Tegulares (and the monks, who differed but little from them) and camon?c? saeculares. Hinschius, Kärchen recht II, 57. J * According to Stubbs, l.c. 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. . . t * According to Stubbs, Introduction to the chronicle De Inventiome Sanctae Crucis 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. - e e The earliest mention of canons in England, in the sense of priests living in common without monastic vows, is found in council of Celchyth, 787 c 4 (printed in § 3, note 6). Haddam and Stubbs, Counc. III, 461, note i.-‘Canons’ are also mentioned in the laws of Aethelred W., 7 (ordin. of 1008), WI, 2, 4 (; council of Ensham,’ 1006–11, perhaps only another version of the ordin. of 1008) and Knut (1016–35) I, 6 pr.—In earlier times the secular clergy of the Cathedral churches were generally called cleric. The heads of the secular chapters are called in the older period sometimes ‘provost (praepositus),' sometimes ‘prior,’ in some cases probably ‘abbot.’ Stubbs, Memorials of Dunstan (Rer. Brit. Scr. No. 63) p. xvi. On secular abbots see Stubbs, Introduction to De Inventione etc. p. v., note 4. York had an abbot in the ninth century. According to Stubbs, l.c. the first known mention of ‘prior' in England dates from the year 821. According to Haddan and Stubbs, Counc. III, 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, Høst. Eccles. Book V c 6 : . 7monasterio . . . abbatis jure praeest.)—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 first mentioned in England in the eleventh century. Deans as monastic officers are found somewhat earlier. For the earliest mentions see Stubbs, Memorials of Dunstan (Rer. Brit. Scr. No. 63) p. xv, notes 2, 3; add also the mentions in Tiebermann, Anglomormammèsche Geschächtsquellen pp. 3, 64, and Crispinus, - Vita Herlwini (Migne, Patrólogiae Cursus vol. 150, p. 707 A). Cf. also Haddan and Stubbs, Counc, III, 611, note a, where it is held that the statement of *Gervasius that Ceolnoth before his consecration as archbishop of Canterbury ‘(circ. 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, amid 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. Trom 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.8 t .* 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 outwardly monastic convent of Canterbury had jºus’ until the conquest. Stubbs, Introduction to De Inventione etc. p. v., note 4. . * Cf. Stubbs, Introduct. to Epist. Cant. p. xvii. and Introduct. to De In- veritione etc. pp. x, xi. * For a list of canonical foundations and Benedictine foundations in England at the time of the conquest see 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, 1863, II, 48, note, the oldest house of regular canons in England was that of St. Julian and St. Botolf, Colchester, founded about 1105; among the oldest were to be reckoned also Holy Trinity, ...Dondon, 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. 4. -- * At the beginning of the reformation, there were, monastic convents at Canterbury, Durham, Ely, Norwich, Rochester, Winchester, Worcester; -chapters of secular canons at Chichester, Exeter, Hereford, Tincoln, London, Salisbury, York; a chapter of regular canons at Carlisle. In the two sees formed by combinations, viz. Lichfield and Coventry, and Bath and Wells, chapters of secular canons and monastic convents existed side by side, the former being found at Lichfield and Wells, the latter at Coventry and Bath. * Cf. however, Nicollis, Praacás Canonica. Salzburg, 1729, I, 854, after Lam- ºbertinus, 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. s . §37] CHAPTERS • 301 seldom in other states.” The bishop had as regards the convent, the position of an abbot. Under him, at the head of the convent, stood a prior.” * 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 (Kollegiem). 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 there with. :* Stubbs, Introduction to Epist. Cant, l.c., 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- timus enºm et Laurent?us, allºque prºm? praedicatores Anglorum momach; fuerumt, et in episcopiès Sºtº's vice canonicorum (quod vôac in al 2 is term is ânvenitur) monachos pie constituerunt. Similarly Robert de Torigni (Rer. Brit. Scr. No. 82) IV, 168. - - * On earlier times see above, note 6. , , ” On earlier times see above, note 6. * The chief titles which occur are sub-dean, precentor (succentor), 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 ; archbishop Anselm. (1093–1109) gave the convent the right of managing its share of the property independently. 3. Cf. Bracton (circ. 1230–57) Book V, tract. 5 c 32 $8 (Rer. Brit. Ser. No. 70; VI, 494) : . . . , cum camom?cus adeo libere temeat praebendam suam, de ecclesia Sicut 'pse episcopus baroniam Suam, et canonic; sunt quasi umum. corpus per se in eccles?a , et quamvis episcopus sit caput ecclesiae, tamen. canonic; habent suſt bond a bon's episcop? separata, . . . Const. Otho, 1237 (Wilkins, Conc. I, 649) c 28: . . . . . Sigillum habeant . . . archiepiscopi & episcop? . . . abbates, priores . . . mécnon ecclesiarum, cathe- dralium capitula, et cdetera quoque collegia, et conventus simul cºſm suis rectoribus, autº divºsºm, juacta eorum consºletudźmem vel statutum. 35 Ed. I (1306/7), Statutum Carlãoli 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 Sºgºllum commune, et ällwd Žn custodia Préorès Monaster?? sive domus et quatuor de digmāoribus et dis- creciorbus éjusdem loci Conventus, sub privato Sigillo Abbatis ipsius loci custodžendum depomant ; ita quod Abbas, Sew Superior domus cuž praeest, per sé contractum al?quem, sew obligacionem mullatenus possit firmare, sicut hactenºls facere comSuevil . . . - According to Richter, Kirchenrecht § 311, the separation of property had been effected on the continent in many cases as early as the tenth century. 302 CHAPTERS * [V, 4 The chapter was at the bishop's side to counsel him; for certain weighty acts of administration he needed 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 or 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 popes, 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 (1539) 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 well 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 Richter, ICirchen recht $135, notes 7, 8. Cf. also Phillimore, Eccles. Law 1195. Bracton (Rer. Brit. Scr. No. 70) I, 94: Item sunt nonnull? quº dare non possunt sine consensw allorum, mec valet illorum donatio per se, ut s? archiepiscopé dona- tionem facerent, episcopi, abbates vel priores ecclesiarum quae sunt de advoca- tione dominº regis, nec, dare possunt Sine assemsw capituli sui, mec ipsum. capitulum sine consensit regis vel alterius patroni, quëa omnium illorum consensus, quos res tangit, erit necessarius et requirendus. W, 42: S: procu- rator sicut celerarius vel alius, abbas vel prior sine assensu capitulé, vel epis- copus, vel capitulum, Sºme consensu capituli, episcopé vel alius cujus assensus fuerit necessarius, dim?serit sºme assensu, . . . Similarly W, 4, 56; VI, 378, 392. * Cf. § 41, near note 10. * 31 Hen. VIII (1539) c 9 An Acte for the King to make Bisshopps. It is re- quisite to found more Bisshopriches, Collegiat and Cathedrall Churches in place of the monastic houses. Ring Henry is accordingly empowered, by royal letters patent or other writing under the great seal from time to time to de- clare and nominate . . . such momber of Bisshoppes, such momber of Cittàes, Seez for Bisshoppes, Cathedrall 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 Hen. VIII and touching the foundation or endowment of chapters and colleges, are, despite of any defects of form, confirmed and declared valid by 35 Eliz. (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. VIII 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 having 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 grouped 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 Rules in Cathedrall Churches 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. 31 Hem. VIII c. 9 was afterwards entirely repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 4. Elizabeth by 1 Eliz. (1558/9) c 22 An Acte whereby the Queenes Highness maye make Ordinaumces and Rules in Churches Collegiate Corporaciowns 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 right. 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 II, ‘whereof the Deans and Prebendaries and other Ministers of the said Churches from the said Time have used to be sworn at their Instalments and Admissions,’ should be valid if not contrary to the then constitution of the church and the laws of the land. According 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. VIII (1541/2) c 30 A Bill for the confirmacion of thauctorite of the Dean and Chaptre of Lychefield in makymg Leasses and other graumtes: 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 Hem. VIII (1542/3) c 15 An Acte touchèng the Deane and Chaptre of Welles to be oome 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, Eccles. Law 175, 186, for Ely and Chester, printed in the First Report of the Cathedral Commission, appendix pp. 59, 73 l.c. 1854 vol. XXV: * Salvis mobis, haeredibus et successoribus mostris, titulo, jure, et aucto- rātate, decanum, prebendarios, et Ommes pauperes, ea: liberalitate mostra àbidem, včventes, 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 patent. The bishop then institutes and gives his mandate for instalment to the chapter.—Whether the 304 CHAPTERS [V, 4. dean was elected by the chapter upon the king's congé 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 there with 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- canonries are to be regarded as donative, or as to be filled by presentation de- pênds in many cases on the validity of the statutes, which in opposition to the charter of foundation, prescribe the latter procedure. Cf. Phillimore, l.c. 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 29th day of March 1649, the Name, Title, Dignity, Function and Office of Dean, Subdean, Dean and Chapter, Archdeacon, Prior, Chancellor, Chanter, Sibchanter, Treasurer, Subtreasurer, Succenter, Sacrist, Prebend, Canon, Canon Resident, or Canon. Non-Resident, 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- vºick 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. 26 12 Car. II (1660) c 11 s 48 (printed in § 7, note 65). 27 An Act to carry into effect with certain Modifications, the Fourth Report . (24th June, 1836) of the Commissioners of Ecclesiastical Duties and Revenues. 28 3 & 4 Vict. c 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. 113 s 3 every dean shall be in residence for at least eight months in the year, every canon for at least three months. - 29 3 & 4 Vict, c. 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. (1873) c 39 Cathedral Acts Amendment Act. * 3 & 4 Wict. c 113 ss 17, 25, 26, 41. ** 3 & 4 Väct. c 113 s 24. 93 3 & 4 Väct. c 113 s 27. * 3 & 4 Vºcł. 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. III, 350, note 1 c 19 $8, as a rule no difference is known in chapters of old foundation between the close and the general chapter. * 4 & 5 Vict. c 39 s 2 declares, for the removal of doubts, 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 and 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 Wict. c 113 s 23. Cf. also 4 & 5 Vict. c 39 s 3, 13 & 14 Vict. c. 98 s 11. —The cathedral commission of 1854–5 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) c. 12 Truro Bishopric and Chapter Acts Amendment 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. c 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 * [W, 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.” Regulations 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 £500 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 maintenance 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. c 113) and of this act, the term ‘minor canon' shall not be construed to eactend 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 113 s 93 the term mºnor 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 canonică juniores in continental chapters see Richter, Kärchen recht § 311. t 47 3 & 4 Vict. c 113 S 45. 48 4 & 5 Vict. c 39 s 15, 49 3 & 4 Vict, c 113 S 45, - * Cf. § 32, note 14, § 38 ASSISTA WTS EXERCISI WG GOVERWI WG 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, to represent or assist the bishop in his position as judge of the episcopal court and in other affairs 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 (Lib. Sextus) I, tit. 13 c 2: Läcet in officialem, episcopº, per commissionem officii, generaliter sibá factam, causarum cognitio transferatur, potestatem tamen in- Quºrendź, corrégendź aut pun?end? aliquorum eaccessus, sew aliquos a Swis beneficiis, officiis vel administrationibus amovemdi transferri molumus in eun- dem, nás? sib' specialāter haec committamtur. c 3: . . . officialis aut vicarius general's episcopi beneficia conferre non possunt, mis; beneficiorum collatio Žpsis specialiter sit commissa.-John of Actona 24 cites the rule laid down in c 2 above, and adds: Vicarius tamen general's Episcopº haec omnia facere tº: eacceptés Beneficiorum Collationibus. Cf. also Lyndwood Bk. II tit. 4 p. 105. r 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 hy the chapter, whereby appointment is for the lifetime of the official, probably began in the seventeenth century. Stubbs, Hist. Appendia to Report of Eccles. 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 be found in the tººk% the Ecclesiastical Courts Commission, 1883, II, 659 ft. Parliamentary Reports VO g tº 308 REPRESENTA TI VES A WD ASSISTANTS [V, 5A 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 vicar-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 III 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 vicar-general is appointed. Report of Eccl. Courts Commission, 1883, II, 692. * The documents relating 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, Nos. 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 Canterbury is called ‘Vicar-General'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, l.c. 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.) 3. $39) PoWER To cow FIRM, or DAIN AND CONSECRATE 309 § 39. B. ASSISTANTS IN THE EXERCISE OF POWER TO CONFIRM, 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 difficulty 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 chorepiscop? 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, Kärchen recht $139. * On the chorepiscopi in the church of St. Martin at Canterbury to the time of Lanfranc (1070–89) cf. :— Gervasius, Actus Pontificum (Rer. Bråt. Scr. No. 73) II, 361 : Habebat etiam quondam Cantuariensis archiepiscopus corepiscopum quemdam quº in ecclesia Sanctæ Martin; eactra Cantuariam manebat; qui adveniente Lanfranco deletus est, Sicut ubique terrarum factum, esse audévêmus. Fragmentum de Institutione Archidiacomatus Cantwardensis (printed in Wharton, Anglia Sacra I, 150; written apparently shortly after the death of archbishop Peckham, 1292):- ~. A tempore B. Augustini prim? Archiepiscopé Cantuariens's usque ad tempus bonae memoriae Lanfrancº Archiepiscopi per 462 annos nullus fužt Archidia- conus ºn civitate vel Dioeces: Cantuariensz. (This not correct. Cf. § 42, note 1.) Sed a tempore B. Theodor? Archiepiscop; (668–90) quº sea-tus erat a B. Augus- tºmo, usque ad tempus praedict; Lanfranci fuit in Ecclesia S. Martin? Suburb'o Cantuariae guidam Hºpiscopus auctoritate Vitalian? Papae (657–72) a S. Theo- doro ordinatus : Qui in tota civitate et Dioeces? Cantuariens; vices Archiepis- copº gerebat in Ordinibus celebrandés, Eccles? is consecrand's et pueris confirmandis et al??s officiis Pontificalibus eacequendès ºpso absente. Idem, etiam Episcopus omnēmodam jurisdictionem in civitate et Dioeces? Cantuari- ens? Sede plena auctoritate Archiepiscopé àpso absente, et Sede vacante in tota Provincia auctor?tate Capituli eacercebat per 399 annos usque ad tempus prae- dict; Lanfrancé. Postmodum tempore praedicti Lanfrancº Archiepiscopº praedictus Epis- copus in fata decessit. Sed idem Archiepiscopus alium substituere non de- crevit. e - - 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, Registrum 142. * Bibliotheca Topographica, Britannica, printed by and for J. Nichols, vol. VI, London, 1790, contains 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, Pegge, Letter on Bishops in Partibus Infidelium, 1784; 4, Reprint of a list left behind in MS. by Henry Wharton (died 1695) of English suffragan bishops.—Stubbs, appendix W to Regis- trum Sacrwm Anglicanum, Oxford, 1858. - r 3IO REPRESENTA TT VES A W D ASSISTA WTS [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 without 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 antiquºtate Glastomiensis Ecclesiae (ed. Migne vol. 179) 1722 C. (Cf. Historia Elżensis in Wharton, Angl. Sacra I, 603: Sygidwoldus Episcopus, matzone Graecus.) [On Siward, abbot of Abingdon, see $40, note 1.] Ralph, a cousin of Edward the Confessor, a Norwegian bishop, abbot of Abingdon (1050–1052). Hist, Abingdom. (Rer. Bråt. 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- Saac. Chron. (Rer. Brit. Ser. No. 23) I, 345. A Cf. also the lists of Wharton in Bibliotheca Topographica, l.c. According to Stubbs, Introduction to Memorials of Dunstan (Ber. Bråt. Scr. No. 63) p. xci Dunstan, afterwards archbishop, was perhaps originally consecrated (957) with- out a definite see. - * An Acte for mom?nacion 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, Hulle, Huntyngdom, 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 31 I This act was repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 4, but revived by 1 Eliz. (1558/9) 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 & 52 Vict. (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 mineteenth 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 suffragans. 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 in 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 c 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 suffragan 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 (Cardwell, Doc. Ann. II, 234 ff.) c 2 contem- º the nomination of suffragans; but no such appointment was actually Iſla,016). - * 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); Reading (Oxford); Leicester (Peterborough); Richmond (Ripon); Southwark (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 No. 237 p. 8 in the American church ‘assistant bishop’ means a coadjutor with right of succession. * 15 & 16 Vict. (1852) c 52 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 3I2 REPRESENTA TI VES A WD ASSISTA WTS [V, 50 \ $ 40. C. ASSISTANTS IN THE EXERCISE OF GOVERNING POWERS AND ALSO IN THAT OF POWERS OF CONFIRMATION, ORDINATION AND CONSECRA- TION. Coadjutors.” In the 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. Eor 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 usage 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 bishop of that see, and perform all other functions pēculiar 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, (1853) c 49. Colonial bishops may also be commissioned in the same way and with the same effect by colonial bishops. According to 19 & 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 & 88 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 53 Geo. III c. 155 and 3 & 4 Gul. IV c. 85 (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, 451; William of Malmesbury, Gesta Regum (Rer. Brit. Scr. No. 90) I, 239. * Gibson, Codeae 2nd Ed. p. 137. Cf. Regist. Epist. Peckham (Ber. Brit. Scr. No. 77) I, 47, 94, 203,205, 253,273, 275, 301, 302; Northern Registers (Rer. Brit. Scr. No. 61) p. 406.--On the appointment of coadjutors for officers of the church º: than bishops see Gibson, l.c. pp. 137, 901, Reg. Ep. Peckham I, 57, II, 654; cf. II, 658. * Phillimore, Eccles. Law 99 ft. § 40] COADJUTORS -- 3I3 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, Kirchen recht $ 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 tem- porary; its effect was prolonged by 35 & 36 Vict. (1872) c 40; it was made permanent by 38 Vict. (1875) c 19–By s 15 an earlier act, 6 & 7 Vict. (1848) 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. s2. 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 canonically 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 elect 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 person shall be 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 certificate 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 been appointed. . . . - - 3I4 REPRESENTA TIVES 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 coadjutor. 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 ARCHIBISHOPRIC OR |BISHOPRIC DURING WACANCY.a. From the time of William II* 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 be 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 eacercised by the arch- bishop shall be eacercised by the bishop of the province who is senior in rank. s 13. If the coadjutor was appointed for Canterbury, York, London, Durham or Winchester, the king may eacercise the same right of translation as if no bishop coadjutor had been appointed, so that such right be so eacercised 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) II, 200 Book IV c. 6: Nam dum pastor quilibet completo vitae suae termino de mundo migraret, et Ecclesia Dei proprio rectore viduata lugeret, sollācitus princeps prudentes legatos ad Orbatam. domum mºttebat, omnesque res Ecclesiae, me a profan's tutoribus dissº- parentur, describ? faciebat; on the usage in the Anglo-Saxon period cf. l.c. III, 313, Book VIII c. 8. t * Cf. § 4, note 22 on Henry I’s concession. It is perhaps to be taken merely 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 renuntia- tion of the fruits as well as the substance, the concession was not in practice observed in Henry's time. * Stephen's concession in his charter, 1136 (appendix II). Cf. also the report of Henry of Huntingdon (§ 4, note 31). a Phillimore, Eccles. Law 77 ff. § 41] VACANT ARCHIBISHOPRIC OR BISHOPRIC 315 the estates.* This corresponded to the right of usufructuary ad- ministration of a fief during a vassal's minority. Sometimes in the earlier days the kings abused their right to the interim revenues by keeping the see empty for years, so as to enjoy the fruits as long as possible. It was in repudiation of this practice that Henry II, in the compact of 1176, promised not to keep the property of a bishopric in hand for more than a year, whilst John in the charter of 1214 had to give an assurance that he would not unduly delay to grant licences for new elections.” The kings originally entrusted the administration to special custodes, afterwards, from the reign of Henry II onwards, to escheators, officers appointed to deal with reverting fiefs." By 14 Ed. III (1340) st. 4 it was laid down that the chapter or convent was entitled before any one else to take the temporalities of the bishopric in farm during vacancy." Every new . bishop had to sue from the king delivery of the temporalities of his see; many reservations were attached thereto, which were used by the kings in the later middle ages to thwart papal encroachments *-*. * Of later confirmations and closer limitations of this right the following are to be mentioned in particular :— Comst. Clarendom c 12 (append. IV). Timitation to one year in the compact of 1176 c 2 (§ 4, note 54). John's charter of 1214 (append. WT), Magma Carta of 1216 c 5 (append. VII, note 5); cf. Magma Carta of 1215 c. 46 (append. VII). Cf. also the complaint of selfish administration, contrary to the assurance given by Magma Carta, at the council of Merton, 1258 (Wilkins I, 789, after Amm. Burton). 52 Hem. III (1267) Stat. de Marleberge c 16: De hereditatibus autem quae de domino Rege tementur in capite sic observandum est; ut domżnus Reac liberam Žnde habeat seysimam sicut privas consuevit; mec heres vel alius in hereditatem se intrudat prºusquam illam de man?bus Domžná Regis recipiat, prout huºus- mod: hereditates de manºbu's ºpsºus et antecessorum Suorum recip? comSue- verint. Et hoc intelligatur de terris et feodis in ratione servicii militaris vel serjancie sew jur is patron at us que in manu Regis esse consueverumt. 3 Ed. I (1275) Stat. Westminster I c 21: Endreit des teres des heyrs dedemz age que sont en la garde lur Seygmur, Purveu est que les garde?ms les gardent et sustengment sawm2 destruction fere en tote réems; Et que tels maneres de gardes se?t fet en tutz pointz, Solum ceo que il est, contenu em la Graunt Chartre des fraunchises le. Rey Henrē piere le Rey que ore est, e iss? Seit usee desoremes ; et par mesme la mamere se?ent gardez les Ercheveschees, Eveschees, Abbeyes, Eglises, et Dignetiez en tens de Vacacions. Cf. further Stat. Prerogativa Regis (probably dating from the time of Edward I and before Britton and Fleta, thus 1272–90, perhaps only a private essay, F. W. Maitland in Engl. Historical Review, 1891, p. 367; printed in Statutes of the Realm I, 226) c 16, Capitula Escaetrie, sub fin. (of unknown date; printed l.c. # 238 ft.) and the documents cited in Friedberg, De fin. (cf. § 60, note a) p. 221. * Cf. above, note 4. * Gneist, Engl. Verfassungsgeschächte $12. ' co 4, 5. The escheators who manage the temporalities of prelates during vacancy, shall not waste them. The chancellor and treasurer with others of the council may, on receipt of full value and upon sufficient security given, let the voidances, before all others, to the dean and chapter, prior or subprior, prioress or subprioress. If the latter do not agree to give the full value, the voidances are to be administered by escheators.-21 Hem. VIII (1529) c 13 prohibits the taking of farms by spiritual persons; by S 4 exempted from the operation of the act are the temporalities during vacancy of bishoprics etc. ‘and other collegiate, cathedral and conventual churches.’ 3I6 * ARCH DAEA CONS [V, 6 in respect of rights of appointment.* Even at the present day the Crown exercises the right of usufructuary administration of the temporalities of vacant archbishoprics and bishoprics. The guardian of the spiritualities during vacancy was, in the twelfth century, the chapter, and this was in accordance with the usage" which prevailed on the continent. In the course of the thirteenth century disputes arose in many parts of England be- tween the chapters and the archbishops, the latter claiming the interim guardianship of the spiritualities. The archbishops ulti- mately gained the right, either by prescription or by composition, in respect of most sees; " they exercise it in person or by their commissioners. But the old right of the chapters has been main- tained in some places; in particular, the dean and chapter are guardians of the spiritualities when an archiepiscopal see is vacant. § 42. ! 6. ARC HD E A CONS.* ARCHDRAcons have been mentioned in England since the beginning of the ninth century." In the period of the Norman conquest their * More in Stubbs, Const. Hist. III, 317 ff. c. 19 $$ 383 ff. * Cf. Richter, Kärchen recht $ 136. " Compare, e.g. in regard to Lincoln: Ann. de Dunstapl. (Rer. Brit. Scr. No. 36 Ann. Monastici) III, 187, 189. Wilkins I, 756; London: Reg. Ep. fººm (Her. Brit. Scr. No. 77) I, 96; Winchester; l.c. I, 98; Worcester: l.c. I, 632. - * The first archdeacon mentioned in England is Wulfred, afterwards (805) archbishop of Canterbury. Stubbs, Const. Hist, I, 254, note 4, c. 8 $ 87. He puts name and title to a resolution of the council of Clovesho, 803 (Haddam and Stubbs, Councils III, 546) and to a deed of gift of Aethelheard, archbishop of Canterbury, dated 805 (Kemble, Cod. dipl. I, 231 f.). The document relating to the alleged council of Beccanceld, 798, where his signature also appears, is not genuine (Wilkins, Concilia I, 162; Haddan and Stubbs, Counc. III, 518).- Florentius Wigorniensis, Chron. (Monumenta Historica Britannica I, 587) mentions an archdeacon Aelmaer who is said to have betrayed Canterbury to the Danes in 1011. In the Anglo-Saxon Chronicle (Ber. Brit. Scr. No. 23) I, 266, 267, from which Florentius draws, the traitor is not designated ‘arch- deacon.” From the context this Aelmaer or Aelfmaer seems to be identical with the abbot of the same name of the monastery of St. Augustin at Canterbury, whom the Danes set free after the taking of the town.—The fragmentum de Institutione Archædiaconatus Cantwardensis (printed in Wharton, Anglia Sacra I, 150; written apparently shortly after the death of archbishop Peckham, 1292) contains the statement that, in the diocese of Canterbury, an archdeacon was first appointed under Lanfranc in place of the earlier bishops of St. Martin at Canterbury who until then had occupied an archidiaconal position. (Cf. § 39, note 2.)—As to the probable existence of an archdeacon of the abbot of St. a Gibson, Of Visitations Parochial and General. London, 1717.-Phillimore, Ecclesiastical Law 236 ft.—Report of the ‘Committee on the Duties of Archdeacons,’ of the lower house of Convocation. Appendix, No. 183 to the Chronicle of the Convocation of Canterbwry, 1885. § 42] ARCH DAEA CO/WS 3I7 position developed, so that the bishop's one archdeacon acted as his highest official in carrying on the external government of the church. The archdeacon frequently represented the bishop; in this capacity he is also mentioned as present at the court of the hundred.” Whether and how far he in England at this period already claimed the rights he exercised as his own, is not precisely determined. Priests are bidden under threat of punishment to obey the Orders of the archdeacon.” - Soon after the Norman conquest mention is made of the existence . in some dioceses of several archdeacons.” In the course of the twelfth and thirteenth centuries the appointment of several arch- deacons became usual in the majority of English bishoprics. Where Edmunds at the end of the eleventh century see Liebermann, Anglonorman- mische Geschächtsguellen, 227. But cf. Arnold in Rer. Bråt. Scr. No. 96, I p. xxix.-In the rule of Chrodegang for secular canons (circ. 760; given in its original form by Mansi, Concºlia XIV, 313 ff.), which also served as a model at some places in England ($ 37, note 7), the ‘archdeacon or other superior (vel prºmºcerius)' is mentioned as exercising superintendence over the chapter next after the bishop. In a later form of the rule (9th century) the archº- diacomºus vel praepositus is named. Richter, Kärchen recht $134, note 2. In the Aachen rule (816–7) based on Chrodegang's (Aachen rule in Mansi, l.c. XIV, 153 ff.) there is no mention of the archdeacon as standing at the head of the chapter, but praeposità in the wider sense, embracing every kind of super- intendent, even the bishop, are spoken of. See also c 139 of the Aachen rule : Quamvis omnes qui praesunt, praeposit; rite dicantur, usus tamen obtinuit, eos vocar? praepositos, quº quandam prioratus curam. Sub al??s praelatis gerunt.—The precursor of the archdeacon was the bishop's deacon (§ 38, note 1). On the much earlier development of the archdeacon's office on the continent cf. Richter, Kärchen recht $137, Hinschius, Kärchen recht II, 183 ff. * William I's charter (probably circ. 1070; fully printed in appendix I): . º wt mullus ep? scopus vel arch 7 d ? acon us de legibus episcopalibus ampl?us Żm hundret placºta tened nt, . . . Sed guicungue . . . interpellatus fuerit, ad locºm quem. . . . ep?scopus eleger?t . . . venºat . . . Further on in the charter, just?t?a episcopalºs is spoken of. ° Northumbrian priest-law (Schmid, appendix II; probably about the tenth century) c 6: Gºf predst arced?acomes geban forbåge, gºlde XII 67. (“If a priest does not obey the order of an archdeacon, let him pay twelve pieces.”) c 7: Gºf preſist scyldźg sj, and he of r arced?acomes gebod maessège, gilde XII 67. (“If a priest be guilty and he read mass against the archdeacon's bidding, let him pay twelve pieces.”) * Compare the following examples: At the transference of the episcopal seat from Dorchester to Lincoln (circ. 1075 or 1085; on the date see Perry, Hist, of Engl. Ch. I, 166, note 1 c 11 § 11) bishop Remigius composed the chapter of a dean, a treasurer, a precentor and seven archdeacons. Letter of Henry of Huntingdon to Walterus, in Wharton, Anglia Sacra II, 695–Thomas I of York (1070–1100) divided his diocese into five archdeaconries. Report of com- mittee, l.c. p. 8.-Lanfranc to Stigand, bishop of Chichester, 1070–87 (ed. Giles, p. 50) vestrº arch?dźacon?...—On the transference of the episcopal seat from Sherborne to Salisbury (1078) four archdeacons were instituted. Report of the chapter of Salisbury, 1259, in Wilkins, Comcilia I, 741.-Summons of the bishop of Llandaff by archbishop William of Canterbury to a legatine council, 1125 (Haddan and Stubbs, Councils I, 317): . . . occurras cum archidiacon?bus . . tuae dºjoces?0s. - About 1175 there were created in the diocese of Canterbury three arch- deaconries instead of the one previously existing. Ralf de Diceto, Ymagines HŽstoriarum (Rer. Bråt. Scr. No. 68) I, 403. But five years later there was a return to the old system. Le Neve, Fast? I, 38, 318 "ARCH DEACONS [V, 6 this happened, each of the archdeacons had a special district" as- signed him within the diocese; the limits of this district generally coincided with those of a county." - The archdeacons of those days were at the same time members of the episcopal chapter." They had to be in deacon's orders.” The rights of archdeacons, on the one hand as against the bishops, on the other as against rural deans and priests, developed in various ways in the different dioceses. In some cases the arch- deacons remained essentially what they had been before : officers of the bishop, dependent on his mandate and having no separate rights of administration or jurisdiction.” In most places," however, they acquired the right of exercising independent control over rural deans and parish priests, of visitation within their archdeaconries, and of inflicting punishments and pronouncing judgment to the same, or almost the same, extent as the bishop.” From the thirteenth * Cf. John de Actona (shortly after 1832), gloss. to const. Otho, De Arch?- diacon's (tit. 19), note c : generalis archidiacomºus, qu , non habet Arch?- dža con at wºm d ? stºn cte lº m 'tatum, Sed tanguan Vicarius fungitur vice Episcop; universaliter : . . . . quia talis repraesentat Episcopum, . . . sed secus videtwr in eo, q wº habet d? stºnctam lººm it at £onem swä Archº- d? a co natus : twmc enºm habet Jurisdictionem separatam ab Episcopo, quae cum sit consuetudºmarča, potest praescrib? . . . Hoc notat . . . Guido de Bayso, Rosarium gloss. to Decretum pars II causa IX, gu, 3, c 7 * Stubbs, Const. Hist. I, 131, c 5 § 50. * Compare e.g. the reports as to Lincoln and Salisbury, cited above in note 4. * Council of London, 1102 (Wilkins I, 382) c 4: Ut archidiacon? sint diacon?. Legatine council of London, 1125 (Wilkins I, 408) c 7: Nullus tº tº $n archidiacomum mºs; diacomºus promoveatur. Council of West- mºnster, 1127 (Wilkins I, 410) c 4: Nullus . . . ºn arch?diacomatum mis? diaconus constituatwr.—Cf. also Letters Nos. 123 and 139 of the archdeacon of Bath, Peter of Blois (ed. Giles, I, 378, II, 32).—On the continent exceptional cases of archdeacons in priest's orders occur even before the eighth century, and sometimes in the eighth and ninth centuries. But even in the twelfth and thirteenth centuries, as a rule, only deacon's orders were required. Hinschius, Rīrchen recht II, 186, note 6, 189, note 2, 200, notes 3–5–14 Car. II (1662) c 4 An Act of Unºformity s 10 prescribes that an ‘Ecclesiastical Promotion or Dignity,' therefore also an archdeaconry may only be bestowed on a priest. ° In 1835 there was in the following dioceses only one archdeacon : Can- terbury, Bristol, Carlisle, Ely, Gloucester, Llandaff, Oxford, Peterborough, Rochester, St. Asaph, Worcester, Sodor and Man (Dansey, Horae Decanicae Rurales II, 345 ff. Le Neve, Fasti). According to Phillimore 242 the arch- deacon of Carlisle, for instance, had no independent jurisdiction. According to Dansey, l.c., there was in 1835 in the diocese of Chester an archdeacon of Chester and a commissary of Richmond, the latter in an archidiaconal position ; neither had then as archdeacon any independent rights; but they were rural deans of all the deaneries lying in their districts. According to Dansey, l.c., in 1835 the four archdeacons of the diocese of St. David's were also without rights of jurisdiction. * In some English bishoprics the archdeacons even early in the twelfth century acquired independent rights of jurisdiction ; it was so in the arch- deaconry of Richmond. Stubbs, Hist, Append. I to Report of Eccles. Courts Commission, 1883, p. 26. * Richter, Kirchen recht $ 137, note 5: According to the decretals the arch- deacons have the following rights:– 1. Supervision over the churches and church property of their district, some- times the right of canonical visitation. cc 1, 3, 6, 7, 10 Eactra I, 23. § 42 ARCH DAEA CONS 3I9 century their competence began to extend itself at the cost of the rural deans; in particular, the presidency of the rural chapters 2. The investiture of the clergy and the examination of candidates for ordination. cc 4, 7, 9 Eactra I, 23. 3. The exercise of penal jurisdiction in the synodal courts (Sendgerächte). c 54 Eactra I, 6; c. 3 Eactra V, 37. 4. The exercise of contentious jurisdiction. c. 7 Eactra I, 23. 5. The right to procurations. c 6 Eactra III, 39. - 6. In co-operation with the bishop] the institution and deposition of rural deans. c. 7 Eactra I, 23. - It must not, however, be forgotten that the rights as stated were not uni- versal, and that special local developments of the office, which were very various, must be taken into account. In England, so far as archdeacons had gained an independent position, the following remarks are applicable:– 1. The archdeacon had the right and the duty of visitation. Constitutions of archbishop Langton, of legate Otho (1237), of archbishop Reynolds, of arch- bishop Stratford. See more in Phillimore 241, 1846 ft. In the concordat reached at the council of Constance (cf. § 4, note 127: c. 8) the pope bound him- self only in special cases to allow the archdeacons to make their visitations per procuratores. Cf. also the Report of the Committee (appendix to Chron. of Conv. Cant. 1885, No. 183) pp. 9, 31 on the distinction drawn by Lyndwood between visitatio and capitulum of archdeacons. At the beginning of the nineteenth century visitation of all the several parishes no longer took place, but in lieu thereof (by the same process of development as that of episcopal visitations) assemblies were held, or, in other words, the visitation became synodal. Dansey, Horae Decanicae Rurales (in the year 1835) II, 107", 413. According to Phillimore, l.c. 1355, it had been for three centuries usual for the archdeacons to divide the archdeaconry into districts, and to hold the visita- tion for all the parishes of that district at some one parish church within the district. On the right of the archdeacons to hold visitations cf. also 4 & 5 Vict. (1841) c 39 s 28 (now repealed as obsolete; printed in § 36, note 2). On the present usage see fully in Committee Report, l.c. pp. 32 ff., 41. According thereto assemblies take place yearly, generally one common one for the whole archdeaconry, sometimes several, distributed over the districts of the arch- deaconry. To assemble are the clergy, churchwardens and sidesmen. The archdeacon delivers a charge, admits the newly chosen churchwardens, and receives presentments and the answers to the articles of inquiry. Visitation of a single parish is only upon special Occasion. 2. That the archdeacon examines the candidates for ordination is assumed in the ordinal (dating from Edward VI; cf. § 15) the rubric in which prescribes that the archdeacon or his deputy shall present to the bishop those who desire to be ordained. Cf. canon 31 of 1604 (in appendix XII). At the present day the archdeacon of the cathedral district is frequently but not always one of the examining chaplains. Cf. § 20, note 19. The induction of the clergy into the possession of their benefices belonged in the thirteenth century often, perhaps as a rule, to the rural deans. Cf. § 43, note 4. As the latter sank to a lower position, the right was frequently ac- quired by the archdeacons. Induction is now generally by the archdeacon or his deputy ; but there are other usages at particular places. See Phillimore, Eccles. Law 477. 3. The archdeacon had penal jurisdiction. Can. 109 ft. and 121 of 1604 (append. XII), in connexion with the heading of the section in question (IX). This penal jurisdiction is now, as against laymen, almost entirely abolished. Cf. § 61, notes 19 ft., note 9. As against beneficed clergymen, canon 122 of 1604 reserved decision in important cases to the bishop. According to the Clergy Discipline Acts 3 & 4 Vict. (1840) c 86 s 23 and 55 & 56 Vict. (1892) ss 2, 8 penal or disciplinary proceedings against clergymen can only take place before an episcopal or an archiepiscopal court. | 320 ARCH DEA CONS [V, 6 passed, for the most part, to them.” They frequently availed themselves in administration and in pronouncing judgment of an official.” Their relation to the chapter of their episcopal superior became gradually less close. In many places, it is true, the arch- deacon remained a canon in the chapter church of the bishopric ; but in others the archdeaconry was entirely cut off from all con- nexion with a chapter or was combined with a canonry in another diocese.” The archdeacon was, as a rule, appointed by the bishop ; but there were also archdeaconries in the gift of laymen.” The various reforming enactments (1830–40 and later) of this century have had the effect of rendering the positions of the arch- deacons in the several bishoprics more uniform.” All archdeacons have according to these acts full and equal jurisdiction.” At present all the dioceses in England and Wales are divided into 4. The competence of the archidiacomal court in civil causes was variously limited at different places. For the most part its jurisdiction was the same as that of the bishop's court, and the litigant might commence his suit in either; though in Some archdeaconries the suit had to be commenced in the former to the exclusion of the latter. Stephen, New Commentaries 11th Ed. III, 330, note g. Cf. § 65. 5. Archdeacons have a right to procurations; these are now made in money instead of victuals and other provisions. Archdeacons also receive upon their visitations a fee, the amount of which is now fixed by 30 & 31 Vict. (1867) c 135. See Phillimore, l.c. 1355 f., 1859 ft. 6. On the rights of the archdeacons in the appointment of rural deans cf. $43, near notes 18 ft. On the right to deprive see above, 3. * Cf. § 58, notes 2, 3. 13 Cf. § 65. * Phillimore, Eccles. Law 238.-The induction of the archdeacon to his office is thus: the dean and chapter after some ceremonies place him in a stall in the cathedral church. 3 & 4 Vict, (1840) c 113 ss 16, 33 ff. contains regulations for combining canonries with poorly-endowed archdeaconries. At present only a certain number of the archdeaconries are combined with canonries. * Phillimore, l.c. 240. t * The preamble to 6 & 7 Gul. IV (1836) c 77 gives the following suggestions for the orders in council to be published on the representations of the eccle- siastical commissioners: Seven new archdeaconries are to be founded and districts assigned to them; the dean of Rochester is to receive archidiaconal powers in the part of Kent left to Rochester (this is abrogated by 26 & 27 Vict, [1863 c 37 S 3); the boundaries of all rural deaneries and archdeaconries are to be so altered that every parish and extra-parochial place be within a rural deanery, and every rural deanery within an archdeaconry, and that no arch- deaconry extend beyond the limits of one diocese; all archdeaconries are to be in the gift of the bishop of the diocese ; all archdeacons shall have full and equal jurisdiction within their archdeaconries. By 3 & 4 Vict. (1840) c 113 s 20 it is allowable, upon the representation of the bishop and with his consent under seal, to divide archdeaconries and rural deaneries. According to s 34 it is laid down that when the income attached to a poorly endowed archdeaconry is augmented, the augmentation shall not be such as to raise the average annual income of the archdeaconry to an amount exceeding £200. By 37 & 88 |Wict. (1874) c 63 the regulations of the acts previously cited as to changing boundaries, new founding etc. of rural deaneries and archdeaconries are further explained. } * 6 & 7 Gul. IV (1836) c 77 s 19: And . . . enacted, That all Arch- deacons throughout England and Wales shall have and exercise full and equal Jurisdiction within their respective Archdeaconries, any Usage to the contrary notwithstanding. - - $43] R U R A L DEA WS 32I several archdeaconries, from two to four each.” No person may be appointed to the office who has not been six years in priest's orders.” Appointment is (except in a few cases *) by the bishop. Before final conferment of the office the archdeacon has to take the same oaths and make the same declarations as are prescribed for a parish priest.” § 43. 7. R U R AL DE ANS.* THE rural dean * is the representative of ecclesiastical government within a smaller district of the bishopric, viz, within the deanery. It is not precisely known when rural deans were first appointed in England. The necessity for such appointments could not have arisen before fixed parochial districts had been established in such numbers that the bishop could no longer exercise immediate super- intendence over them. But the complete resolution of England into such districts only took place in the course of the eighth cen- tury, and the number of them increased but slowly. . The first trustworthy accounts of the existence of rural deaneries in England * Conspectus in Church Year-Book, 1894, pp. 583 ff.-In the bishopric of Sodor and Man there is only one archdeacon. - * 3 & 4 Vict. (1840) c 113 s 27: That no person shall hereafter be capable of receiving the appointment of dean, archdeacon, or canon, until he shall have been six years complete in priest's orders, except in the case of a canonry an- neºced to any professorship, headship, or other office in any university. * At the present time there are the following exceptions:— 1. The archdeacon of Westminster is appointed by the dean of Westminster from among the canons. His office is, since the peculiar of the dean and chapter has been taken away, only titular. 2. The archdeacon of the isle of Man is appointed by the crown through the home office. Moreover the crown appoints (and these rules apply also to other cases be- sides archdeaconries):— 1. When the vacancy has been caused by the raising of the preceding arch- deacon to the episcopate. 2. During vacancy of a see. Chron, of Comp, Canterbury, 1885, appendix No. 183 p. 60, note 3. ... * 28 & 29 Vict. (1865) c iº2 Clerical Subscription Act, 31 & 32 Vict. (1868) c T2.-According to Phillimore, Eccles. Law 241, an archdeaconry is a benefice with cure, but not such a benefice with cure as is intended by 13 Eliz. (1571) c 12 Subscription Act, so that archdeacons are not within the scope of that act; but they are included under 14 Car. II (1662) c 4 Act of Uniformity. * * The rural dean is designated decanus ruralis or arch?presbyter ruralis, in older documents also ‘dean of Christianity.’ On the meaning of plebanus See Dansey I, 150 ff, Richter, Kirchen recht $142, note 1. * Dansey, Horae Decanicae Rurales, being an attempt to illustrate by a series of notes and eqtracts, the name and title, the origin, appointment and functions, personal and capitular of Rural Deans. , 2 vols. London, i835. (With app. containing documents; references are to paging of 1st Ed.) 2nd Ed. London, 1844–Speech of Atterbury to the clergy of the arch- deaconry of Totnes, 1708. Atterbury's Correspondence vol. II pp. 234-254, printed in Dansey # # p. 890.-Kennet, Parochial Antiquities Ed. 1818, II, 337-70.—Phillimore, Eccles. Law {) e • - H. C. - Y 322 RURAL DEA NS [V, 7 with definite boundaries are of the twelfth century; yet at that time the rights of the rural deans were already fully developed. It may therefore with probability be assumed that the creation of rural deaneries took place before the division, which dates from the middle of the eleventh century, of dioceses into several arch- deaconries.” - Originally the rights of the rural deans were derived solely from the bishop, and the substance of the commission granted by him determined their powers. But by degrees the opinion prevailed that the office itself brought with it distinct rights and duties. The rural deans had thus in the twelfth and thirteenth centuries the general Supervision of the clergy and—in the sphere of ecclesiastical * Signatures of rural deans are found in documents of the twelfth century. Examples in Damsey I, 106. The law book leg. Ed. Conf. (written probably at the beginning of the twelfth century) mentions (text of codeac Harleianus c 27) that on a breach of the king's peace a fine of 100 sol. should be paid to the king, 50 to the earl and 10 to the ‘dean.” The readings given in some MSS. decanus ep is copº, in cujus decanatºw paac fracta fuerit or decanus ep is cop 7, s? &ntus decanatum paac fracta fuerit, wherein there is express reference to an eccles?- as tº cal dean and a local division into deaneries, are seen to be interpolated from the fact that in two immediately following passages (text of the codeac Harleianus co 28, 29; text of Roger of Hoveden c 26 pr. and § 2) secular deans are beyond all doubt spoken of. The readings in question are due to a later revision of the original book. [The secular tithings, decaniae, most probably denote, at least in the Anglo-Saxon period, not local divisions but groupings of persons. Schmid, Gesetze der Angelsachsen, glossary s.v.Q.e. Rechtsbürgschaft ; Consiliatio Cnut? (ed. Liebermann), Addition to I c. 19.] On the view that the leg. Ed. Conf. c 2 $8 perhaps has reference to rural chapters, see § 58, note 1. Cf. also Chronicon Abbatiae de Evesham (Rer. Bråt. Scr. No. 29; the part here in question was written in the beginning of the 13th cent.) p. 83: Iste et'am. abbas (Aelf ward, abbot of Evesham and bishop of London), postguam Aldulfus episcopus Włgorniae hanc abbatéam sábi et successoribus swis subjecerat, pri- mus abbatum in libertatem proclamavāt, et in tantum obtinuit quod venerab?lem. virum Avºtium hujus ecclesiae priorem decanum Christian?tat? § totius vallis constituit, quam nunquam libertatem ecclesia ista posted am?sit (Avitius died 1037–8). The ecclesiastical deaneries of the twelfth century corresponded in great part, but not always, to the civil hundreds. Stubbs, Const. Hist. I, 121 c 5 § 47-Many authors assign the establishment of rural deaneries to a much earlier age than that suggested in the text, but without satisfactory proofs. Cf. Damsey I, 77–107. On the monastic deans of the Anglo-Saxon period cf. § 37, note 6. The Northumbrian priest-law (time of origin unknown, perhaps about tenth century) co 1, 2, 45; Aethelred VIII cc 24, 27 (laws of 1014); Knut (1016–35) I c 5 §§ 2, 3; the treatise Behād-bóte (Schmid, Gesetze der Angelsachsen, app. IX) c. 12; Canones sub Edgaro (after Wilkins, Concilia I, 225; circ. 960) c 7 and other documents mention géféran, geförscºpe 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 gildscºpe 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 Archiepiscopus XII burgenses et XXXII mansuras quas tenent Clerici de villa in gildam suam. (Compare here Stubbs, Const. Hist. I, 451 c 11 § 131, Sommer, 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.G.e. gegålda.--In other countries rural deans were found from the * sixth century onward. Richter, Kirchenrecht $138, note 1. § 43] RURAL DEA WS 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 archidiacomal 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 I, 156 ft., 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 the heading) of an episcopal constitution of Worcester, 1240, where reference is made to the council of London (Wilkins, Conc. I, 671). Cf. also Const. Ben. XII (1335) super procurationibus visitantium (Wilkins, Conc. II, 578.) - * Episcopal const. of Worcester, 1240 (Wilkins, Conc. I, 671): Decanº effam. pro missionibus, clericorum in possessionem ecclesiarum, in quibus fuerint per episcopum institut?, mºhºl Omnimo recipere vel eactorquere praeswºmant, ReScript of Innocent III to archbishop of Canterbury in Dansey I, 372. - * Episcopal const. of Worcester, 1240 (Wilkins, Conc. I, 675): Terrae eccle- siarum vacantium incultae non jaceant, sed per decanum loci eaccolantwr . . . Council of Eoceter, 1287 (Wilkins, Conc. II, 158) c 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. * . . . t • * For details see Dansey I, 245 ff. w . . * Cf. e.g. council of Oxford, 1222 (Wilk. Conc. I, 585) & 20: . . . staffwº- mus, ut decanº rurales nullam causam matrimonialem de caetero audire prae- swºmant, sed et earum eacaminatio mon nisi värås discretis committatur, quibus assidentibus, s? commode fier; possit, postmodum sententia pronuncietur. (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. eentury 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 DEA NS [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. Rural deans existed at the end of the seventeenth 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. Repeated 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 beginning of the nineteenth century 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. Damsey II, 389 ff, 368 ft. * Reformat 70 leg wºm: Decamatus quilibet archipresbyterum rusticanum. habeat, vel ab episcopo, vel ecclesiae ordinario praeficiendum. Mumus erit annuum. . . . Resolutions of the provincial synod of London, 1571 (Wilk. Conc. IV, 264): . . . peracta visitatione, archidiacomus significabit episcopo, quos invenerit in quoque decanatu, ea doctrina, et judicio praeditos, ut digm: sint, quº pro concione doceant populum, et praesint alºfts. Eac illès episcopus potest delectum facere, quos velºt 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, Conc. IV, 374). James, however, declined. Charles II in his ‘Declaration concerning Ecclesiastical Affairs,’ c 5 (Wilkins, Conc. IV, 362) 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 ft. 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 1833 rural deans were again appointed in the sees of Canter- bury, London, Winchester, Bangor, Bath and Wells, Bristol, Exeter, Gloucester, Tincoln, Llandaff, Oxford, Peterborough, St. Asaph, St. David's, Salisbury, and perhaps also in some others. See more in Dansey II, 345–483. - § 43 RURAL DEA WS 325 tation of the 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; " but 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 14 Cf. also 37 & 88 Vict. (1874) c 63, in which 6 & 7 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 are printed as examples in app. XIII. For other forms see Dansey. * - 16 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 ep? scopº 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. 19 Decretals of Gregory IX (Liber Eactra) I, 23, c 7. * John of Actona, gloss. to Constit. Othonis p. 10: Salva consuetudène loco- pum tam, praefici debent decanº tales quam etiam amover? per episcopum et archidiacomum simul de jure. So Lyndwood: . . . communiter €orum. receptio et a motio pertinent ad utrumque . . . * Details in Dansey I, 117 ff. Cf. also council of Kilmore (Ireland), 1638 (Wilkins, Conc. IV, 538) c 5. * Const. Otho (1237) de sigillis authenticis in John of Actona p. 69: ill? qu? temporale officium susciplunt, puta, Decan? Rurales, . . . Lyndwood. Provinciale L. l I tit. 1 p. 85, gloss. Omn? anno: Quolibet anno mutantur decan? et fivnt novć. - . . . . . . . . . . & 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 PRIEST. S.” 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." Gradually 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,’” wº * Cf. above, note "12. * Details in Dansey I, 125 ff. * Dansey I, 153. * Proofs in Kemble, The Saocoms in England Book II, c. 9; Ed. 1876 II, 416 note 1.-Cf. Beda, Hist. Eccl. Book IV, c 27 § 344: . . . Erat quippe moris eo tempore (middle of 7th cent.) populis Anglorum, ut, ven?ente in villam clerºco vel presbytero, cuncti ad ejus imperium verbum auditurð confluer- ent ; . e * ‘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, c 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 Book of Church Law, 7th Ed., London, 1884, Book V c 2 $2.-- Kennet, White, Parochial Antiquities attempted in the History of Ambrosden, Burcester and other adjacent parts of the Counties of Oa.ford and Bucks, Oxford, 1695 (with glossary), 2nd Edition (prepared with the aid of manuscript notes of the author), Oxford, 1818, 2 vols.- Kennet, White, The Case of Impropriations and of Augmentations of Vicarages and other insufficient Cwres, stated by History and Law from the first Usurpation of the Popes and Monks to Queen Amme's Bounty, London, 1704.—Pegge, Samuel, Of Parochial Vicarages, their Origin and Progress (append. VII to his Life of Grosseteste, London, 1793).--Phillimore, Eccles. Law 262 ft.—Steer, John, Parish Law, being a Digest of the Law º'elating to the Civil and Ecclesiastical Government of Parishes, London, 1830, 5th Ed. (by W. H. Macnamara), 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 11th and 12th cents. see also Twiss, pp. ix ff. of Introduction to Bracton IV (Rer. 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, below, note 8.) The admissibility of different official acts was in England only dependent on the orders in which the holder of the benefice 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 Clovesho, 824 (Haddam and Stubbs III, 594): e Statuta est . . . , ut Episcopus . . . cum juramento Del servorum presbyterorum, džacomorum et plurimorum monachorum, Sºb? in propriam possess?onem terram. Ållam cum adjuratione adjurasset . . . Aet Öam ahe waes aet Westmynstre éfen fiftig m. aesse preosta and X. diacomas, and ealre obra preosta s?act?g and hund teontig. Her sindom Öara maesse- preosta maman Öe on bam a be 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 ; 47, presbüter; 6, diacomus. –Letter of Aelfric to bishop Wulfsin (the so-called canones Aelfrict, 992–1001, printed in Thorpe [Record Commission], Ancient Laws etc. 441 ff.) c 16 (of the deacon): . . . Se sacerd be biö wun?gemde butan diacome, se hafač bone naman and naef) ba bénunga. (“The priest who lives without a deacon, he has the name, but not the services.”) c 17: Presbiter Žs maesse-preost . . . (“Presbyter is mass-priest.”) * Thomas de Elmham, Historia Monasterii S. Augustini Cantuariensis (written about 1414; Rer. Bråt. Scr. No. 8) 285: . . . . Theodorus . . eaccitabat fidelºu'm devotionem et voluntatem, in quarumlibet provinciarum. civitat?bus, necnom vºll's ecclesias fabricandi, parochi as disting vend?. assensus e?sdem regios procurando, ut, s? quº sufficientes essent, et ad Dež honorem pro voto haberent Super proprium fundum ecclesias construere, earundem perpetuo patronatu gauderent . . . —‘Mere tradition or inven- tion,’ Stubbs, Comst. 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 sacré oper's adju- tores adsciscas, presbyteros videlicet ordinando, atque instituendo doctores, qu' à n sº ng w lº S v čculºs praedicando De? verbo, et consecrandês myster??s coelestibus, ac maacºme peragendès sacr; baptismatis officiis, ubi opportunitas Žngruerit, insistant. Councils of Pincahala and Celchyth, 787 (Haddan and Stubbs III, 449) c 1: . . . Omni ammo ºn synodalibus conventibus ab Epis- copis s? m gu laru'm eccles ; a ru'm presbyter? . . . eacaminentur. Council of Celchyth, 816 (Haddan and Stubbs III, 579) c 10: . . . ut statºm. per sºngwla's parroch?as [= diocese] sºngulis quibusque ecclesłłs, pulsato signo, Omn?s famºulorum. Dež coetus ad basilicam conven? at . . . . c 11: • - Ždźpsum presbyter??s praecipimus, ut mullus majorem negotiam ad se des?- derat, quam a proprio Episcopo concedatur, misè in solo baptismo et aegritu- dºme ºnfirmorum tantum . . . 328 PARISH PRIESTS [W, 8 the 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 (Haddam and Stubbs III, 362) c 9: Ut presbyter? per loca et regiones laicorum, quae sib? ab episcopis provinciae Žnsinuata et énºuncta sunt, evangelicae atque apostolicae praedication?s officium ºn baptºzando, et docendo, ac vösötando . . . studeant eacplere, § 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 §: within the diocese and who then visited the various places within this istrict. * 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 apostolicae est, ordinat’s Episcop's praecepta tradere, ut in omná stipendio quod accedit, quatuor debeant fier; portiones; una videlicet Episcopo et familiae propter hospital?tatem, atque susceptionem, ; alia clero; tertia pauperibus; quarta eccles??s reparandês. Sed quia tua fratermitas monasterić regulis erudita, Seorsum fier; non debet a clericis Swis, in ecclesia Anglorum, quae auctore Deo nuper adhuc ad fidem adducta est, hanc debet conversationem instituere, quae initio nascent's ecclesiae fuit patribus nostris ; in quibus nullus eorum eac his quae possidebant, aliquid swum esse dicebat, sed erant eis omnia communča. S; qui vero Sunt cleric; eactra sacros ordines constituti, qué se continere mon possunt, Sortéré watores debent et stipendia sua eacterius accº pere . . . Com- muni awtem vita viventibus jam de faciendès portionibus, vel each?benda hos- pitalitate, et adžmplenda m?sericordia, nobis quid erit loquendum & Cum omne quod Superest, in causis p??s 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: ba halgan faederas gesetton eac baet menn syllon heora teobunga into Godes cyrcan. And gange Se Sacerd to, and daele hy on breo, denne dael to cyrc-bóte, and očerne bearfum, Bone briddan ham Godes beowum he haere cyrcan begymań. (“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 ted&ºunge se cyning and his witan habbač gecoren and gecºveden, ealswó hit riht is, haet briddan dáel băre teóðunge, he t0 circan gebyrige, gå to ciric-bóte, and očer dáel ham Godes beówum, bridde Godes bearfum and earman beówetlingan. (“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 VII c 1 § 2 and append. to council of Haba (in Schmid, Ges. der Angels.) §§ 2, 4, 5.]—According to Richter, Kärchen recht $ 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, wa 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 sub fin. - * This tax (cathedraticum or Synodaticum) is still in vogue in England. Phillimore, Eccles. Law 162. According to Richter, Kärchen recht $234, it first arose in Spain (mentioned, council of Bracara, 572). * * Edgar (959–75) II, c. 2. Similarly Knut (1016–35) I, c. 11 pr. and § 1. * The succession was afterwards developed into an universal succession, the holder of the benefice becoming regarded as corporation 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 II c. 24: Eodem modo sicut persona alicuffus ecclesie recuperare potest communiam pasture per breve Nove disseåsåne, eodem modo decetero recuperet successor Super disseåsåtorem vel ejus heredem per breve quod permittat, licet hujustmod? breve privas a Can- cellaria non fuit concessum. Cf. Bracton, Book IV, tract. 1 c 38 $13 (III, 520) on the Several cases 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 Richter, Kärchen recht $142, note 1. º * On the continent from the 13th cent, termed as a rule incorporatio or unio. Hinschius, Kärchenrecht II, 445. * Kennet, Impropriations p. 25 after Defence of Pluralities p. 113. 330 PARISH PRIESTS (W, 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 of 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 and 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 appropriation, 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 office 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 bishops, further, to obtain recognition of the principle that the cure must be permanently endowed by the appropriator, and that 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 what was called ºncorpo- ratio plenissima (in the decretals termed incorporatio ‘pleno 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 Richard (1173?) c 2; London, 1200, c 14; Oa;ford, 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 Hem. 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 33I 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, but Only such part thereof as serves for the 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 other persons.” In the cases in which the more extensive form of appropria- tion, viz. that quoad spiritualia 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 baffled owing to papal dispensations. * As to how far the right to vary is still recognized see Phillimore, Eccles. Law 272, 288–291. - * Vicar?? perpetuº are mentioned as early as the council under archbishop Richard (1173 P Wilkins I, 474). But it is doubtful whether vicars with a fixed income were here in question. The independent endowment of several vicarić perpetuº 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 Sherburn Hospital, ed. G. Allan, 1771, pp. 43 ff.). 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- mationibus Vicarāorum tempore Hugonis Wells Limcolnáems?s Episcop? (for the most part probably written before 1218, ed. A. Gibbons, Lincoln, 1888, with in- troduction by G. G. Perry) 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 after 1203. For an example, 20th July, 1212, see Rotuli Lºtterarum Patentium, ed. Hardy (Record Commission), 1835, p. 93; five examples in 1220 in Annales de Dum- Stapl?a (Rer. Bråt. Scr. No. 36) III, 59; a large number of other examples in Pegge, l.c. pp. 325 ft. –Cf. also 1 Ed. VI (1547) c. 14 s 8 in which the creation of new vicarages from the confiscated property of religious foundations is con- templated. º * 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 1554/5) c 8 s 21. , ; * Cf. Phillimore, Eccles. Law 333, 332 PARISH PRIESTS [W, 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 rule,” 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 originally officiated, commonly, them, 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 of usage, 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:— ſº 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 cure passed more and more exclusively to deputies. These deputies were likewise termed vicars or perpetual curates according as the benefice was once 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, Codeac 819.-Cf. also John of Actona (shortly after 1832), gloss. to constitution of Othobon, De Institutione Vicarāorum, p. 24: Quédam sunt Wäcaráž mercenarić, et sic Convicaráž Rectorum, qui ad tempus assum untur temporales ad placôtwm Rectorum, et sº me lºcent? a Epº sco p? * 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, Codeac 819, who cites Registr. Courtney, 72 b, Stafford, 18 b, Warham, 356 b. Such circumstances also led to perpetual curacies on the dissolution of the monasteries. * Cf. Gibson, Codeac 719. Cf. also 3 Geo. IV (1822) c 72 s 14. § 44] PARISH PRIEST.S. 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. º 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 b 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 * Phillimore, Eccles. Law 305, 306. * 1 Geo. I st. 2 (1714) c 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 and benefices, and the mºn?sters duly nominated and licensed thereunto, and their successors Tespect- Zuely, shall be, and be esteemed in law, bodies politick and corporate, and shall have perpetual succession . . . ; and that the ºmpropriators or patrons of any augmented churches or donatives, for the time being, and their he’rs, 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 PRIES TS [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 by 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 draws, wholly or in part, the income of the parish and exercises the rights of presentation or nomination. He does not officiate. * 2. Sinecure rector. He must be a clerk and a single person (not a corpora- tion). For the rest, he is on the same footing as 1. [Such offices are now, probably, all abolished.] 3. Officiating rector. He comes into his office by way of presentation and institution or collation ; in rare cases (donatives) by the free gift of the patron without the co-operation of the bishop. Parish priests of newly founded parishes are entitled ‘rectors’ if “the whole of the Ecclesiastical Dués arising within the . . . Parish . . . , consisting of any Braedial or Rectorial Tithe . . .” are payable to them (19 & 20 Vict, c 104 s 26). Żvely paid and allowed, and which they might, by due course of law, before the making of this act, have been compelled to pay or allow to the respect?ve mºnºs- ters officiating there, and such other yearly sum or allowance as shall be agreed upon (if any shall be) between the said governors and such patron or &mpro- priator, upon making the augmentation, and the same are and shall be hereby perfectly vested in the ministers officiating in such augmented church or chapel respectively, and their respective successors. +. * 3 & 4 Vict. (1840) c 20 s 4: . . . That every Cure touching the Patron- age or Right of Nomination to which any such Agreement as aforesaid with any Benefactor or Benefactors shall be made for the Benefit of such Benefactor or Benefactors . . . , though no Appropriation whatsoever to the said Cure for the Augmentation thereof shall be made by the said Governors out of the Funds at their Disposal, shall . . . be deemed and considered ºn Law, ºn all respects, and to all Intents and Purposes whatsoever, as a Cure augmented. by the said Governors, . . . * 1 Geo. I st. 2 (1714) c 10 s 5: Provided always, That no such rector or vicar of such mother-church, or any other ecclesiastical person . . . having cure of souls, within the parish or place where such augmented church or chapel shall be situate . . . . . shall hereby be divested or discharged from the same ; but the cure of souls, with all other parochial rights and duties (such augmentation and allowances to the augmented church or chapel, as aforesačd, only eaccepted), shall hereafter be and remain in the same state, plight and manner as before the making of this act . . . . . yº". The position of an augmented, curate after the assignment to him of a district chapelry is regulated by 2 & 3 Vict, (1839) c.49 s 2. * § 44] PARISH PRIES TS 335 II. Vicar. A. In the middle ages used without clearly defined meaning for every assistant or deputy minister of a cure of Souls. B. In the present employment of the word:— 1. Titular vicar according to 31 & 32 Vict. c 117. 2. The parish priest in possession of an independently endowed living in parishes where there is or has been a sinecure rector. * * 3. The parish priest in possession of an independently endowed living in parishes which formerly were appropriated. He comes into office by way of presentation and institution or collation; in rare cases (dona- tives) by the free gift of the patron without the co-operation of the bishop. - III. Curate (not including the general, non-technical sense still found in the rubrics of the prayer-book”). -- 1. The permanently appointed parish priest in a parish formerly appropri- ated quoad spiritual?a et temporalia or sometimes only quoad tempor- alia.” The benefice is not independently endowed; the succession of parish priests has no corporate rights. The mode of filling the post is by nomination of the appropriator and licence by the bishop. 2. The parish priest of a new parish separated from an old under 6 & 7 Yict. c. 37 or 19 & 20 Vict. c 104, if in the new division a church or chapel has been consecrated (before that takes place he is styled the ‘Minister of the District of ,’ 6 & 7 Vict. c. 37 s 12), provided that all the tithes raised in the new division do not go to him (if they do he is ‘rector,’ 19 & 20 Vict. c. 104 s 26). The benefice has a fixed endowment. Until a new arrangement is arrived at, alternately the crown nominates a spiritual person to be licensed by the bishop, and the bishop appoints by giving a licence (7 & 8 Vºct. c. 94 SS 1, 2). The right of patronage and nomination may be vested in those who contribute largely to the endow- ment of the new benefice or the building of the new church (6 & 7 Vict, c 37 s 20, 19 & 20 Vict. c 104 s 16). . . . 3. The parish priest in possession of a living without corporative rights in parishes wherein there is or has been a sinecure rector, Maintenance of parish priest and filling of post as in 1. º 4. The clerk of a chapel of ease. He, for the most part, draws a stipend from the incumbent of the mother church ; sometimes however, there is an independent endowment and corporative rights belong to the office. Filling of post as in 1. Such a curate is not a parish priest with an independent parish. 5. The parish priest in such a position as is indicated in 1 or 3, or à clerk without jus paroch?ale, but in either case there is a fixed endowment and corporative rights belong to the office. (“Augmented curate.") 6. The parish priest of an independent parish or the independent clerk of a subordinate church, independently endowed or not,” having corporative rights or not, filled by the free gift of the patron (donor) without the co- operation of the bishop. (“Donee; cf. below W.) . . 7. The deputy or assistant of a parish priest.” Clergymen in the positions. of 1, 2, 3, 5 and 6 are as a rule—the usage of language varies some- what—all grouped together as “perpetual curates’; 7 is a “stipendiary curate ’; 4 the ‘curate of a chapel of ease.' But the clerk of a chapel of ease is also sometimes called a “perpetual curate.’ * * See on this point Phillimore 299. This general sense is very common in the prayer-book; so several times in the rubrics to the communion service and the form for the baptism of infants. But the restricted sense is also found e.g. in the rubrics at the end of the communion service. Curatus in the general meaning of One having the cure of Souls frequently occurs until to- wards the end of the middle ages; cf. e.g. Clementinae III, 7 c 2. • . * Cf. above, note 21. , * According to Phillimore 277, a donative is always endowed. * On this position cf. § 45. 336 PARISH PRIEST.S. [W, 8. A “perpetual curate 'in his normal position (thus 1 in particular) is in fact ‘stipendiary,' that is appointed with a fixed income, not the owner of a benefice. Thus there is no strict opposition between the two eacpres- s?oms “perpetual curate' and ‘stipendiary curate.” In reality the curates now called perpetual were, before the reformation, only subordinate clerks appointed temporarily, and in the same position as the present “stipendiary curates.’ IV. Parson. *, The persona of canon law.” Originally equivalent in meaning to “rec- tor.” After non-officiating rectors had sprung up, it in so far obtained a more limited meaning that it was only applied to a rector who was a spiritual person; * but in every-day language parson is used in a wider sense to denote every kind of parish priest and indeed every kind of clergyman, whether in an official position or not. - W. Donee. A donee is one who receives an ecclesiastical office by perfectly free gift of , the patron without any co-operation of the high ecclesiastical authorities. If the office to be given is parochial, then the person appointed is called, as a rule, ‘curate,’ but sometimes ‘vicar’ or “rector.' * This free granting is of rare occurrence; but it is known in case of other ecclesiastical offices besides parochial. Nevertheless the term ‘donee’ is chiefly con- fined to those who hold in this way inferior offices. WI. Incumbent. The term is now used of the occupant of a benefice. But ‘benefice ’ is itself of uncertain meaning. On the one hand, only an inferior benefice, not a chapter benefice or that of a prelate, is commonly implied.” On the other, not every permanent post for the inferior clergy is regarded as a benefice, but only such posts as have a permanent, independent endowment and corporative rights. Thus perpetual curacies not augmented are not accounted benefices.” But this last limitation is not always observed. A large number of acts expressly define what in each of them is to be understood by a benefice; and their definitions vary. For the most part, a perpetual curacy is designated as included; frequently also, along with rectories, vicarages and perpetual curacies, are classed donatives, to be interpreted then as ºnferior posts bestowed by free gift. The variety of meaning in the statutes occasions variety of usage in the writers; and as ‘benefice’ changes its signification so does ‘incumbent, the holder of a benefice. In its wider Sense, embracing perpetual curates, ‘incumbent' is a substitute, though not an exact one, for the German Pfarrer, and has sometimes been so used in this book; similarly Pfarrstelle has occasionally been expressed by benefice.” 82 Richter, Kirchenrecht $142, note 1. * Cf., however, Godolphin 186: parson is applied most correctly to the rector of a benefice where there is an endowed vicar.’ According to Blackstone, “a parson is one that hath full possession of all the rights of a parochial church.” * Phillimore, l.c. 276. Here again historical reasons have in part given rise to the distinctions. * In the language of the canons beneficia mºnora includes canonries as well as parochial benefices. Hinschius, Kºrchenrecht II, 370 $ 100. * The incumbent of a benefice filled by a perpetual curate is, if the narrower sense of the term is preserved, the non-officiating rector of the benefice. w 37 The Public Worship Regulation Act (37 & 88 Vict. c. 85) has a wide use of “incumbent.' s 6 defines the term to mean ‘the person or persons in holy. orders legally responsible for the due performance of divine service in any church, or of the order for the burial of the dead in any burial ground,’ not only perpetual curates but also dean and canons being thus included. Cf. also s 17, and the term “incumbent of the diocese' used of the bishop in 3 & 4 Gul. IV C 85 S 89. * § 44] PARISH PRIES TS - 337 VII. Priest. - - The word properly signifies a person in priest's orders and contains no reference to appointment to any particular ecclesiastical office. But the priest being often a parish priest, the former term is often used where the latter is meant; similarly, the person officiating, whether in priest's or deacon's orders, is frequently called priest, especially in the prayer- book.38 VIII. Minister. This word signifies any person conducting divine service, without regard to orders or to office. But it is also used, though apparently only in older documents, such as the canons of 1604, as equivalent to “priest,’ ‘minis- ter’ and ‘deacon' being thus opposed. Yet in the same canons minister, in other places, embraces priest and deacon, and can only be understood quite generally in the sense of clergyman, clerk. In 38 & 34 Vict. c. 91 ‘minister’ signifies “priest and deacon.”—By 6 & 7 Vict. c. 37 s 12 the clergyman of a new “Separate District for Spiritual Purposes’ which has not yet been raised to a parish is entitled ‘minister’; the post has a fixed endowment and corporative rights; appointment and deprivation are as in the case of a perpetual curate. The three kinds of parish priests designated ‘rector,” “vicar’ and ‘perpetual curate ’ are appointed for life and entitled to perform the same ecclesiastical functions. The essential difference of the three concerns the domain of the law of property. * The parish priest has to hold divine service in the church of his parish, and has, within the limits imposed by law, full freedom in Ordering it.” He had also until lately the sole right of conducting burials in the churchyard; but 43 & 44 Vict. c 41, the Burial Laws Amendment Act, allowed private persons, after notice given, to conduct burials, to the exclusion of the parish priest. The parish priest appoints, subject to episcopal approbation, his representatives and assistant curates; if the appointment is not made within the prescribed time, the bishop appoints indepen- dently.” The rule is the same, for the most part, in respect to curates of chapels of ease; but the deed of foundation is therein determinative. Whether in the absence of such determination by deed the right of nomination falls to the founder or to the incum- bent is a moot point. Lecturers are generally chosen by the vestry, not nominated by the parish priest ; but here again the deed by which the lectureship was established is determinative.” The parochial readers of modern times are appointed by the parish priest, subject to the approbation of the bishop.” Parish clerks are appointed, in so far as recognized usage does not run counter to such appointment, as in some cases it does, by the parish priest indepen- dently. Only when they are spiritual persons do they need the approbation of the bishop; such approbation is, however, as a rule ught even when lay clerks are concerned.” In many cases the sh priest also appoints the rest of the lower officials or takes part ºir appointment.* According to the canons of 1604 the minis- d the parishioners were to choose the churchwardens jointly; * Cf. Phillimore, Eccles. Law 133. * Blunt, l.c. p. 329. 40 Cf. § 45. 41 Cf. § 53. * Cf. § 46, note 6. * Cf. § 49, notes 4 and 5. * Cf. §§ 50–52. j * H. C. Z. 338 REPRESENTA TIVES A WD ASSISTA WTS [V, 9A if they could not agree, then the minister was to choose one and the parishioners another. The latter has remained in most places the usual mode of appointment.” - Whether the parish priest has the right ea officio (that is to say, without being elected by the parishioners present) to be chairman of the vestry is disputed.” - e Rectors and vicars are entitled to assist in electing proctors to convocation; for the most part, perpetual curates seem also allowed to vote.*7 Before rector or vicar obtains institution or collation, or a per- petual curate receives a licence to officiate, he must declare his assent to the thirty-nine articles, to the book of common prayer and of ordering of bishops, priests and deacons; furthermore, he must declare that he has not procured his new office by any simoni- acal practice and must take the oaths of allegiance to the king and Canonical obedience to the bishop.” 9. REPRESENTATIVES AND AssISTANTS OF PARISH PRIEST.S. § 45. A. STIPENDIARY CURATES, a THE older rules which determined the position of assistant clergy of this kind are found in the constitutions of archbishops Edmund, Islip and Sudbury, in the canons of 1604, in archbishop Wake's in- structions and in the (now repealed) acts, 12 Ann. st. 2 c 12, 36 Geo. III c. 83, 53 Geo. III c. 149 and 57 Geo. III c. 99.1 The legal status of the curate is now regulated almost entirely by 1 & 2 Vict. (1838) c 106,” as supplemented and amended by 48 & 49 Vict. (1885) c 54.” These enactments contain, with many limita- tions in matters of detail, the following main provisions:— 1. Non-residence of incumbent. The holder of a benefice who is non-resident and does not, with the consent of the bishop, perform the ecclesiastical duties of that benefice from his residence outside the parish, must provide a curate to represent him.* Where the * Cf. § 48, notes 6 ft. * The affirmative is maintained by Blunt, Book of Church Law 7th Ed. t p. 300, Phillimore, Eccl. Law 1877 f.; the negative, at some length by Toulmin Smith, The Parish 2nd Ed. pp. 291 f., 294 f. * Cf. § 55, note 8. * 28 & 29 Vict. (1865) c 122 Clerical Subscription Act; 31 & 32 Vict. (1 c 72. Can. 36 of #### (append. XII). * Phillimore, Eccles. Law 562. * An Act to abridge the holding of Benefices in Plurality, and to make Provision for the Residence of the Clergy. * Plural?ties Acts Amendment Act. * 1 & 2 Vict, c. 106 s 75. * Blunt, Book of Chºwrch Law Book III cap. 2–Phillimore, Ecclesiastical Law 560 ft. § 45] STI PEN DIA R Y CURA TES 339 population of the benefice exceeds two thousand persons, or where there are in it two churches more than a mile distant from each other, the bishop may require that two or more curates be nomi- nated. 2. Benefices with large population or with several churches. Whenever the annual value of a benefice exceeds five hundred pounds and the population amounts to three thousand persons, or when there is in the benefice a second church or chapel with a hamlet or district containing four hundred persons, the bishop may require the holder of the benefice, though resident and himself performing the duties, to nominate a person as assistant curate." 3. Inadequate performance of official duties. If the bishop has reason to suppose that the holder of a benefice does not satisfactorily perform his ecclesiastical duties, he may direct an inquiry to be held by commissioners specified." If this inquiry justifies the supposi- tion, the bishop may call on the holder of a benefice to nominate a curate.” - 4. Sequestration of benefice. In all cases of sequestration (except sequestration for the purpose of providing a house of residence), if the incumbent shall not perform the duties of the benefice, the bishop shall appoint and license a curate. If the benefice has a population of more than two thousand persons or has more than one church, the bishop may appoint several curates.” In cases 1, 2 and 3, the holder of the benefice nominates a fit and proper person, and the bishop gives the nominated person his licence to officiate as curate. Should the holder of the benefice neglect to nominate a suitable person within a specified time, then the bishop independently may appoint and license. • The bishop may in all cases and at any time revoke the licence * (1 & 2 Vict. c 106 s 86); 48 & 49 Vict. c. 54 s 9. ° 48 & 49 Vict. c. 54 s 13; by this 1 & 2 Vict. c 106 s 78 is repealed. " The constitution of the commission of inquiry was originally fixed by 1 & 2 Wict. c 106 s 77 ; it is now determined by 48 & 49 Vict. ss 3–5. The members are : 1, the archdeacon or rural dean of the district in which the benefice is ; 2, a canon residentiary, prebendary or honorary of the cathedral church, to be elected triennially by the chapter; 3, a beneficed clergyman of the archdeaconry, elected triennially by the beneficed clergy of the archdeaconry; 4, a lay justice of the peace for the county, nominated on the requisition of the bishop by the person who presided at the last quarter sessions or, if there be no such person, by the lord lieutenant of the county; 5, at the wish of the incumbent con- cerned, either an incumbent of a benefice within the diocese, or a magistrate in the commission of the peace. * 1 & 2 Vict. c 106 s 77.-Special provisions are found in ss 103 ff. for the case that in Welsh sees a curate is required owing to the incumbent's insuffi- cient knowledge of Welsh. - . * 1 & 2 Vict. c 106 s 99. Sequestration (in most cases identical with Zwangs- verwaltung [compulsory administration]) takes place on bankruptcy of incum- bent ; as a means of obtaining payment of a debt ; as an ecclesiastical punishment; during vacancy. See more in Phillimore 1377 ff. For some, cases of sequestration 34 & 35 Vict, (1871) c 45 Sequestration Act contains supplementary provisions. . . . . . . $ 340 REPRESENTA TIVES AAWD ASSISTA WTS [W, 9B to officiate; he must, however, first hear the curate; appeal to the archbishop against the revocation is allowed.” A new holder of the benefice may give independently six weeks' notice to the curate in charge, the notice to be given within six months after the holder's admission; otherwise, any incumbent may give six months' notice to the curate, the bishop's permission having first been signified in writing.” No curate may quit any curacy to which he has been licensed without three months' notice to the incumbent and the bishop, unless with the consent of the bishop to be signified in writing under his hand.” The curate is always to receive a fixed salary, the amount of which has to be entered in the bishop's licence and which has to be paid by the holder of the benefice out of the income of the same or by the sequestrator.” If the curate be appointed owing to the non-residence of the incumbent or to sequestration, the act contains provisions as to maximum and minimum salary, payable according to the number of curates, population of benefice and income thereof.” In other cases the stipend to be granted is a matter of agreement between the holder of the benefice and the curate. The curate who seeks a licence must take the oath of obedience to the bishop and hand in a ‘stipendiary curate's declaration,' wherein the incumbent undertakes to pay the stipend and the curate expresses his bond fide intention to receive the whole of it. When the latter has received his licence, he must further subscribe a declaration of assent to the thirty-nine articles, to the book of common prayer and of the ordering of priests and deacons.” § 46. B. READER.S..a To fill this office the obtaining of orders is not necessary. A reader is, as a rule, a layman; he is appointed to fill, in greater or less degree, the place of a clergyman in the performance of acts of divine service. - At the time of the reformation readers were appointed to churches or chapels where, owing to the smallness of the income or some. other reason, clergymen could not be found to take upon them the * 1 & 2 Vict. c 106 s 98. The language of the act left it doubtful whether the admissibility of revocation was only in the case of curates appointed owing to non-residence; it is now decided to hold good in all cases. For more on this point see Phillimore 563, 574, Introduction (Addenda) p. lxx. 11 1 & 2 Väct. c 106 ss 95, 96. 1° 1 & 2 Väct. c 106 s 97. 18 1 & 2 Vict. c 106, ss 83, 100. * 1 & 2 Vict. c 106 ss 85 f, 99. * 28 & 29 Vict, (1865) c 122 Clerical Subscription Act. ss 3 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 Roman catholic church. • Phillimore, Ecclesiastical Law 590 f. § 46] READERS 34I 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, however, * Injunctions to be confessed and subscribed by them that shall be admitted Teaders (printed in Strype, Annals Ed. 1824, I, 514, and with the date 1561 in Wilkins IV, 225; also after Wilkins in Cardwell, Doc. Ann. I, 268, signed by both archbishops and nine bishops. The more important articles run :— Imprºmis, I shall not preache or interprete, but only read that, which is ap- pointed by publick authorite. - I shall not mºnister the sacraments, nor other publick rites of the church, but burie the dead, and purifie women after their childbirthe. I shall give place upon convenient warning, so though; by the ordinarie, if any learned mºnister shall be placed there, at the sute of the patrone of the parishe. - I shall not read, but in poorer parishes destitute of incumbents, eaccepte 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 1500 readers. On the relations in the several dioceses down to the year 1884, see committee report No. 161, pp. 6 ft. 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, Hºst, of Engl. Ch. III, 539 c 33 $ 7. Phillimore, l.c. 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 Sºgn a Declaration eacpressive of his acceptance of the doctrine of the Church of England as contained in the Book of Common Prayer and of the Ordering of Bishops, Priests, and Deacons, and of obedience to the Incumbent and the other properly constituted authorities, subject always to the control of the Bishop of the diocese. 2. That in wr.consecrated places the Reader may eacpound 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 wnder the Incumbent in visiting the sick and Øn other duties. - 3. That in all cases the Reader shall hold the licence of the Bishop of the diocese and shall be admitted 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 &n such a manner as may approve itself to the Bishop of the diocese. 342 REPRESEWTA TIVES AAWD ASSISTA WTS [W, 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 officiation 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 both 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 officiate 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 grant unto gou our commission to eacecute the office of a reader ºn 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 eacplain the same to the aged, sick, and Such other persons $n 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 F.) (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 eacpound some portion of Holy Scripture to those assembled, or) to read such godly homily or discourse as by the incum- bent may be judged most suitable and edifying to their immortal Souls. And we do hereby notify and declare that this our commission 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 Almighty God, whose blessing and favour we humbly pray may rest upon you and your work. Given under our hand and Seal thºs . . . . day of etc. Cf. also resolutions of 16th May, 1884, 2 (above, note 3). § 47] DEACON ESSES' INSTITUTIONS AND SISTER HOODS 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. º 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, SISTERHOODS, 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 16th 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. III, 270 c 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 ft., pp. 143 ff. * A. Upper and lower house of convocation agreed (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 willing to labour ºn 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 suc Brotherhoods as may be formed in the several dioceses. 3. That such Brotherhoods should work ºn strict subord? mat? on to the awthority of the Bishop of each diocese in which they are estab- lished or employed, and only on the in vitat ; on and under the Sanction of the Incumbent or Curate-in-Charge of the par 7 sh. t 4. That those who enter a Brotherhood should be perm 'tted, after an ade- quate term of probation, and being not less than thirty years of age, to wn dertake lifelong engagements to the life and work of the com- 344 REPRESENTATIVES AND ASSISTANTS [W, 90 The activity of the deaconesses is intended to be the same as that munity, provided that such engagements be subject, on cause shown, to release by the Bishop of the diocese in which the Brotherhood Žs established. 5. That the statutes of the community should be sanctioned by the Bishop wnder 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 eacclusion 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, Summary p. iii):— * - That this House, recognising the value of Sisterhoods and Deaconesses and the importance of their work, considers that the Church ought définitely to eactend to them her care and guidance. I. Sisterhoods. 1. That those who enter a Sisterhood should be permitted, after an ade- quate term of probation, and being not less than thirty years of age, to wºndertake life-long engagements to the life and work of the community, provided that such engagements be subject, on cause shown, to release by the Bishop of the diocese in which the Sisterhood is established. -- 2. That the form of such engagements should be a promºse made at the tº me of adm is sº on, before the Bishop or his commissary. 3. That the statutes of the community should be sanctioned by the Bishop wnder his hand, and not be changed without his approval signified in like manner. 4. That no statutes should contain any prov i sã on whº ch 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 B? Shop of such diocese. 6. That no work eacternal to the community should be undertaken by the Sisters in any parish without the written consent of the Incu m bent or Curate-in-Charge of such parish, subject, if that be refused, to a n appeal to the B : shop. II. De a conesses. 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 show.ld be a dºm? tied in sole m n form by the B? shop, with Bened?ct? on by laying on of hands. 3. That there should be an adequate term of preparation and probation. 4. That a Deaconess so admitted may be released from her obligations by the Bishop of the diocese in which she was admitted, if he think fit, on cause shown. 5. That no Deaconess should be admitted to serve in any parish without licence from #he Bishop of the diocese g?ven at the request of the In cum bent or Cw rate-in-Charge. 6. That the dress of a Deaconess should be simple, but dº st? net & ve. 7. That a Deaconess should not pass from one diocese to another without the . written permission 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 life. § 48] CHURCH WARDEAVS 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. CHURCHWARDE NS.” 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 the keeping of such life-long sºns which are not reconcilable with modern motions of personal iberty. * The Latin designation is oeconom?. * On the earliest mentions see Smith, The Parish 2nd Ed. p. 69. According to Blunt, l.c. 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 ſon readings v. Martin, Hegist. Epist. Peck, Rer. Bråt. Scr. No. 77, vol. III 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 archi- diaconal visitation meetings; yet the two offices soon became closely connected * Blunt, The Book of Church Law Book IV, chap. 1.-Phillimore, Eccles. Law 1873 ff.-Prid- eaux, Humphrey, Directions to Churchwardens for the faithful discharge of their duty. 1701. 9th Ed. London, 1833, by Robert Philip Tyrwhitt.—Smith, Toulmin, The Parish 2nd Ed. pp. 68 ft.—Steer, Parish Law 5th Ed. pp. 96 ft. . . ' 346 CH U R C H WARD ENS [V, 10. several parishes * by their fellow parishioners 4 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, l.c. 69 f.; Kennet, Parochial Antiquities Ed. 1818, II, 363 f.; Ayliffe, Parergon 515 f.; Gibson, Of Visitations 59 f.; Gibson, Codeac 2nd Ed. p. 960. On sidemen cf. end of this $.—In the Tatin canons of 1604 (cf. app. XII) in the heading of VI and in that of c 90 &nquisitores and assistentes are identical, whilst in the text of co 89 and 90 inquisitores=oeconom?. In the English translation which appeared at the same time (Cardwell, Synodalia I, 245 ft.) on the one hand churchwardens and questmen, on the other sidemen and assistants are treated as identical. * The civil parish and the ecclesiastical parish coincided for administrative purposes. Cf. § 9 *. * Smith, l.c. 71 ff. * c 89 (append. XII). ° 58 Geo. III 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. IV 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, l.c. 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 churchwardens 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, l.c. 261 f., Smith, l.c. 91. On the question whether acts done before declaration made are valid See the latter, as quoted. § 48] CH U R C H WARD ENS 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,’” 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 laity 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. 399. * Can. 113 ff. of 1604 (append. XII). * 16 sq. Car. I c 11 s 2 (cf. § 7, note 36). * 13 Car, II st. 1 c 12 s 2; see, however, also s 4 (cf. § 7, note 69). Cf. further Phillimore, Eccl. Law 1849.-On 5 & 6 Gul. IV (1835) c 62, cf. above, note 8. * Cf. § 61, note 35. - * Cf. § 45, note 9. * * 348 MINOR OFFICERS [V, 11A 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, 56 & 57 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 CLERES. 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 be overseers . . . ; s 6: upon the parish council of a rural parish coming into office, there shall be transferred to that council : . . . (b) the powers, duties and liabilities of the churchwardens of the parish, eaccept so far as they pelate 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. s 19: In a rural parish not having a sepa- rate parish council, . . . (10) on the application of the parish meeting the county council may 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, Codeac 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. 49 Blunt, l.c. 255, note 1. 1. Cf. the titles church clerk, chapel clerk. • Blunt, The Book of Church Law Book IV c. 3.-Phillimore, Ecclesiastical Law 1900 ft. – - Toulmin Smith, The Parish 2nd Ed. pp. 197 ff.—Steer, Parish Law 5th 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.7 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 . . . Bector 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, l.c. p. 288, note 1. Smith, l.c. p. 197, note 1. The heading of can. 91 of 1604 identifies cler?cus parochdal’s with the ost?arius. * Printed in app. XII. * Smith, l.c., contends that this was an innovation. * Peak v. Bourne, 6 Geo. II, Strange, Reports 942; Smith, l.c. 202; Philli- more 1902, 1905. * Canon 91 of 1604. 7 Phillimore 1902. - * To make him more easily removable 59 Geo. III c. 134 s 29 directs that the clerk in every church or chapel built etc. under that act or under 58 Geo. III c 45 (which it amends) is to be appointed annually by the minister. By 19 & 20 Vict. c 104 s 9, ‘The parish clerk and sexton of the church of any parish consti- tuted under ’6 & 7 Vict. c. 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, l.c. - ... • An Act for better regulating the Offices of Lecturers and Parish Clerks. * ss 2, 3 of act cited. - 350 MIN OR OFFICERS [V, 11B, C, D § 50. B. SEXTONS. a The official duties of the 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. C. BEAT) LES.b 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 divine 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. ORGANISTS.C 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 ft. * For a different opinion see Smith, l.c. 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 aforesaid, shall be taken away, and utterly defaced, and none other hereafter set up in their places; ſº • Blunt, The Book of Church Law Book IV c. 3.—Phillimore, Ecclesiastical Law 1911.- Toulmin Smith, The Parish 2nd Ed. pp. 193 ff.—Steer, Parish Law 5th Ed. pp. 115 f. E. * ſº Book of Church Law Book IV chap. 3.—Toulmin Smith, The Parish 2nd . pp. à • Blunt, The Book of Church Law Book IV chap. 3.-Phillimore, Ecclesiastical Law 927—929, 1914, Addenda II, 18. § 53] LECTURERS 35I 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. L E CTU. R.E. R.S.* 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 be 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 Publågue Worshipp . . . unlesse he be first approved and thereunto licensed by the Archbishopp of the Province or Bishopp of the Diocese or (ºn case the See be void) by the Guardian of the Spiritualties under his Seale, . . . . Can. 36 of #### (append. XII). * 28 & 29 Vict, (1865) c 122 Clerical Subscription Act, s 5; 31 & 32 Vict, (1868) c 72. * Phillimore, Eccles. Law 585. * The object of this rule was to make it difficult for puritans to hold lecture- ships. According to Charles I’s instructions (1683; 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. II (1662) c 4 Act of Unºformity 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). - ° s 1: . . . 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 . - *. à Phillimore, Eccles. Law 584 f. 352 NATIONAL AND PROVINCIAL SYNODS [V, 13A 13. ECCLESIASTICAL ASSEMBLIES. A. NATIONAL AND PROVINCIAL SYNODS. § 54. a. Historical.” - UNTIL the conference of Streoneshalch (= 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 ff. * 1. Sources: The Schedules of Continuation and probably 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 Cardwell, Introduction to Gibson’s Synod. Anglic. Ed. 1854, pp. lv. 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 provinces of Canterbury and York: From Nov. 1852 to June 1853, Synodalia, a Journal of Convocation, ed. Charles Warren, London, 1852, 53; from Aug. 1854 to Feb. 1857, -- º, Journal of Convocation, by same editor (contains also many essays respecting convocation etc.). * - * For the province of Canterbury: In 1888, 9 there was printed by convocation a collection (by Joyce) of reports from the public journals on the proceedings in 1852 (1847) to 1857. Cf. Chrom.. of Conv. Camt. 1888, pp. 129, 180, 185; 1889, p. 123.−From 1858 onwards The Chronicle of Convocation, being 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, containing the resolutions passed. Committee reports etc. are appended. For the province of York: From 1859 to March, 1862 The York Jo wºrm al of Co n voca- 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 Jo wrºval of Convocation, containing the Acts and Debates of the Convocation of the Province of York. London, York. 2. Treatises, histories etc. :- - •. Atterbury, Fr. The Rights, Powers and 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, 1562, 1640, 1661, and the Journals of lower house, 1586 and 1588, 1702, New Ed. Oxford, 1854, by Edward Cardwell.)—Hefele, Karl Joseph. Konziliengeschächte, 1st Ed. 7 vols. Freiburg i. Breisg. 1855 f. Vol. 8 etc. continued by Hergenröther. 2nd Ed. 1873 ff.—Hody, Humphrey. A History of English Councils and Convocations and of the Clergy’s Sitting in Parliament . . . London, 1701. 3 parts.-Joyce, James Wayland. England's Sacred Symods. A Constitutional History of the Convocations of the Clergy from the earliest records to 1662. London, 1855.-Same author. Handbook of the Convocations or Provincial Synods of the Church of England. London, 1887. —Kennet, White. Ecclesiastical Synods and Parliamentary Convocations in the Chºwrch of England. Historically Stated . . . London, 1701,–Lathbury, 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, JRobert R. The Law relating to Convocations of the Clergy, with forms of pro- ceeding in the Provinces of Camterbury and York, etc. London, 1848.-Trevor, George. The Convocations of the two Provinces, their origin, constitution, and forms of proceeding . . . London, 1852. (Relates especially to convocation of northern province.)—Wake, William. The State of the Church and Clergy of England in their Convocations . . . historically deduced with a large appendia of original writs and other instruments. London, 1703. • For the Anglo-Saxon period compare Stubbs, Const. Hist. I, 251 ff. c 8 $87. On provincial councils in the Anglo-Saxon period see Hinschius, Kirchenrecht III, 478, note 3; on the mixed ecclesiastical and secular councils of the petty kingdoms and of the united Anglo-Saxon kingdom, l.c. III, 546, note; on the primatial, legatine and provincial synods from William I to John, l.c. III, 572 ff. *- - - - § 54] * PHISTORICAL - 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 Stubbs, Councils III, 118 ff. On smaller councils alleged to date from 605 see Hefele, Konzìlèengeschichte 2nd Ed. III, 64, and Hinschius III, 478, note 3. * Haddam and Stubbs III, 141. * Older church law, especially the resolutions of councils in the fourth and fifth centuries, required the holding of two provincial synods in the year. The various regulations to this effect are cited in Hinschius, Kärchen recht $173, III, 473, note 6. In and after the sixth century, once a year was the rule frequently laid down. Hinschius, l.c. III, 474, note 3. Richter, Kärchen recht $149, note 8. Council of Herutford, 673, c 7: it was the rule of the old canons ut bäs Žn ammo Synodus Congregetur: Sed quia diversae causae impediumt, placuit Omnibus ºn commune, ut Kalendis Augustós in loco, qui appellatur Clofeshoch semel in anno congregemur (Haddan and Stubbs III, 118). Perhaps a resolu- tion of the synods of Pincahala and Celchyth, 787, c 3, is to be understood as meaning that in future two provincial synods are to take place annually. (Cf. § 57, note 1.) * Stubbs, Comst. Hist. I, 252 c 8 $ 87. * Stubbs, Const. Hist. I, 263 c 8 $89. Report of the resolutions of the national synod at London, 1075 (Wilkins I, 363): Et quia multis retro annis, in Anglico Tegno usus concil?orum obsoleverat; . . . So Consiliatio Cnut? (law-book, first half of 12th cent.), introduct. c 4: ecclesiastice vero institutiones simodorumque conventus apud Anglos inusitat; adhuc fuerant, . . . " In regard 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 Domžn? nostr; Jesu Christ? . . . , 70mperant? bus domżnºs p?ssim’s nostris Ecgfrido rege Hymbronensivm. . . . , et Aed?lredo rege Mercănensium . . . . et Aldwulfo rege Estranglorum . . . et Hlothario rege Cantuariorum . . . praesidente Theodoro, gratia Deč H.C. A. A / 354 IVA TIO VA L A VD PRO VIIVCIA L SY VO DS [V, 18A archbishop presided ; but kings and the magnates of the land were frequently present as members of the coumcils.* As the constitution of the Witemagemot 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 im import- ance, abbots also; not always,' it would seem, lower dignitaries, Archíepíscopo Britannìae ìnsulae . . . fidem rectam, eacposuìmus (Had- dam and Stubbs III, 141).--Report by papal legates of council of Pêncahala (787): . . . quía . . . Reae (of Northumbria) longe án, Borealíbus com- Tmorabatur, mását . . . Archíepíscopus (of York) missos suos ad regem, qvâ contínuo omnô gaudio statu êt d íem, concíl í í . . . (Haddam and Stubbs III, 447). Coumcil of Clovesho, 798: . . . Ego Athelhardus ę Doroberníensís ecclesíae metropolitanus, cum . . . rege nostro Cenwlfo, convocans uníversos províncíales Epíscopos nostros, duces et abbates et cujus- cumque dígnítatís víros, ad synodale concílíum . . . (Haddam and Stubbs III, 512). On a coumcil under Edgar (959—975) cf. Regularis Concordia [end of 10th cemtury ; Latin and Anglo-Saxom text in Seldem, Notae ad Eadmerum, ILondom, 1623, p. 145; the literature om the Reg. Conc. is brought together im Archiv für das Studíum, der meuerem, Sprachem, vol.84 (year 1890) p. 1 and in H. Logemam (Early English Text Society), The Rule Qf St. Benet (Londom, 1888)]. IProoemium : I?eac . . . Synodale Concílíum, Wêntoníae fierí decrevìt ro . ; present were . . . Epîscopè . . . Abbates et Abbatíssae . . . — Om am ecclesiastical council held círc. 710-16 im Wessex without the co-opera- tion of the archbishop of Canterbury see Willibald, Vêta Bonâfacêz (writtem soom after 754): . . . statêm synodale a pręmatíbus ecclesíarum (ì.e. by the bishops) cum consê lão praedāctā regìs (Ine of Wessex) servorum, Deâ factum, est concílíum (Monumenta Germânîae II, 838; Haddam and Stubbs III, 295). ° Thus at the coumcil of Clovesho, 747, there was present king Aedilbald of Mercia, cum suás príncípíbus ac ducíbus (Haddam amd Stubbs III, 362); report of the legates om the council of Pêncahala, 717 (Haddam and Stubbs III. 459, 460): Haec decreta, beatíssíme Papa Hadríame, ín concílío publico coram Rege Aelfwwaldo, et Archíepîscopo Eanbaldo, et omníbus Epíscopîs et abbatìbus regíonís, seu se nato rêbus, et ducábus, et populo terrae proposuêmus Then there also sigm judíces optímates et nobíles. At the legatime council of Celchyth, 787, there was present Qffa cum senatoribus terrae (Had- dam and Stubbs III, 460). So we read of a coumcil of Celchyth (almost certainly in 801): . . . ín synodalâ concîliabulo . . . coram, rege [Cenulf] Mercí- omum, et praesulibus Ecclesiarum, Deâ, mecnon, et ducîbus seu príncípíbus . . . (Kemble, Cod. Dópl. No. 116; Haddam and Stubbs III, 581, note.) At the coumcil of Celchyth in 816 archbishop Wulfred presided and bishops are mentioned as assessors, as also king Cenulf cum suós prìncìpìbus, ducîbus et optímatíbus (l.c. III, 579). From the fact that kings and temporal magnates were generally present evem at councils at which legates or archbishops pre- sided, and subscribed the resolutions, their assent was inferred. But such assent was apparently mot necessary to the validity of the resolutions. So Stubbs, Const. Hìst. I, 252 c 8 § 87 and Hinschius, Kärchenrecht III, 478, note 3; a contrary view is maintained by Philipps, Engl. Rechtsgesch. I, 105. The additiom confirmo 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 proeeedings. ar ° They were present, e.g. at Herutford, 673 (Theodorus cogìt concílíum epís- coporum, una cum eìs, quâ canonîca patrum statuta et dílígerent et nossent, magístris ecclesìae pluríbus. Haddan and Stubbs III, 118), Haethfelth, 680 (collecto venerabílíum, sacerdotum, doctorumque plurêmorum coetu. Haddam and Stubbs III, 141), Pincahala, 787 (Hís quoque saluberrimâs admonítíoníbus presbyterâ, diacon? ecclesíarum, et abbates monasterìorum, judìces optimates et nobíles, unopere, uno ore consentêmus et subscrípsímus. Haddam 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. There with are to be connected the efforts of the kings (1254, 1283, 1295 ft.) 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 III, 460), Celchyth, 816 (undique sacri ordines [ordinºs ?] praesules cum abbati- bus, presbiter??s [presbiteris & diaconibus pariter, tractantes . . . Haddam . 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. Høst. I, 254 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 § 125. From the transition period cf. the report in Chronicon Saacom. anno 1085 (Ber. Bråt. Scr. No. 23) I, 852; ha to ham mºdewintre waes se cyng on Gleaveceastre mid his witan, and heold haer his hired V. dagas, and sióðan be arcebisceop and gehadode men haefden Sánoč breo dagas . . . After bºsum hagfile se cyng mycel geşeaht and swièe deope spaece wò 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 had a synod three days . . . After this the king had a great deliberation and very deep discussion 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 1536, 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 Symods. 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 the 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 confined 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- clause; [but abbots and priors appeared in parliament in virtue of special sum- monses 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); 3, the convocations were called by the archbishop's writ, the parlia- mentary proctors by the king's; [but summons was afterwards in both forms at once)—In the transition period 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 III's reign neither the term parliamentum 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 § 195) is supported by the fact that it was usual to Summon the 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, moreover, 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 rožaume. 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 fſ. - * In Wilkins, Concilia III, 803 (‘eac registr. convoc. et Eaccerpt. 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. III, p. 123, Crumwell 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 l.c. 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 the text the following passages may be cited:— William of Malmesbury, Gesta Pontificum (Rer. Brit. Scr. No. 52) Book I § 42 Willelºmus (I) reac in omnibus e? [archbishop Lanfranc) assurgebat, aggau- debatgue et al??s, quos in bono fervore audisset, per m is it g we e? concilia congregaré, e ſº - Eadmer, Hist. Nov. (Rer. Brit. Scr. No. 81) p. 48, year 1094. Anselm says to William II: Jube, sº placet, concil : a eac antiquo usu remov &r Ž & º Generale nempe concilium episcoporum eac quo reac factus fužst mom fuit ºn Anglia celebratum, mec retroactis plurºbus annis. The king answers: cwm. mżh? visu’m fuerit de his agam, mom ad tºwa'm sed ad me a 'm volunta tem. —(Of an occurrence in 1095 Eadmer reports, l.c. p. 53: . . . eac reg : a sanct? One ferme totius regn? nobil it as . . . pro ventilatione 'stºus causae (whether adherence to Urban was reconcilable with loyalty to the king) Žn unum apud Roch?ngeham coit. Fit taque conventus omnium Domžnico die in ecclesia . . . , rege et Swis Secretius in Anselmum cons?lia Sºta studiose teacentºbus. Anselmus autem, episcopis, abbatibus, et p r £m cºp 2 bºws ad Se a regio Secreto vocatés, eos et assistentem monachorum, clerºcorum, la : corum numerosam multituděmem. . . . 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 perm is it celebrară în regno Swo ex Quo reac factus jam per tredecám annos. (Printed more fully in § 4, note 17.) William of Newburgh (Rer. Brit. Scr. No. 82) I, 133, year 1166: Reac vero molens eos (the heretics seized) &ndiscussos vel dimēttere vel punire, ep?s co- pale praecep it Oºconiae concilºw'm congregar?. Benedict (Rer. Bråt. Scr. No. 49) I, 112, year 1176: Interim redit ad curiam dominº regis praedictus Hughezwn cardinalis ille, quem summus pomtéfew ºn Angliam miserat; et per cons?lºw’m dom? nº reg's submonwët Ommes epis- copos et abbates et priores totius Angliae, quod essent . . . apud Lundonias ad audiendum mandata et praecepta summº pontific’s. For further proofs see Hinschius, Kärchen recht 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, l.c. III, 574, note 1. * On the papal claim see Decretum, Gratian? lib. I dist. XVII. Tetter of Paschal TT to Henry VIII and the English bishops in Eadmer, Hist. Nov. (Rer. Bråt. Scr. No. 81), year 1115: Vos praeter conscientiam nostram concéléa synodalia celebratis 358 NATIONAL AND PROVINCIAL SYNODS [V, 13A long * 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.” At the end of the thirteenth the innova- tion had gained such ground that the archbishops disputed all 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 he did on 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 clergy 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 III'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 requisité in the Anglo-Saxon period, even if it * In regard to the council of London, 1102, cf. Eadmer, Hist, Nov. (Rer. Brit. Scr. No. 81) 141: . . . praesedit Anselmus . . . In hoc concilio multa ecclesiasticae disciplinae mecessaria servar? Anselmus instituit, quae post- modu'm Sed?s apostolicae pontº fea: sua auctor?tate confirm a vºt. * 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 Bonifacé 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 reac prohibuerit praelatis Ecclesiae, sub forásfactura Omnium terrarum Suarum quas de eo tement, me ven?rent ad hujus mod? com- vocationem auctor?tate dominº archiepiscopº factam, an liceat et deceat et eacpediat tractare in hujus mod? convocatione de negotić's Ecclesiae a praelatās; vel potius, quod absºt, prohibition? regiae parere; . . . * Wilkins, Conc. II, 236 (30th April, 1298). The summons of archbishop Winchelsey begins: Eacigunt mommunquam etiam contra animă destinationem, licet cum fastidio, petita conced? nom tam dºg nºtatºs, q warm instant? a postulant?s (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 ft., 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.” - 3. 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. (Rer. Brit. Scr. No. 81) p. 141: . . . ºpso (Henr. I) anmuente, communi consensu episcoporum et abbatum et principum. totius regnº, celebratum est concilium . . . In quo praesedit Anselmus . . . Huic conventwº affuerunt, Anselmo archiepiscopo petente a rege, primates regn?, quatemus quicquid ejusdem concilië auctoritate decermeretur, utriusque Ordinºs com.cordź cura et Sollicitudźme ratum servaretur. * Cf. § 22, note 13. * Rymer, Foedera 4th Ed. I, 8: Sciatis quod auctor?tate regia et potestate concedo et confirmo Statuta concilić a Willelmo Cantuariens: arch? episcopo, et sanctae Romanae ecclesiae legato, apud Westmonasterium celebrati, et inter- dicta interdico. Sº Qw?s vero horum decretorum violator vel contemptor eactiterit, s? ecclesiasticae disciplinae humiliter non satisfecerit, noverit se regia potestate graviter cohercendum ; quia divānae disposition? resistere praesumpsit. This is the only known example of such mode of confirmation. Stubbs, Comst. 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 in Stubbs, Const. Hist. II, 296 c 15 § 199—The account in the text is mainly from these sources. * For proofs see Joyce, Sacred Symods 224 f. Whether parish priests were present in the early Norman period is doubtful. See Joyce, as quoted. Eadmer, Hist, Nov. (Rer. Bråt. Scr. No. 81) p. 9, speaking of William I's time, mentions only a generale episcoporum concilium. The passage is printed in § 4, note 12. Council of London, 1075 (Wilkins, Concilia I, 363): Ad comprêmendam quorundam indiscretorum insolentiam, eac communi decreto sancătum est, me quis in concilio loquatur, praeter licentiam a metropolitano sumptam, eac- ceptºs episcop?s et abbatibus. - * . . . et significetis singulis capitulis ut mêttant procuratores tam videlicet ecclesiarum cathedralăum 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 IVA TIOVA L A VD PROVINCIA L 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 om the occasiom of a synod of the province of Camterbury in 1256.* In the years 1257 and 1258 no special representatives of the inferior beneficed clergy Were summoned; the archdeacoms, however, were to obtain full powers to represent those subordinate to them.** But how little at *° Matthaeus Parisiensis, Chronica Major (Rer. Bröt. Scr. No. 57) IV, 87, year 1240. The papal legate summons the bishops that they may grant a, tax to the pope. The bishops answer: Habemus archidiaconos nobis subjectos, qvâ morunt benéficíatorum, sîbî subjectorum facultates, mos autem ìgnoramus. Omnes tangít hoc negotîum, omnes ígítur sunt conveníendí, síne ípsís nec decet nec eacpedit respondere. - - *' Om the appearamce of representatives of the lower clergy at civil assemblies im 1254 and 1255 see § 21, motes 13 and 14. ** Summons of the bishop of Lincolm to am assembly to be held on 18th Jam. 1256, printed in Matthaeus Parisiensis, Chronìca Major, Addítamenta (Rer. Bröt. Scr. No. 57) VI, 814:— H[enrìcus] permíssíone dêvêna, etc., archídíacono Huntíngdunens?, etc. «• Proênde cum salubriter ut creditur sit provìsum, quod majores praelatâ relígíosâ, tam abbates quam, prìores mecmom cathedralium, ecclesiarum, decanâ, personaliter cum quíbusdam discretís canonîcîs suìs, confratrum, suorum, procuratoríbus, et s% m gulâ arch ìd ìacom â per se cum tríbus aut qu at u o r d í scretâ orâb us de suâ s arch ád íaco m at åò u s p ro se et cwm, qmamd ato procuratorîo consortuºm, suorum, díe Martís proæima post , festum, Sanet? Hêllarê apud Novum Templum, Londonás, cum coepiscopis nostrís et nobís íbídem per Deâ gratíam conventurís compareant, facturâ ên praemíssís et com Sálíum suum ìmpensurâ, prout ad utílítatem, status ecclesiae et domíní regís ac regnâ vîsum, fuerit melíus eæpedêre. Vobis mandamus, , firm?ter ínjungentes, quatènus dictos praelatos et clerícos în archidiaconatu, vestro constítutos secundum, discretíomem, vobís desuper datam, prudenter sollícitetís ínterám, atque caute, quod dóctâ praelatâ et vos persomaliter, caeterâ * quoque per ìdoneos procuratores, dictás die et loco modis omníbus concurratís, congruum, ín hac parte consîlîum împensurâ. * Ann. de Burtom, (Rer. Bröt. Scr. No. 86) I, 889. In 1256 resolution is passed: quod decan?, praelatâ, regulares, ac archidiacon? tractabunt cum suás capítulás et clerìcìs . . . , îta quod ad mensem, post Pascha redeant Lon- donías per procuratores ínstructos ad pleme respondendum, seu componendum. Summoms of the archbishop of Canterbury to the bishop of Lichfield and Coventry, 1257 (l.c. 402): . . . citetís decanum, Lichfeldensâs et príorem Coventrensis cathedralíum ecclesìarum, necnon abbates et alíos prìores quâ non, subsunt abbatíbus, archídíaconos . . . , . praecîpîendo, ut praedíctâ decanus et prior . . . , abbates et alíí príores cum lìterìs procuratorêás momêne congregatíonum suarum confectês, ac dictâ archìd ìacomę cum lâterás sám ílíbus factás eac parte clerícorum, quâ subsunt eisdem . . . debeant ¢nteresse . . . Summons of 1258 (l.c. 412): Vocetês etíam decanos cathedra- líum, ac alíarum ecclesiarum, necnon etiam abbates, príores majores, ìnsuper et archód íaconos vestrae díoecesês umáversos, ut cum líterís suorum, subditorum, procuratoríís. . . . cOmpareant. Probably the same form of representa- tion was in use at the council of Lambeth, 1261, for in the document (Wilkims I, 755) it is mentioned that the resolutions were framed by the bishops de consensu, et approbatíome inferiorum praelatorum, capîtulorum cathedralíum, et conventualìum, necnon, uníversitatîs tot?us clerâ Angliae.—The procuratores present at the provincial council of Londom apud Novum Templum, 1269 (Wilkins, Concìlìa II, 19) seem to have beem omly representative of the chapters. Before the additiom : abbatum, prìorum, rectorum, et vìcarìorum earumdem díoecesêum a comma should be placed. <, - § 54] - HISTORICA L 36I 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, quatemus omnes ecclesiae nostrae Cantwardensis suffraganeos auctorêtate nostra vocetis . . . Et . . . injungat?s wt quilibet eorum vocet et ducat secum ad praedictam congregationem tres vel quatuor personas de majoribus, discretéorèbws et prudentioribus Suae ecclesłae et dioceseos. Stubbs, Sel. Ch. 455. * . . . coepiscopos . . . faciatis . . . evocar? . . . quatenus nobºscwm. . . . in propriès person is conveniant una cum aliquºbus per- son’s major:bus de su's capitulis, et locorum archidiacon?s, et procuratoribus totius cleri diocesium singularum. Stubbs, Sel. Ch. 455. * So Stubbs, Sel. Ch. 462 and at full length Stubbs, Const. Hist. II, 207, note 1 c 15 § 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 been handed down and sometimes appended to the resolutions of the council of Reading, 1279 : Item praecipimus, ut in proac à ma Congregatione nostra tempore parliament; proacămă post festwm Sanct; Michael's ad tres hebdomadas per Dež gratºam futura, praeter personas episcoporum et pro- curatores absent? wºm, venºant dºw, o a w ł w nºt S a clero episcopatuu’m sºngw- lorum, quº auctoritatem habeant una nobiscwm tractare de his, quae ecclesiae et communi utilitat eacpédèunt Anglicanae, et?amsä de contributione aliqua vel eacpensis oportet fierć mentionem, etc. (Wilkins, Concilia II, 49. On the MSS. in which the ordinances of Peckham are recorded see Martin, Registr. IEpist. Peckham [Rer. Bråt. Scr. 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: Convocatwr . . . , ut regà Subsidium a clero praestetur. Solà epès- copi hºc summonentur ab archiepiscopo ; inferiores vero cleric; consiläum. swum de awaºlio regà faciendo dioecesan's Swis ep? scop?s com/m wºn 7 care, a wt procuratores ea de re tractaturos const?twe’re jubentur. As to a second cf. the archiepiscopal summons of 80th July, 1281, to the council of Lambeth, 1281, in Regist. Epist. Peckham (Rer. Brit. Scr. No. 77) I, 211 and in Wilkins, Concilia II, 50: . . . mandamus, quaterºus . . . coepès- copos . . . nostros universos, nec non abbates, priores electivos, eace’mptos et non eacemptos, decanos cathedral?um et collegiatarum ecclesiarum, arch?- dźaconos et capitulorum procuratores, citetis . . . Peckham by summons dated 28th Dec. [1281), Reg. Ep. Peckham I, 256, invited only the bishops to a synod. . .” On the assembly of Northampton cf. § 21, note 17. The king's commission 362 IVA TIO VA L A VID PRO VI VCIA L SYNODS [V, 18A the archbishop, On the 21st January, 1283, invited a mew provincial council to meet at Londom and summoned to it for the first time expressly two proetors to represent the inferior clergy of each diocese.* The constitutiom of the council as contemplated in the summoms to the coumeil of Londom in 1283, and also in the royal summonses for the mational coumcil of 1294 and the parliament of 13th November, 1295,*° has been preserved in the main—apart from the later extinction of monastie representatives—in the pro- vincial coumcil 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.49 4! to each of the archbishops had been : . . . suffraganeos vestros et abbates, prìores et alios síngulos domibus relígíosis praefectos, mecmom et procuratores decanorum, et capítulorum ecclesiarum collegìatarum . . . venêre facìatìs coram mobîs . , . Stubbs, Sel. Ch. 466.—Similar refusals to grant taxes of the property of those not represented had already occurred in 1240 (cf. above, mote 80) and 1254 (cf. § 21, mote 18). * Quonìam ìn congregatione . . . habita Northamptomíae . . . tum, propter absentíam maacimae partís cler? tunc temporìs modo debíto mom vocatâ, twm propter alía díversa, ad plenum, mom potuit responderi ; de commum? Omníum, tumc praesentìum, consîlîo eactität ordínatum, . . . quod clerus totus Cantuaríensís províncíae . . . congregetur. Quocirca . . . mam- damus, quatenus . . . . epìscopos Cantuaríensis ecclesîae suffragameos omnes et sángulos, necnon abbates, prìores ac alíos quoscunque domîbus relîgîosîs praefectos, eœemptos et mom eœemptos, decamos ecclesiarum cathe- dral?wm et collegiatarum, ac archidiacomos uníversos per Caintuaríensem províncíam constitutos citetìs, . . . quod compareant coram, nobis seu conveníant . . . Londom íís a die Paschae êm tres septimanas Sángulí ínsuper epíscopâ, sicut ίη d ácta com gregatìo me p rov %sum, fuerat, citra díem praedictum clerum suae dioecesês êm aliquo loco certo com- gregar? facíant, et eâdem, quae eae parte regìs mobís proposìta fuerant dêlêgenter eæponí procurent, îta quod ad dictos diem, et locum, Londom?is de qualíbet dioecese duo procuratores momême clerì, et de sìngulis capitulís ecclesíarum, cathedralíum et collegìatarum, sángulî procuratores sufficienter ínsfructí myíttantur, . . . Regístrum, Epóst. Peckham, (Rer. Brìt. Scr. No. 77) II, 508; cf. also II, 528, 536, 594. * Stubbs, Sel. Ch. 480 and above, § 21, note 19. To the intervening parlia- ment, which met om the 15th August, 1295, deputies from the counties and of the imferior clergy were mot summoned. Stubbs, Const. Hìst. II, 183 c 14 § 180. —In 1297 the archbishop summoned, besides the usual members, the precentors, chamcellors and treasurers of the cathedral chapters. Stubbs, Sel. Ch. 488.—In other cases also, for as lomg as a century after this time, minor irregularities OCCUII*. *° The summoming of two representatives from each archdeaconry has a precedent, in 1279. Summons of the archbishop of York to an archdeacom, 1279 (Wilkins, Concílía II, 41): . . . quod quìlìbet archidiaconus pro subsidio domino regí facìendo suos subdìtos comvocabãt, vota et líberalitates $uper hoc attentâs et votîvês êmductíoníbus scrutaturus ; ita quod díe Venerìs, proac. ante festum sanctae Scholastícae vìrgìnìs, quìlìbet archîd îaconus cum duobus dígnae emínentìae viris, et unîco ípsíus archidiaconatus decano, mobìs apud Pontemfract. ubî persomaliter erāmus, Deo damte, responsum pro communitate totíus archídíaconatus facíat ; . . .-—In the northerm province deviations § 54] - FIISTORICA L - 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, Conc. I (Dissertatio de veteri et moderna Synod? Anglicanae Constitutione) pp. xi f., of those in the prov. synod of Canterbury after the dissolution of abbeys, in Joyce, Sacred Synods 450. Rural deans are not mentioned as members of the provincial synods. (Contrary opinion, without proofs, in Kennet, Paroch. Antiq. Ed. 1818, II, 364) The arch?presbyter; sometimes mentioned probably signify here the deans of cathedral or collegiate churches. Joyce 290.-On the chapters of the monastic orders cf. Stubbs, Comst. Hist. II, 203 f. c. 15 § 198. - * For what follows compare Joyce, Sacred Synods 294 ff, 307. * Narrative of William of Malmesbury, who was present, Høst. Nov. (Rer. Brit. Scr. No. 90) Book III $492: . . . sevocavit in partem legatus epis- copos, habużtgue cum eis arcanum consºlić swi; post mode abbates, post remo arch?dźacom? convocat? . . . . * Bartholomaeus de Cotton, De Rege Edwardo I (Rer. Brit. Scr. No. 16) 314. * Barth. de Cotton, l.c. 317. Cf. also answer of the clerus and prelates of Canterbury to four articula a rege petita in the year 1298 (Wilkins, Concilia II, 236): . . . E mous mentenant sourcestes prieres par ches cu m degre du clerge par evac, sº come cost on 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. Rogavit (the archbishop) dºctos Religiosos, quod se ins?'mul traherent ad aliquam. partem Ecclesiae et Clerum suae Dioeceseos et Provinciae quod ad aliam partem, eiusdem Ecclesiae se traherent, tractarent et deliberarent. 4 Kal. Febr. Inăunocºt hoc modo. Procuratoribus Cleri et religiosorum eachortando eosalem quod se ad partes . . . transferrent (Wilkins III, 82); 1376, on two days domżnus cum comfratrºbus Swis, eacclusis om m & b w8 al??s person?'s secrete deliberavit (Gibson, Symodus 79, Ed. 1854 p. 60); 1379: Praecepät (the arch- bishop) quod procuratores praedict; eacărent (Gibson, l.c. 80, Ed. 1854 p. 61); at the council of London, 1899: tractabant pse dominus et reverend? patres, episcopº anted?ct?, per se de negotić's omnibus ecclesiae ; al??s praelatis et procuratoribus cler? Seors?m separatis (Wilkins III, 239); and similar cases, In 1428 we find, as an exceptional case, the separation of the bishops from the lower prelates: Ali is Praelatis ad tune 7bidem in multitudźme cop?osa 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 as 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 eacistentibus, de mandato Praesidentium se inter?'m retrahentibus . . . (Gibson, Synodus 79, Ed. 1854 p. 60); so on 15th and 17th Nov. 1529 (Wilkins III, 717).-For York cf. council in 1426 (Wilkins III, 487); joint deliberation as heresy court; resolution into two houses when discussing other subjects; mandavit, ut praelaté et clerus Seorsim se déverterent 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 based on 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. 4° Stubbs, Const. Hist. II, 208 c 15 § 199.—For a list of instances of non- legatine national councils see Joyce, Handbook of Convocations pp. 112 ft. He mentions five under Lanfranc, also councils in 1100, 1102, 1127, 1129, 1139, 1151, 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 which, 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,” 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 Phil. dº Mar. (1554 and 1554/5) c 8 s 3; but revived by 1 Eliz. (1558/9) c 1 s 2. It is still in force. * Cf. § 4, near notes 72 f. * Cf. § 21, near notes 42 ft. * Cf. § 14, note 16. * The clergy at that time paid nearly one-third of all the direct taxes of the country. Stubbs, Comst. Hist. III, 378 c 19 $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: s 1 . . . be it therfore now enacted by auctorátie of this present parliament accordyng to the seid submyssyon and peticion of the Sežd Clergie, that they me any of they’m from hemsforth shall presume to attempte allege clayme Or put in ure any constitucions or ordymances pro- vºymcº all or Synodalles or any other canons, nor shall enacte promulge or eacecute any suche canons constitucions or ordynaunce provynciall, by what 800 ever name or names they be called * in theire convocacions in tyme commyng, which alway shal be assembled by auctory tie of the Kynges wrythe, Omles the same Clergie may have the Kynges most Royal assent and lycence to make prom ulge and eacecute such e camoms const? - twcôons and ordyn a unces provyncº all or Symodall 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 SYN ODS [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 1545 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 is 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 by your royall assent shall lycence us g to make, promulge, and eacecute . . . . , and the reto give your . . . assent and author?te. The preamble of the act gives as the purport of the declaration: . . . . . unless the Kynges . . . assente and lycence may to them be had, to make, promulge, and eacecute . . . , and that hys Majest?e doo geve hys . . . assente and auctorytče 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 Committee 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 Trân. 8 Jac. I (1610). According thereto the sense of the act should be (Coke, Reports XIII, 72):- 1. That a Convocation cannot assemble at their Convocation without the assent of the King. * 2. That after their assembly they cannot confer to constitute any Cannons without license del Roy. 3. When they upon conference conclude any Cannons, yet they can not eacecute any of their Cannons without Royall assent. 4. They cannot eacecute 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 first issued in 1598. (On the 25th Jan. 1598, the archbishop laid the deed of ratifi- cation before convocation. Cardwell, 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 Cardwell, Synodalia 584; for the northern province document of 18th Feb. 1606, in Wilkins, Conc. IV, 426.)—On the procedure observed in 1865, 1887–88 and 1892 cf. § 55, note 25. * Journal of Lords I, 156 (relates to 1540), 218 (1542), 277 (1545); cf. Philli- more, Eccles. Law 1930".-A precedent from earlier times is furnished by 18 Ed. III (1344). St. 3, 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. III, 349 c 19 $ 396, II, 470 c 16 $263, II, 489 f. c 16 $265, III, 147,271 c 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 Realm touching ratifica- tion by parliament of subsidies granted by convocation: 32 Hen. VIII (1540) c 23; 34 & 35 Hen. VIII (1542/3) c 28; 37 Hen. VIII (1545) c 24; 2 & 3 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 Eliz. (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; 29 Eliz. (1586) c (; 31 Eliz. (1588/9) c 14; 35 Eliz. (1592/3) c 12; 39 Eliz. (1597/8) c 26; 43 Eliz. (1601) c 17; 3 Jac. I (1605/6) c 25; 7 Jac. I (1609/10) c 22; [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) c 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, Conc. IV, 322; document in Cardwell, Synodalia 566) and the northern convocation (on 9th March ; docu- ment in Wilkins, Conc. IV, 323 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):— Regima, etc. Omnibus ad quos, etc. Salutem. Cwm Praelaté et Clerus Cantwarãems?s Provinciae, mostra Authoritate ºn Synodo Suo sew Convocatione congregati, eac intima et propensa Amâmorum suorum affectione quam erga nos gerunt, ultra et praeter Subsidium sea; Soli- dorum, Sāngularum. Löbrarum annuarum, etiam quandam benevolam Contré- butionem trium Solidorum pro singulis Librés annu's, Omnium et singulorum Beneficiorum suorum Ecclesiasticorum et Promotionum Spiritualium quorum- cumque, ac omnium Possessionum et Reventionwm, eisdem amnea arum sew quoväsmodo spectantium et pertinentium dederint et concesserint, . . . . ; Sciatis igitur quod nos . . . praefatam benevolae Contribution's Con- cessionem acceptamus, approbamus, ac eandem confirmamus, ratificamus et stabilimus, . . . A similar confirmation in reference to the province of York is found in Wilkins, Concilia IV, 324. 2. In 1640 the southern (22nd to 24th April, Wilkins, Conc. IV, 583) and the northern (8th June, Wilkins, Conc. IV, 553) convocation granted a benevolentia. 3. According 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. I (1640 ft) 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, Geschächte der Stevern des britischen Reichs, Leipzig, 1866, pp. 505 ff.) In s 2 the amounts are specified which fall on the various classes of the clergy. 16 sq. Car. I (1640 ft.) 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 Manmors 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 find 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 Stat. of the Realm. runs: Spiritual Persons how rated for Temporal Possessions. The limita- tion so made seems, however, erroneous. The corresponding passage in the earlier acts (e.g. 29 Eliz. c.8 s 10, 3 Jac. I c 26 s 10, 3 Car. I c. 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 eacecucion wardshipp or coppie of Court Roll in any Manmors landes tenementes rentes services offices fees 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 with benefices worth £100 annually.—12 Car. II c 28 s 1: . . . and also that every person and persons. eccles?asticall and temporall . . . shall pay for their estates both reall and personall 50 Sh. p. 4,100, and for every £100 personall estate after the rate of £5 per annum. . . . Special exemption of ecclesiastical possessions is not made in the act.—12 Car. If c 29 grants £70,000. s 3 enacts: . . . that moe Manmors Landes Tenements and Hereditaments which were formerly assessed and taced for and towardes former assessments and Land taxes and are now ºn the possession or holding of his Majestée . . . or of any ecclesiasticall person . . . shall be eacempted from the payment of the severall summes of money in this Act comprised, . . .-13 Car. II (1661) st. 2 c 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- wSed). According to s 5 the sum is to be raised by assessments of all lands etc. in each parish. The act makes no exception as to ecclesiastical possessions, but in s 28 is the reservation Provided alsoe That mothing herein contained shall be drawn into eacample 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. II (1663) c 9 contains the grant of four temporal subsidies with the clauses customary before the revolution in respect to church property. c 10 contains the confirmation of four subsidies by the clergy. 4 * 16 & 17 Car. II (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 parishes are to be assessed. There is no general exemption of ecclesiastical possessions. By S 21 the universities and some schools and hospitals are re- lieved from the necessity of contributing. S 30 runs: Provided alwayes and be it enacted . . . . That all Spirituall Promotions and all Lands Posses- Sãons or Revenues anneaced to and all Goods and Chattels growing or renewed wpon the same or elsewhere appertaining to the Owners of the said Spirituall Promotions or any of them which are or shall be charged or made contributary by this Act towards the Payments aforesaid dureing the time therein appointed shall be absolutely freed and discharged from the two last of the fower Subs?- dyes granted by the Clergy to His Majestie . . . by 15 Car. II c 10. The reservation is contained in s 36: Provided alwayes That moe thing here?n con- tained shall be drawne into eacample to the prejudice of the Auntient Rights belonging unto the Lords Spirituall and Temporall or Clergy of this Realme or unto either of the Universityes or unto any Colledges Schooles Almeshouses Hospitalls or Cinque Ports. (Cf. 13 Car. II (1661) st. 2 c 3 s 28, in note 60.) § 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 upon 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, Conc. 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. 2111. * For judgments which touch the question whether the right so to proceed still exists see Phillimore, Eccles. Law 1960*. He denies its existence and holds that now the Church Discipline Act of 1840 (3 & 4 Väct. 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 ºn the opčnion of this house there are sufficient grounds for proceeding to a Syno- dźcal 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 th’s Synod, having appointed committees of the Upper and Lower Houses to eac- amºrpe 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 l.c. pp. 2324 f.)—Meanwhile convocation had also proceeded against bishop Colenso's book, published in London, The Pentateuch and the Book of Joshua critically eacamºned. Upper house and lower house declared: That the said book does . . . involve H.C. B B 37O NATIONAL A V D PRO VI VCIA L SY NO DS [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 declined 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. (Resolutions of the upper and lower house, 20th May, 1863. Chrom, of Conv. Cant. pp. 1204, 1237. Cf. also the report of the committee of the lower house, l.c. 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 against Woysey'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 Luac Mundi. Chrom.. 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 be graciously pleased to issue forth your writs, as soon as conveniently may be, for calling a convocation of the clergy to be advised with in ecclesiastical matters. (Printed in Lathbury, Convoc. 321.) * More in Wilkins IV, 619, 621, 625. § 54] HISTORICAL 37 I 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 deliberate.” 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 1742 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, and 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. Reanimation 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, eaccepting 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 Crown, for what purpose they could not tell, 372 NAT I O WA L A V D PROVINCIAL SY WODS [V, 13A slow degrees.” In 1847 the first important discussion in the 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.7°. The canons then contemplated were not passed; but in 1865, 1887 and 1892 the first by the revived assembly were agreed,74 § 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 otherwise 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. III, 292 ft., 325 ft. 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. of Conv. Cant, 1865, pp. 2403 ff., also l.c. 1867, pp. 906, 977. 74 The royal licence of 1865 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; but 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, Eccles. Law 1938. Warren, Synodalia, 1853, p. 310. Chron, of Conv. Cant, 1870, . 44. p. ; 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 Rochester sends two proc- tors, that of Windsor, none. * Joyce, Synods 783. * Phillimore, Eccles. Law 1942. In some dioceses of the province of Canter- § 55] PROVINCIAL CON WOCATIONS 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 Comv. Cant. 1884, appendix No. 154, p. 11. * Journ. Of Conv. (ed. Warren) 1857, p. 207.-The stipendiary curates are not entitled to vote. Report 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 stºp end ? a r y Curates have ever been received at the election of Proctors to the Convocation in the Province of Canterbury. Cf. further Journ. of Conv. 1857 p. 350. * First mentioned in 1415. Phillimore, Eccles. Law 1943, after Hody, History of Conv. 3rd Part, p. 256. * Private note of archbishop Parker, 1563: Forma elägend? et praesentand? prolocutorem (printed in Warren, Symodalia, p. 16). Report of Committee of Privileges of lower house of Canterbury (No. 9 of the report. Jourm. 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, l.c. 1941. * Phillimore, l.c. 1948. Wilkins, Conc. 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, l.c. 1892, appendix. * This is now also recognized in the report of the Committee of Privileges of the º house of Canterbury (No. 8 of the report, Journ. of Conv. Cant. 1854, pp. 24 f). 374, NATIONAL AND PROVINCIAL SY NODS [V, 13A -- he must act cum consensu fratrum, with the consent of the 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- *. Cf. Perry, Hist. of Engl. Ch. III, 301, 307 c 16 $$ 8, 13. Phillimore, l.c. 1939, 1947. Warren, Synodalia 42 ft. Cardwell, Introduction, pp. xli f. to Gibson, Syn. Angl. Ed. 1854, -- * Phillimore, Eccles. Law 1937, 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 antiquo observar? consuevit, printed in Warren, Synodalia p. 11. * Phillimore, Eccles. Law 1946. * 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. Report 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 25.) * 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 ft.). Resolution 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 CON Voca TIONS 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 upper 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 Articul: Cleri, 9 Ed. II st, 1 (1315/6), wherein the several complaints made by the clergy are adduced ver- batºm, 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. 1865, p. 2353); the Convocation passed the new canons (l.c. 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 ‘Royal 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 Sw- preme a with ority in causes Ecclesiastical Do hereby of our especial Grace give Our Royal Assent to such new and amended Canons so eachibited 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 L? cence to make prom ulge and eacecute the said new and amended Canons so eachābāted 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 l.c. 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 . . . ºn . . Synod . . . which Canons received the Assent of the Queen's Majesty . . . Whereby the 62% Canon and the 102nd 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 in tº ſº Synod . . . do hereby declare and testify our consent to £he Sa ' d Canons - - 376 NATIONAL AAWD 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 council.” 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 the ‘Royal Assent and Licence,’ and the same forms were followed as in 1887, without convocation's again dis- cussing and adopting the canon. Royal letters patent of 13th June, 1892, and the document relating to subscription of the canon by the clergy on 14th 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. l.c. 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). 26 Cf. § 62. * From 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:- Resolution of lower house of Canterbury, 9th Feb. 1859 (Chron. of Conv. Camţ. 40 ft., 32ff) in connexion with a protest against the insufficient 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 men within the realm, is of opinion that when changes ºn 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 the resolution once more in almost the same language as before. Chromicle 314, 269. Resolution of lower house of Canterbury, 26th June, 1879 (Chron, of Conv. Cant. 1879, pp. 177 ff.):— 1. That 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 Royal 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 arisºng out of doctrine and ritual, action taken by Parliament alone, without reference 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 LA Y MEAW 377 § 56. The houses of lay men. 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 ºnto this House, unless the same should be first considered and liked by the Clergy. (D’Ewes, The Journals of all the Parkiaments 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, Høst, of Engl. Ch. II, 496, note 1, c 32 $16); the parliamentary resolution (mentioned in § 54, 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 39 $ 1 ; Dhillimore 1932); lastly, the express mention in the preambles to a number of statutes (recently, for instance, in 35 & 36 Vict. c 35 Am Act for the Amendment of the Act of Uniformity; not, however, in 34 & 35 Vict. c. 37 Prayer-Book, Tables of Lessons, Act) of previous discussion by convocation. The Public Worship Regulation Act of 1874 (37 & 88 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 (Chron. of Conv. Cant. 1874, pp. 125, 126, 199, 228). Opposition to the provisions of the act when passed was offered by some of the clergy. Perry, Hist, of Engl. Ch. III, 482 ft. c 28 S$ 12 f. * Cf. § 57, near notes 12 ft. w * 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) resolution (Chrom.. of Conv. Cant, 1885, Summary pp. xxx f.):— 1. That it is desirable that a House of Laymen, being communicants of the Church of England, beformed for the Province of Canterbury, to confer with the members of Convocation. w 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 meat ensuing. 3. That ten Members be appointed for the diocese of London; six for each of the dioceses of Winchester, Rochester, Lichfield, and Worcester; and four for each of the remaining dioceses. 4. That additional Members, not eacceeding ten, be appointed by his 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 discussed 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. JB. DIOCESAN SYNODS AND DIOCESAN CONFERENCES, a 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 Pres?- dent to meet in conference the Members of the Upper and Lower Houses of Convocat? on upon such occasions and at such place as his Grace the President may think fit. . * 8. That 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 subject (with the limitation provided in Resolution 8) on which he desires their counsel, and that the results 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 with 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 thºs Scheme shall be held to prejudice the duties, rights, and privileges of this Sacred Synod according to the laws and usages of th?’s Church and realm. & * Journ. of Conv. York, 1892, p. 79; Church Year-Book, 1893, p. 367. * One diocesan synod in the year is mentioned in can. sub Edgaro (circ. 960; Wilkins, Conc. I, 225) c 3: And we laerah baet h; to aelcon. Simobe habba aelce \ | geare becC and reaf to godcundre benwnge, and blaec and bogfel to hedra \! geraednesswºm, and Öreoro daga biwiste. (“And we teach that they [the ser- wants of God] should have for every synod each year books and clothes for God's º and ink and parchment for their resolutions and provisions for three days.”) * -- Councils of Pincahala and Celchyth, 787 (Haddam and Stubbs, Counc. III, 449) c 3: . . . perstrina:'mus, omn? anno Secundum canonicas institutiones, duo concil; a . . . , et unusquisque Episcopus paroch?am Swam Omn? anno semel circumeat; diligenter conventicula per loca congrua constituendo, * Cf. the works cited in § 54, note a II.—Gibson, Of Visitations Parochial and General. London, 1717, pp. 57 ff.—Pound, William. The ancient practice and proposed revival of diocesan Synods in England; a Paper . . . London, 1851. s 57, DIOCESAN SYNoDS AND DIOCESAN conferences 379 Nevertheless, in the face of the few accounts of such synods pre- served, 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 gºto cunct convenºre possint ad audiendum verbum De? . . . [cf. c. 1 e Omni anno ºn synodalibus conventibus ab Episcopis singularum eccle- siarum presbyter: . . . . de &psa fide délégentissème eacamánentur). The duo concilia mentioned in c 3 are frequently referred to diocesan synods. But on comparison with the regulation in c 1 it seems more probable that in c 3 provincial Synods are meant. The heading of c 3: Ut Episcopus bis ºn 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 Franks; 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, Kärchenrecht III, 583 ff. A reference to the canons such as is found in counc. of Pincahala and Celchyth c 3 occurs in the conc. Tolosan. 844, where the allusion is without doubt to diocesan synods: Ut episcopé synodos a presbyteris, mis? Sicut docet auctoritas canonum, duos Scélècet et per tempora constituta, non eacăgant. * Cf. Poenitentiale Theodori (probably end of 7th cent., Haddan and Stubbs, Counc. III, 173 ff) lib. II c. 2 $ 3: Episcopus non debet abbatem cogere ad synodºm ºre, mºst etiam aliqua rationabilis causa sit.—Council of Clovesho, 747 (Haddan and Stubbs III, 363) c 25: Ut Episcop; a synodo (the archiepis- copal Synod) ven?entes in propria parochia cum presbyteris, et abbatibus, et praeposités conventum habentes, praecepta synod; servare insinuanda praeci- p?ant, . . . . — Norðhymbra preósta lagu (probably about 10th cent.) c 44: Gºf preóst sinöö forbüge, gebéte baet. (“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, 747 (Haddan and Stubbs, Counc. III, 363) c 3: . . . ut singulis ann's unusqu’sque episcopus parochiam swam pertransiendo, et circumeundo, Speculandoque visitare non praesideat, populumque diversae condition's ac Seacus per competentia ad se convocet loca, apertegue doceat, wipote eos quº raro * werbum Deč, prohibens, et inter caetera peccamāna, paganas observa- 2O726 S • Councils of Pincahala and Celchyth, 787, c. 3 (see note 1); constit. of arch- bishop Odo, 943 (Wilkins I, 212) c 3: episcopé . . . swas parochias omni anno Cwm Omn? vigilantia praedicando verbum. Dež circumeant. Cf. from later times (1433) Lyndwood, Book I, tit. 14, p. 68 [to const. Bonif. episcop! ºn Swis synod's et alăs convocationibus], gloss to alăs convocationibus: Quas eac variºs caus's facere potest Episcopus, viz. propter subsidium Charita- tºvum each?bendum ; propter visitationem eacercendam ; item propter prae- d?cationem verb: Dež; et in alés quae varić's de causis possunt occurrere. * Wilkins, Concilia I, 365 gives from different MSS. two separate series of capitula 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 episcop? bis concilia celebrent per annum. In the other c 13 runs: Quod Quisque episcopus omná anno synodum celebret. 380 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, episcopi in Swis synod’s et al? is convocation?bus], gloss to synod is : Hae dºcumtur conventus sive congre- gationes servum et Presbyterorum, et (with reference to Decretals of Greg. IX. ſlºb. Eactra) V tit. 1 c 25) debent fier per Episcopos ammu atºm. Comst. of archbishop Peckham, 1281: quod jurent decani (rurales) se fideliter facturos in episcopalē synodo omºmº amºvo. (Wilkins, Concilia II, 57.) Two diocesan synods were to be held, e.g. in the diocese of Durham according to the constitutions of the bishop of Durham, 1312 (Wilkins, Comcilia II, 416) c 3: . decrevimus, quod bis in anno de caetero, proacimis videl?cet diebus Lunae post festum sanctæ Michaelis, et octabès Paschae, synodus ann's 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: Sº fuerint aliquº specialiter nominati quorum testimonio indigeat judeoc ecclesiasticus ad hoc wt in foro ecclesiastico justicia vel correctio fiat, mom impediumtur Prelatº per JRegem neque per allos ductoritate ipsius, verumptamen s? ad conventicula magma vocantur liberi vel servé non videtwr Regi aut proceribus hoc esse tolerandum cum ad eos et mom ad aljos pertineat hujus modi convocacio laico. pum, veluti ad Prelatos convocacio Clericorum. Et insuper Reac et proceres tempore hujuśmodź convocacionum servicio et obsequio tam, liberarum person- arum quam servilium carerent, quod eis invitis auferre mon possunt Prelat' . . . Prohibition of a certain king Edward, time unknown (§ 60, note 79). Cf. also const. of archbishop Boniface at the council of Lambeth, 1261 (Wilkins, l.c. I, 751): Even it etiam interdum, quod cum praelati ecclesiastic?, eac offici? suž debito, de morum disciplina, peccatis, et eaccessibus Subditorum Żnquêrunt, dominus reac, caeterique magmates et aliae potestates seculares et milites officia *mpediunt eorundem, personi's laicis inhibendo, me ad mandatum patrum et praelatorum spiritual?um . . . de veritate décemda Subednt juramentum ; statuºmus, Quod laici ad praestandum hujus modi jatramentum per eaccommunication?'s sententiam compellantur & * Cf. § 42, mote 11 and $43, note 3. " Cf. on the continental development Richter, Kirchen recht $$ 150, 173. * According to Wilkins, Concilia, vol. I, Introduct. p. 7 there were present at the diocesan synod all holders of benefices tam regulares quam abbates et momach?, archdeacons, priests, vicars and chaplains, Const. of bishop of Dur- ham, 1312 (Wilkins, Conc. II, 416) c 3: . . . Quodque Ommes abbates, priores, archidiacom?, praeposità, rectores, vicar??, et capellam? parochiales civitatis et dioecesis Dumelm. et al??, qui tementur synodo hujusmod? &nteresse de consuetudine, vel de jure, . . . inters int synodo personaliter, § 57] DIOCESAN SYNODS AND DIOCESAN CONFERENCES 381 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 been founded by the competent ecclesiastical power" 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 senvºm et Presbyterorum. On the testes synodales cf. § 48, note 2–On the 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, Conc. I, 635) c 21: Sºnt autem in quolibet decan at u duo vel tres värä * - , quº eaccessus publicos p'rael a torum, et alºorum clerº cor wºm, ad mandatum archiepiscop?, vel éjus official?s, &psis denuncient.—Const. of arch- bishop Chichele, 1416 (Wilkins, l.c. III, 378): . . . singul? confratres moströ suffragane?, singulêque arch?dźacon? . . . . . per Se aut Suos officiales sive commissarios . . . . inquirant, ac ºn Sºngulºs decamatābus . . . , sin- gulisque parochłłs, in quibus fama est haereticos habitare, tres vel plures bonº testimon?? viros, ad sacra De? evangelia jurare faciant, ut . . . hae- peticos . . . in script's denuncient, . . . - 10 Legatine council under Pole (Wilkins IV, 121; promulgation in Feb. 1556) c 12: . . . placuit, ut episcopi et al?? locorum ordinar?? dioeceses et loca sābā commissa j wasta ant? Q’u d'm hºlj u S Teg nº consºlet w dº me m saltem singulis triennis per seipsos, sin autém legitimo aliquo impedimento detºne- anfur, per domeos substitutos . . . . . vºsºtent.—Can. 60 of 1604 (appendix XII) lays down that the bishop should hold a confirmation at his triennial visitation, as was already the custom. * Prideaux, Churchwardens 9th Ed. p. 178, for instance states that in 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 synods was connected with the act of submission. So Kennett, Eccles. Synods 201, who adds that after the repeal of the act in Mary's reign several bishops again held diocesan synods. On the question whether the act applies to such synods see § 54, note 56. : * E.g. one was summoned at Exeter, 1851 (Perry, Høst. of Engl. Ch. III, 285 fſ. c 15 § 11), at Lincoln, 1871 (Perry, l.c. III, 421 c 24 § 6). * So, e.g. in Lincoln. Perry, l.c. III, 421 c 24 § 6. 382 R U R A L 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. RURAL 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." 14 In the Church Year-Book, 1891, the diocesan synods mentioned as having met are those of Lichfield and Salisbury. 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, Tiverpool, Sodor and Man, Durham, Manchester, Ripon, 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 i892 in the newly founded see of Wakefield (Church Year-Book, 1893, p. 376). 15 In 1881 the diocesan conferences of Winchester, Bangor, Chichester, Ely, Hereford, Lichfield, Lincoln, Norwich, Oxford, Peterborough, Rochester, St. Alban's, St. Asaph, Truro, Ripon, 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 l.c. 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. 16. 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. 1. 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 ecclesiam Dei causa orationis * For literature cf. § 43, note a. § 58 R U R A L CHA PTERS 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 paac sit ºn eundo et redevmdo; item ad dedicationes eumtibus, et ad Synodos et ad cap it wild, s?ve summonit; simt, s?ve per se ºb? Quºd 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. Richter, Kirchen recht p. 138, note 4. Dansey II, 2 ff. * Constit. Otho (1237) c. 20: . . . s?nt autem solicit? (scil. archidžacon?) frequenter interesse capitulis per singulos decamatus in quibus diligenter in- struant . . . . Sacerdotes . . . (Wilkins, Conc. I, 649.) * John of Actona (shortly after 1832), p. 54, gloss cap. rural, to const. Otho : . . . quae hodže tementur per officiales archidiacomorum et quam- 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, Conc. I, 585), const. of bishop of Salisbury, 1256 (l.c. I, 715), episcopal synod of Norwich, 1257 (l.c. I, 735), of Exeter, 1287 c 31 (l.c. II, 148), provincial synod of Reading, 1279 c 5 (l.c. II, 36), synod of province of Canterbury, 1341 c 7 (l.c. II, 675). * Lyndwood, Provinciale (1433), Book I, tit. II p. 14, gloss : horum capitu- lorum quaedam tementur de tribus hebdomadis in tres; quaedam Semel ºn quarta anm? et haec dicuntur capitula principalia propter majorem con- fluentiam cleri et quia in his de negotiis arduoribus tractari consuevit. Cf. also episcopal synod of Eaceter (1287) c. 31: De mense in mensem capitula cele- brentur (Wilkins II, 148). Syn. of prov. Cant. (1841) 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; III, 920). - * Cf. e.g. instruction to the deans in the diocese of London (1833) c 6, in Dan- sey II, 355, 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 (in a rural deanery of Exeter, 1849) see Warren, Synodalia p. 134. 384 ECCLESIASTICAL COURTS [V, 14A 14. ECCLESIASTICAL COURTS. A. HISTORICAL. § 59. a. To the Norman conquest.” IT has not yet been sufficiently 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 1.nown 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. From 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 king’s priest.’ * This was in earlier times (e.g. in Wessex under Ine, 688 to 726–8) until Rnut'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 (Scºregeréfa), 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 over by a scèregeréfa were still retained. Bdward the confessor altered Knut's division, and temporarily ealdorman and eorl, 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 5 §§ 49, 50 c 6 $ 66. * Edgar III c. 5: And Séce man hundred-gemót, . . . and haebbe man Ariwa on geóre burh-gemót, and tuwa scèr-gemót, and báer beó on baſere scère bisceop and se ealdorman, and báer degöer tdecan ge Godes rêht ge woruld- *śht. (“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.”) & Rºnut II c. 18: And habbe man brºwd on geóre burh-gemót, and twd scºr- gemót . . . buton hit oftor meðd s?. And báer beó on bdere scire bisceop and se ealdorman, and báer degöer tāecan ge Godes rihtge woruld-räht. (“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 Stubbs, Const. Hist. I, 253 c 8 $87. 59] TO THE WORMAN CONQUEST 385 5imilarly, 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 mºme arceb, and ealle mºme leodb. thaet hy ealle meodfulle beom yºmbe Godes gerähta aelc on his ende the heom betaeht is ; and eac minum ealdormannum. Żc bedde thaet hyfylstam than bºscopum to Godes gerähtum and to mºnum kymescºpe, and to ealles folces theatfe; Gif hwa swa dyrst?g sy, gehadod oththe laewede, Denisc oththe Englisc, thaet ongean Godes lage ga and Ongean mºnºme cymescype, oththe Om- gean worold riht, and melle betan and geSw?can aéfter mºnºra bisceopa taecimge, thomme bidde ic Thurcyl eqrl and eac beode thaet he thaeme unriſhtwisan to riſite gebige gyf he maege; . . . and eac ic beode eallum minum gerefum b% mºnum freondscype, and be eallum tham the hā agon, and be heora agenum, life, thaet hy aeghwaer min folc rihtlice healdan, and rihte domas deman be thaera scºra bisceopa gewitnesse, and swylce mºldheortnesse thaeron don Swylce thaere scire bisceope riht th?nce, 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 [Record Commission], Ancient Laws etc. 422 ft.) c 7: . . . , by sculon b2 sce Opas mºd wo rul d-deman domas d? htam, baet hº me gebafiam, gyf his waldan magam, baet Öaer denig Almråht up-aspränge. And Sacerdum geby reb eac on hedra scrºft-scărum baet h? georne to rihte aethwam fylstan, and na gehaftan, gif h; hit gebetan magan, }aet demºg cristem man offrum derºge ealles to swyðe, . (“. . 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, Comst. Hist. I, 128 c 5 § 50 understands the law under Edgar and Iºnut to have been that bishop and ealdorman were present, but that the sheriff was the constituting officer. See, on the other side, Gneist, Verfassumgsgesch. § 4. Cf. also Twiss, Introduction pp. xviii ff. to Bracton V (Rer. Bråt. 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. I): ut mullus episcopus vel arch?diacomus . . . amplius ºn hundret plac it a te meant . . . are also in favour of control of the business by the persons named. On similar but somewhat earlier developments in the empire of the Franks see Richter, Kirchen recht $206, note 29. * So may Edgar III c. 5 and Knut II c. 18 be understood if we refer baſer bed on not only to scºr-gemót, but in Edgar to all three, in Knut to the two before mentioned kinds of the gemot. Cf. also Alfred c. 88 $ 2 (above, note 1). Then the mention of the ‘hundret' in the ordinance of William I (see append. I) would agree here with. Why in that ordinance the shire-moots, which con- tinued to exist side by side with the hundred-moots, are not mentioned, would FI. C. C C, 386 ECCLES IASTICAL COURTS [V, 1 Both Edgar and Knut order that ealdorman and bishop shal 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 secula' ºshments, 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 fundamental 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-grið, 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 (Gerčchtsstätte), at which the shire-moots were also held.—Hundreds and then moots are first mentioned in England in Edgar's time (950–75), but are doubtless more ancient. Stubbs, Comst. Hist, I, 104 ft. c 5 §45; Henry Adams, The Anglo-Saacon Courts of Law pp. 13 ff. in Essays ºn Anglo-Saacon Law, Boston, 1876. Even if we assume that any ecclesiastical officer sat in the hundred-moot, it may still be doubted whether that officer was the bishop, as it is also doubtful (Stubbs, Comst. Hist. I, 116 c 5 § 46, Gneist, Verfassungsgesch. § 4; on the mention of the gångra or junior as the ealdorman's deputy cf. also the Anglo-Saxon treatise printed by Liebermann in Zeitschrift der Savigny-Stiftung, vol. V, German section, pp. 207 ff.) whether the secular president (ealdorman or sheriff) ever regularly conducted the hundred-moot or whether the duty devolved on special, subordi- nate officers. * Edward dº Guthrum (probably end of 9th cent.), Introduction $ 2: And hig gesetton worwldlice steðra edic, for bàm bºngwºn, be hig wistan, baet hig elles me mihton manegum gestedran, me fela manna molde to godcundre b0te elles gebil- gan, swó hiſ sceolde; and worwld-bóte hºg gesetton gemóene Criste and cynge, swā hºwdºr, swā man molde godcunde bóte gebügan mid rihte to 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 ‘bot’ as they should; and the worldly ‘bot’ they established in com- mon to Christ and to the king, wheresoever a man would not lawfully submit. to diviná ‘bot’ by direction of the bishops.”) Cf. Aethelred VIII (laws of 1014) C 36 : Bé griðe and be munde (Schmid, Ges. d. Angelsachsen, append. IV) c 24; Be had-bóte (Schmid, append. IX) c 11. § 59] TO THE WORMAN 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. I c. 8 $ 1 (printed $60, note 13) of the secular aldermannºus hundred; Dež leges et homżnum jura tº studednt 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 mullus episcopus vel archidiacomus de leg £b w S ep? scopal bus amplius ºn hundret placºta temeant mec CauSam gºlde ad reg : men a nºma- ru m pert à met ad judicium secularium homºmum adducant. * The following passages, whose scope, however, is doubtful, also apparently relate to the part played by the bishop in the folk-moot: Knut II c. 56: Gºf open m or ò weorđe, baet man si) āmyrdred, digife man magum home banan, and gif hit tëhtle si) and aet låde mistide déme se b : sce op. (“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 ‘lād,’ let the bishop doom.”) So the law-book leg. Hen. I 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 2 This meaning is favoured by Institutes of Polity (a discourse on the various civil and ecclesiastical powers and classes) printed in Thorpe (Record Commis- sºon), Monumenta Ecclesiastica c 7: . . . . He (the bishop). Sceall georne Saca sehtan and frið wyrcan, mºd bam woruld-deman be rêht luſian. He sceall aet t?htlam ladunge gedihtan, baet aenig man odºrum dem?g woh beodan me maege, aôor oë'êe on athe očiče on ordale. . . . (“He shall zealously appease strifes and effect peace with those temporal judges who love right. He shall in accusations direct the ‘lād,” so that no man may wrong another, either in oath or in ordeal . . . .”)—Perhaps déme se bisceop is in these cases only another phrase for ‘let ordeal take place.” Cf. Dialogus Egbertà (universally regarded as genuine; between 732 and 766; printed in Haddam and Stubbs, Counc. III, 403) c 3. * º 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 siblegerum (of incestuous persons) the words swä bisceop tdèce (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. c 36 (cf. Aethelred III c. 7). * Instituta Cnut' (Schmid, append. XX; a law-book, probably written shortly after 1110) III c. 53: Antiqua consuetudo fuži, ut omn's ecclesiastica et secularès emendatio com/mum?s erat regi et episcopo. The contention thus unqualified seems from the substance of the laws to be erroneous, Cf., however, Edward 388 ECCI, ESI ASTICAL COURTS [V, 14A Co-operation of the ecclesiastical authorities in the business of the temporal courts. - Moreover the method of proof in vogue before the folk-moot implied the participation of the clergy. Ordeal was always con- ducted by a spiritual person.” 2. ECCLESIASTICAL COURTS. 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-bóte hig gesettom gemóeme Criste and cynge . . . (above, note 5), also Aethelstam VIII c 38: And bá man getwdemde baet der waes gemáeme Criste and cymāmcge on woroldlîcre steðrd. tº (“And there they divided what before was common to Christ and the king in worldly Steuer [steðra, Steuer=government or punishment] . . . .” See also leg. Hem. I c 11 § 14–Liebermann in Transactions of the Royal Historical Society, New Series, VII, 98 calls attention to the fact that, in the above passage of the Instituta Cnuti, ecclesiastica et secularis emendatºo 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. Döm be hātan isene and waetre. Eacorcismus (Schmid, append. XVI and XVII). Cf. 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, 735; in Haddan and Stubbs, Coune. III, 326) c 5 § 2: Qui sciens virtutem jurament; vel perjurić perjurat in manu Episcop; vel presbyter? ve! Žn altar: vel in cruce consecrata, III amnos poemäteat; also Poen?tent, Egbertà (almost certainly genuine; if so, between 732 and 766; in Haddam and Stubbs, Counc. III, 413) c 6 $ 1 : Quº juramentum fecerit in decclesia dut in evangelio Säve in reliquas sanctorum, VII vel XI amnos judicant. § 2: Sº vero Żm manu Episcopº aut presbyter? aut diaconi, sive in cruce consecrata, unum. annum pen?teat, al?? III vel VII judicamt; et in cruce mom consecrata, unu'm. annum vel VII menses ut alić. § 7: Si qu is in manu laici juraver it, apud Grecos mºhºl est. * Norðhymbra predsta lagu (Schmid, append. II; about 10th cent.) c 5: Gºf predst dòm to löeivedum scéote, he heiðgehādedum 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) c 13 pr. ; Gifhwä beforam b is cepe his gewitnesse and his wed ſileóge, gebète 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): . . . . baeff man cºvydde očič on crafode hime on hundraede, où'ěom Öhwár on gemóte, on { ceápstowe očiče 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, III, 579) c 6: . . . Ut mom frangatur [fram- gamtur) judicium [judicial Episcoporum, quae a mobis most risque praedeces- soribus synodale [symodali) decreta [decreto] constituta Sumt, Sed firma et Żmréfragabºlis (irrefragabilia] ita permaneamt; . . . Et iterum, sº Quis accusatoribus swis invitatur ad symodum, et ei obviant mom tardaverit, Semel, secundo, tertia vice paratus rationem pomere, et acusator renuit, et swam causam movere differat; posted judicabimus nihil ab eo plus eacº gatwr, Sed suo proprio sit contentus. Cf. further the report of the councils of Pincahala and Celchyth, 787 (below, note 15).--Stubbs, Comst. Hist. I, 252 c 8 $87, considers it probable that synods under certain circumstances acted as friendly arbitrators in civil cases, IFrom the early Norman time cf. the following examples:— § 59] TO THE WORMAN 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 of persons. Spiritual superiors exercised independently disciplinary powers. gºš the king could, in- dependently of the folk-moot, inflict disciplinary punishments o his officers. Apart from this, the church further required that in all disputes of g[ergymen with one another, recourse-shettid-be-hair OTTI * not to the secular cour € efecatesiastical 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: ... ºn adulteros sentent?dºm dæðmus, et juste eos esse eaccommunicatos commund Consensu decrevimus. Document touching a discussion before a diocesan synod in 1092 on a suit between two clerks in Bigelow, Placºta Anglo-Normannica, 64. Judgment of a diocesan synod of Llandaff between 1149 and 1156 in Håst. Monast. Gloucestriae (Rer. Bråt. Scr. No. 33) II, 52 f. (cf. here Bigelow, l.c. 184). Documents from the time shortly after 1145 upon the judgment of a synod of the archdeacon of Buckingham in Historia Monast, Gloucestriae (Rer. Brit. Scr. No. 33) II, 166 f. (cf. here Bigelow, l.c. 150 ft.). - * To this seem to be referable the following provisions in the laws:– 1. Alfred c 21: Gif preost 66erne man of slea, . . . hºne biscep on hòdège, Jhonne hºne mom of pâm mynstre âgife, buton se hlāford bone wer fore bºngian 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 Pl, unless the lord will compound for his ‘wer’”); cf. in case of man-slaying or other grave offence Aethelred VIII c 26; Knut II c. 41, where the words bolāge ge hades ge eardes or éðeles (“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 II c. 43. Apparently here nothing more is meant than the preliminary decision of the bishop on the clerk's deprivation of spiritual rank. 3. Wihtrád 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 laerah, baet man Sacw Öe betweeac preostam sy me beo gescoten to world- mammas dome, ac seman and sibbian heora agenne geferan, obbe sceotan to ðam biscope gif man Öaet myde scule. (“And we enjoin, that no dispute that be between priests be referred to the adjustment of secular men; but let them adjust among and appease their own companions; or refer to the bishop, if that be needful.”)—Institutes of Polity (in Thorpe [Record Commission], Ancient Laws etc.) c 10: . . . Bisceopwm geby raó, gyf aenig oërum abelge, baet Aman gebyldige oč geferena some, butan heon sylfe geweoróan maege, and na sceotan na to laewedum manºvum, me me sciendan na hy Sylfe. Bisceopºlm gebyrač, gyf hwylcum hºwaet eglige swyðe, he he me betan me maege, cybe hºt his geferum and beon syöö'an ealle georne ymbe ba bote, and na ne geswican aer hi hit gebetan. (“It is incumbent on bishops, if any one 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 raisº.TTTTTTEFESTITEETOTFTREETFrom Samar-mººn. tion.TIOW far aſälm was in practice made good. TSTOTonger Ith certainty to be ascertained." — Tº-name=st- b. 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 ‘bót,’ that he make it known to his associates, and that they be then all diligent about the ‘bót' and cease not before they have obtained it.”)—See also Dialogus Egbert c 10 in cases of civil claims.-On similar and still greater pretensions of the church in the Roman empire and the empire of the Franks see Richter, Kirchen recht $ 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 juriš- diction is confirmed in Stephen's charter of 1136 as something already existent. —The view that they were subject to the secular court is defendéd, 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.: Wºhtrád co 16 19 Edward and Guthrum c. 3; Aethelred VIII, 19–24, 27; Knut I c. 5, II, c. 41 $ 1,–Similarly Dialogus Egbertà (universally regarded as genuine and referred to archbishop Egbert of York, between 732 and 766; in Haddam and Stubbs, Cowmc. III, 403) cc 1 and 3. ... ". From earlier times cf. especially DialogusłFºerti c 8: Interrogatio: Så quis monachorum sacrilega se contagº one miscuerint, vindicta, quidem. scelerås sº pertimet ad laicos, quº Sunt eorum propºnquº, mumc persequamºn? 3 Respons? O (the answers, both in reference to the person and to the case, go beyond the question): De his quº intra aecclesiam in gravibus vel in levibus commissis delinquwnt, michèl vindictae pertimet ad eos quº for’s Sumt, maacºme cum apostolus dicat, omnes causas deccles?ae debere apud Sacerdotes déjudºcar?. S; quº vero aecclesiastic? crimen aliquod inter lałcos (in antithesis to Žntra aecclesiam to be understood of place) perpetraverint, hom?cºd? wºm, vel fornicationem, vel furtwm agentes, hos placuit a secular bus in quos yecca verunt omnimodo occupar; ; mis? an?mo fuerit decclesłae pro łalibus satisface re. Laici vero quº sacrilega se contagãome miscuerint velatis, non eodem modo quo leac publica formicarios pumºr? percensuit, sed duplicato XXX siclorum pecunia, hoc est, LX argenteos volumus dare ecclesiae adulterantes, quia graves causae gravºores et acrºores guerºnt curas. * Report of the legates on the resolutions of the councils at Pºncahala and Celchyth, 787, c 10: . . . . Vidimus etiam ibi Episcopos in concil? is sufts secularia judicare, prohibui musque eos voce Apostolica : Nemo militans Deo Żmplicet se negotiis secularibus, ut E. mil?tet 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 Stubbs, Counc. III, 173):- { -- Book I c 4 $ 5: Si quis occiderit monachum vel clericum, arma relinquat et Deo serviat vel VII annos penitedt. In judºcło Episcop? est. Quº autem. Episcopum vel presbiterum occiderit reg's judºcºum est de eo. -- Book II c. 2 $4: Episcopus dispen sat causas pauperum w8 gue ad L solº dos, reac vero s? plºts est. - - - § 59] TO THE WORMAN CONQUEST 391 . 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. ... 1 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 payment 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 * Cf., however, Richter, Kärchen recht $257, note 9. * Penitential of Theodore (Haddan and Stubbs III, 173), Book II c. 2 $15: Non lºcet diacomo laïco penitentiam dare, sed Episcopus autº presbiter dare debent. Book II c. 6 $16: Nec mom libertas monasterić est penitentiam secu- larăbus judicamdam, Quia proprie clericorum est. From later times compare one of the two collections of capitula ascribed to the council of Winchester, 1076 (Wilkins, Conc. I, 365) c 11: Quod de criminibus solº episcopi poem?tentiam tributant. - - * Penitential of Theodore (Haddan and Stubbs, Counc. III, 173) Book 1 c 14 § 4: Reconciliatio ideo ºn hac provincia puplice statuta mon 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) c 4 $ 11; c. 8 $4; c 10 $ 6 (anno VI). Dialogus Egbert? (Haddam and Stubbs III, 403) c 12. - 392 ECCLESIASTICAL COURTS [V, 14A later age the church 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 willing 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." 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 judicial 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. Turing 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 Ecclesiae et Privilegºs Ecclesiae Cantwardensis, cum Archiepiscopis eiusdem 70. Lambeth, 1572, p. 98. Eac lib. Constitutionum Ecclesiae Węgorm. pag. 101. [Printed also after Parker in Wilkins, Concilia I, 367]: . . . Laic; sº de crèmène Suo accusati fuerint, et Episcopo Suo obed?re moluerint, vocentur semel, et iterum, et tertão. Så post tertiam vocationem emendar? [Wilkins: emendarej molwerint, eaccommunºcentur. S. autem, post eaccommunicationem, ac [Wilkins: ad] satisfactionem venerint, forêsfacturam swam quae Anglice vocatwr of rhyrnesse sew lahslite, pro umaquaque vocatione Episcopo swo Teddamt * Both contentions are often made. The words in § 2: ww.llus episcopus vel archidiaconus de leg ibus ep is cop alibus amplius in hundret placita temeant must be understood to mean the same as: non causam quae ad + e g : men an imaru m pert à met, ad judicium secularium homºnum adducant. In § 4 to the words mec aliqués laicus homo alium hom?mem sine justátia episcopi ad judicium adducat we must supply ºn causis quae ad negimen animarum pertiment. a Bigelow, Melville Madison. History of Procedure in England from 1066 to 1204. London, 1880, pp. 25-75.-Friedberg, Emil. De finium inter ecclesiam et civitatem regundorwm judicio quid medii aevi doctores et leges statuerint. Leipzig, 1861 § 3.-Gibson, Codex, tit. 47 and tit. 49.—Reeves, History of the English Law; especially co 3 and 25.-Stubbs, Comst. Hist. c 19 $$ 399–402. § 60] FROM WORMAN 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 development 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 assumed 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, Reac Anglorum, Samson? episcopo, et Urson? de Abetot, et Omnibus baronibus suis, Francis et Anglés de Włrecestrescira salutem. Sciatis quod concedo et precipio, ut amodo comitatus me? et hundreda in illès locês et eisdemy terminis sedeant, sicut sederunt in tempore Regis Eadward?, et mom aliter. Ego enºm, quando voluero, faciam ea satis summonere propter mea dominica necessaria ad volumtatem mean, Et s' amodo eacurgat placitum de divisione terrarum, si est inter barones meos dominicos, tractetur placătum in curia ‘mea. Et s' est inter vavassores duorum dominorum, tractetur Żm comitatu. El hoc duello fiat, misè in eis remanserit. Et volo et precipio, ut ommes de comitatu eant ad comitatus et hundreda, sicut fecerunt in tempore regis Eadwardi, mec remorent propter aliquam causam pacem meant vel quietudº- Tem, qui non sequwntur placita mea et judicia mea, sicut tumc temports fecerumt. (Rymer, Foedera 4th Ed. I, 12. A somewhat different wording in Cottonian Liber Custwmarum (Rer, Bråt. Scr. No. 12) II, 649 and ſad Ommes fideles] in the law-book, Quadrápartitus, 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) Deg. Henr. I c. 7, which then declares the law in regard to the holding of county courts to be :— § 2. Intersânt autem, episcopi, comites, vicedomini, vicarić, centenarić, aldermann?, praefect?, praeposité, barones, vavasores, tung rević et cae ter? terra ru m doºm in , diligenter intendentes, me malorum impunitas, aut gºwn pravitas, vel judicum subversio, solita miseros laceratione con- 'cèant. § 3. Agantwr itaque primo deb it a vera e chºr is tº a nºt at is jura ; Secundo regis placita ; postremo causae singulorum digm's satisfactionibus eacpleantwr ; . ſº § 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 of William I (see above, note 3). In § 3 christian?tatis 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. c 3: Ubicumque justitia regis vel alia qualeibet justátia, cujuscumque sit, £enwerdt placita vel just?tiam, sº minister episcopé (according to another reading: episcopus) fuerit et ostenderit caws a'm sanctae ecclesiae, ipsa p r us ad finem deducatur, ad quem finem poterit rationabilius eo die . . . * See § 4, notes 50 ft. Cf. also the articles passed by the clergy and barons of Normandy, 1190 (printed in Radulf de Diceto, Ymagines Historiarum, Rer. Brit. Scr. No. 68, II, 86 f). 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 [1285)' and by the Articuli 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. III st. 3 (1344)," and the charter of Edward IV in 1462.10 1. PARTICIPATION OF ECCLESIASTICAL PERSONS IN TEMPORAL COURTS. 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 :— • . Petition of the English clergy, 1237; printed in Ammal. Burton (Rer. Brăt. Scr. No. 86; Annales Monastic?) I, 254, - , Complaint of the clergy and king's answer (circ. 1245?), printed in Cole, Documents 354. . . . § . Complaint of the clergy at the council of London, 1257; printed in Wilkins, Concilia I, 726. . Articles of the clergy, 51 Hen. III (1267/8); extract in Coke, Inst. II, 599. . Petition of the clergy from the years 1279–85 and king's answers; in Hès- torical Papers etc. from the Northern Registers (Rer. Bråt. Scr. No. 61) 70 ft. (The document stands among others of the year 1284.) - . Petitions of the clergy, 1280 and 1300, with the king's answers; printed (in the petition of 1309) in Wilkins, Conc. II, 316 ft. . Articulê episcoporum, 1285, with king's answer; printed in Wilkins, Comc. II, 115. . Petition of the bishops of the province of Canterbury, 1285; printed in Wilkins, Conc. II, 117. & . Articut, quibus videtwº’ ecclesiae praejudicarz per statuta domini regis wltimo edita in Suo parliamento, 1285. Wilkins, Conc. II, 119. 10. Petitions of the clergy, 1309, Wilkins, Conc. II, 314, 315 fſ. * Cf. § 4, note 71. - * Cf. § 4, note 107. * Cf. § 4, note 109. * Extract in appendix IX. * Henry Adams, The Anglo-Saacon Courts of Law, pp. 27 ff. in Essays in Anglo-Saacon 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 powers, though not conferred, may have begun earlier. * Cf. the instances collected by F. W. Maitland, Select Pleas in Seignorial Courts, Introduction p. xxvi; for the Selden 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, for 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.” \ \ .2-/ <-- , S: , ~~ * 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 bdromum, magmatum, dom?morum). * [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 villemage was transacted. The judge was the lord of the manor or his deputy. - - 2. The curčd baron’s (=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 ‘courtleet'). This had criminal jurisdiction in minor cases over all inhabitants of the district.] B. People's courts. 1. Curia parva hundred? (= the old hundredgemot). 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 hundred-moot which was designated turmus vicecomités. The judges were the Suitors. 2. Curia com?tatus (=scºrgemot). Competent for minor civil and intermediate criminal causes. The judges are the Suitors. 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. 1. Turnus vicecomités = curia magma hundred? (=great court-leet). 2. Forest courts. 3. Assize courts, 4. The curia regjá. The judges/ſm these courts are royal officers, the vicecomes (=scirgeréfa) and justiciaráž. Cf. on the above Gneist, Verfassungsgesch. § 10, § 19 ""; F. W. Maitland, Introductions to Select Pleas of the Crown and Select Pleas in Mamorial and other Seignorial Courts (Selden Society, 1888 and 1889); Stubbs, Const. Hist, I, 114 ft., 424 f. c 5 § 46, c 6 $$ 128, 129. ** * Instituta 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, them, 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;* i110) III c 58: Quôd epíscopê ín saecularíbus legîbus : Epíscopó ám- primis ecclesíastícam habeant correctâonem, et chrístíanam, domìnatìonem super omnes, quos debent docere et ante judícíum, Deâ eos ducere et praeire ; án, 'multis tamen, locis secundum, jùstitìam ìm, sua proprîa terra et ám, satis vállás debent habere constitutíonem hundredi, quod Anglí dícunt * hundred setene' et pretium, latronum íntra termêmos eorum proclamatorum et ìnfectam, ênvasíonem, quod dícítur * unworte hamsocne,' toll et team, et correctíonem Jatronum, quousque sânt condemnatâ ad mortem. Leges Henrícá I c 20 § 2: Archiepìscopi, epìscopì, comîtes et aliae potestates, ín terrìs propriae potestatis suae, sacam, et socnam habent, tol et theam, et érfongentheaf; ín caeterìs vero per emptíonem, vel cambîtîonem, avel quoquo modo perquísítás, socam et sacam habent, ín causis omníbus et hallemotis pertínentíbus, super suos et án, suo, et aliquando super alteríus homêmes . . . •r Leg. Ed. Conf. (law-book ; probably begimming of 12th cent.) c 4: Quęcunque de ecclesía tenuerít, vel ín feudo ecclesìae manserìt, alícubi eactra curìam eccle- síastícam non placitabit, si in, aliquo forisfactum habuerit, donec, quod absit, án, curia ecclesíastíca de recto defecerìt. c 21: Archiepîscopâ, epìscopâ, comites, barones et milites suos et proprios servîentes suos, scílícet dapáferos . . . sub suo fráòborgo habebant (amother MS. : habeant) . . . ; quod si îpsâ foris- facerent, et clamor vícinorum ìnsurgeret de eîs, îpsâ haberent eos ad rectum à m cur â a sua, si haberent 8acham, et socham, tol et theam, et ínfamgenethef. *° Leg. Hem. I (law-book ; probably 1110—1118):— c 7. De general îbus placát és com ítatuum, quo modo vel quando fíerí debeant. § 2. Intersánt autem epíscopì, comites, vicedomênâ, vícaríí, centenaríí, aldermannô (om the meaming of this word see mote 15), praefectâ, praepositâ, barones, vavasores, tungreviâ et caeterì terrarum, dom ín í , . . . § 7. Sí quís baronum, regís vel alíorum comitatuâ secundum legem ínter- .fuerít, totam terram, quam îllâc în domênêo suo habet, acquîetare poterá (the sense seems to be: “ them the other inhabitants meed not come ''). Eodem modo est, sí dapęfer ejus legítíme fuerìt. [Sommer proposes to read ínterfuerít. Dap?fer = semescallus, steward, the chief domestic officer, court-holder and deputy of baron.] Sę uterque necessarío desât, praepositus (=tungeréfa ?) et sacerdos et quatuor de melíoríbus víllae adsênt pro omníbus, quâ nomêmatám non erunt ad placátum, sub momêtê. § 8. Idem, în humdredo decrevimus observandum âm, locis et vîcîbus et judicum, observantís, de causis sángulorum justis eacamínatíoníbus audíendís, de domíní et dapóferâ, vel sacerdotis et praeposítá et melíorum, hominum praesentia. c 8. De hwmd retís temendês. (The reference is mot to the old hundred- moot but to the visus francplegi? [view of framkpledge], from which the turnus vîcecomitis was developed.) § 1. Specíal í tamen plenítudíne sâ opus est, b îs în anno conveniant în hundretum suum, quâcumque líberí, tam hudefest, quam folgaríí, ad dêmoscendum, scilícet ìnter caetera, si decaniae plenae sìnt, vel qui, quomodo, qua ratíone recesserìnt, vel super accreveránt. Praesât autem sángulis hománum novemás decámus, et totâ simul humdreto unus de melíorábus, et vocetur aldremannus, quâ Deâ leges et homìnum, jura vìgìlantâ 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 placătăs. § 3. Interesse comitatui debent episcopi, comètes et caeterae (two MSS. have for Caeterae, ecclesiae] potestates, quae De; leges et seculi negotia justa. consideratione diffinºant. Cf. further the ordinance of Henry I (above, note 4) and the Assize of Claren- dom, 1166 (Stubbs, Sel. Chart. p. 143) c 8: Vult etiam domżnus reac quod Ommes wentant ad comžtatus 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), 7ta quod mullus remaneat pro libertate aligua quam habeat, vel curia vel Soca quam habuerit, quin venºant ad hoc sacramentum faciendum. * On the constitution of these assemblies see Stubbs, Comst. Hist, I, 128, notes 3, 4 c 5 § 50, I, 651, note 2 c. 13 $163, II, 215, note 1 c 15 $202. Cf. also Riess, Geschächte des Wahlrechts pp. 44 f. 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 Commission] I, 380): Reac Vice- COmºtº Ebor. Salutem. Summone per bomos Summonitores Ommes Archiepis- copos Episcopos Abbates Comžtes et Barones milites et libere tementes de tota Baillèa tºta, et de qualibet villa 4 legales homºnes et praepositum et de quolibet burgo 12 legales burgenses per totam Bailliam tuam et Ommes allos de Baillia, tua quº coram. Justic??s it?neramtābus v em. Å re solent et debent. e Tater instances of such summonses in Rot. Claus. I, 403 (year 1218), 473 (year. 1220), 476 (year 1221), Royal Letters (Rer. Bråt. Scr. No. 27) I, 395 (year 1235). Formularies in Bracton (Ber. Bråt. Scr. No. 70) II, 188, 190. * Cf. § 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 office. See here Stubbs, Comst. Hist. I, 132 c 5 § 50. At that time alolermannus often had its original meaning ‘the eldest,’ which is applicable to many different positions. On a particular kind of aldermann?, apparently heads of police in the hundreds see leg. Hen. I c. 8 $ 1 (printed in note 13). * Example from time of Henry II (perhaps 1159) in Chrom. Monast. Abingdom. (Rer. Bråt. Scr. No. 2) II, 222 (cf. 545): Henricus . . . justici?s suis, in quorum baillès abbas de Abbendonia habet terras, salutem. Permºtto quod. abbas de Abbendom?a mºttat servescallum swum, vel aliquem alium, ºn loco Suo, ad ass?sas vestras et ad placºta. Eł żdeo praecipio quod recipiat's Semescallum. Sww.m., vel al?um, quem ad vos miser?t loco Suo. - * Letter of Henry III, 1234, Amm. Dunstapliae (Rer. Bråt. Scr. No. 36. An- ºvales Monastic?) III, 139 : . . . ad . . . hundreda, wapenthakia, et Curias [magmatum], non fiat general is Summon?tio, s?cut ad turmos. . . 20 Hen. III (1235/6) Stat. Merton c 9: Provisum insuper quod quilibet l iber. homo quº sectam debet ad Comitatum, Trithingam, Hundredum, et Wapen- 398 ECCLESIASTICA L CO U R TS [V, 14A ' At the turnus vicecomitis tOO, spiritual persoms had Originally to appear as Well as laymen. On those in higher station and on monks the duty ceased to be incumbent SOom after the middle of the .thirteenth century ; but the right to summom them upom occasiom was still retaimed ; SOOn afterwards the sames exemption was also applied to clerks.** 19 - - ' tachêum, vel ad curiam dominâ suî, líbere possít facere attornatum suum ad sectas îllas pro eo facìendas. Cf. also complaimts of the clergy at the provincial coumcil of Londom, 1257 (Wilkins, Concílía, I, 726) c 85: Item, ratione hujusmodò possessíonum (scil. per líberam, eleemosynam), reae et alíí magnates nituntur compellere episcopos, praelatos, et relígíosos, et rectores ecclesiarum facere sectam ad curíam láìca- lem. c 47: Item, cum non, consueverìnt praelatâ, vel vêrô ecclesíastícá amercâarê pro communíbus summonítíoníbus án, adventu, justítìarìorum, modernis tem- poríbus a mercâantur passám índífferenter, et graviter, s% non compareant príma díe tam coram, justítíaríís ítínerantìbus, quam coram, justítíarís de foresta. Similarly council of Mertom, 1258 (Wilkins, Conc. I, 739 after Ann. Burtor.). *° 43 Hen. III (1259) c 10: De Turno Vicecomitês provìsum est ut necessaríe non habeant ìbì venêre Archáepìscopâ, Epìscopâ, Abbates, Priores, Comites, Barones, nec alîquâ relígíosâ seu mulíeres, nísí specíalíter eorum presencía eœâgatur ; . . . Set teneatur Turnus sîcut temporíbus predecessorum, Domênâ Regís tenerâ consuevât. Et sâ qvâ în humdredîs dîversìs habeamt teme- menta, non habeant necessarie ad hujusmod? turnum, venêre, nísí ín ballâvês ubi fuerìnt conversantes. Et teneantur Turnâ secundum formam Magne Carte IRegís et sícut temporíbus Regum, Johannós et Ricard â tenerâ consueverunt. Similarly 52 Hen. III (1267) Stat. de Marleberge c 10. ErittOm (c£rc. 1291/2), Book I c 30 § 2: A queus tours touz les frauncs del hundred et autres terres tenaunt2 . . . deyvent venêr, hors p r ? s clers gemt 2 d e rel ? g í o u η et fe m m e s. - Cf. also W. Hudsom, Introductiom p. lxvii to Leet Jurísdòction êm the City Qf Norwich (for the Seldem Society, 1892). * 1. The development in the case of the royal forest courts resembled that in ?; ;• of the turnus vicecomitis. (Cf. Stubbs, Const. Hist. I, 484 ff. c 11 § 180. Assize qf Woodstock, 1184 (Hovedem [Rer. Bröt. Scr. No. 51] II, 245; cf. Intro- ductiom to Benedict [l.c. No. 49] II p. clxi) c 11: Item reœ praecepit quod [archíepíscopâ, epîscopô] commótes et barones et mêlâtes et líbere tenentes et omnes homónes veníant ad summonìtìonem magìstrì forestarêâ suâ, sicut se defendâ volunt ne încîdant în miserìcordîam domênâ regís, ad placítandum placáta domênâ regís de forestis suìs, et alía negotia sua facienda în comitatu. (Simi- larly the new form of this assize, promulgated in 1198, c 12; Hoveden [Rer. Brìt. Scr. No. 51] IV, 64.) - EIovedem IV, 62, year 1198: . . . supervenìt alíud genus tormentâ ad con- fusàonem homínum regnô, per justítíaríos forestarum, vídelícet per Hugonem, Neválla, summum justátíaríum omníum forestarum regís în Anglía, quâ cog- momêmatus est Cuvelu, et per Hugonem Wac, et per Ermásáum de Nevólle. Prae- dôctás ígítur justítíarês forestarum êtênerantíbus praeceptum est eac parte regis, ut per sángulos comitatus, per quos ípsí ãturâ essent, convenírent cora® eâs ad placáta forestae archîepíscopâ, epìscopâ, comètes et barones, et omnes líbere tenentes, et de unaquaque vîlla praeposìtus et quatuor homónes, ad audí- enda praecepta, regís. • Magna Carta of 1215, art. 44: Homêmes quâ manent eætra forestam non venâ- ant de cetero coram justâcîaríís nostrís de foresta per communes summonítíones, nás? sânt ín placáto, vel pleggê? alícujus vel alíquorum, quâ attachíatí sínt pro foresta. Carta de Foresta of 1217, art. 2 almost idemtical.—Cf. complaints of the clergy im 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 Richard I. The institution first became a permanent one by 34 Ed. III (1360/1) c 1. Gneist, Verfassungs- gesch. § 19%. Stubbs, Comst. Høst. I, 546 c 12 $ 150 and preface p. C to Hoveden (Rer. Bråt. Scr. No. 51), vol. IV. x * For the older regulations see § 59, note 9.—Cf. also the law-book (probably beginning of 12th cent.) leg. Ed. Conf. c 9: De illès, quº judicium faciunt aquae vel ferri calèd? : Assit ad judicium minister episcop? (another reading: epis- copus) cum cleric's Swis, et justitia regis cum legalibus homºn?bus provinciae Zllºws, ut vidednt et audžant, quod omnia aequefiant, tº e * 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 Rymer, Foedera 4th Ed. I, 154. See also Márrour awa, 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. * Eccles? as tº car wºm, person a rum et on m i u m, cler & coru m et rerum eorum just? tº a m et potestatem et distributionem bonorum ecclesiasti- corum in manu episcopo rººm esse perhäbeo et confirmo. See full text of charter in appendix II.—Cf. also Henry of Huntingdon (Rer, Bråt. Scr. No. 74), Book VIII $ 21 p. 276: Octavo ammo (1143) reac Stephanus interfuit concilio Lundoniae in media Quadrages?ma. Quod, quia mullus honor vel cleric's vel ecclesiae Dež a raptoribus deferebatun', et aeque capìebantur et redimebantur cleric ut laïci, tenuit Winton?ens's episcopus, urb's Romande legatus, concélèum. apud Lundomżam, cleric's pro tempore necessarium. In quo sancătum est, me aliqués quº clerico violenter manus ºngesserit ab alºo possit absolvč quam ab. *pso papa, et in praesentia Žpsius ; unde clericis aliquantulum serenitatis via: gllwacºt. * Cf. § 4, near note 35. * Cf. § 59, note 14–The contradictions that the law-book (probably written 1110–18) leges Henric; 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 Liebermann in Forschungen 2\ºr Deutschen Geschächte, 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 in 4OO ECCLESIASTICA L COU R TS [V, 14A furthermore, influenced in mo slight, degree by the bringing together of ecclesiastical decrees in the collections made in the eleventh and beginning of the twelfth century, amd afterwards in the Decretum of Gratiam (1141-50). Fixed rule of law upom 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 G 8 § 6: Sed de hís omníbus plenâ- orem suggerunt ventura motítíam, sìcut Ed ward í beatíssímí príncípís eaestí- tìsse temporíbus certís ómdîcîs et fida relatíone cognovámus. Et sô quôd prqfessonâ nostrae congruum praecedent?um vel sequentìum capítula docue- rínt, síve jure naturalâ, vel legalâ, vel moralâ, gaudeant ínstítuto, et hoc lícet multa compositorum varìetate mêmus plene peregerím, bonam saltem volunta- tem, ubîque 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 oWm day. This view is favoured by the admission of the special provisions asto Francigenae in c 18; 48 § 2; 59 §§ 5, 20; 64 § 8; 75 § 6; 91 § 1; 92 §§ 10, 11 and others; by the admissiom of a charter of Henry I as cc 1 and 2; and by the commencement. of c 7 § 1: Sícut antíqua fuerat ínstítutíone formatum, salutarí regìs ìmperío, vera nuper est recordatíone firmatum (the ordin. on humdred-moots is meant, above, note 4). The referemce to Edward in c 8 § 6 is to be explained by the. fact that the first Normam kings always confirm the leges Eduard í to express that the old law was to remaim fundamental. The following passages of leg. Hem. I are relevant here :— c 5 De causarum proprietatíbus. § 7. Sancátum est ìn causa fide? vel eccles ? ast ? c í a l ? cw? us o rd í m ? S, eum, judìcare debere, quâ mec munere ìmpar sìt, mec jure díssímílís ; et mihîl fiat absque accusatore . . . è § 8. Sìcut autem, mec cleríc? laïcos, ita mec laîcâ clerícos ?n suôs accusat?on- ¢bus vel ìnfamatíoníbus debent recípere. § 22. Quę sacerdotem ante famílíarem commonítíonem apud suos judíces aliquando, vel apud seculare s u m qwa m accusaverít, anathema $it. [Cf. im Richter § 206, notes 24 ff. the Frankish regulations to the same effect.] c 52 De proprio placáto regís. § 1. Sí quís de placáto proprio regìs ìmplacitetur a justítia ejus, * o* § 2. Cl e r á cú s p er com s í l í u m – prael at í s u ? v ad í u m dare debet, cu m dederít í m accusat ? o m e. • .. c 57 De querela vìcìmorum. § 9. Cum clerico, quę uacorem habeat et firmam teneat laïcorum, et rebus eoctrínsecâs secularìter deditus sit, seculariter est disceptandum. De ¢llis, qαι ό ad sacros or d ? m e s pert í m emt, et eòs, quę sacris Ordíníbus promoti sunt, coram p raelat ? s s u ? s est a ge nd vt m de o m η έb u s ¢ m culp at åom? bus, m aac? m á s vel, m, â morìbus. c 64. » § 2. In furto et murdro et prodítíone et ìncendio, et domus ìnfractìone et eós quae ad dísfactíonem pertìnent (= for which the pumishment is muti- latiom), omnes fracto sacramento (a solemm form of the Oath ; in what it consisted is disputed) jurent ím, Westseaca, eacceptós thaêmês, et presby- ter à s, et eis quâ legalítatem suam în mullo dímínuerunt. Híí de qua- cumque compellatíone, capitalâ vel com/muni, plane jurabunt (the simplest form of oath), congruo numero consacramentalíum, § 8. Mássae presbyterâ et secularìs thaênâ jusjurandum ? cOmputatur aeque eorum ; . . . § 8. Sacerdos quâ regularem vitam ducat, êm sêmplācā accusatíone solus, án, trîplîcî cum, duobus ordînîs suâ juret. Diaconus ín símplící compel- latíone cum duobus, ám, tríplící cum seæ díaconíbus se allegíet. Plebejus sacerdos purget se sicut regularìs diaconus. Presbyter, ab epíscopo vel archîd îacono suo accusatus, se seacto juret sacerdotum legátámorum, sícut ad móssam paratc^um. ??, Ànglorum lege § 60] FROM WORMAN CONQUEST TO THE REFORMATION 4OI 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: Roger de Hoveden (Rer. Brit. Scr. No. 51) I, 219; Eodem anno (1163) gravis discordia orta est inter regem Angliae et Thoman Cantuarèensem archiepiscopum, . . . Rea enim volebat presby- teros, džacon0s, subdiaconos, et alios ecclesiae rectores, sº comprehens; fužssent ?n latrocinºo, vel murdro, vel felon? a, vel in igua combust; one, ve! ºn h : 8 s?'m lºbus, ducere ad saecularia eacamána, et pun?re sicut et laï- Cum. Contra quod archiepiscopus dicebat, quod s? clericus ºn sacr’s ordinº- bus constitutus, vel quilibet alius rector ecclesiae, calumniatus fuerit dé alºqua re, per viros ecclesiasticos et in curia ecclesiastica debet judicari ; et 8% convictus fuerit, ordines suos amºttere; et sic alienatus ab officio et beneficio eccles?ast?co, sº poste a foråsfecerit, secundum voluntatem regis et bailivorum Suorum judºcetur.—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 regn; sui, enorm; insolentium quorundam clericorum eſcCessu, non mediocriter aliquando turbari cognosceret, clero debitam eachibens "everent?am e o run dem eaccess us ad ecclesiae judº ces retul ăt epis- copos, ut, gladius gladio subveniret, et pacem quam regebat et fovebat in populo, spiritual’s potestas fundaret et solidaret in clero. Qua in re partis wirčusque &elus innituit: episcoporum in hoc stante judicio, ut homº- cºd? wºm, et sº quid ejus mod? est, eacawctoratione sola pun:retur in clero: Tégé pero eacăstºmante poenam hanc non condigme respondere flagłłło, nec stab?!?endae pact bene prosp?ci, si lector aut acolytus perimat quenquam praeclara nºtentem virum religione vel dignitate, ut sola jam dict ordānās amissione tutus eacăstat.—Gervasius, Chronica (Rer. Brit. Scr. No. 73) I, 174: Féc autem. . . . . . . .jura ecclesiastica quaerebat conterere, et quoslºbet clericos Ød Saecularia judicia contorquere. Sed cum vidžsset archiepiscopum Cantuar- Žens's ecclesiae suffs comatibus velle resistere, occasione cujusdam cleric' quem archiepiscopus citra canonum auctoritatem sustinere noluit, in forg saecular: dé crºmºne sib% objecto contendere, nec, sº in ecclesiastico judicio con- v?ngeretur, voluit quamvis eacauctoratum saecularăbus potestatibus relinquere ſpun?endum.—According 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 Cantuar- iensis, Vºta S. Thom. (l.c. I, 12), the king, forsan 2elo justitiae ductus, caused the new proceedings. 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 of graver offences after the deposition of the guilty person by the ecclesiastical court there should be a further punishment by the secular court for the same offence. With this view the substance of the constitutions of Clarendon coincides. The proceedings reported by Grim and Willelmus Cantuariensis against a clerk acquitted by 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 request at once delivered up again to the arch- bishop, without judgment being pronounced by the secular court. - H.C. D D 402 ECCLESIASTICA L COURTS [V, 14A (the question who was to decide On the extent of the proceedings before the ecclesiastical court was left opem); if them 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 vonstitutions of Clarendon was rejected by the pope. The treaty of Avranches (1172) contained no specific declaration either way.*' An agreement upom the question was subsequently made (1176) betweem the king and legate Hugo. It laid down that, in criminal eases, for the future mo clerk should be brought in persom before a secular judge except for some offence against the forest, laws or in respect of some service due by reason of feudal temure 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 om * e, 8: Cleríeá retatâ et accusatâ de quae u m q ue re, summonitę a justítía regis, venìent án, curâam, ípsíus, responsurâ ïbïdem, de hoc unde vídebátur cur íae re g í s quod sít óbì respondendum, et ên, curía ecclesíastíca unde víde- bátur quod óbídem sât respondendum. Ita quod justítía regís míttet ám, curìam, sanctae ecclesiae ad vídendum, qua ratione res âbâ tractabātur. Et s à cl e r ? c u s com v έctus vel confessus fuerít, non debet de caetero eu m eccle- s ? a tuer ?.—The interpretation reproduced in the text is established by F. W. Maitland im The English Hóstorìcal Review, 1892, pp. 224 ff. * Cf. § 4 motes 50, 51. : * . . . Vídelícet quod clerícus de caetero non, trahatur ante judicem seeu- larem, ín persona sua de alíquo c r á m á mal â, neque de alíquo forâs facto (Roger de Wendover translates forisfactum, by transgressêo; but compare below, note 47), eaccepto forâsfacto forestae mea, et eaccepto laïco feodo unde mœchâ vel alíâ dománo secularâ laícum debetur servâtêum, ; . . . (Printed more fully in § 4, mote. 54; the words crêmênalí amd forísfacto indicate here the opposition betweem graver and minor offences.) *° The ecclesiastical coutt had, of course, as im the Anglo-Saxon period, sole competence in disciplinary proceedings agaimst clerks or higher spiritual per- sons.—Cf. also 1 Hen. VII (1485) c 2: . . . qέl soit loiall a toutz erchevesqes et Evesqes et autre Ordínaríes aiant2 epìscopall jurísdiccion, de puníer et de chastâser tiels p re ster s Clerk s et h om m ez rel ? g í o u se 2 esteant2 dedeám2 les boundez de lour jurìsdìccìom, quels seront convícte2 devant euac . . . de ad vo utrâ e (= adultery) form â ca c í om, â mcest ow aw sc u m aute r carnall ¢ m comtâ memc£e, par commìttance de euac agarder all präsom ílloqes a demurer par tiell temps come semblera a lour díscrecions conveníant pwr la qualite et quantóte de lour trespas, go 80 For example, Artículí epìscoporum, 1285, c 5: ut clerìcì ìncarceratâ, quotíes et quando requíruntur, restituantur praelatís, sicut alías est conces- sum. Respoms ? o re g 3 s: Cancellaríus íntelligãt, quod clericâ captâ debent statêm epóscopís restítuí, quotíens regem, vel justítáarìos requêrê contíngít. (Wilkins II, 115.) • Am inference is drawm from this recognition in 52 Hen. III (1267) Stat. de Marleberge c 27: Sí clerícus alíquis pro crêmêne aliquo vel recto quod ad coro- mam, pertíneat arrestatus fuerít et postmodum, de precepto Regís ín ballíum traditus vel replegíatus eætíterít, Ita quod híá quíbus tradítus fuerít ín ballîum eum, habeant coram Justicâaríís ; mom a mercáentur de cetero íllí quíbus tradí- tus fuerít ín ballium, vel aliâ plegîâ suâ, sì corpus suum habeant coram Justâ- cíaríís, lícet coram eis propter prívílegíum clerícale respondere nolít vel non possít. - - § 60). FROM WORMAN CONQUEST TO THE REFORMATION 403 the part of the state reached their greatest extent in Edward TV’s charter of 1462, ratified in 1484 by Richard III.” . 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.” º By privilegium 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 of 1462 in append. IX. * Cf. Reeves, Hist, of Engl. Law c 27, Ed. 1869, III, 164 fº. This continued to be the practice even after 25 Ed. III 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 Ass. 19 (cited in Reeves, l.c., 3rd Ed. III, 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. I c. 57 § 9 (above, note 24). Liber Seactus I, 12 c 1 Gregorius X £n concilio general: Lugdunens? (1274): Altercationis antiquae dubium prae- sentis declaration?s oraculo decidentes, bigamos omn? privilegio clerical: declaramus esse nudatos, et coèrcition? for saecularis addictos, consuetudine contraria non obstante. Ipsis quoque sub anathemate prohibemus deferre tom- swram vel habitum clericalem. 4 Ed. I (1276) Stat. de Bigamis c 5 likewise declares the temporal judge competent. Fleta, Book I c 32 $ 34: Bāgami vero et Sacrileg; ab omn? Privilegio Clerå- cală şunt interdicti, non obstante in Consilio Lugdun. ejusdem Constitution’s nevocatione. Mºrrowr awa, Justices c 3 s 5: Eacception de Clergy est ascum. fožts encomberable par replication de Bºgamy en cest manere: . . . The above axiom of law is also assumed in 18 Ed. III (1344) st. 3 c 2: Item. ge s? nul clerk soit are?nez devant noz Justices a notre suyte, ou a la suite de partie, et le clerk se tiegne a sa clergie alleggeant gºl ne doit devant evºc sur ce Tespoundre, et s? homme luž surmette pur news, ou pur la partie göl eit espºusez dewa: femmes ou une veue, qe sur ceo les Justicz nežent conisance ne poer de trier, par enquestes ou en autre mamere, la bygamye, einz Sožt mandez a la Cowrt Cristiene, come ad este fait en cas de bastardie ; et tantge la certification soit mande par lordinarie, demoerge la persone, en quele bigamie est alegge par les paroles susdátz ou en autre manere en garde; sil me soft me?mpernable. * Mºrrowr awac Justices c 3 s 5: . . . Et pur ceo que appent a dire, en quelle point Clerke est Bógame, sé que la Bigamy soit triable en Laïc Court, s? jurées, nequidant déent que ils ne scavoient; adonques appent celle certifica- tion venir del Ordinary al maundement le Roy si come en case de matrimony dédit.—18 Ed. III (1344) st. 3 c 2 (note 33).-Charter of Edward IV in 1462 (append. IX).—Similarly the ecclesiastical courts decided in cases where the guestion 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, 328). Fleta, Book VI c. 19. For an instance in 1101 see Bigelow, Placita Anglo-Norman- nica, 79. - - * 9 Ed. II st. 1 (1315/6) Art. Cler; c. 15: Item licet clericus coram secular? Judice judicar; non debeat, nec aliquid contra £psum fieri, per quod ad peri- cºllum mortés vel mutilacionem membré valeat pervenárá 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 never 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.” s 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 office 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, Comst. Hist. III, 52 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 Reeves, Hist. of Engl. Law c 16, 3rd Ed. III, 188; cf. further e.g. Annales Paulini (Ber. Brit. Ser. No. 76) I, 355, year 1832. 87 Cf. below, near notes 69 ff. * A restriction on these exceptions is contained in 18 Ed. III (1344) st. 3 c 1: qe nul Ercevesqe ne Evesque me soft empeschez devant noz Justices par cause de crime, s? nous me le comandoms especial ment, tamtge autre remedie ent soit ordeignez. Cf. here the order of Henry IV, 28th Jan. 1400 (Rymer, Foedera 3rd Ed., III Pt. IV p. 176). * That the accused could also demand to be delivered up to the bishop, is several times expressly admitted; especially in the charter of Edward IV, 1462 (in appendix IX). Cf. further e.g. 18 Ed. III (1344) st. 3 c 2. But in other places we find the necessity of application by the bishop, referred to. Cf. Gib- son, Codeac 1124; Reeves, as quoted, III, 138; Letters of archbishop Peckham (13th and 29th March, 1284), in Rer. Brit. Scr. No. 77, II, 690, 699, Robert de Marisco (below, note 43), on the other hand, declares that only a generale, not a speciale, mandatum of the bishop was required.—See also Bracton, Book V, tract. 5 c 13 $ 6 (VI, 240): Et secundum quod dºcłtur, quod laicus mom poterit renunciare ford secular in praejudicium regiae digm?tatis, eodem modo widelur quod nec clericus, s? vel?t in causa criminal? vel alia cujus cognitio pertineat ad ecclesiasticam dignitatem et ordinem clericalem, . . . Simi- larly Mårrour aude Justices c 3 s 4. " . . 40 Cf. Stubbs, Const. Hist. III, 355 c 19 $ 399.-Complaint of the clergy at the synod of London, 1257 (Wilkins, Conc. I, 726) c 15: Item cleric; sic capti [super § 60] FROM WORMAN 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 ºn 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 crèmène, furto vel hom?cidio, vel aliqua alia felonia] plerumque in habitu clericalá, inventi, antequam ab ordinarić's ecclesiastic's repetamtur, sew repet poss?nt, suspendumtur; et quandoque capita eorum radwntur, ut cleric; mon apparednt et sicut lałcz judicantwr. Quandoque cum repetuntur, differtur eorum liberatio ad tempus, et interim suspendumtur de nocte, vel hora prandii, me ad notătiam 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 $ 5 (WI, 164): . . . quamvis Sumt qui dècant, quod de nullo placito tementur (the clerks) respondere, nec ratione re?, contractus vel delict? Coram judice seculari, et Salva pace eorum, videtwr quod fit in omnibus actionibus et placités civilibus et criminalibus, praeterquam in eacecutione judicº in causa crèm?nal?, wbº laicus condemnandus esset ad am?ssionem vitae vel membrorum, et quo casu, Quamvis judeº secularis habet cognitionem, wi cognoscat de crimine, tamen non habet potestatem eacequendi judicium s?cut in caus's civilibus, non enim possit degradare clericum, g ; c. 9 $ 3 (VI, 206): S. autem criminaliter (in contrast to civiliter). agatur et super crèmène, judeoc ecclesiasticus non habebit jurisdictionem, licet habere debeat judic?? eacecutionem. In casu en?m Sangwānis judicare non potest mec debet, me committat irregularitatem. Pertènet àgétur (wt vådetur) ad judicem secularem cognitio, et ad judicem ecclesiasticum judicº eace- cutio , . . . Cf. also complaint of the clergy and king's answer, 1279–85 (Northern Regis- ters; Rer. Bråt. Scr. No. 61, p. 70) c 15: Item clericó incarcerată eac qua- cumque causa, civili vel criminalá, sive delicto, non liberamtur ordinariés, nási primo per laicos, prolato judicio contra eos. Ad quintum decimum articulum. Tespondetwºr's £c: Reac deliberabët. Letter of Peckham of 10th March, 1286 (Rer. Brit. Scr. No. 77; III, 919): coram justiciaráis . . . convictus, mobisque ordinario Suo psorum justiciariorum judicio, ut morès est, liberatus carcerali custodiae mancipandus . . . * Cf. the contention of the clergy in 9 Ed. II st. 1 (1315/6) Art. Clem” c 16: e . quamgwam confessio, coram illo gu% non est judeºc confitentis, non tenedt mec Sufficiat ad faciendum processum, vel sentenciam proferendum . . . * Hobart 289 and Keling 100, cited in Gibson, Codeºc 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, in 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 allowing him, on demand, his clergy. See also Reeves, Høst. of Engl. Law c 22; 3rd Ed. III, 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 Hen. VIII c. 1 (in note 44). *. Cf. above, note 26. * Treatise of Robert de Marisco on the privilegium clericorum in Ann. de Burton (Rer. Bråt. Scr. No. 36; Ann. Monastic?) I, 425, year 1258: Nullus laicus debet clericum in custodia publica vel privata, etéam sine violentia et laesione, deténeré, nec in publicam sive privatam custodiam aut carcerem detrudere; quod sº quis facere praeswºmpserit, in canonem incidit latae sen- tentiae, mºst cler?cus in gravāori, puta furto, hom?cidio, ºncendio, et similibus 406 ECCLESIASTICA L COU R TS • [V, 14A Preliminary civil proceedings were of importance because they led to the demand that a persom convicted in the civil (secular) court should mot be allowed by the ecclesiastical court to escape unpumished. That demand was, indeeû, raised; but never completely realized in practice.“ deprehensus fuerit : deprehensâ enìm ìn delíctís gravíoríbus comprehendí possunt et detínerí êm custodia, dummodo ìnterveniat mamdatum, praelatorum, quorum, jurísdêctíon? sunt subjectâ. Consuetudo ta m em regm ? An gl % a e est, quae revera corruptela est, quod su s p ect â de gravìorìbus crêmênîbus €0mprehendâ possunt per ballivos regìos, et ím custodia publíca detìnerì, donec ep?scopis fuerint líberatâ ; nec requirìtur speciale mandatum praelatorum, sed generale . . . Cf. complaint of clergy and king's answer (c£rc. 1245? Cole, Documents 856) art. 11 : Item gravantur eo quod aliquando contìngìt quod Clerici sême delectu, Personarum, quamquam ín facto deprehensâ mom fuerìnt, tamquam facínoros? vel suspectâ de crêmêne vel ìnjuria personali capîuntur per potentíam laïcalem, et ín carcere detínentur nec redduntur ordínaríjs suis eos petentìbus secundum, canones judícandi. Respons ìo : Clerícá propter homìcìdìa et alía hujusmodì flagęcia ín facto deprehensâ aut al í í appellat à seu pupl à ce de hujus- 'm, od â notat å et accvsatâ, arestantur per potestatem secularem, cum de $ubtractíone vel fuga îpsorum tìmetur, et suîs Prelatìs ad eorum requis?- cionem judicamd? postea líberantur. Writ of Edward I, 18th March, 1297 (Lìb. C'ustum., Ber. Bröt. Scr. No. 12, II, 213): cum . . . Ecclesía . . . hanc libertatem habuerìt ab antíquo, vídelícet, quod nullâ laíci (? laico) líceat presbyteros seu clerícos capere mee ímpręsonare, sêne mandato nostro special?, n í s , fuerãt pro al ? q u o quod contra pace m^, m, 6 stram, seu, pro h îò êt íomem, mostram fuerìt perpe- t rat vt m . . . In this writ it is prohibited that the might watchmen in Londom should arrest chaplains and other ecclesiastics for fornicatiom and adultery and confine them in the Tum ; quorum, sc. crìmónwm correctêo ad Forum Ecclesìasticum, et mon ad Forum Laïcum, manífeste dónoscátur per- tínere. The restriction contained in this writ was at the end of the fourteenth and in the first half of the fifteenth century mo longer observed. (Riley, l.c. p. xxix, note 1 and glossary p. 831 s.v.q.e. Tomellum.) ' . The provisional arrest of clerks in holy orders is forbiddem in Edward IV's charter of 1462 (append. IX). - ** Bracton, De Legìbus etc. (c£rc. 1230-57) lib. III, tract. 2 c 9 (Rer. Brit. Scr. No. 70, II, 298 ff.): § 1. . . . Cum . . . clerícus cujuscumque ordínís vel dignítatís, captus fuerít pro morte homínís, vel alío crêmême et impręsona- tus, et de eo petatur curìa Chrístíanítatís ab ordínarío locò sìcut archiepìscopo vel epíscopo vel eorum qfficíalí, vel alíís líteras praedìctorum, deferentíbus, �mpręsonatus ìlle statëm, eós delíberetur, s â me al ? qua à mqu á s í t í one înde facíend a, mom t a m. em, ut omm ? m o del áberetur ut vaga n s s ôt per patría m, sed sal vo custo d í a tu r, vel á m p ró sona îpsîus e p í scop ? vel à p s í u s regìs, sì ord â marìus hoc voluerêt, domec a erêmême sìbì ìm- posito se purgaverìt competenter, vel în purgatìone defecerít, propter quae «lebeat degradar?. . . . § 2. Cum, autem, clericus sic de crêmême convictus degradetur, non sequátur alia poena pro umo delícto, vel pluríbus ante degra- datíonem perpetratís. Satós enìm sufficãt eâ pro poena degradatío quae est magna capătîs dêmênutìo, másá forte convíctus fuerit de apostasìa, . . . S? autem sit alíquís ordínaríus quê ín eurìa Chrístíanítatís, clerìco sâc eâ líberato, pwrgatíonem, índícere (sême accusatore coram, eo de movo accusante) moluerìt, tunc fiat eâ breve eæ parte domónâ regís óm hac forma. § 3. Reae tali ordínarío salutem. Audívámus quod cum quâdam clerìcus de morte homìnìs rectatus, vel appellatus vel ìndìctatus coram justítíaríís mostrìs productus esset, et ìbì vobís sícut clerícus líberatus, ut se coram vobìs purgaret, et se ìnde redderet %nnocentem, s? posset, non, vultis (ut dócãtur) ad purgatìonem, procedere, másá sít alíquís, qu? de novo coram vobês êm foro ecclesíastíco versus eum prose- quatur, et ínstítuat accusatìonem. Et quom íam per accusatíonem factam ám, «3wría mostra, de morte îlla satis habetur suspectus, et per talem dìffamatìonem, § 60] FROM WORMAW CONQUEST TO THE REFORMA TION 407 2. The several Jcánds qf punáshable acts. It was mot im respect of all punishable acts. that exemption from temporal jurisdiction could be claimed. et índícta mentum, míhíl alíud restat másá quod coram vobìs admìttatur pur- gatío, quae quídem fíerí deberet, sì laïcus esset ám, curìa mostra, si ordo ímpedí- 'mentum non daret, et lícet nullus sequeretur, mos pro pace nostra sequ? deberemus. Vobìs mandamus, quod secundum, quae îdem talís se purgaverít coram vobìs, vel non, quod vestrum fuerit eocequam ênâ. Teste etc. i 8 Ed. I (1275), Stat. Westmónster I, c 2: Porveu est ensement, que kaunt Clerk est prês por ret (=charge) de felonie, e íl seít demaunde per le Ordí- maêre, íl lui seít lávere solum le prìvìlege de Seient Eglise, en tìel perìl com íl %apent (= y append), solum les custumes avaunt ses oures usees ; et le Rey amoneste les prelatz e lour enjoymt en la fe? qil là deêvent, e por le comwn prQfit e la pees de la tere, que ceauac que sunt emd ítez (=indicted) de tìel ret p ar solem pºne em queste des prodes homes fete em, la Court le Rey, em nwle manere me les del îvrent saum z du we purgacïon,; %ss % qe le Re y me át mester (= métìer) de metre ? aut re remed êe. JPetition of the clergy im 1280 and 1300 and the king's answer at the time (contaimed in the petitiom of the clergy im 1809, Wilkins, Concìlìa II, 818): Item clerícá captâ pro suspìcìone crêmênês per potentíam laïcalem, non statím, sìcut de jure fieri debet, suis ordínaríìs, ìpsìs petentìbus, líberantur, sed diu, detìnentur ín carcere contra clerìcalem et ecclesíastícam lìbertatem. Ad istum, artículum respondet reae et decrevìt, ut clerící captâ pro quocumque reatu, per ballâvos seculares, praelatís eorum requirentìbus, líberentur ; repraesentandâ tamen ab eîs în secularâ judícío, cum fuerìnt requîsîtâ, promuncìandí reí vel ?nnocentes per justítíar, regís sub testìmonìo laïcorum, ut hactenus fierí com- suevât. Quodsâ praelatus clericum hujusmodè mom, repraesentaverit, centrum, líbr. sterláng. domino regí solvere compellatur. Item tales clerící, quâ, postquam, ìmquêsêtêo laïcorum, eae Qfficîo tantum recepta, contra ?psos ín foro secularâ deponãtur, suo ordämario, ut et justum, finalíter líberantur ; . . . . , non lìbere, sed sub poena centum, líbr. pro evasione traguntur ordínarás memoratís. Ad ìstum artículum máhól respondetur, . . . Βritton (cêrc. 1291—2) Book I c 5 § 8: Et sê le clerk encoupé (= ?nculpé) de felonìe alegge clerg?e, et êl soìt tel trové et p ar ord ìmarìe dem aw nd é, s? so £t em qu í s coment îl est mescreu (= malecredátus). Et s'il me soìt meseru par certeyns resouns, qe les presentours oumt puis de luy enquís, sí soît ajugé tut quâtes. Et sê íl en soìt mescru, sâ soynt ses chateus taaeez, et ses terres pręses en mostre meym et soem cors delíveré al ordìnarìe. Et sì le ordínaríe ly delívere hors de sa pręsowm avaunt due aquãtaumce solom, purgacïoum des clers, ou, sí íl le face sì neglìgau/ment garder qe £l eschape, ou, sí malícíousement le fet detener qe £l me peuse a sa purgaczoun vener, et ceo soìt atteynt, en chescun poynt soìt le ordínaríe em mostre mercâ ; et solum ceo qe le ordînarîe mous fra a saver de aquãtaumce de tels clers, lour from mous fere restitucìoum, de lour b?ens, sê íl me eynt defuyz nostre pes (= paêae). Mārrowr auae Justóces (end of 18th or beginning of 14th cent.) c 3 s 4: . . . si Clerke ordeáné entre em Court devant Laïc Judge pur respomdre de personal! trespas et nos mement em case crêmêmal et mortel die que íl est Clerke, le Judge me poêt pluís avant conustre, car le Esglóse est cy em framchîse que mul Judge ne poít aver conwSance de Clerke tout le voílet Clarke conuster pur son Judge, em t?el case est sans delay delíverable a som, Ordínaîre. Pur domer mequídant actíoms al actors, vers les accessoríes en appeles et emditements, appent que le Judge tantost emquêre de som office per serment de probes homes en la presence del Clerke lequel que ôl soót coulpable ou, non. Et s'jl en soìt coulpable adomque est lêverable a som, Ordínaríe, . . . 25 Ed. III (1851/2) st. 6 c 4: Item come les dêf2 Prelatz e?ent grevousement pleánt enprìant ent remedíe, de ce qe clercs seculers, auœâ bíen Chapelleêns come autres, Moâgmes et autres gentz de relìgìom, eâent este treínez et pendu2 408 ECCLESIASTICAL COURTS [W, 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 courts 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 (=award) des Justices seculers . . . , s: est accorde et grante, par le Roº, en son dit parlement, ge towz maneres des clercs, awaci b : en secu- lers come religiouses, qi seront desore convictz devant les Justices seculers poºr gecom ges felon?es ow tresons towchantes awtres per- Sones ge le Rož me? Sºmes ow sa roº ale majeste, edent et enjodent franche- Trent desore privilege de Seánte eglise et sołent saunz nule empeschement ow delač liverez a les Ordinaries evac demandantz, Et por ce grant le dét Ercevesqe promºst au Roi, qe Sur le punissement et sauve gard de têeuac clercs meſſesours, ge seront ency as Ordenares liverez, žl enferroit ordenance conven- able, par la quelle tiewa! clercs enserrożent salvement gardez et duement puniz, ens? ge nul clerc emprendrežt mes bawdure (= courage) de ens; meſſa?re 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 he made, based on the constitution of archbishop Simon Islip (dated 12th March, 1851) according to which if, in future, ascun clerk seculer ou religious gº so it conv? ct de treson gene touche le Roy mesmes me sa roîale majeste, ou qi soit Commune laron . . . shall be delivered to the bishop, the latter gardera (the offender) Sauvement et sewrement. - With the foregoing provisions of 3 Ed. I 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 motéfeyed me shewed by the Prelates. In this act earlier procedure is shown thus:– - tº a manyfest the vys and murderers &mdyted and fown de gyltye of they’r mySºledes by good and substancyall ºnquestes upon playne and profeable evydence before the Kynges Justices, and afterward by the usages of the common lawes of the londe dely vered to the Ordenaryes as Clerkes convºycte . . . * In the twelfth and thirteenth centuries a special crimen laesae majestates or crèmen prodžtion?s was classed with homºcidium, furtum etc. All these graver offences were comprehended in the term felonia. (So, for example, Leg. Hen. I c. 46 $ 3 compared with c 47, c. 48 Š 1, Bracton I, 96; even in 25 Ed. III St. 5 c 2 we have in one place treson ow awtre felonie.) The crimen laesae "majestat's 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. III, 535 ft. c 21 $ 463, Reeves, Hist, of Eng. Law, 3rd Ed. II, 8, 273, 349, 462 ft. 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. III (1351/2) st. 5 c. 2. By it the following offences are to be 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 offices. Petit treason, by the Same act, is when a servant slayeth his master, or a wife her husband, or quant homme seculer ou de religion tue son Prelat, a què il do?t foë 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 WORMAN CONQUEST TO THE REFORMATION 409 their right to adjudicate in such cases is not determinable. A more exact limitation in this direction was brought about by 25 Ed. III (1331/2) st. 6 c 4.” The act granted privilege of clergy in all cases of “felony' and ‘treason' in which the offence 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 transgress?o 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 ºn 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, The History of the Register of Original Writs, in Harvard Law Review III, 177 ff., 219, Nov., Dec. 1889.-Concerning the substitution of ‘transgressio’ for foråsfactum ' by Roger de Wendover in his account of the agreement of 1176 see § 4, note 54. See also Bracton VI, 492: . . . nec debet dom?nus reac manus ºn eos (clerks) mittere, et cum in eos coertionem non habeat, maac’me in delict is et transgression? bus sicut in majoribus criminibus, . . . To the contrary : Prohibition (by Edward I?; printed below, note 79) : . . . cum cognitiones placitorum super . . . trans- gress? on 7 bus contra pacem nostram factis . . . ad coronam et digni- tatem nostram pertimeant. Letter of Edward III, 12th May, 1343, to the pope with regard to proceedings before the papal court against the bishop of Chichester (Rymer, Foedera 4th Ed. II, 1223): . . . licet . . . placita transgress 7 on wºm, et incarcerationwm, Ābādem żn curia nostra, et mom alibi, tractari debeant et ſimir? . . . .] Mention of surrender in cases of felony is made particularly in 3 Ed. I (1275) Stat. Westminster I, c. 2 (printed above, note 44) : por ret de felon de. 9 Ed. II st. 1 (1315/6) Articul: Cler; c. 15: Item lºcet cler?cus coram seculari Judice judicari mon debeat, mec aliquid contra Żpsum fieri, per quod ad periculum mortés vel mutilacionem membri valeat pervenºr?, Seculares tamen. Judices clericos ad ecclesiam, confugèentes et reatus Suos forte comfitentes, faciunt abjurare regnum, et eorum abjuraciones admit- tunt eac illa causa, quamgwam eorum Judices Super hiès nom eacăstant, s?cque datur laicºs indirecte potestas hujus modó clericos trucidamdi, s? 'psos post huju.8modº abjuracionem in regno contigerit inveniri, . . . Responsºo. Clericus pro felon? a fugiens ad ecclesiam, pro immunitate ecclesiastica opti- nenda, sº asserºt se esse cler?cum, regnum mom compellatur abjurare; set leg? Tegnº Se reddens gaudebit ecclesiastica libertate, juacta laudabálem consue- twdinem regn? hactenus usitatam. 25 Ed. III (1351/2) st. 6 c 5: Item coment ge clerks are Snez de felon? e devant Justices seculers . . . ge feurent demandez par le Ordinaire . . . - Cf. also Mirrowr awa. Justices c 3 s 5: De autre parte est Clarke (i.e. clergy claimed before the secular court) encountreable d'autres replications come sil est connu pur murderer moto?re, et de tiel condition que l'Esglèse me doit garranter ensučvant la peace le Roy. (See Bracton II, 358.) Cf. further letters patent of 25 Ed. III (printed in Statutes of the Realm I, 329): Hitherto clerks who were counterfeiters of coin (the offence was treason, note 45) had been hanged on the “award’ of secular judges. Till a law on the subject is passed, they are to be imprisoned, without surrender to the bishop.–On two occur- renees, 1266 and 1829–30, cf. Annales Londonàenses (Rer. Brit. Scr. No. 76) I, 74 f., 245 f. ^ - * Printed above, note 44. - 4 IO FCCLESIASTICAL COURTS [V, 14A and his royal majesty (i.e. against the rights of the crown). This restriction was never removed, at least by statute.” - - b. Encroach ment on the king's rights and contempt of the royal commands. Penalties in respect of the former were defensive; in respect of the latter they formed the only means of Securing, in practice, obedience to civil regulations. In both cases rights were in question, which the state could not give up without altogether renouncing its independence. Although in the agreement of 1176 power to punish the clergy for such offences was not re- served, the punishment was, in all periods, imposed.” C. Non-discharge of feudal obligations. In such matters according to the constitutions of Clarendon the secular court was to be competent.” This was a provision which the pope had not opposed. In the agreement of 1176 the Secular court was expressly declared to be competent also in criminal cases relating to the feudal relation.” Now, the lands of the bishoprics and a large part of the lands of ecclesiastical foundations, especially of monasteries, were regarded as feudal holdings, and the most important obligations of landholders to the state were based on feudal law. Thus here again there was a very considerable limitation of clerical exemption especially for the higher ecclesias- tics. A frequently recurring means of compelling feudal services was the ‘taking in hand' of the fief by the king. Royal jurisdiction in this province was permanently upheld.” * This restriction is also contained, e.g. in 4 Hen. IV (1402) c 3 (printed in note 44).-Edward IV, however, in his charter of 1462 (append. IX) directed that even in case of proditio, clergy of the higher orders should be sur- . rendered to the ecclesiastical courts. - * Compare, e.g. the complaint of the clergy and the king's answer (circ. 1245 P. Cole, Documents 357) Art. 16: Item quod ridiculum est dicere, Episcop? et Prelati aliquociems capiumtur et personaliter arestantwr, quod est contra Deum et justic?am, cum tal?um captores eaccommunicati Sint ºpso facto. Responsºo : Secundum consuetudimen regmi que pro lege habetwr, Ommes convict? in Curia Regis super usurpatione juris reg?? sew lesione regie libertatis et écia'm onnes officiales qui Regi tenerentur eac suo ministerio, de satisfacCione congrua cautionem eachibere solent ante recessum swum. On compulsion by writ of prohibition cf. § 27, note 10; on the amerciament inflicted particularly in case of contempt of royal commands see below, near notes 64 ft. - * c 11 : Archiepiscopi, episcopi, et universae personae regni, quº de rege tement in capite, et habent possessiones swas de domino rege sicut baroniam, et in de respondent just it? is et m in is très regis, . . . (Cf. appendix IV.) - 52 . eaccepto laïco feodo unde mâhî vel al?? domino secular laicum. debetur servitium. (Cf. § 4, note 54.) - * Against abuses connected with ‘taking in hand” (prendre en main) the following regulations from the reign of Edward III are directed: 1 Ed. III (1326||7) st. 2 c 2: Et par ce qe avant ces howres, en temps le Rož pier au Rož qore est, Le Rož par malveys conseillers sanz cause et arey nement fist prendré en sa meyn les temporalites des divers Evesqes, od toutz les biens et chateuac en les dites temporalātees troveez, et mesmes les temporalitees tyrºt en sa meyn par long temps, et prist toutz les issues en mesmes le temps, a gravint damages des ditz Evesges, vast? et destruccions de lor. Chateua, Manoºrs Parks et Boys ; Le Rož grant et voet ge desormes me soit fait. 14 Ed. III (1840) st. 4 c 3: Et voloms et grantons por mous et por noz heirs, qe desorenavant mous me mos heirs me prendrons, mene ferrons prendre en notre main, les temporaltez des Ercevesqes, Evesqes, Abbees, Priours ou dautres de quel estat ou condicion gils solent, sanz veroie et jouste cause, Selon.c ley de terré et juggement swºr ceo la dome.—Cf. also 25 Ed. III (1351/2) st. 6 Ordinatio pro Clero c 6: & & por ce qe les temporaltees des Ercevesqes et Evesges ount este Sovent fožtz pris en la main le Roi, por contempt fait a lui Sur le brief Quare non admisit, et ensement par plus wres autres causes . . . ; sº voet le Rož . § 60] FROM NORMAN CONQUEST TO THE REFORMATION 4 II d. Transgression of laws aimed against papal encroachments. The provisions that do not recognise the exemption of the clergy in this case are found scattered in the various pertinent enactments.” The secular courts were necessarily pronounced competent; otherwise, the execution of the laws would have been impossible. e. Forest offences. The competence of the royal courts in regard to such offences was expressly reserved by Henry II in his compact with legate Hugo" and reaffirmed in later enactments.” f. Oppressions and extortions by prelates and their officers. The church fought against control in the form of inquisition by the temporal judges into wrongs of this kind. But many provisions in the statutes show that ge touz les Justices qe rendront desore les juggementz contre mul Prelat en tiew cas Ou semblable, qils en tiew cas pussent franchement receivre et desore Teceivent por le contempt ens? afugge fyn resonable dé la partie ency con- dempnee, . . . - * Compare, e.g. 35 Ed. I (1306/7) Stat. Karlioli c 1: . . . Et s' quis contra praesens statutum ven?re presumpserit, considerata qualitate delict; et regie prohib icº on is pensato contemptu, graviter puniatur. 25 Ed. III (1350/1) St. 4 Stat. de Provisoribus : . . . sočent les ditz provisours e attaches par lour corps, et memes en response, et sils sočent convictz demoergent en prisone . . . tangèls averont fait fin et redempcion aw Rož a sa volonte, et gree a la partie ge se sentera greve. 27 Ed. III (1353) st. 1 Stat. contra admullatores Judiciorum Curiae Regis c 1: . . . qe totes gentz de la lègeance le Roſſ, de quele cond: c2 on q à l’s so? ent, qi trehent nullá hors du Rožalme . . . , e7ent jour . . . destre devant le Roi et son conseil ou en Sa Chancellerøe, ou devant les Justices le Rož . . . a respondre en lowr propre persomes au Roi du contempt fait en celle partie; . . . [A miti- gation for the prelates and nobles, but at the same time a confirmation of their indiscriminate subjection in this respect to the secular court, is contained in 38 Bö. III (1363/4) st. 2 c 1: . . . sauf lestat des Prelatz et daltres seigneurs du roialme, touchant la libertee de lor corps, s? qe par force de cest estatut lour corps me soit païs pris.] 38 Ed. III (1363/4) st. 2 c 3: . . . . Et s? aucume persone de guel conge estat ou cond Žežom q &l so it par quelconge Trainere ge ce Soºt, attempte ow face awcume chose a lencountre des dites ordi- nances, ou daucume chose comprise en yeelles, soft la déte persome me?sme a TeSpounse, en mamere come dessus est dét, et sº elle serra sur ceo attainte ow convažncue, mºse hors la proteccion le Roſſ, et pun:2 par fourme du dit estatut de lan. 27, c 4: . . . soit tiel ple?ntif duement pun?z a lordenance du Rož ou de son conseil, tº º - 55 . . eaccepto foråsfacto forestae meae. (§ 4, note 54.)—Cf. Cnut Consti- tutiones de Foresta (printed in Schmid, Gesetze der Angelsachsen as law III of Knut ; a private compilation, not earlier than about 1110) c 26: Episcopi, abbates et barones me? nom calumniabuntur pro venatione, sº non regales feras occiderºnt, et s? regales, restabunt re? regg pro libâto suo, sine certa emen- datione. - * E.g. assize of Woodstock, 1184 (Hoveden [Rer. Brit. Scr. No. 51] II, 245; cf. Introduction to Benedict [l.c. No. 49] II, p. clzi) art. 9: Item reac defendit quod nullus clericus e? for?sfaciat de venatione sua mec de forestàs suis. Praecep?t bene forestar??s su's quod sº invenerint eos for’sfacientes, non dubitent ºn eos manum pomere, ad eos retinendum et attach?andum, et àpse eos bene warantizabit. Similarly the reissue of this assize, 1198, c 10 in Hoveden TV, 64.—Cf., however, resolution of the ecclesiastical council of Merton, 1258 (Wilkins, Comc. I, 738, after Ammal. Burton): Cler?cus tamen super transgres- sºone forestae coram suo ordinario canonice convictus, domino regà, vel alò damnum et injuriam passo, per eundem ordinarium satisfacere compellatur, et al?as, arbitrio ordinarić suff, canonica poena puniatur. Letter of archbishop Peckham, who had been summoned for an offence against the forest laws, to #: º 2nd March, 1287 (Regist. Epist. Peckham ; Rer, Brit. Scr. No. 77; II, 942). - - 412 FCCLESIASTICAL COURTS [V, 14A power to exercise such control was maintained. Procedure is on the boundary between civil and criminal process.” * - g. Relapse. Grave offences were punished by the ecclesiastical court in older times by deposition, in later by degradation. In the earlier period mere deposition implied also the loss of clerical orders.” Between Henry II and Becket a dispute raged whether, after ecclesiastical deposition (eacauctoratio), * Inquisition articles of the itinerant royal officers, 1170 (Gervasius; Rer. Brit. Scr. No. 73; I, 219) c 11: Et similiter inquêratur per omnes episcopatus quid et quantum et qua de causa archidiaconi vel decani injuste et såne judicio ceperint, et hoc totwm scribatwr. Cf. also Britton (circ. 1291–2) Book I c 21 § 10. 5 Ed. II (1311) c 12: Those who purchase prohibicions et attachementz. against the ecclesiastical ordinaries in purely ecclesiastical matters shall be punished . . . , sawve lestat le Roi et de sa corome eff autré droit. 15 Ed. III (1341) st. 1 c 6: Item acorde est qe les Mănăstres de se?nte esglèse pur diners (= deniers) prises por redempcion de corporele penaumce, me por proeve et acompte des testamentz, ou pur travaille entour ceo mys, ne pur solempnete des esposailles, ne pur autre cause touchaunte la jurisdiction de seinte esglèse, ne sołent apeschez (= impeached) me a resomez (= arrested) ne chace2 a respoundre devant les Justices le Rož me ses awtres mºm?stres. Et Sur ceo e?ent les Ministres de Sečnte esglèse briefs en la Chauncellerie, a les Justice? et autres mºnistres, totes les foëths Qāls les demanderunt. (15 Ed. III st. 1 was repealed by royal letters patent, 15 Ed. III st. 2, volentes tamen quod articult ºn dicto statuto . . . content?, quº per alia statuta nostra vel progenitorum nostrorum Regum Angliae Sunt privs approbat?, ?uacta formam dºctor wºm statuto rºw ºn . . . observentur.) 18 Ed. III (1344) st. 3 c 6. Lately there have been commissions issued to the royal judges quils facent enquestes sur Juges de Sečnte eglise, le quel gils facent joust processe Ow eaccesse en cause du testament, et autres les queuoc notoriement apartiegment a la conſisaunce de Sežnt eglèse ; in consequence & mal?ctments have been caused by the commissioners against the ecclesiastical judges: ge t?eles commissions sočent repellez et desoremes defenduz, save larticle de Eyre tiele come ēl do?t estre. º 25 Ed. III (1351/2) st. 6 c 9: Item porce geles Justices le Roi prement endite- mentz (=indictments) des Ordinaries et de lour Ministres, de eactorsions et oppressions et les empeschent sawm2 ce qils mettent en certeán en quoi ou de g? ou en quelle manere ils ount fait eactorsion, så voet le Rož geles Justices le Rož me empeschent desore les Ordinaries me lour Ministres par cause de tiewa! endêtementz des generals eactorsions ou oppressions, sils me mettent ou déent en certe? m en quelle chose et de qui et en quelle manere les ditz Ordinaries ow lours Ministres ount fait eactorsions ou oppressions. 31 Ed. III (1357) st. 1 c 4: Item come les ministres des Evesqes et autres ordinačrs de Seinte Esglèse pregnent du poeple grevouses et Outrageouses fynes, pur le proeve des testamentz, et pur les acquëtances ent faire ; le Roi ad charge Lercevesqes de Canterbºrs et les autres Evesqes gils en a mettent amendement; et sils me facent, acorde est ge le Rož fera enquere par ses Justices des tiew.c oppressions et eactorsions, et de les oier et terminer, sibien a la Suyte le Rož come de partie come a wºn cºenement ad este w8e. -- - 4 Hen. V (1415/6) st. 1 c 8 (only valid until the next parliament): Bishops are not to require in testamentary causes more dues than in Edward III's reign; else they must pay to the party concerned the charge threefold. 21 Hen. VIII (1529) c 5 An Acte concernänge Fynes and som/mes of Moneye to be taken by the Ministers of Busshops and other Ordinaries of Holye Churche for the Probate of Testaments : Earlier laws have not availed; a scale of charges is now fixed; all bishops and subordinate officers who exact more forfeit the amount of the overcharge, together with the sum of ten pounds, half to the king, half to the party suing in the ecclesiastical court. Cf. also Coke, Institutes III, c. 69. . . * On the difference which grew to be drawn in the twelfth and thirteenth centuries between depositio and degradatio cf. Richter, Kirchen recht $ 217. § 60 FROM WORMAN CONQUEST TO THE REFORMATION 413 | the guilty clerk could still be punished by the secular courts for the offence for which deposition was inflicted. Even Becket admitted that the secular courts were competent, if the clerk committed some new crime.” h. Offences in administration of a state office. Numerous examples show that the king called his officials, even if spiritual persons, to account for the discharge of their office, and that secular courts pronounced judgment. No general rule determined the limits of this exception.” The attempt of the exchequer (scaccarium) to make clerks employed in it amenable only to itself had to be abandoned.” 3. Forfeiture of property; Fines; Amerciaments. a. In the agreement of 1176 Henry had only conceded that the person of the accused clerk should not, as a rule, in criminal cases be brought before a Secu- lar court.” Even in the cases in which the person of the clerk had to be sur- rendered to the ecclesiastical court for judgment, his property (which in the event of condemnation for treason or felony was forfeited) was, nevertheless, seized for the time being by the state. In connexion herewith the civil courts raised a claim that acquittal by the ecclesiastical court did not bind the state to restore the property seized, but that the state was entitled to decide independ- ently upon its disposal. The authorities of the church pressed to have that claim set aside; but the kings only yielded so far as to consent that in general the property should be delivered to clerks acquitted by the ecclesiastical court. This was, however, as a special act of grace, and the right of deviating from the practice was reserved.” b. Amerciaments.” In accordance with Frankish institutions and prece- dents in the Anglo-Saxon period, under the first Norman kings the whole mov- able property of the delinquent was, in cases of various kinds of contempt of magisterial orders, declared by the judge to be confiscated (in misericordia Tegºs).” The exchequer then substituted a fine for confiscation. Soon it be- * On the discussions in 1163 see above, note 25. * Cf. complaint of clergy and king's answer (circ. 1245? Cole, Documents 357) art. 16; printed above, note 50. * King's answer to the complaint of the clergy, 1279–85 (Northern Registers; Rer. Bråt. Scr. No. 61; p. 70) c 10: . . . reac habet privilegium papae quod su? cleric; non cogantur ad residentiam, dum, steterint in obsequžo suo (cf. also letter of Edward I, 1st Dec. 1281, to Peckham in Rer. Brit. Scr. No. 77, I, 252), et necesse est quod serviatur reac tam, a clericis quam a laïcis, et hoc expedit re?-publicae tam cleri quam populi. Vult tamen reac quod cleric? Sui Sint obedientes suis praelatis, s?cut caeter. Et s? propter correctiones vocentur coram ord&narić's sužs, quia forte deliquerint, bene permittit reac quod canonice pum?amtur. Similarly 9 Ed. II st. 1 (1315/6) Articul: Cler; c. 8. * ºn person a sua (§ 4, note 54). - * Petition of the clergy in 1280 and 1300, with the king's answer at the tim (in the petition of 1309, Wilkins, Concilia II, 318): Item bona cleric; irretiti de crèmène, et coram suo ordinario super hoc se purgantès, non statiºn, ut con- wen?t, liberantur eidem. Ad stum articulum respondet reac, et promºsit, quod eac gratia special? Super hoc ordinaret, ut bona clericorum, quº pro aliguo debito capti et detent; se purgarunt, restätuantur eisdem, sed mom sºme swa litera, in qua contineatur de restitutione hac vice facienda; quia haec restitutio sit de gratia speciali. Cf. Mårrour aux, Justices c 3 s 4: . . . et le Clerke après due purgation reeit (=let him have back) toutes ses biens movables et fiefs sans difficulty. * See thereon especially Gneist, Verfassungsgesch. § 11’ and Madox, History of the Exchequer 2nd Ed. London, 1769, I, 526 ft. Reeves, Hist, of Engl. Law, Ed. of 1869, I, 280 ft. Brunner, Deutsche Rechtsgeschächte, Leipzig, 1892, II, 66. Cf. also Mirrour awa. Justices c 4 ss 25, 26. * Charter of Henry I in 1100 (printed in Statutes of the Realm I, 1 and by Liebermann in Transactions of the Royal Historical Society, 1894, p.40) c 8: S; quº's baromum vel homżnum meorum for?sfecerit, non dabit vadium ºn 4I4 - ECCLESIASTICAL COURTS [V, 14A came customary, not to wait for the decision of the court; the delinquent threw himself at Once on the miser?cordia regis. The fine imposed was called an amerciament. All the clergy were at first subject to this system. By the Magma Carta a restriction was made : the measure of the amerciament was fixed by sworn jurors, and the clerks were fined de laïco tenemento, not according to the value of their benefices.” As all the higher ecclesiastical dignitaries also had lay holdings, it was still possible by heavy fines to constrain those whose obedience was of most importance to observe the commands of the king and the royal officers or courts; moreover, they were made responsible for the obedience of their subordinates who had no temporal property.” Such fines were often in- flicted.68 In and after the reign of Henry VII further limitations were gradually added. 4 Hen. VII (1488/9) c 13 enacted that, in cases of murder, robbery, theft and the like, clerks below the order of sub- deacon should in future only be entitled to claim privilege of clergy once; further, that persons of such degree, on their first conviction before a secular court for murder or other felony, should be branded before being surrendered to the ordinary.” 7 Hen. VII (1491) c 1 miser?cordia pecuniae sue, sicut faciebat tempore patris me? vel fratris me?, sed secundum modum for isfact: ita emendabit s?cut emendasset retro a tempore patris me? in tempore aliorum antecessorum meorum. Quods? perfidiae vel sceleris convictus fuerét, sicut £ustum fuerit, sic ememdet. Dialogus de Scaccario (in Stubbs, Sel. Charters 168) II c 16: . . . Quisquis eném in pegiam majestatem deliquisse deprehenditur, who trium modorum juacta qualitatem delict; sui regi condemnatur: aut enim in universo mobil? swo rews judicatur, pro minor? bus culpös; aut in omnibus im mobilibus, fundis scilicet et redditibus, ut eis eachaeredetur; quod si pro majoribus culpês, aut pro maacłmżs quibuscumque vel enormábus delictis, in vitam. swam vel membra. Cum igătur aliqués de mobilibus in beneplacito regis judicatur, lata in eum a judicibus sententia per haec verba, ‘iste est in m sericord? a reg's de pecunia swa ; ' idem est ac s? ‘de tota' d'acis- sent . . . Glanvilla, Book IX c 2: . . . Est autem. Miser?cordža domin? Regis qua quis per juramentum legalium homimum de vicineto eatenus amerciandus est, me aliquid de Suo honorabili contenemento amittat * Magna Carta of 1215 c 22 (append. VII). * Bracton, Book V tract. 5 c 2 $ 5 (VI, 164): . . . s? clericus convent- endus, quia laicum feodum, non habet, summonitionem suscèpere noluerit, nec plegios invenire, mandabitur episcopo vel ordinario loci quod faciat talem venire coram rege vel justiciarić's suis, ad respondendum et satisfaciendum de wocumque placăto ad intentiomem petentis vel querentès ; . . . See also c 32 §§ 8 ft. (WI, 492 ff); further, the answer of the king to the complaint of the clergy, 1279–85 (Northern Registers; 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 II c. 43. The con- 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, l.c. II, 249. * Gneist, l.c. . * . . . be it enacted . . . , that every persone not be?ng with ºn orders, whiche onys (= once) hath ben admytted to the benefice of his Clergie, § 60] FROM WORMAN 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).7° 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 Reformation 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) araymed of eny suche offence (‘murdre rape robbery thefte and all oth re 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 oth refelony, the same persone to be marked with a T. in the same place of the thumbe, and theis markes to be made by the Gaillour openly ºn the Courte before the Jugge, er that suche pers one be delivered to the Ordźnary. Provided alwey that if any persone at the second tyme of asking his Clergie, bº cause he is with in orders, hath not than and there redy his lettres of his orders or a certificat 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 be understood ordines Sacré 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 1163 (cf. above, note 25).-The pope, by letter of 7th May, 1495 (Spelman, Concilia II, 722), called on the king to annul this act. 7" s 1. One Grame has, in the hope of benefit of clergy, murdered his naster, Richard Tracy, Gentālman. He is, therefore, atteynted as felon that hath offendźd in pety treason. s 2: Also be it ordeyned. . . . that if any late persome hereaftºr pur- pensidly murder their Lord Mažster or Sovereign immediate, that they hereaftir be not admytted to their Clergie ; and aftir conviccion or atteynder of any suche persone, soe hereafter offending, had after the Course of the Lawe, that the same persome be putte in eacecucion as though he were moe Clerk. * 4 Hen. VIII (1512) c 2 Pro murdrés et felonibus. s 1: . . . all . . . persons hereafter com/myttyng mºurder or felonye in eny Church Chapell or hallowed place or of and apon malice prepensed robbe or murder any person in his howse the owner or dweller of the howse his Wyff Childe or servaunt then beyng theryn and put in fere or drede by the same, That such . . . persons so offending be not from hensforth admytted to . . . their clergy, swche as ben with in holy orders only eaccepte. s 2: . . . And this acte to endure to the nexte parliament. * 23 Hen. VIII (1531/2) c 1. Cf. below, § 61, note 5. 416 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 clericorum et rerum eorum justitiam et potestatem et distributionem bomorum ecclesiasticorum Żm manu episcoporum esse perhöbeo et confirm.0. See full text of the charter in appen- dix II. * * c 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 Høst, of Becket (Rer. Brit. Scr. No. 67) V, 65. * co 1, 9 (append. IV). 7° Petition of the English clergy in 1237 (Amm. Burton ; Ber. Bråt. Scr. No. 36; Annales Monastic? I, 254) : . . . . Item petunt, quod cleric mom conven?- antwr in actione personal? quae mom sit super re im'm ob?!?, coram. judice saeculari, Sed coram judice ecclesiastico; et quod prohibitio regis mon currat quo mºnus hoc fier: non possit. Complaint of the clergy at the council of London, 1257 (Wilkins, Concilia I, 726) c 21: Item per eandem districtionem attachiantur et coguntur cleric; in action?bus personalibus, et in his, quae eac contractibus oriumtur Żm foro Secu- lar ; et etiam delictis respondere querelantibus. Council of Merton, 1258 (Wilkins, Conc. I, 736, after Annal. Burton): g saepe conting it, archiepiscopos, episcopos, et al?0s praelatos inferiores per literas domini regis ad seculare judicium evocari, ut ibi respondeamt super his, quae mere ad ipsorum officia, et forum ecclesiasticum pertimere noscuntur, wt . . . s? inter clericos Suos cognoscant, vel inter laicos conquerentes, et clericos defendentes, in personalibus actionibus Super contractibus vel de- bītis j . . . Const. of archbishop Boniface at the council of Lambeth, 1261 (Wilkins, Com- călia I, 746) c 1: . . . Item, sº vocetur praelatus ad judicium seculare, pro eo quod cognovit inter clericos Suos, vel inter laicos conquerentes, et clericos defendentes in personalibus actionibus super contractibus aut delictis, vel q was? : . . . . pro talibus, inquam, et his similibus, praelat? ad judicium seculare vocati, wi ibidem pro his judicium Subeamt, nullatenus venºre praesw- mant . . . In regard to Wales see Regist. Epist. Peckham (Rer. Brit. Scr. No. 77), I, 249–251. * Diocesan council of Eoceter, 1287 (Wilkins, Comcilia II, 129) c 30: . . . in- hibemus me clericus clericum Super re Spiritual?, aut quacumque actione per- sonal? . . . trahat in causam coram judice Secular? . . . Sº gu?s vero laicus clericum, cujuscumque gradus duocerit esse pulsandum, coram ecclesłas- tico judice eas propomat, quas se habere eacistèmat actiones. 77 Complaint of clergy and king's answer (circ. 1245? Cole, Documents 354 f.): art. 5: Item si inter Clericos vertantwr questiones coram suo Episcopo, 2nhäbetwr me in dict’s questionibus procedatur. Respons 70. Sº Cleric; coram. § 60] FROM NORMAN CONQUEST TO THE REFORMATION 417 b. 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 Sºlo Episcopo de personal? delicio aut mere spiritualibus inter se habuerint Questiones, Reac inde se mom intromittit. Sº awtem de contract?bus aut catallis Quorum cognitào ad Regem pertimet, arguere solet Princeps semper tam con- tendentes quam cognoscentes. art. 6: Item sá laicus convenit Clericum coram Episcopo Suo sºm?!?ter inhibetur, cum inter Žstos cognitio adeo ad judicium. ecclesiasticum pertimeat quod eciam Cleric? voluntarie renunciare non possunt, ſoro ecclesiastico. Respons? 0. S. laicus conven? at Cler?cum coram suo Episcopo, tumc eczam racione contractuum et catallorum cognácio pertènet ad Regem, s? &mde sit questio, intromittit Se Reac ut prºus, art. 17: Item s? Cler?- cus laicum convenºre velºt vel &nter Clericos sew 2nter laicum et clericum de feodo laïcal? agatur, scºre volumnus quid de consuetudène Super his observetwr. Respons? O. Ommes questiones inter quascumque personas de feodo laïcali, ad Regis pertiment cognácionem. Complaint of clergy and king's answer, 1279–85 (Northern Registers; Rer. Bråt. Scr. No. 61; p. 70) c 19: Item cogwmtur cleric? in actionibus personalibus quae eac delict’s vel contractibus mascuntur in foro Saecular? respondere.—Ad monum et decimum nondum respondetur, sed reac deliberabit. Complaint of clergy in 1280 and 1300 and king's answer at the time (in the petition of 1309, Wilkins, Concilia II, 319): Item si clericus coram ecclesiastico judice in judicio recognoscat se debere alter; clerico debitum quodcunque, et per ecclesiasticum judicem condemnetur ad solvendum debitum hujusmod?, prout h act enºus fieri consu e vºt; judeºc tamen 'pse, quo mºnus id eacequi valeat, per prohibitionem regiam impeditur. Ad stum articulum responde; Teac : Quod s?ve clericus agat contra clericum, s?ve contra laicum, s?ve laicus contra clericum in hujus modź actionibus, scălăcet ºn foro regio, respondere debet, et tal?ter us? sºunt just? tº a rºº reg is a tempore cujus con- trar & memor 2 a mom eacă stat. * Sometimes, however, this rule was deviated from. Cf. e.g. the ruling (cited in Godolphin 157) 11 Jac., May v. Gilbert : 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 ºn the Church. * The earliest known mention of a prohibition in case of debåta et catalla ‘mis? sint de testamento vel matrimonio” is found in a collection of Brevia de cursu dating probably from about 1227, MS. Cambridge Ti. VI, 13, No. 30 of H.C. E. E. '418 AECCLESIASTICA L COU RTS [V, 14A long claimed other fields, the ecclesiastical courts trying disputes on contracts ratified by Vow or Oath and disputes touching right Of the collection (Maitland, The History of the Register of Original Writs in Harvard Law Review III, 114, October 1889).–Cf. also the form of prohibition in Bracton, Book V, tract. 5 c 3 S 2 (VI, 170): . . . quia placita de laico feodo et de debitis et catallis qua e non sunt de testamento et matri- monio spectant ad coronam et dignitatem nostram. Complaint of the clergy, 1237 (Ann. de Burton ; Rer. Brit. Scr. No. 36; Annales Monastici I, 256): Item, laici faciunt clamare Londoniae voce prae- conia, ne quis tractet causam in foro ecclesiae sive de perjurio, si vede fide laesa, de usura vel simonia, vel defamatione, mi si tantum super testa- ſmento vel matrimonio, et proseguentes hujusmodi causas incarcerant. Matthaeus Parisiensis, Chronica Majora (Rer. Brit. Scr. No. 57) IV, 579, year 1246: . . . cum episcopus Lincolniensis supra quam deceret vel eacpe- diret, in subjectos Suos . . . desaeviret; ita scilicet ut faceret inquisitiones districtas per archidiaconos et decanos suos in episcopatu suo de continentia et moribus tam nobilium quam ignobilium, . . . quod numquam fieri con- sueverat; dominus reac . . . consilio curiae suae scripsit vicecomiti Hert- fordiae in haec verba: Henricus Dei gratia rec Angliae, etc. Praecipimus tibi, quod sicut te ipsum et omnia tua diligis, non permittas quod aliqui laici de balliva tua ad voluntatem episcopi Lincolniensis archidiaconorum vel Qffici- alium seu decanorum ruralium in aliquo loco conveniant de caetero, ad recog- nitiones per Sacramentum eorum vel attestationes aliquas faciendas, nisi in caus is matrim Om ? al i bus vel testamentari i s. According to Matthaeus Parisiensis, l.c. IV, 614 the king in 1247 issued a mandate on the following points: Lites de fidei laesione et perjurio prohiben- tur a rege, quando super his conveniumtur laici coram judice ecclesiastico. Prohibetur ecclesiasticus jud eac tract are om nes causas contra la i- cos, n is i sint de matrimonio vel testamento. Item, de novo prae- scribit reac certam formam episcopis de bastardia; utrum scilicet ante matrimonium contractum vel post nati sint. Prohibentur clerici per breve regis instituere actiones suas coram judice ecclesiastico super decimis; et appellatur illud breve, “Indicavit. De sacramentis quae eaciguntur a clericis coram justitiariis regis praestandis, quia dicuntur processisse in causis contra prohibitionem regiam, cum jurare non teneantur clerici, nisi coram judice ecclesiastico, ma cime in causis spiritualibus. Item, de clericis quos ministri regis capiumt, propter famam quae a laicis eis imponitur. Prohibitio, time unknown (printed in Stat. of Realm I, 209 under the name Prohibitio formata de Statuto Articuli Cleri; Coke, Inst. II, 600 supposes, without giving reasons, that it was issued at the beginning of Edward I's reign): Educardus etc. . . . Cum cognitiones placitorum super feodalibus et libertatibus feodalium, districtionibus, officiis ministrorum, e cecutionibus judiciorum corone nostre, transgressionibus contra pacem nostram factis, felonum negationibus ,consuetudinibus secularibus, attachiamentis vi laica, malefactoribus rectatis, roberiis, arestacionibus, mameriis, advocationibus ecclesiarum, conventionibus, sufficientibus assisis, juratis, recognitionibus laicum feodum contingentibus, et rebus aliis, ac causis pecuniarum et de aliis catallis et debitis, gºl e non de testamento vel matrimonio, ad coronario et dignitatem mostram pertineant, eisdem regno de consuetudine eiusdem regni approbata et hactenus Observata, but as ecclesiastical courts in Norfolk and Suffolk draw such causes to themselves, this is forbidden. Et quod non per- mittant [vicecomites quod aliqui laici in balliva sua in aliquibus locis conveni- ant ad aliquas recognitiones per sacramenta sua faciendas, misi in causis matrimonialibus et testamentariis º Articuli episcoporum 1285, c 10: Quod laici litigantes coram judicibus ecclesiasticis, propter hoc non graventur, donec regia prohibitio sit porrecta, et sciatur, an hujusmodi causa ad forum ecclesiasticum debeat pertinere. Re- sponsio Regis: Curia intendit, quod praelati bene sciant cognoscere, § 60] FROM WORMA V CONQUEST TO THE REFORMA TION 4I9 patronage. But in all these points the claim, in spite of continued efforts, was not, made good.°° quae placáta s í nt de testam ento, et quae de m at rò mon ío, et Super al í í s mo 1, cognosca nt. (Wilkins, Conc. II, 115.) : Prohibition of Edward II to the archbishop of Canterbury, 14th March, 1819 (Rymer, Foedera 4th Ed. II, 388): Cum placáta de catallös et debítís ín regno ^ostro, qu,e non sunt de test a mento vel m at r í m on ío, ad coronam, et dîgnîtatem nostram, specialiter pertíneant . . .—(Cf. instruction of Edward II to the archbishop of York, 16th Feb. 1818, in Rer. Bröt. Scr. No. 61, p. 271.) In the expression quae non sunt de testamento vel matrímonío the oppositiOm is to Ordinary actions for debt; there is mot apparently any intention of demy- ing the competence of the ecclesiastical courts in other departmemts where it was admitted, e. g. im suits fortithes. *" From the law-books compare especially the following passages:— Glanvilla (cárc. 1180—90) Book I c 8 in reference to civil causes, de Recto: In Curìa domênâ Regis (in oppositiom to county cQurt) habent ìsta tractarâ et ter- mênari : . . . placátum de Advocatíoníbus Ecclesíarum, . . . placátum, de Dotìbus unde mulieres îpsae nil penitus perceperunt, . . . placátum, de Debítís laïcorum. Book XIII c 1: Nunc vero ea quae super Seîsênês solum modo usitata sunt, restant prosequenda : quae qu?a eac benefícío constítutíonís regnô, quae Assisa momênatur, ín majorì parte transîgô solent per Recognôtê0- nem, de diversîs Recognôtêoníbus restat tractandum. c 2: Est autem, quaedam, Recognìtìo, quae vocatur de morte antecessorís (it rests om the assize of North- amptom, 1176, c 4); quaedam, autem est de ultêmês praesentatíoníbus Person- arum, în Ecclesîs (it rests probably om a lost statute; cf. also const. of Clarendom, 1164, c 1); quaedam, utrum alíquod tenementum sìt Feodum ecclesíastícum, vel laicum, Feodum (rests om const. of Clarendon, 1164, c 9); . . . Quaedam, autem, Recognítío est quae dícítur de Nova Disseósóna (rests on assize of Northamptom, 1176, c 5) . . . Cf. here Bractom (I?er. Bröt. Scr. No. 70) II, 162. Bracton (circ. 1230—57) Book V, tract. 5 c 10 § 1 (VI, 206): Quando et în quâ- bus locum mon habeat prohêbêtêo dícendum. Et sciendum, quod locum, non habebít prohîbítío ín curía Chrístíanítatís de alíquo spîrîtualí vel spîrîtualí- tatì anneaco, sive agatur ìnter clerìcos sìve ínter clerìcum, et laïcum, vel ub? agatur eœ causa test a mentar? a vel matrímon %al ?, vel de alìquo de quo sit poen êtent ía ínju^ genda p r0 peccato. Item . . . Sí . . . aga- tur de aliquo tenemento quod sít sacru m, et per pontífices Deo dedicatum, sicut sunt abbatiae, príoratus, et monasteria, et horum, caemm iteria. Item, quas? sacra, quía spîrîtualítatí anneaca, sícut sunt terrae datae eccles? ? s tempore id ed ìcatìon ìs, . . . , quod quídem non est ìntelligendum de líbera elee- mosyna quamvis sít pura. Nota quod non jacet prohíbítío ín dote ecclesiae, jacet tamen ín líbera et pura eleemosyna . . . Item, nec locum habebât p7'o- hìbìtìo sî în foro ecclesîastíco agatur, et hoc ratione personarum, sêcut de catal l í s clerìcoru m e í s v êolenter ablatìs, . . . Item, . . . non, • s% de decîm îs agatur . . . Sed contra . . . , s? decómae petantur, vel earum precium, sí vendantur eae vendótíone . . . Item locum, non habebit prohìbìtìo . . . de promíssíoníbus factís de pecunía danda ob 'causam matrîmonîê ín ínítío contractus momêne marìtagêê. Secus autem sâ tenementum, promíttatur . . . See also c 16 § 1 (VI, 252). Fleta (cjrc. 1290) Book VI c 14 § 8: . . . Dec ? mae autem în quantum, ' decìmae et res t est at ae ? n, possess ? O me testato r îs tempore obìtus suę eacjstentes et cata l l a data ob causa m m at r í m om. ? ? et plura alîa în Foro Ecclesiastíco debent întentar? ; . . . § 5: Nullum ením prìvìlegìum Jurís- díctíonem, Regìam ìn hac parte mutare poterít, símílíter nec fideí ínterposítío meque Sacramentum praestátum, neque partìum spontanea renuncìatìo ; Et hoc ¢dem dící poterit de catallis et debítís quae non sunt de testamento vel matrí- monîo et .eorum, Sequela. Et eodem, modo de înjurîs personalíbus tam în actíom ìòus crêmêmalíbus quam, câvêlêbus, dum, tamen, cívíláter agatwr ; et s? crímínalìter agatur versus clerícum, quamvis clerícus respondere noluerít ín 420 ECCLESIASTICAL COURTS [V, 14A Of causal competence in civil causes the 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, Judea tamen Ecclesiasticus cognitionem habere mom poter’t nec Regiam auferre jurisdictionem, licet habere debeat Judici; eacecutionem. § 6; In causa enim sangwin's nom poterit Ecclesiasticus Judeac cognoscere negºte judicare neque irregularitatem committere, et quamvis mem?nem valeat mort; condempmare, degradare tamen poterit crim?me convictos vel perpetua carcer's inclusione custodère. § 7: In causis vero testamentar??s vel matri- monialibus non habebit locum Regio Prohibitio, et eodem modo in lite sus- cepta de rebus defuncti specialiter non dispositis, quamvis dispositio earwm arbitrio relinquatuºr eacecutorum. Britton (circ. 1291–2) Book I c 22 (Soft enquis des viscountes) $ 9: Et queus ownt suffert pleder em Court Crist?ene autres plet2 qe de testament ou de matri monºe, ou de pure esp?r it walt é saw mitz demer p rendre de lay homºme, ou suffert lay homme jurer devaunt ordinarie. Book I c 5 § 4 : Car mous volums ge Sainte Eglise eyt ses fraunchises desblem?es, iss? ge ele eyt conisaunce a juger de pure espiritualté, de testament et de matrº moºne, de bastard Že et de big a mºe, et en felon? es de ses clercs, et ém corre C- cº owns des pecchez; sauve geles ordinaries me prengent mul demer, ne la value, des lays, me de mºul dener me facemt juge ment for ge de test d- ment et de matrimožme et de pure esp? ritualité et de a'mendement de cym iteres et de defautes des egli ses et de mortuaries et de dy me, Sauntz prejudº ce de mous. * Cf. Reeves, Hist, of Engl. Law c 26, Ed. 1869, III, 70 f ; Stubbs, Historical appendix I to the Report of the Ecclesiastical Courts Commission, 1883 (Par- liamentary Reports, vol. XXIV); on matrimonial causes, disputes as to legiti- ..º * dower, Friedberg, Das Recht der Eheschläessung, Leipzig, 1865, pp. g * Cf. Richter, Lehrbuch d. Kirchenrechts $ 267, notes 4, 5; but he argues that the development in this direction had not in the twelfth and thirteenth centuries reached its final stage. w * Cf. letter of Lanfranc to bishop Stigand of Chichester (ed. Giles, p. 51 ; according to Jaffé, 2nd Ed. No. 5150 from the years 1075–80): Misit mih? litteras Papa, in quibus praecepät, wit causam ist: us mulierås, quam adversus eam habetis, diligenter audžam ; et interim quietam et absolutam esse praé- cipiam ; proptered mando vobis, ut, pace vestra, cum viro suo maneat, quoad- wsque in unum conveniamus et İpsalm causam cum consilio episcoporum &nter mos conferamus ; et adjuvante divāna gratia salubri fine defin?amus. * For the time of Henry III and Edward I cf. above, notes 79, 80. On the . competence of the ecclesiastical court in the restitution of nuptial relations see Bracton, Book IV, tract. 1 c 24 § 2 (III, 328): recurrendum . . . . ad forum ecclesiasticum, ut compellatur sequi virum suum, and Britton, Book V c 10 $ 6. § 60] FROM WORMAN CONQUEST TO THE REFORMA TION 42 I matrimonial causes, had cognizamce in questions of the legitimacy 6f birth.° Glanyilla takes this for granted;* and at a later period it Was als6 undisputed lay.*' But the secular courts intervened with prohibitions when, in cases in Which (as to be mentioned below) the law of thè lamd deviated fröm ecclesias- tical law, a bastardy action, without being referred by the secular court, was brought first in the ecclesiastical court, in order that the ecclesiastical judg- ment might subsequently be made use of in a, claim to succession brought in a secular Court.** • If the question of bastardy arose as a plea in proceedings before a secular Court, e.g. in a disputed succession, the rule prevailed that the preliminary question of bastardy or legitimacy should be referred for decisiom to the ecclesiastical court.* In the case, however, to be mentioned presently, of * The letters of John of Salisbury (Migne, Patrologiae Cursus, vol. 199) show that before the time of Henry II and at, the begimining of his reign in questions of legitimacy the ecclesiastical courts were called on to decide, amd that there were appea]s to the pope. - * Glanvilla, Tractatus de Legìbus (circ. 1180—90) Book VII:— c 13. Haeres autem, legìtìmus nullus Bastardus, nec alìquìs quí eae legítímo 'matrímonío non est procreatus, esse potest. Verum, sì quìs versus aliquem, haeredìtatem aliquam tanquam, haeres petat, et alius eâ objìcìat quod haeres %nde esse non potest, eo quod eœ legátámo matrìmonìo mom sít matus ; fumc quidem placátum íllud ín Curía domíní Regís remanebit, et mandabìtur Archiepìscopo vel Epíscopo locô quod de matrímonío ípso cognoscat ; et quod ênde judìcaverít, íd dománo Regi vel ejus Justícís scire faciat, et per hoc breve : c 14. Reae Archíepíscopo salutem, Veníens coram me W. în Curia mea, petíít versus R. fratrem suum, quartam, partem, Feod , unius mólítjs în îlla vílla, sícut jus suum, et ín quo ídem I?. jus non habet, ut W. dícít, eo quod ?pse Bastardus sít, natus ante matrìmonìum, matrìs ìpsorum. Et q u o m ? a m. a d Cu r ? a 'm 'm ea m non spectat a g noscere de Basta r d ? a, eos ad vos mítto mandans ut în Curìa Chrístíanítatís índe facìatìs quod ad vos spectat. JEt cum loquela ílla debítum coram vobís finem sortíta fuerit, míhí litteris vestrìs sìgnìficetis, quód índe coram vobìs actum fuerìt. Teste etc. c 15: according tO ecclesiastical law the consequences of illegitimacy are to be regarded as annulled as soom as the parents subsequemtly marry ; but mot according to English law. But if dispute arises whether birth was before Or after marriage, this preliminary question is referred for decision to the ecclesiastical court. °" 1 Ed. VI (1547) C 2 s 2 mentions causes of bastardy as a, branch of ecclesias- tical jurisdiction. * Formularies in Bractom, Book V, tract. 5 c 6 (Rer. Bröt. Scr. No. 70; VI, 188 ff.). ° An instance of such procedure (1158—63) will be found in Bigelow, Placáta, 811 after Palgrave, Commonwealth II, 75.—Glanvilla, Book VII cc 18—15 (above, note 86). Full accounts in Bractom, Book V, tract. 5 c 19 (VII, 284 ff.) and im Fleta (córc. 1290), Book VI c 16. From the latter source the following passage especially is relevant here : § 3. Causae quìdem sunt plures, ut sę pater petentìs numquam desponsavìt matrem ejus, vel sì matrímonîum înter patrem, et matrem ejus contractum fuît îllegîtîmum, quîa alíam, uœorem habuit legátámam, tempore contractus secundae superstátem ; Et în îstîs duobus casîbus non habet Judeae secularís cognítíonem, quía ad ípsum non pertínet discussóo utrum fuít íbí matrímoníum vel non, nec quae mulíer fuit vacor sua legítíma et quae non. § 4. Sunt etíam, aliae causae bastardiae quan'um cognítío ad Curíam Chrístíanítatís non est demandanda, ut s? tenens eœcîpîendo dzcat petentem, nihil, juris habere quia bastardus pro eo quod matus fuît antequam, pater suus matrem suam, desponsavìt, vel sí dícat quod bastardus sât quía ab alío quam a vêro matrìs suae progenitus ; . . .—Cf. also Rad. de Hengham, Summa Parva e 8: . . . s? quís clamat líberum, tenementum, . . . et recognoscatur per assisam, quod íure successíonís íntravit, et pendet ínter eos 422 - ECCLESIASTICAL COURTS - [V, 14A children born before marriage, the ecclesiastical courts raised difficulties. In reaction thereto the secular courts, from the beginning of the thirteenth century onward, endeavoured to draw to themselves decision upon pleas of bastardy in general. In particular they laid stress on the point that they were only bound to leave decision to the ecclesiastical court when the question of bastardy could be solved only by decision as to the existence or validity of a marriage. The following cases may be noted here:— \ſ a.” According to older English law, perhaps the children born before marriage were regarded as legitimate if recognized at the Solemnization of the marriage of the parents.” The great justiciar Richard de Luci (1154–79), how- ever, following the lines of feudal law, seems to have overruled the ancient practice, deciding that the formal recognition did not make bastards legiti- mate.” From this time the view taken by de Luci was taken to be the law of the land (so in Glanvilla), and was maintained, although the church, for her part, acknowledged legitimation by subsequent marriage. Thus, on this ques- tion, at latest from the second half of the twelfth century, the law of the land was at variance with the canon law. When the question arose in practice, the secular court could not acknowledge the judgment of the ecclesiastical. Thus in Glanvilla's time the only point referred in such a case to the latter was the question of fact, whether the birth took place before or after marriage.” In the thirteenth century the bishops endeavoured to bring about a change in the law of the land so as to accommodate it to ecclesiastical law. With this object in view they refused to pronounce on the question of fact. The secular courts thereupon caused the inquiry to be made under their own guidance by Sworn jurors.” In 1234, king, bishops and temporal magnates arrived at a settlement to the effect that the issue whether birth was before or after marriage should be referred to the bishops.” At the national council of Merton (January, 1236) the bishops once more attempted to bring the barons to recognize legitimation by Subsequent marriage, but without success.” As they thereupon declined to placitum in Curia Christiamitatis de Bastardia ; quamdžw fuerit placºtum in Curia Christianitatis, remamebit placătum in Curia Regis in Suspenso; e is 18 Ed. III (1344) st. 3 c 2: . . . la bygamye . . . soºt mandez a la Court Crist?eme, come ad este fait en cas de bastardže . . .-9 Hen. VI (1430/1) c 11 directs proclamation before a writ is awarded to the Ordinary to certify bastardy. * Cf. on this point Twiss, Introduction pp. xvii f. to Bracton (Rer. Bråt. Scr. No. 70) vol. II, and Introduction pp. xxxii ft. to Bracton, vol. WI; Güterbock, Bracton und se?m Verhältnis 2\ºm Röm. Recht pp. 97 ff., Maitland, Bractom's Note Book I, 104 fº. * Letter of bishop Grosseteste to the justiciar William de Raleigh (Rer. Brăt. Scr. No. 25) p. 89: . . . ut seniorum relatione didic', consuetudo etiam ºn hoc regno antiquitus obtenta et approbata, tales legitimos habużt et haeredes; wºnde ºn Sigmum legitimationis, maté ante matrimon?um comSueverunt pon? Sub pallio Super parentes eorum eactento ºn matrömon?? Solemn?zat?ome. * Answer of Raleigh to Grosseteste, mentioned in a second letter of Grosse- teste to Raleigh, l.c. p. 96: Praetered ad confirmandam hamc legem quod bas- tardus Sub pallio supra parentes mubentes eactento positus inde Surgit bas- tardus, induatist's testimonium Ricardi de Luci. * Glanvilla, Book VII c. 15 (above, note 86). * Bracton, Book V, tract. 5 c 19 $ 2 (II, 292) mentions a case of the kind in 11 Hem. III (1226/7). * The deed of agreement is in Rer. Bråt. Scr. No. 70, appendix to Bracton II, 606 and VI, 510. According to Bracton l.c. VI, 290, the agreement was two years later. . * 20 Hen. III (1235/6) Provisiones de Merton c 8: Ad breve Regium de Bastardža utrum aliquis matus ante matrimonium habere poterit hereditatem, Sicut ille quº natus est post, Responderunt Ommes Episcopº Quod molunt mec possunt ad stud respondere, quia hoc esset contra communem formam eccles?e. Ac rogave runt Ommes Episcop: Magmates ut consentiremt Quod nati ante matri- § 60] FROM NORMAN CONQUEST TO THE REFORMATION 423 adjudicate on the question of fact, the secular courts for some time abstained entirely from referring it to the ecclesiastical tribunals.” Nevertheless, we find presently (from 1247 onwards?) that the rule became to observe the under- standing reached in 1234; the secular courts, however, persisted in their view that the ecclesiastical were not eacclusively competent to determine the matter. Hence they struck out of the form of reference the pertinent clause,” usual in other cases; and occasionally, particularly if the bishop did not confine himself solely to answering the question of fact, they caused inquisition to be made independently by sworn jurors.” In 1247 the king prescribed anew that the bishops should answer the question of fact.” From the end of the thirteenth century reference to the ecclesiastical courts in the case under discussion wholly ceased.” b. In case a plea of bastardy was raised on the ground that the child was begotten by some other than the husband of the mother, there was no reference to the ecclesiastical courts, as neither the fact nor validity of a marriage Was in question.” c. If a plea was raised as to the legitimacy of an ancestor, not of a party to the suit, the disputed fact was determined by a jury.” d. An attempt was made at the beginning of the fourteenth century to enable the party concerned always to avoid a reference to the ecclesiastical Court, the secular judges ruling that such reference need not be made if the word ‘bastard was evaded in drawing the plea.” monium essent legitim?, s?cut ill? qu? mat? Sumt post matrimonium quantum ad successionem heredžtariam, quia eccles?a tales habet pro legitimis, et Ommes Comites et Barones una voce responderunt Quod molunt leges Anglie mutare que usitate Sunt et approbate. - * Letter of Henry III, May 9th, 1236, to the archbishop of Dublin and the justiciar of Ireland (claus. 20 Hen. III, m. 13d., printed in Blackstone, The Great Charter, Oxford, 1759, Introduction, p. lvii, note c): . . . molwerunt ad hoc respondere et reliquerunt mob's et curée mostre hoc inquiremdum et term?mandum. * quoniam, hujus mod? &nquisitio pertènet ad forum ecclesiasticum. Formu- lary in Bracton, Book V, tract. 5 c. 19 $8 (VI, 308). Compare also the formulary for putting such a question to the bishop, which is to be found in the last part of a collection of the Brevia de cursu [MS. Cambridge Kk V. 38], which pro- bably originates from the years 1237–59 and the last part of which contains the Brevia, which had then only just been newly added (Maitland, The History of the Register of Original Writs in Harvard Law Review III, 175, November, 1889). * Bracton, Book V, tract. 5 c 19 $ 2 (VI, 294); cf. also Book IV, tract. 3 c 19 § 1 (IV, 326). * Matth. Paris, Chron. Maj. IV, 614 (above, note 79). * Fleta (circ. 1290) Book VI c. 16 $ 4 (above, note 89). Year-Books (Rer. Bråt. Scr. No. 31) 11–12 Ed. III, pp. 231–35, 351–53 (year 1337 or 1338). * Bracton, Book V, tract. 5 c. 19 $ 2 (VI, 296). Fleta, Book VI c. 16 $ 4 (above, note 89). * Bracton, Book IV, tract. 1 c 23 $ 5 (III, 308), Book V, tract. 5 c 19 $ 17 (VI, 320). Fleta, Book VI c. 16 $$ 14, 15. Britton, Book III c. 16 $ 3. * Petition of the clergy, 1309 (Wilkins, Concilia II, 321): Item quod cognitio bastardiae, seu illegitimitatis ad forum ecclesiasticum pertineat, ac quidam justițiar?? de movo, s? propomatur eacceptio coram e?s sub hac forma, * Nom est legitimus' de ea de facto cogm0Scunt; sed s? Sub hac forma verborum propomatur eacceptio, “Est bastardus,' twmc Supersedent, quousque per ecclesiam, super hoc fuerit cognitum, mºrandam movitatem adžnven?entes contra ecclesłas- ticam libertatem ; pettur, quod, mom obstante variatione verborum, a cogn?- tione causarum huju Sºmod? des?statur.—In earlier times objection of bastardy without the use of the word bastardus seems to have been invalid. Cf. e.g. Fleta, Book VI c. 16 $ 5. - - - 424 FCCLAESIASTICAL COURTS [W, 14A 3. Maritagium and dos. According to Glanvilla an action to recover immovables promised as a wife's portion (maritagium) could, if against the donor or his heirs, be brought, ac- cording to the plaintiff's election, either in the ecclesiastical or the secular Court; if the action was against some other person, only the secular court was competent.” In the thirteenth century the competence of the ecclesiastical Court seems to have been recognized as exclusive in so far as movables given or promised as a wife's portion were concerned, the secular courts being exclusively competent in respect of immovables.” The usage of the courts in the fourteenth century led to an extension of the claim to competence for the Secular courts in matters of maritagium.” At latest in the eleventh century it was customary for the husband, at the time of the espousals before the door of the church, to give his wife certain property (land or movables, at most one-third of his property) in case he should die before her. The property so settled had to be demanded after the husband's death in the secular court; only a plea raised that the plaintiff was not the lawful wife of the deceased was referred to the ecclesiastical court." * Glanvilla, Book VII c. 18: . . . Cum quis autem, terram aliquam de maritagio Macoris Sude petit, vel mºulier žpsa vel ejus haeres, twmc disting witur wtrum terra illa petatur versus donatorem vel ejus haeredem, vel versus eactºraneum : Quod sº versus donatorem vel éjus haeredem petatur, twmc in elect? one petent is esse poter it, utºrum inde placăt are voluer?t in Cwr: a Christianitat is an in Cu rô a secular 7. Spectat enºm ad Judicem ecclesiasticum, placătum de maritag? is tractare, 87 pars petentis hoc elegerät, propter mutuam affidationem quae fier; solet quando aliguès promºtt?t se ducturum in wºorem al?quam mulêerem, et e? maritagłum promittitur eac parte mulêeris; mec per Curiam domºn? Regis defendetwr placătum illud in Curia Christianitatis, lºcet de lažco Feodo sº t, sº const?ter it quod ad mar; tag? u m petatur. S: vero versus eactramewm petatur, twmc ºn laica Curia term?nabitur placătum illud eodem modo et Ordºne quo de alºžs laïcis Feod’s placătaré solet; . . .—Cf. Rot. 23 Hem. II (cited in Bigelow, l.c. 274): De placătăs et convention?bºts curiae : Willelmus filăus Ulger?? debet C. S., pro habenda recognitione de maritagão matrès Swae, wºnde dissa’sºta fuit tem- pore ºverrae sºme judicio. * See the passages from Bracton and Fleta quoted above in note 80. * Thus competence was claimed if the maritagium was promised in writing, or if the promise was conditional : “in case he should marry the daughter.” 45 Ed. III, 24 or 22 Ass. 70, cited in Reeves, Hèst. of Engl. Law c 25, 3rd Ed. IV, 65. * * Glanvilla, Book VI, De Dotibus, c 1: Dos Duobus modès dicitur. Dos enºm dicitur vulgariter, & d g woºl a lºgºu is liber homo dat sponsae swae ad Ost? wºm. Eccles? ae (on the fact that non-public bestowal of the dos was invalid, see Bracton II, 50, IV, 496, 508) tempore despons at £on? S swae. Tenetwr autem unusqu’àsque, ta’m ju're eccles?ast? Co gua'm juré seculará, sponsam swam dotare tempore desponsation's Suae. Cum, Quis awtem sponsam swam dotat, aut mom?nat Dotem aut mon. Sº non nom?naverit, tertia pars totăus tenement; liber? Suá čntellêgêtur Dos éjus ; et appellatur rationabilis Dos cujuslibet mºulierås tertia pars totius liber; tenement; vir? " sui, quod habużt tempore desponsation?s; ?ta quod inde fuerét Seás?tus in Dominico. [On the law in this respect in the 12th and 13th cents. cf. Twiss, Introduction to Bracton, vol. IV, pp. liii f. and Nichols, Introduction, p. xli to Britton.] S. vero Dotem nominat, et plus tertia parte, DOS 7psa ºn tanta quantitate stare non poterit: amensurabitur enºm usque ad tertian partem : quia minus tertia parte, scălăcet tenement? Sui, potest quis dare in Dotem, plus autem, mon. In c. 2 the possibility of giving a dos in movables, or even in money, is mentioned. For actions of wife and heirs against each other after the husband's death, Glanvilla names only the civil court as competent. Cf. also Bracton, Book IV, tract. 6 c 18 $ 1: Facta autem dot's constitutione et § 60] FROM WORMAV CONQUEST TO THE REFORMATION 425 The attempt made by the authorities of the church im the thirteenth century tO $ude the competemce of the secular courts in such disputes was umsuc- cessful, 4. Testamentary causes.** It must be assumed that the church from the time of William's ordinance (c£rc. 1070) drew the decisiom of testamentary : causes to itself.° Evem in Glanvilla (c£rc. 1180—90) the competence of the ecclesiastical courts in this respect is recognized.'''' And afterwards the principle was repeatedly com- firmed. 111 It is here to be observed: that, from the Normam conquest to the reign of EHenry VIII, im England a, testamentary disposition as tO lamd was by strict asságnatíone, nìhìl proprìetatis pertínet ad mulíerem, nîsî tantum seysâna et líbe7'um, temementum ad vîtam, suam. Por full statements of procedure im action for dower (dos) see Bractom, Book IV, tract. 6 (IV, 450 ff.); Fleta, Book V cc 17—21; Brittom, Book V cc 7, 8, 10; Ead. de Hengham, Sum/ma Parva c 8. Example of inquiry of the ecclesiastical court and answer of latter (1279) im a, questiom whether a marriage had taken place or mot, in Regíst. Epìst. Peckham (Rer. Brit. Scr. No. 77) I, 11. See also JFleta, Book VI c 16 § 4 . . . (Judeœ secularis) . . . înquîrere poterát de dote mulíerís utrum, dotata fuerìt ad ostíum Ecclesîae necne, et utrum Sponsalía publíca fuerànt vel clandestína . . . Similarly Bractom, l.c.; especially c 9 (IV, 508). - *° Cf. the account in Prymne, Records III, 140. For the special regulations as tO the estates of spiritual persons see § 27, mote 21. ° But in some places the competence of the lord of the manor remained. Cf. 1 & 2 Phîl. & Mar. (1554 amd 1554/5) c 8 s 22; maintained are the rights of such Temporall Lords and Possessíoners . . . , as by auncient Gustome have enjoyed Probate Qf Testamentes qf the%r Tenantes or other. Answer of the king to the complaimt of the clergy, 1279—85 (ßer. Brìt. Scr. No. 61, p. 70) c 4: . . . ín câvêtate London. e2c consuetudóne probatur testamentum coram Τηα]07'e ; . . . '''' Glanvilla, Book VII c 6: Debet autem testamentum fierí coram duobus vel pluríbus vêrês legátám ás, clerìcìs vel laïcâs, et talíbus quâ testes înde fierâ possunt îdoneâ, Testamentô autem eocecutores esse debent íí quos testator ad hoc elegerêt et quíbus curam îpsam commìserìt. Sí vero testator nullos ad hoc nom?naver?t, possunt propìnquì et consanguíneá ípsíus defunctâ ad ìd facìen- dum se ìngerere. Ita quod só quem, vel haeredem vel alíum, rerum defunct? reperìunt detentorem, habebunt breve dom ìm à Reg?s Vácecomitâ dêrectum, ?n, haec verba. c 7: Reae Vicecomitâ salutem : Praecípío tìbì quod juste et sêne d ílatíone facías stare ratìonabìlem, divisam (= divisiom according to testa- ment) N. sîcut ratìonabìlìter monstrarì poterít quod eam fecerìt et quod îpsa stare debeat . . . c 8: S% quis autem, authorìtate hujus brevìs conventus, alíquíd díacerít contra testa me ntu/m, ìpsum ; scìlìcet quod non fuít ratíon- abílíter factum, vel quod res petíta, mon fuerít íta ut dìcìtur legata, tunc quídem placátum îllud ín Curìa Chrìstìanìtatìs audórá debet et termêmarí, qu í a placátum, de testa mentês coram jud ęce ecclesíastíco fáerí debet . . . Book XII c 17: Reac Vicecomitâ salutem. Praecîpîo tìbì quod juste et Sáne dílatíone facías tenere ratìonabîlem, dìvìsam R. quam, fecit fratribus Hospìtalìs Híerusalem, de catallis suìs, sìcut ratìonabìlìter monstrarâ poterít quod eam, fecít et temerè debeat. Teste etc. For a limitation see the answer of the king to the petitiom of the clergy of 1280 and 1800 (in the petitiom of 1809, Wilkins, Conc. II, 816): De domìbus et molendìnìs, ac sìmìlìbus, judeae ecclesíastícus non potest cognoscere, an sìnt legab íl ía ; sed bene potest cognoscere ínvento, quod S í nt legabìlìa, an sìnt legata ; et cum constíterít, compellere, ut solvantur. Similarly in the main the answer to the petition of 1279—85 c 4 (Rer. Bröt. Ser. No. 61, p. 72). - - *** Cf. above, motes 79, 80. ' 426 ECCLESIASTICA L COURTS *. [V, 14A law only allowable in certain cases, though considerable evasions of the rule Occur apparently from the middle of the thirteemth century onward.'** Issues as tO debts due to deceased persons were claimed for the church courts, though the claim was not conceded ; but actions for the payinent of bequests belonged properly thereto.*** Ecclesiastical ordinances imposed om a testator the duty of devising a part of his estate for pious purposes. The priest who received the last, confession Was tO use his influence tO that effect. It was apparently in connexiom here- ''* Glanvilla, Book VII c 1: . . . Lìcet . . . cuílíbet de terra sua ratíonabilem partem pro sua voluntate, cuicunque voluerìt, líbere în vîta sua domare (the domation has, however, as against the heir omly effect if possession is givem in the lifetime of the domor); în eacfremís tamen agenti mom est. cuìquam hactenus permíssum ; . . . Potest îtaque quìlìbet sic totum questum, (in opposition to what he has inherited) donare ?m vita sua, sed "mullum, haeredem índe facere potest, neque Collegêum, meque aliquem homónem ; quìa Sol V, S De VS haeredem, face7'e potest, mom homo . . . c 5: . . Cum, quís ín ínfírmítate positus testamentum facere voluerìt, sí debítís mom sít ?nvolutus, tumc omnes res ejus m ob % l es án, tres partes dìvìdentur aequales ; quarum una debetur haeredâ, secunda uœorâ ; tertìa vero îpsâ reservatur ; de ' qua tertia líberam habebãt dêsponendâ facultatem ; verum, sì sìne uacore deces- serít, medíetas îpsâ reservatur. De haered ítate vero míhíl ín, ultíma, volum- tate dísponere potest, ut praedictum est. Cf. also mandate of Hemry III to a. judge (Rotulâ Clausarum I, 169): Mandamus vobís quod tenerâ facíatís testa- 'mentum, Ade de Gurdujì quod fecit de rebus suìs mobílíbus . . . secumdum, dìsposìcìonem testament? eaccepta terra quam de domo mostro habuìt ; further, the answer of Edward I to a petition of the clergy, 1279—85 (Rer. Brít. Scr. No. 61 p. 70) c 4: . . . consuetudo est ?n plerísque cìvìtatìbus et burgîs quod una domus potest legarí êm testamento et alìa vìcìma non, quía est de baronía, et ílla non est legabìlís, ut utamur verbās suis, vel quôd hodíe potest esse legabílís et cras non, quia forte venditur, et emptor ejusdem, possessíonís potest legare eam ; sed sê filjus ejus eam habuerìt per successîonem, non est legabílís ; . . . On the law in the Anglo-Saxom period see Lodge, The Anglo-Saocom Land Law pp. 107 ff. in Essays în Anglo Saocom Law, Bostom, 1876. Om the evasions from the middle of the thirtêenth century cf. F. W. Maitland im The Law Quarterly Review, 1891, p. 68. Not before 82 Hem. VIII (1540) c 1 and 34 & 85 Hen. VIII (1542/3) c 5 was it, allowed to devise all free, property and two-thirds of a knight's fee. The last bomds of feudalism were removed by the emactmemt of the Cromwelliam parliamemt, 1656 c 4, amd after the restoration by 12 Car. II (1660) c 24. *'* Bractom, Book V, tract. 5 c 10 § 2 (VI, 212): Item nec locum habebìt prohí- bítío, sí testator pecunìam, sìbì debitam legaverít, dum, tamen debítum, în vîta testatorís recognátum sít et probatum, quía hujusmodò pecunîa înter bona testatorís connumeratur, et pertìmet ad eocecutores. Sí autem, petatur debìtum, per eacecutores, de quo debítores ín vita testatorìs confessâ mon fuerìnt nec convîctî, vel nec post mortem, gratis recognoverìnt, . . . ín foro secularâ oportebít agere, . . .—Articulâ epíscoporum 1285, c 9: Ut cognîtîo debítorum, defunctâ pertíneat ad praelatos, ad quos pertìnet cogmátío testamentâ, me occasì- Ome dêmêssíonís causae comsumantur boma testamentì ; quia propter hoc frequenter ultôma voluntas defunctâ mên ême ad ímpletur, ámo veríus ímpedítur. I?esponsîo : Quod praelatâ habeant cognítíonem, de debítís defunctorum, mOm concedítur.—Diocesam synod of Eceter, 1287 (Wilkins, Conc. II, 129) c 50: • e3ccomºmunîcamus omnes eacecutores, quovìs modo ìmpedìmentum, praestantes, vel aliter recusantes ìm, foro ecclesîastíco a defunctâ credítoríbus convenêrâ, vel %psês, sìcut decet, ín íbí respondere. Item omnes ìllos, qu? . . . ìmpedíant quoquo modo, quo múnus ám, foro ecclesíastíco ab eacecutoríbus defunctí líbere valeant conven?r?.—Cf. the answer of the king to the petitions of the clergy in 1280 and 1300 touching ecclesiastical competence in devises (im the petitiom of 1809, Wilkins, Comcílía II, 815): Quod legatum aut ìnvenítur în bonìs defunctâ praesentialìter, sîve sít pecunía, síve alía res mobílís, et tunc índístíncte coram, § 60] FROM WORMAN CONQUEST TO THE REFORMA TION 427 with that the authorities of the church at a, later time claimed free disposal of all parts Of an estate not specêfically bequeathed by testament.'** ' In the assize of Northamptom, 1176, it, is prescribed to the heirs to divide the chattels of the deceased according to the provisioms of the will.''° Supervisiom of the practical execution of the will seems to have beem im Glanvilla's time still rather the affair of the secular authorities than of the ecclesiastical.'* At amy rate, he makes no mentiom of the co-operatiom of the church. Magma Carta leaves the carrying out of a will to the executors, and likewise has no mention, in this respect, of any control by the church.*" Such control was mot gained uhtil the time of Henry III (1216—72), probably im the first years of his reign,*"* and perhaps in connexion with the rights conceded in regard to intestacies. judice ecclesíastíco petí debet, aut mom ìnvenitur praesentíalíter ín bomîs defunctâ, sed în manìbus debítorís, quâ defuncto ín hujusmodâ obligatur ; et tunc índístíncte ab eocecutorìbus vel legataríís coram judìce secularí petí debet, coram, quo defunctus rem huju$modi haberet petere, si vellet : nec enám propter mortem, defunctę debet fierí deferíor condítío debítorís ; quod foret, sì forum, sìbì conveníens mutare în ecclesíastícum cogeretur ; unde, s? talía coram, ecclesiast?co judìce repetantur, regía prohíbítío locum habet. (The considera- tiom that the positiom of the debtor ought mot to be made worse by the death of the creditor is also expressed in the king's answer to the petitiom of 1279—85 c 8, Rer. Brìt. Scr. No. 61, p. 71.) *** Complaimt of the representatives of the beneficed clergy of the arch- deacomry of Lincolm in the parliament of 18th Oct. 1255 (Annales de Burtom ; Rer. Brìt. Scr. No. 86; Ammales Monastêcê I, 861): Item gravatâ sunt, quod ¢ndìstìncte legata, quae secumdum voluntatem decedentíum ín usus paupe7'/m, parentum, et servíentíum, et á m al %os p ?os usus dívídá deberent et dístríbuí, dománo regí sunt concessa ìn alios usus, contra voluntatem decedentíum com- vertenda . . . Diocesam council of Eaceter, 1287 (Wilkims, Concil. II, 129) c 50: . . . In fine autem, cujuslibet testamenti hanc clausulam adjíc? volumus generalem : Caetera omnia boma mea, sîve ín rebus, sìve ín maníbus fuerìnt debítorum, în hoc testamento specialiter mon eacpressa, volo, ut pro anìmae meae salute per mamus eacecutorum meorum ín p?os usus dístríbuan- tur ; . . . On the pope's claim in 1273 and 1807, see below, note 128. Cf. also Fleta, lib. VI c 14 § 7 (above, note 80). *'° Assize of Northamptom, 1176 (primted in Stubbs, Select Charters 4th Ed. 150) c 4: Item, sí quís obìerìt framcus-tenens, haeredes îpsîus remaneant ím tal? saísíma qualem pater suus habuit die qua fuìt vívus et mortuus, de feodo suo ; et cat all a S w a habeamt u m de facîa mt d ìv ìsa m defunct ? : . . . Et uacor défunctâ habeat dotem suam, et partem de catallès ejus quae eam, Con- tóngit . . . 'i° Glanvilla, Book XII c 20: Reac Vicecomit? salutem : Praecípío tìbì quod juste et Sáne dìlatìone facìas habere A. quae fuit uocor I?. rationabìlem Dotem, suam de toto Feodo quod, fuit praefatô R. integre et ìn omnîbus . . . . ; et non remaneat eo quod Feodum praefatô R. sit de Baron?a mea, quia n0l0 nec Jus eacìgìt quod uacores mîlîtum, propter hoc amittant Dotes suas. De catal l í s autem, quae fuerunt praefatô R. praecîpîo quod ea omnîa símul et án, Pace esse facías, ita quod ómde mêl amoveatur nec ad dôvîsam, suam facíendam, mec ad alíam rem facìendam, donec debita sua eæ ántegro reddantur ; et de res? d ú o post fía f raf jo mab íl á s d ìvìsa sua secumdum, consuetudinem, terrae meae. Et s? quôd de catallìs praefat? R. remotum fuerít post mortem, suam, reddatur ad alía catalla sua, ad solvendum, înde debáta sua. Teste etc. *" Magma Carta of 1215 c 23 (append. VII). *"* The imference that the state at, amy vate no longer at that time super- intendled the execution of wills seems to be justified by the fact that the Writs that are mentioned in Glanvilla, Book VII c 7 and Book XII c 17 (primtefl above, mote 110) are not contained im a collection of Brevìa de cursu, of 1227 (MS. Cottom Tulius D. 11 f. 143 b.) amd in a, similar collectiom (MS. Cambridge Ti. VI, 18) of about the same time. Maitland, The History Qf the Regíster Qf Orìgìmal Writs im Harvard Law Review III, 168, November, 1889. 428 ECCLESIASTICAL COURTS [V, 14A 5. Disposal of an estate in case of intestacy.” The movable property of a person dying intestate fell according to older Norman law to the feudal lord.” But Henry I, in a charter dating from 1101, granted to the nearest kinsmen of intestate vassals the right of disposing of the movables at discretion for the good of the soul of the departed.” Similarly Stephen in his charter of 1186 conceded that the distribution of the estate of an ecclesiastical person, if he left no will, should be for the welfare of his Soul as the church should determine.” In opposition, however, to the charter of Henry I, Glanvilla (circ. 1180–90) again advances the opinion that the movables of an intestate vassal lapsed to the feudal lord.” Neither by Glanvilla nor by other writers of the time of Henry II is mention made of any co-operation of the ecclesiastical authorities in administering the estate of an intestate layman. In the Magna Carta of 1215 the clause in Henry I’s charter was, in the main, repeated ; the distribution of the estate was to be by the kinsmen and friends of the deceased; added was the rule that the authorities of the church were to * Cf. the account in Prynne, Records III, 18 ft. * Originally this was by way of forfeiture, as a punishment because the deceased, by not calling in a priest to receive his last wishes, had avoided con- fession and the assignment of a bequest (which it was the priest's duty to urge upon him) for charitable purposes. See more in Du Cange, Glossarium, S.J. Q.e. Žntestatio. * Carta Henric. I, 1100 (printed in Stat. of Realm I, 1 and by Liebermann in Transactions of the Royal Historical Society, 1894, p. 40) c 7: Et s' quès baronwm, vel homºnum meorum infirmabitwr, sicut pse dabit vel dare dispomet pecu nº am suam, ita datam esse concedo. Quods? 'pse preventus vel arm’s vel #nfirmitate pecuniam Suam nom ded er it nec dare d is postle rêt, or ua-Or Sºta- sive liber; aut parentes aut legitim? homines eius eam pro anima eius dividant, sicut eis melius visum fuerit. Co-operation of the church is not mentioned.— On the law in the Anglo-Saxon period cf. Knut (1016–35) II c. 70: And gif hºwd cwydeleás of byssum life gewife, sj, hit burh his gijmeleåste, sſ, hit burh faerl?cne dedić, bonne me ted se hilāford mó mºre on his dehte, butan his rihtan here-geate. Ac beó be his dihte seó deht gescyft swife rihte wife and cildan and néh-magon, aelcum be baſere mateče be him to-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 be aet häm fyrdunge aetforan his hlāforde fealle, siſ hit inman lande sij hºt ºt of lande, beón bā here-geafa forgyfene and fön ba grfe-numan to lande, and tò (ſehtan and scyftan hit swièe rihte. (“And if a man fall before 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.”) * Sº quis episcopus vel abbas vel alia ecclesiastica persona ante mortem suam rationabiliter sua distribuerit vel distribuenda statuerét, firmum mamere concedo. Sº vero morte praeoccupatus fuerit, pro salute animae éjus eccle- s? ae consilio eaderm fiat distributio. (Append. II.) * Glanvilla, Book VII c 16: . . . Cum quis vero intestatus decesserit, omnia Catalla Sua Sui Domžná esse intelliguntur . . . Cf. also Rotulus Magnus 18 Hen. II rot. 9 dorso ‘Abbatia de Bello' (quoted by Prynne, Epist. Dedic. to Records III): Petrus de Bello red. Comp. de XXXIV lib. et XIV sol. de Catallis Pelolcână Ballivá de Abbatia, q w ł ob? it Intestatus. In thesauro liberavāt, et quietus est. Rad. de Diceto (Rer. Bråt. Scr. No. 68) II, 68: * Quà (Galfridus Helèensis episcopus) quoniam infestatus decessit (21st Aug. 1189, after Henry II's death, before coronation of Richard I), ejus bona Com- jiscata sunt wrºversa. § 60] FROM NORMAN CONQUEST TO THE REFORMATION 429 be concerned in the division.” All the provisions mentioned of Magma 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: Sī aliquis liber homo intestatus decesserét, cat all a Sud per manus propºnquorum parentum et dºm?corum Suorum, per vºsum ecclesiae distribuantur, Salvis unºcuºque debit’s quae defunctus e? debebat. (Cf. also c 11; append. VII). * Complaint of the clergy at the council of London, 1257 (Wilkins, Comcilia I, 726) c 25: Item, mortuo laïco intestato, dominus reac et caeter? domână feodorum, bond defuncti sãbã applicantes, mon permittunt de épsis debita solvi, nec residuum ºn usus liberorum et proacºmorum Suorum, et alºos p?os usus per loc? Ordinarium, quorum interest, aliqua convert?. Similarly council of Merton, 1258 (Wilkins, Conc. I, 740, after Amn. Burton), Comst. of archbishop Boniface at council of Lambeth, 1261 (Wilkins, Concilia I, 746 ft.), complaint of the clergy and king's answer in 1279–85 (Northern Registers, Rer. Bråt. 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, Conc. II, 702) c 7. Tetter of archbishop Peckham to the Welsh prince Llewellyn, 20th Oct. [1279), Regist. Epist. Peckham (Ber. Bråt. Scr. No. 77) I, 77. . . Eº º of pope Alexander IV, 25th August, 1256 (Rymer, Foedera 4th * ; * , , , – Alexander . . . dilecto filio magistro Rostamno, capellamo et muncio nostro ºn Anglia, Salutem et apostolicam benedictionem. Volemus et praesentium tâbâ auctor?tate mandamus, quatinus omnia boma nobilia ab intestato decedentium, sive de regno Angliae, sive de aliis terris carºssºm? &n Christo filić noströ . . . . illustràs Regis Angliae fuerint, pro Žl la port : one, quae juact a patriae consuetud inem decedentes com- t?'m gºt (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; 3rd Ed. IV, 82), integre per te, vel per alºum, Seu alºos, colligens, quicquid de hº?s colleger's ºn aliquibus tutºs locès depomere, ac ad opus carissºm? in Christo fil?? mostr; . . . illustrås Reg's Anglº ae (ut votum suum ºfficacius eacequi valeat) conservare pro- CuréS ; . . . * Bracton (Rer. Bråt. Scr. No. 70) I, 480: Item s? liber homo intestafus eff Subito decesserit, dominus suus nil intromittat [se] de bon's defuncti, mºs; de hoc tantum, quod ad 'psum pertinuerét S. Quod habeat suum her?oth, sed ad eccles?am et ad am?cos pertönebit executio bomorum, mullam enºm meretur p02ndºm 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 Żntestatorum ad arbitrium episcop? dioecesan?, vel ejus ºn absent/a, suº generalis vicar?? mºnºs- trentwr. Cf. also in particular the constitution of archbishop Boniface at the council of Lambeth, 1261 (Wilkins, l.c. I, 746 ff.): Those feudal lords shall be excommunicated who bona . . . intestatorum non perm?serint pie dis- tribu; ºn usus miser?cordiae, pro dispositione ordinariorum, saltem pro ea portione, quae defunctum conting it . . . * Const, of Othobon, 1268 (Wilkins, Concilia II, 1) c 23: . . . agłł humana pºetas miser?corditer in defunctum, cum ºres temporales, quae Āllīus fuerant, per distributionem in pios usus (in ecclesiastical language this in- 43O - 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: the estate was, as to the greater part, to be dis- tributed among the kinsmen; as to the smaller part, to be devoted to 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.” cluded, as a rule, distribution to the kinsmen ; cf. also Reeves, Hºst. of Engl. Law 3rd Ed. IV, 80) psum juvando Segwuntur, et Coram caelest? judice pro Žpso propitiabiliter interced unt. Projnde Super bon's ab intestato decedentium provisionem, quae olim a praelatis regnº Angliae cum approbatione regis et baronwm, dºcêtwr €manasse (Magna Carta is probably meant; no other ordinance is known to which the reference might be), firmiter approbantes, districte inhibemus, me praelat? vel all? quicumque boma žntestatorum Jiuju's modi quocumque modo recipiant vel occupent contra praemissam pro- visionem.—Cf. also diocesan council of Eceter, 1287 (Wilkins, Concilia II, 129) c 50: Si quº vero laicorunt decesserint intestat?, de bonis eorum per locorum ordinarios taliter praecipimus ordinari, ut pro anima defuncti in pios usus totaliter erogeniur. * Magna Carta 1215 c 27: . . . salvis unicuique debitis quae defunctus ei debebat. 13 Ed. I (1285) Stat. Westminster II c. 19: Cwm post mortem alicuºus decedent’s intestati et obligatº aliquibus ºn debito, boma deveniant ad ordinarios dispomenda, obligetur decetero Ordinarius ad respondendum de debâtés, quatenus bona defuncti sufficiunt, eodem modo quo eacecutores hujus- mod? respondere terventur sº testamentum fecisset. Cf. Articulā, Quibus vådetwºr ecclesiae praejudicari per statuta domini regis ultimo edita in suo parlia- mento, anno Dom. 1285 (Wilkins, Concilia II, 119), c 1: Contra hoc, quod praelati solebanf habere liberam facultatem dºsponendi de bonds intestatorum, tam quoad solvenda debèta defuncti, quam et am quoad eadern bona pro anima ejusdem in pios usus alias convertendź, vådetwr dom?nus reac ad se trahere cognitionem quoad debitorum solutionem. The parliament of Carlisle, 1307, complained that William Testa claimed for the pope the biens et chatevac des testatours generawment (in opposition to dis- tinctenvent) en lour testamentz nommez, furthermore, the biens et chatevæ des intestats: . . . ... les biens des Intestats par grantz de Rois, deivent par l'ordenaire du lieu estre donez et departies pur l'alme le mort. The king accordingly issued an ordinance to check the papal demands. (Rotulò Parlia- mentorum I, 219 ft.) [In 1273 the pope sent two nuncios to England who, among other things, were to make inquiry De bonţ's episcoporum allorumque praelatorum defunctorum ab intestato and De indistincte legatis. Ann. de Wintonia (Ber. Bråt. Scr. No. 36.) II, 113.] • r * The const. of archbishop Stratford at the council of London, 1842 (Wilkins, Conc. II, 702 ft.) ce 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: . . . . statułmus, quod episcopi, et ală inferiores judices nostrae provinciae de bonis clericorum beneficiatorum, quos testar: posse constaff, de consuetudène regn? Angliae, sew aliorum testantium quorumcumque, . . . nullatenus Se intromittant; sed executores testamentorum psorum permittant libere dispomere de eisdem, mecnon ab intestato decedentium, Solutis debitis eorundem, bona, quaé supererint, in pias causas, proxim's decedentium consanguineis, servitoribus, et propinquês, seu alias pro defunctorum animarum Salute distribuant et con: vertant ; nihil inde sibº retento, mis? forsitan aliquid rationabèle pro psorim ordinariorum labore fuerét retänendum, . . . Cf. also constit. of arch- bishop Chichele, 1416. (Wilkins, l.c. III, 377.) * 31 Ed. III (1357) st. 1 c 11 : . . . . en cas ou homme devie (=dies) intestat, les ordinačrs facent deputer de plus proscheins et plus ločalac amis du mor; § 60] FROM WORMAN 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 gurtailed 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.” & intestat, pur administrer ses biens; les queux deputez eſſent accion a demander et recoverer come executours les dettes dues au d'êt mort intestat, en la Court le Rož pur adminisłrer et despendre pur lalºme du mort; et respołgment awa!?nt, en la Court le Roſſ, as autres as queuſe le dit mort estoit temuz et oblige2, en mesme la mamere come eacecutours respondromºt; et so?ent accountables as ordinairs, sº avant come eacécutours sont em, cas de festament, Sºbien de temps passe come de temps avenir.—This act is to be regarded as amending 13 Ed. i. (1285) Westminster II c. 19 (note 128). It is inter; reted as in the text by Gibson, Codeºc 478 and Finlason, note c in Reeves, History of Engl. Law, Ed. of 1869, II, 270. • * Cf. e.g. Coke, Instit. III c. 69 and IV c. 74 p. 336: If any one dies intestate, the bishop (or his judge), after hearing the administrator as to the necessities of the family, and certain forms being observed, may raise an appropriate sum from the estate to be applied in p?os usus. * On the limits of competence of secular and ecclesiastical courts see the account in Selden, The Historie of Tithes, 1618, pp. 414 f.; on tithe-law see William Easterby, The History of the Law of Tithes in England, Cam- bridge, 1888. * Judgment of the bishop of Llandaff in 1146 on parish boundaries and tithes dependent thereon in a suit between monks and a chaplain, in Bigelow, Placita Anglo-Normannica, p. 155. Suit of the monks of Northampton against Anselm de Cochis for two-thirds of the tithes: In plenaria Symodo coram Roberto Lincoln?ens? Episcopo disrationavernint ; cited by Selden, l.c. 414. See further several cases mentioned in the letters of John of Salisbury (Migne, Patrologiae Cursus, vol. 199). * Numerous examples in Selden, l.c. 416 ff.; see also in Bigelow, l.c. 137, 162, 197 etc. * Becket condemned at Wezelay (1166) the provision alleged by him (he had probably c 1 in view) to be contained in the constitutions of Clarendon: Quod laici, Seu reac sew al??, tractent causas de eccles??s vel decimis. Report of Becket to Alexander III. Materials for Høst. Becket ; Ber. Bråt. Scr. No. 67; W, 388. * Answer of king to complaint of clergy (circ. 1245 P. Cole, Documents 354) art. 3: . . . De decim?s et oblationibus ad capellas predictas (the king's free churches) et prebendas earum spectantibus, arguêt Reac Prelatos s? &mde cognoscant, racione eacempcion's supradicte. De al??s autem, decim’s mon Øntromºtt?t Se Reac nisi tantum de jure patronatus earwºndem. . . . Cf. the passages cited in note 80 from Bracton, Fleta and Britton. 9 Ed. II st. 1 (1315/6) Art. Cleri c 1: . . . Reac ad istum articulum re- spondet, quod in decim?s, oblacionibus, obvencionibus, mortuariºs, quando Sub Žstis nominibus proponuntur, prohibicion? regie non est locus, eczam s? propter deterºcēonem istorum dāwīurnam ad estimacionem earundem pe- 432 ECCLESTASTICAL COURTS - [V, 14A This rule, however, was subject to numerous exceptions, of which three are to be pointed out :— - a. The secular court intervened by prohibition when before the ecclesiastical court tithes were demanded from sources of income not before tithable.” b. A particular kind of prohibition, what was called a writ of indicavit,” was issued when, owing to the result of the tithes suit in the ecclesiastical court, the interest of the patron of the benefice might be affected. That interest was, in particular, concerned when the holder of the benefice, presented by the patron, was sued for having improperly annexed tithes belonging, not to his, but to another benefice. The king's court in intervening in such cases relied on its exclusive competence in questions of patronage. But from the second third of the thirteenth century the royal tribunals confined themselves to issuing the writ of indicavit only when the tithes sued for formed a considerable part of the income of the benefice, or when a considerable interest of the patron was at stake. After long uncertainty in practice up to what fraction of the income proceeding before the ecclesiastical court should be allowed, one-fourth was ultimately fixed as the limit. For larger sums the secular courts remained, as before, exclusively competent.” - cuniariam veniatur. Set s? clericus, vel religiosus, decámas suas in orreo suo congregatas, vel alib; eacistentes, vendiderit alicut pro pecunia, sº petatur pecunia coram. Judice ecclesiastico, locum habet prohibicio, guìa per ven- dźcionem res spirituales fivºnt temporales, et franseunt decºme ºn catalla. 1 Ric. II (1377) co 13, 14 confirm the right of the ecclesiastical courts to adjudicate as to tithes. c 13: . . . dismes, et autres choses, queles de droit deyvemſ et de aurºczene Soložent appartenere a mesme la Court Chrest?ene . . . * Complaint of the clergy, 1237 (Ann. de Burton ; Rer. Bråt. Ser. No. 36: Ann. Monast. I, 254): . . . quod judices saeculares non decidant causas ecclesiasticas in foro saecular, . . . et utrum dandae s?nt decimae de lapiciolini's vel silvecaediis, vel herbag??s, vel pasturis, vel de al??s decimis mon consuetºs.-Answer of the king to the complaint of the clergy, 1279–85 (Rer. Bråt. Scr. No. 61 p. 70) c 5: In future no prohibition, Quia de tal; molendino hacienus decámae nom fuerunt Solutae, shall be issued when the rector claims before the spiritual judge tithe from the newly erected mill. Similarly 9 Ed. IT st. 1 (1315/6) Articuli Cleri c 5-45 Ed. III (1370/1) c 3: When wood twenty or more years old is cut, rector and vicar sue in the ecclesiastical court for tithe therefrom el noum (=nom) de ceste parole “Sºlvae caedude'; est ordeine et effabl? qe prohibic?on en ce cas soºt grantee, et sur ce attachement, come ad este avant ces heures. * Cf. the original form of the writ as preserved by Glanvilla, note 153; so almost identically in Bracton, Book V, tract. 5 c. 4 § 2 (VI, 174). For the form given to this writ in the case mentioned in the text see Bracton, l.c. § 3. * Complaint of the clergy, 1237 (Ann. de Burton; Rer. Bråt. Scr. No. 36; Amm. Monastic?) I, 255: Item me currat prohibitão, ne judices ecclesiastic? cognoscant de £ure patronatus, quo mºnus clerici possint petere decimas fanquam de jure communi ad ecclesias swas pertimentes, quia patron? eccle- siarum vel capellarum quº decámas petitas possident, dicumí per talem petitionem juri patronatus Sui derogari, et molunt justiciariº domżn? regis judicare quota pars decimarum peti possit vel debeat coram judice eccle- siastico, ad hoc Quod non praejudicafur juri patronatus scălăcet jurare. Bracton, Book V, tract. 5 c 4 $ 2 (WI, 174): S. . . . content?o fuerit inter rectores de aliquºbus decºmżs quae estimari possunt usque ad gºt art am, quintam, vel seat am partem advocationis, et ultra quam partem non eacfenditur, prohibitio ut videtur, tumc fiat judicibus prohibitio in hac forma, Rex talibus judicibus salutem. Indicawit mob's . . . 13 Ed. I (1285) Circumspecte agafés, first part: Let the ecclesiastical court be competent, s? Rector petit decimam majorem vel mºnorem dummodo mon petalur quart a pars al?cujus ecclesie. (In the second part, probably originally not belonging here, there is a provision almost verbatim as in Art. Cler; c 2.) Cf. also 13 Ed. I (1285) Stat. Westminster II c. 5 sub fin.: Et cum per breve In- §.60] FROM NORMAN CONQUEST TO THE REFORMATION 433 c. Under special conditions, which, however, are not precisely knowm,'° actions for tithes could be made triable immediately before the king's court, (wrít Qf Scêre facias). The institution of such proceedings was in 1844 for- biddem by statute, the rights of the king being, mevertheless, reserved.** Im- stances of the procedure are found in later times; they were probably justified by the reservatiom indicated, freely imterpreted.'* 7. Dìsputes toucháng other dues to the parish práest, toucháng corodîes etc. The right of the ecclesiastical courts to deal with such causes was at mo time COntested.'** - 8. Disputes ín referemce to church property. Perhaps the charter of Stephem (1186) is to be understood as meaning that he dicavít ímpediatur rector alicujus ecclesie ad petendum decìmas în vîcîna parochía, habeat patronus rectorìs sic împeditâ breve ad petendum advoca- tionem decímarum petitarum. Et cum disraciomaverit procedat postmodum, placátum ín curìa Chrístíanítatís, quatenus disraciomatum fuerít ín curia I3egís. • Complaint of the clergy in 1309 (Wilkins, Conc. II, 318): Item breve, quod dícítur * Indicavit,' quod de suâ matura locum habet ín certês casibus, per quosdam justìtìarìos mómus provîde jam eaetenditur ad causas ìn foro ecclesiae agítatas super spolíatíone decìma?'u?n [?: ccoráing to Bractom, Book V, tract. 5 c 10 § 6 (VI, 216), in case of a recens spoliatío, as there was rìo patrom's interest concerned, the ecclesiastical court should be competent], vel eti&#;. super decìmìs ìm parochís alíenís contra jus commune receptís. Praeterea quoddam breve super eodem a paucís retroactis temporìbus est formatum, súú tali forma, * Indicavit,' etc. quod cum tales religiosâ teneant quartam partem, talis ecclesîae de advocatíome propría, et talís rector înde trahat eos ám, placátum, etc. et íta cognítío de spolíatíone decìmarum, vel de jure praecep- tìonìs earum ìm alîenîs parochís ab ecclesía mìnus juste aufertur ; praesertám, cum nullum índí placátum subsequenter teneatur, vel tenerâ valeat ín curía laïcali, et per consequens talis ìnjurìa cum graví anímarum perículo remanet totaliter incorrecta. Ad istum artículum resp om, det reœ : Quodsí fiat com- tentío de jure decimarum, orìgìnem habens de jure patronatus, et earum decìmarum quantitas eœtendat se ad tert í a m p a rte m bonorum ecclesìae, locum habeat regìa prohíbítío, . . . 9 Ed. II st. 1 (1815/6) Art. Clerí c 2: Item, si sit contencio de jure decêmarum, orígínem habens eœ jure patromatus, et earumdem decìmarum quantitas as- cendat ad quartam, partem bomorum, ecclesie, locum habet regìa prohíbícío, sę hec causa coram ecclesíastico Judice ventiletwr. *° See more im Seldem, l.c. 434 ff. '*' 18 Ed. III (1844) st. 3 c 7. The wrìt of scire facias should no longerissue from Chamcery, savez (= sauvé) a mous motre- droít, têel come m0u8 et n02 aun- cestres avOms eu, et soleîoms ayoìr de resoum. *** Cf. 22 Assìs. pl. 75 and 38 Ass. 20 (cited in Seldem, l.c. 444 and in Reeves l.c. 3rd Ed. IV, 96). '** Bractom, Book IV, tract. 1 c 16 § 7 (III, 146): cum . . . corodia sìnt quasi spìrìtualia, sive spìrìtualibus anneæa, non est recurrendum (s? ge- timeatur) ad forum seculare, et quom íam ín hujusmodò corodíís commítt? poterit sîmonîa, îdeo ad forum ecclesíastícum recurratur, . . . Book V, tract. 5 c 2 § 5 (VI, 164): . . . non pertinet ad regem. . . . nec ad judìcem secularem . . . cognoscere de ììs quae sunt Spírítual?0u$ @meaca, sicut de decìmìs et alíís ecclesìae proventíoníbus. 13 Ed. I (1285) Círcum- specte Agatìs refers the cause to- the ecclesiastical court, S? Rector petat 'mortuaríum ám, partíbus ubí mortuarìum darę consueverit and sô Prelatus alícujus ecclesie petat pensionem a Hectore sibi debitam. Both, referenges are repeated im 9 Eal. II §t, 1 (1815/6) Art. Clerí c 1 with the addition etíam, sì propter detencíonem ?storum díuturnam ad estìmacionem earundem pe- cùm îarîam veníatur. . • - IH. C. F F 434 - ECCLESIASTICAL COURTS [V, 14A intended to refer such disputes to the ecclesiastical courts.” As to a case belonging here, action in respect of free church land (frankalmoign), the com- petence of those courts is recognized in the constitutions of Clarendon (1164); the preliminary question whether the land claimed was free church land or a temporal fief was, however, if the issue was between a layman and a spiritual person, to be determined by the secular court.” After the statute of West- minster II (1285) the latter was also to be competent for the plea in seisin process between two ecclesiastical owners as to a certain piece of free church Iand, 14% 9. Disputes as to the property of the clergy. The church repeatedly raised a claim to cognizance in such disputes. This claim coincided, for the most part, with the demand for the amenability of the clergy to their own courts in civil causes; like that demand, it could not be realized.” - 10, Actions upon contracts which were confirmed by oath or vow.” By the constitutions of Clarendon such actions were expressly excluded from the cognizance of the church courts.” This position was subsequently main- tained by the state,” though the ecclesiastical courts were slow to submit.” * Appendix II. Cf. § 4, mote 32. * Const. of Clarendom c. 9 (append. IV).-Glanvilla, Book XII c. 25: * si fuerit placitum inter duos Clericos de aliquo tenemento, quod sit de libera eleemosyna Feodi ecclesiastic?, vel sº tenens ipse Clericus teneat in libera eleemosyna Feodum illud ecclesiasticum, quicumque sit petens, placătum inde debet esse in Foro ecclesiastico de Recto; más? peiatur inde Recognitio utrum fuerit liberum Fe00 um eccles?asticum vel lačcum Feodum. Tunc enºm, Østa Recogn?tio, s?cut quaelibet alia, in Curia domână Regis habet tractar?. For the formulary for the royal commission to the Văcecomes, whereby such a Tecognitio is initiated see Glanvilla, Book XIII c. 24. This is what is called the assisa utrum. Of the proceedings thereat see full account in Bracton, Book IV, tract. 5 (IV, 366 ft). On the development in the period between the con- stitutions of Clarendon and Bracton see F. W. Maitland, Frankalmoign in The Law Quarterly Review, 1891, pp. 359 ff—A judgment (between 1135 and 1147) of the papal legate Imarus in an action between the bishop and the monks of Rochester will be found in Bigelow, Placăta 160,—On possession per liberam eleemosynam. See § 21, note 36. 14° 13 Ed. I (1285) St. Westminster II c. 24: . Eodem modo Sécut Con- ceditur breve utrum aliquod tenementum sit libera elemos?nd alicuffus ecclesie, vel laicum feodum talès, decetero fiat breve utrum sit libera elemosºma tal is eccles? e, vel alter? us eccles?e, In casu quo libera elemosina uniws ecclesie transfertwr in possessionem alterius ecclesie. - * Cf. above, near notes 74 ff. * On penal proceedings for perjury see below, near notes 186 ff. * c 15: Placita de debitºs, quae fide interposita debentur, vel absºwe inter- positione fide?, Sºnt ºn justētēa regis. As Güterbock, Hen. de Bractor und sein Verhältnis &um rôm?schen Recht, pp. 106 ff, shows, informal contracts did not, according to older English law, give ground for action before the royal courts; hence is to be explained the extensive ecclesiastical jurisdiction which sprang up in civil causes touching breach of faith. See, however, also F. W. Maitland (for the Selden Society, 1891), The Court Baron p. 117, as to such actions before 2nferior secular courts. • * * Bracton, Book V, tract. 5 c 2 $ 2 (VI, 160): s? &m foro secular? agatur de alèquo placăto quod pertèneat ad coronam et dignitatem regis, et fides fuerit apposita ºn contractu, non propter hoc pertönebit cognitio super principali ad judicem ecclesiasticum, c 6 $ 1 (WI, 204): Item jurisdictionem swam (of the king) non mutat fide? interpositio, sacramentum praestitum, mec spontanea renunciatio partium, quamvis Sibi ipsis in hac parte praejudicent per consensum. * According to Stubbs, Const, Høst. III, 357, note 3 c 19 $400, cases of debt § 60] FROM NORMAN CONQUEST TO THE REFORMATION 435 11. Disputes as to advowson and patromage. It was in this sphere that the quarrel between church and state was fiercest. The state clung to its right as alone giving it security that the established agency of the king and other laymen in filling ecclesiastical offices should not be impaired by papal ordinances, on which the ecclesiastical courts might base their judgments. It had thus to contend in this sphere not only with the national church but also immediately with the pope. The exclusive competence of the royal court in disputes about patronage is emphasized in the constitutions of Clarendon" and in Glanvilla,” and this was always the view represented in statutes, royal mandates and the law- books.” Several special modes of procedure in temporal courts were developed were long tried in court Christian ; the Acts of the Ripon Charter for 1452–1506 containing 118 such cases. Like cases of the end of the 15th century are col- lected out of Hale, Precedents and Proceedings by Pollock, Contracts in Early English Law in Harvard Law Review VI, 403, March, 1893. * c 1: De advocatione et praesentatione ecclesiarum sö controversia emer- serit inter laicos, vel inter clericos et laicos, vel inter clericos, in curia domin? regis tractetu et terminetur. - - * Glanvilla, Book IV, De Advocationibus Ecclesiarum (and in the passages cited in note 80) claims for the civil court exclusively both the plea as to the right (de recto) and as to the possession (de possessione) of the advowson and right of presentation. A special form of disputing possession in causes of advowson, the assåsa ultimae praesentation?s, had been. (cf. Glanvilla, Book XIII c. 1, note 80) introduced by statute. A writ of right was tried at the choice of the defendant, per dwellum or by Magma Assºsa (Glanvilla, Book IV c 6). .” Cf. also Glanvilla, Book XIII CC 18 ff. c 20: . . . Is cu? Sui vel al?cuffus antecessorum suorum adjudicab?tur ultima praesentatio, eo ºpso Sežs?nam Žpsius Advocationis intelligētur dérationasse; ita quod ad praesentationem Žpsºus prima Persona Żn ea Ecclesia vacante per Episcopum locł żnstituetur, dummodo Persona Żdoned fuerit; . . . - If proceedings are taken against each other by two clerks who derive their rights from different patrons, so that in reality the advowson is in dispute, a prohibition may be sought from the secular court, which then issues in the form of the writ Indicavit. This writ runs (Glanv., Book IV c. 13): Reac Judě- cibus ill's ecclesiastic's salutem. Ind?cavit mobżs R. Quod cum J. Cler?cus Suus tenedi Ecclesiam &llam in Żlla villa per swam praesentationem, quae de Sua Advocatione est, ut dicit, N. clericus eandem petens eac Advocatione M. Militis, Žpsum J. Coram vobis in Curia Christianitatis &mde trah?t in placitum. Sº wero praefatus N. Ecclesiaſm illam diracionaret eac Advocatione praedict; M. palam est quod jam dºctus R. jacturam inde ºncurreret de Advocatione sua. Et quon?am lites de Advocationibus Ecclesiarum ad Coromam et dignitatem ºmedºm pertinent, vobis prohibeo, me in causa illa procedatºs, domec d'raciona- tum fuerit in Curia mea, ad quem żllorum Advocatio illius Ecclesiae pertèneat. To the ecclesiastical court are, however, assigned various cases of action be- tween the patron and the clerk in possession of the benefice, in so far as the advowson itself is not in question (Glanv., Book IV co 9, 10). The letters of John of Salisbury show that under archbishop Theobald (1139–61) ecclesiastical Courts decided disputes on advowson, and appeals were lodged to the pope. For instances of suits of advowson in the time of Stephen and the beginning of the time of Henry II, tried, some in the ecclesiastical, some in the secular court, See Bigelow, Placita pp. 174, 245, after Chron. Monast, de Bello (Anglicana Christiana Soc.) 110, 125. * Instance in which the view was directly upheld : writ of Henry III to the archbishop of Armagh, 7th July, 1244 (Prynne, Records II, 628), Petitions. of the clergy, 1280 and 1300, and king's answer at the time (in the petition of 1309, Wilkins, Conc. II, 320): Item licet patronatus vicariarum, quae mon ad laicum feodum, mec ad alias laicas personas, Sed ad rectores ecclesiarum per- 436 ECCLES IASTICAL COURTS - [V, 14A to try the issue de possessione of advowson.” Repeatedly in the thirteenth century the clergy raised the claim to determine all such issues. But the only point they carried was that the ecclesiastical judge should decide on the fitness of the presentee,” as also on the preliminary question whether the benefice was vacant; * moreover, a form of proceeding in ecclesiastical courts was retained for suits of advowson, but only as a sort of provisional examination, and with the limitation that the judgment of the spiritual court could be chal- lenged by a suit of advowson before the secular court.” In the fourteenth century there were even ecclesiastical regulations issued that in case a benefice was vacant the bishop should regard the decision of the king's court in causes of advowson as authoritative,” timent, tanquam mere spirituale ad forum ecclesiasticum debeat pertinere; curia tamen regia super patronatu hujuśmod? vicariarum cognitionem usur- pans, jurisdictionem ecclesiasticam Super hoc impedit mºnus juste. Re- spondet reac : Quod aliquando praesentatio spectat ad rectores, alºquando ad alios, sed de jure patrom at us cog nºt to semper ad regem pertº net. Letter of Edward III, 12th May, 1343 to the pope (Rymer, Foedera 4th Ed. II, 1223): The pope has granted a commission to determine a suit of advowson in Rome: . . . same, licet causae Super jure patronatus quorumcumque bene- ficiorum ecclesiasticorum, regm; mostri Angliae, inter personas cujuscumque condition?s et status agºtamdae, ac placita transgressionum et incarcerationum 7bidem in curia mostra, et mom alibi, tractari debeamt et finiri . . . The pope is accordingly begged to revoke his commission as involving an encroachment on the king's right.—Cf. also above, mr. notes 138, 139.—On the various forms for pºibitions in suits of advowson see Bracton, Book V, tract. 5 c. 4 (VI, 172 ft.). * Quare impedit, quare mom permittit, darrein presentment etc. A full statement of these forms of proceeding in Bracton, Book IV, tract. 2 (IV, 1 ff.). Of older legislative regulations of these forms of proceeding cf. Magna Carta of 1215 cc 18, 19 (append. VII); of 1217 cc 13-15 (append. VII notes 14, 15; cf. Bracton II, 162); 43 Hen. III (1259), c 12; 52 Hen. III (1267) Stat. de Marleberge c 12; 13 Ed. I (1285) Stat. Westminster II ce 5, 30 (maintained in 12 Ed. II [1818] Stat. Eboracense c 4). - * So Glanvilla, Book XIII c. 20 (above, note 153). King's answer to com- plaint of clergy (circ. 1245? Cole, Documents 354) art. 1: Vocantur Prelati ad forum Domžm? Regis Super eo quod ad ecclesias vacantes personas mon admittunt ad presentacionem eorum quº jus patronatus earundem &m Curia Regis evicerunt. In quo casu să racione juris patromatus quod Prelati ad se 2psos vel ad alios pertimere décant presentatos hujus mod? admittere contra- dicant, per Principem, argui consueverunt. Quod sº causam aliam pretendant velut de inhabilitate presentati aut de aliis que ad forum ecclesiasticwm Solent pertimere, Princeps eos inde quo ad forum suum liberos et absgue calumpmia dźmittet . . . 9 Ed. II (1315/6) st. 1 Articul: Cleri c 13: Respons?o. De £domeåtate persome, presentate ad beneficium ecclesiasticum, pertimet eacamánacio ad Judicem ecclesiasticum ; et àta est hactenus us?tatum et fiet in futurum. * Bracton, Book IV, tract. 2 c 3 $ 1 (IV, 34; cf. also pp. 36, 78,80): Et s' de advocatione contentio habeatur utrum vacet vel mom, Super hoc erit ordinarius consulemaus, episcopus vel alius quº Super hoc habeat cognitionem, quia laicus de hoc cognoscere mom potest, . . . . 25 Ed. III (1351/2) St. 6 c 8: Item come les ditz Prelatz eſſent monstrez et prie2 remedie Sur ce, qe les Justices seculers acrochent a euoc comissance de voidance des benefices de droit, quelle comissance et discussion attent a Jugge de Sežnte eglöse, et m?ent a laž Jugge; S: voet le Roi et grante qe les dites Justices desore receivent tieles chalenges faites ow affaire par gecumqes Prelatz de Seinte eglöse, en celle partie, et outre ent facent droit et reSom. * This form of proceeding in the ecclesiastical court, called jus patromatus, is mentioned e.g. in 1 Ed. VI (1547) c.2 s 2 as a branch of ecclesiastical jurisdic- tion. See more on the form in Phillimore, Eccles. Law 445 ff. * Cf. e.g. the constit, of archbishop Stratford at the provincial council of § 60] FROM WORMAN CONQUEST TO THE REFORMATION 437 On the part of the state, the praemunire acts repeatedly laid stress on the Competence of the secular courts in matters of advowson, and endeavour was made to exclude as far as possible papal encroachments in this direction.” Side by side with this jurisdiction in civil causes, a jurisdiction which sprang up, for the most part, after the Norman conquest, the church still continued to exercise its old power to inflict penance. But the employment of such power it is still more difficult in this period than in the Anglo-Saxon to distinguish from that of judicial power proper, in civil or criminal causes. It is plain that even those living at the time were not clearly conscious wherein the distinction lay, to the obliteration of which three things contributed:— 1. Excommunication, originally of the nature of penance, became a general instrument for compelling the execution of all judgments' of the ecclesiastical court, whether in civil or criminal causes. 2. The ecclesiastical courts endeavoured (following precedents in the Anglo-Saxon period) * to use their powers of inflicting penance in order to compel the payment of a money compensation to the injured. Thus by indirect means cognizance in civil suits, particu- larly where compensation was claimed, might have been transferred to them. The endeavour, however, was continuously opposed by the civil authorities.” - Probably this was the chief—even if not the sole—reason that the state in principle only allowed the prelates to impose by way of penance a corporal punishment, not a fine in addition; though the corporal penalty imposed could be redeemed by a money payment.” London, 1342 (Wilkins, Concilia II, 696) c 12: . . . Caeterum, me in foro Tegio evincent? jus patronatus adversus alium sua victoria sit &nutélès, s? scribatur ordinario, quod admittat praesentatum ab illo, qué jus patronatus evicerit, ad beneficium hujus mod?, si de jure vacaverit, et de facto nihil obs?stat canonicum, admittatur libere hujusmodé praesentatus ; sed s? beneficium praedictum non vacaverit, illud domino regi, vel justētiaráðs sués intimet ordinarºws, eaccusando Se, quod, quia tale beneficium non vacat ad praesens, nequêt regium mandatum adémplere; e * A collection of relevant passages in the acts is given in § 23, note 11. * Cf. § 59, note 19. - - * King's answer to complaint of the clergy (circ. 1245? Cole, Documents 354) art. 4: De peccatés subditorum cognoscunt Prelati absºwe impedimento Regis, eacceptés casibus in quibus consequč intendumt per hoc indirecte in foro ecclesiastico aliquid quod ad forum Regis et ad ejus pertinet jurisdiccionem. De perjurio et fide? violatione idem intelligatur . . . * Cf. letter of the monk Nicolaus of Rouen to Becket, 1164 (Mat. for Hist. Becket. Rer. Brit. Ser. No. 67, W, 146, 150): In Anglia mamque delinquentium culpae apud episcopos accusatorum mon mulctantwr injunctione poenitentiae, sed datione pecuniae . . . Item quod multas pecunias suscipčant episcop? propter peccata apud eos accusatorum, sacrés canonºbu's non consentit; quia licet poena sacrileg?? sit pecuniaria, tamen non semper episcopis, Sed quibuscumque person is ad quos Sacrileg?? querimonia pertimet, juste persolvätur, Complaint of the clergy at the provincial council of London, 1257 (Wilkins, Concélèa I, 726) c 28: . . . ; só conveniantwr Coram loc' ordinarićs, statim porrigătur regia prohibitio, . . . . Idem, fit, si convicti de adulterio, vel alio crimine, puniantwr pecunialiter, vel aliis in causis mere spiritualibus fuerint in eac- pensis condemnati . . . Letters of Peckham to the bishops of St. David's 438 ECCLESIASTICAL COURTS [V, 14A 3. In some respects the state conceded to the ecclesiastical courts a genuine punitive power with a right, in excess of the ordinary power to impose penance, of inflicting imprisonment or death.” The punishment of heretics supplies the chief case in point. Some other cases are on the border-line between power to impose penance and judicial punitive power. e te In England the church during the period now under discussion exercised a quasi-judicial punitive power” especially in offences against morality, attacks on clerks, defamation, neglect in the main- tenance of churches and churchyards, refusal to discharge church dues, Simony, loan upon interest and breach of vow or oath.” But here again ecclesiastical competence was in many ways circumscribed by the state. In many instances cognizance belonged indifferently to the lay and the spiritual court; or the same cause was triable under a different aspect, particularly as a suit for com- pensation, by the secular tribunal.” - —d and Ilandaff, 5th Aug. 1284 (Rer. Bråt. Scr. No. 77; III, 794), touching abuses in the imposition of fines. & In the Circumspecte Agatis the right of the prelates to impose fines was recognized as the rule: Circumspecte agatis . . . . non puniendo eos (i.e. episcop. Norwicens. et clerum), si placitum tenuerint in curia Christianitatis de his que mere sunt spiritualia, videlicet de correccionibus, guas Prelati faciunt pro mortali peccato, videlicet fornicatione, adulterio et hujuśmodi, pro quºbus aliquando infligitur pena corporalis, aliq wando pecum?aria, maxime sº convictus sit de higusmodi liber homo. (Coke, Inst. II, 489, how- ever, Supposes that by the words aliquando pecuniaria only the admissibility of commutation for money was to be indicated.] In opposition hereto. Art. Cler; c 2, lays down: S: prelatus imponat penam pecuniariam alicut pro peccato, et repetat illam regia prohibicio locum habet; verumptamen sì prelati Żmponant penitencias corporales, et sic puniti velint hujusmodi penitencias per pecum?am sponte redimere, non habet locum regia prohibicio, sº coram Prelatās pecunia ab eis exigatur. Similar provisions for the special cases violenta manuum injectio in clericum and diffamacio are found in the Circum- Specte Agats and repeated in Art. Cleri ce 3 and 4. Only where ecclesiastical jurisdiction in civil matters (decimae, mortuaria, pensiones) was to be granted, was the church court in the Art. Cleri declared competent, etiam si propter detencłomem àstorum diuţurnam ad estimacionem earnindem pecuniariam weniatur (cc 1 and 2). * The spiritual court did not, indeed, formally sentence to death; but ordered the heretic (in relapse etc.) to be delivered to the secular arm. Yet this was in reality tantamount to punishing with death, since execution, in pur- Suance of the statute, followed directly from the judgment already pronounced. Cf., however, § 19, note 11. gº * Cf. answer of the king to the complaint of the clergy (circ. 1245? Cole, Documents 356) art. 13: . . . . s? peccata puniami Prelati pena spiritual?, ºvelut? jejunºs, elemosºmás, fustigacionibus et consimilibus, meque per Regem neque per proceres impediumtur. - e * On the subjects to which ecclesiastical penal law relates according to papal authorities cf. Richter, Kärchen recht $222, note 1; or, at greater length, Hinschius, Kärchen recht vol. W $270. - © " Answer of the king to the petitions of the clergy in 1280 and 1300 (in the petition of 1809, Wilkins, Concilia II, 319): Respondet rew : Quod quando eadem causa diversis rationibus coram, diversis judicibus ecclesiasticis et secularibus ventilatur, utpote de violenta manuum injectione in clericum ; tune, non obstanțe ecclesiastico judicio, curia regia idem negotium tractat, ut s?b% expedire videtur; diverso tamen modo, sicut supra dicitur. 9 Ed. II § 60] FROM NORMAN CONQUEST TO THE REFORMATION 439 To be noted here are the following details — 1. Heresy, The provisions regarding heresy are brought together in § 19. 2. Offences against morality. The competence of the ecclesiastical courts in this respect had survived from Anglo-Saxon times. It was permanently recognized by the state.” 3. Attack upon clerks, sacrilege. In the Cºrcumspecte Agatis it is recognized as a thing previously * conceded, that the ecclesiastical courts could intervene in cases of sacrilege. But the temporal court might also call the offender to account for breach of the king's peace." This view is confirmed in Articul; Cler?." So in the thirteenth and fourteenth centuries the two courts remained equally competent.” 4. Defamatio. Here again in the Circumspecte Agatis it is recognized as already conceded that cognizance belongs to the ecclesiastical court.” To the same effect is the st. 1 (1315/6) Articul: Cler; c 6: Responsºo. Quando eaderm causa, diversis Tacion?bus, coram Judicibus ecclesiasticós et secularăbus vent?latur, ut Supra patet de injeccione violenta mamwum in clericum, dºcumt quod mom obstante ecclesiastico judicio, Curia Regis ipsum tractat megocium ut sib? eacpedire w?detur, . . . * 13 Ed. I (1285) Circumspecte Agatis (above, note 163): form?catio, adul- terium et hujus modž. Mandate of Edward I, 18th March, 1297 (Lib. Custu- marum; Rer, Brit. Scr. No. 12; II, 213 [above, note 43). Cf., however, l.c. II, 831 Glossary s.v.g.e. Tomellum). Extended punitive power against clerks in such cases is given by 1 Hen. VII (1485) c 2 (above, note 29). * From earlier times cf. Bigelow, Placita Anglo-Normannica, 127 (exact date uncertain ; reign of Henry I): Henricus reac Angliae, Ricardo episcopo de Lundonia salutem. Mando tºbě ut facias plenum rectum, abbat? Westmomas- ter??, de homºm?bus quº fregerunt ecclesiam swam de Wintonia noctu et arm?s. Et mis? fecerºs, barones me? de Scaccario faciant fier?, me audžam clamorem Žnde pro penuria rect?. Compromise of Henry II with legate Hugo, 1176 (printed $ 4, note 54) c 3. * Cºrc. Agat, first part: . . . de violent a man wºu m 7 m.jeccº one ºn clerº cu m, et in causa diffdºm acº on 2 s, concessum fuit al? as quod placita £nde temeantur Żm Curia Christianitatis, dummodo mom petatur pecum?a, Sed agatur ad correccionem peccat. Second part : si quis manus violentes ºn?e- cerit ºn clericum, pro pace Domžn? Regis debent ememde fier; coram Rege; pro eaccommunicacione vero coram Episcopo, et s? &mpomatur pena corporal?s, Quam sº reus velºt red?mere damdo prelato vel leso pecum?am potest, mec ºn talibus locus est prohibicion?. In diffamacionibus libere corrigant Prelati regia prohibicione mom obstante, licet porrigatur. Cf. Fleta, Book I c 29 De Abjurationibus. § 7: Committentes autem. Sacré- legium per Ecclesiam tuer? nom debent, sed per Clerum judicamd? et degra- dand? . . . . . (see also Book I c 32 $ 34, above, note 33). - * Art. Cleri c 3: Insuper s? aliquès violentas manus injecerit in cler?cum, pro violata pace debet emenda fieri coram Rege, pro eaccommunicacione vero coram prelato, wt %mponatur pen?tencia corporalis; quam sº reus velºt sponte per pecuniam red?mere damdam prelato vel leso, potest repet; coram prelato, mec in talibus regia prohibicio locum habet. c 4: In diffamacionābus eciam corrigant prelati Supradicto modo, regia prohibicione mom obstante. - * Reeves, Hist. of Engl. Law c 25; 3rd Ed. IV, 102. * Cf. above, note 170. On earlier attempts to deprive the ecclesiastical courts of competence in this respect see above, note 79. 440 ECCI, ESIASTICAL COURTS [V, 14A pertinent clause in Articult. Clerö.” None the less, the secular courts endea- voured to restrict the competence of the ecclesiastical to cases of defamation which had reference to circumstances themselves cognizable by the latter.” Furthermore, it was forbidden that action in court Christian for defamation should be directed against those who had made injurious statements against lay or clerical persons in the course of a temporal inquest.” In so far as the defamation has caused loss, it could also be the subject of an action for compen- sation in the Secular court. - 5. Neglect in maintaining church fabrics and churchyards. The competence of the ecclesiastical courts is recognized in the Circumspecte Agatás.” 6. Refusal to discharge church dues. The competence of the ecclesiastical courts in penal procedure was herein just as wide as their competence in civil procedure (see above, competence of ecclesiastical courts in civil causes, Nos. 6 and 7).” 7. Simony. The kings endeavoured temporarily to exclude, in the thirteenth century, the competence of the ecclesiastical courts in this sphere also.” But the right of the church to intervene continued to be in general acknowledged.” 8. Loan upon interest (=wswra). The church proceeded penally against lenders upon interest (without regard * Cf. above, note 171,-But see complaint of the clergy at the provincial council of London, 1399 (Wilkins, Concilia III, 240) c.48 (printed below, note 194). * In the last part of a collection of Brevia de cursu (MS. Cambridge Kk., W, 33), compiled probably about 1237–59, the last part of which contains the writs then newly added, is found (under No. 109 of the collection) a prohibition to ecclesiastical judges against entertaining a cause in which B (who has been convicted of disseising A) complains that A has ‘defamed his person and estate' (Maitland, The History of the Register of Original Writs in Harvard Law Review III, 174, November, 1889). Cf. the judgments 2 Hen. IV, 15 and 18 Ed. IV, 6, cited in Reeves, Hist. of English Law c 25; 3rd Ed. IV, 101. See also Report of the Eccles. Courts Commission, 1833: Causes of Defama- tion may be defined to be Suits, instituted by persons whose good fame is alleged to have been injured by some individual uttering words respecting them, importing that they have been guilty of £n continency. * 1 Ed. III (1326||7) st. 2 c 11: Awaránt plusours gentz sont grevement pleyntz ge quant diverses gentz, awa-ibien Clerks come lays, ownte este endêtez devant viscontes en lour tours, et puis par enqueste procure sont deliverez devant Jus- tices, et apres lor deliverance Swient en Court Crestiene devers les end?tours, par quot plusours gentz des Countees se dowtent plus dendêter les malveys ; Le Rož voet qe en tiewa! cas chescwn qe se sent greve, eyt sur ce prohibicion em. Chauncellerie fourme en son cas. " Circ. Agat.: s? Prelatus pro Cºmèterio mon clauso, ecclesia discooperta vel non decenter ornata . . . penam &mponat. * Especially as to the payment of Peter pence cf. Leges Guil. I (Schmid, Ges, d. Angelsachsen) I c 17 § 2: Quº vero denarium Sancti Petrô deténet, cogetwr censura ecclesiastica illum solvere, et insuper 30 demarios pro for’s facto. § 3: Quod sá ante just 8 tº as reg is placătum venerºt, habebit peac XI sol. pro foråsfactura, et episcopus 30 denarios. Leg. Ed. Conf. (law- book; probably beginning of 12th cent.) c 10 $ 2: Si quês vero eam detºn werit, ad justát é a m regós clamor deferatur, quoniam élle demarius eleēmosºma regis est, et justitia regis reddere faciat denarium et forásfacturam reg's et episcopº. - - - * Cf. above, note 79. * Bracton III, 146 (above, note 143). § 60] FROM WORMA V CONQUEST TO THE REFORMA TION 44I to the rate of interest), From the middle of the twelfth to the middle of the thirteenth century we find the state issuing prohibitions against the exercise of this form of jurisdiction by the church.° Afterwards the latter was allowed tO have its way. The state, on its part, declared Christiam lenders upom interest incapable of making wills, and On their death, whether they had executed such deeds or not, confiscated their property. At the same time, during the life of the lender, he was liable to prosecution before the temporal courts. Pemalties against the lender were exile, incarceratiom, forfeiture of property, the pumishment of theft. According however to what we learn from the Dialogus de Scaccarìo and Glan- villa, the state was wont (at the time to which these authorities refer) to confine itself after the death of the lemder to comfiscation of his movable property, and not to proceed against such persons durimg their lifetime.** *** In 1163 Henry II caused the (continental) bishop of Poitiers to be pro- hibited, ne super accusatíone foenorás quemquem audêret. (Letter of the bishop of Poitiers to Thomas Becket. Mat. for Hist. Becket ; Rer. Brìt. Scr. No. 67; V, 38.) Complaint of the clergy, 1287 (above, mote 79). «w* * On the (secular) law im the 12th amd 18th centuries cf. especially : instanee in 1116 of a charge of detaiming of treasure-trove (latrocênêum, et usura), and trial before a, secular court, Bigelow, Placáta Anglo-Normannìca, 111. Leg. Ea Conf. (law-book ; probably begimming of 12th cent.; Schmid, appendix XXII) Codeae Harleíanus G 87: Usurarìos etíam defendit Edwardus, ne esset alíquís ín regno suo. Et sí alíquís înde probatus esset, omnes possessàones suas perderet, et pro eaclege haberetur. Hoc autem dicebat, saepe se audísse in curía Regís Francorum, . . . Dialogus de Scaccarìo (betweem 1177 and 1188), Book II c 10: Item, cum quis laïcum fundum habens, vel cîvês etiam, pub- lícís ínservât usuríís (whetherotherwise, àccordimg to Díalogus de S., the law was mot clear); sâ hâc ántestatus decesserãt, vel etíam hís quos defraudavìt non satísfacìens, testamentum de prave acquísítís vísus est condidisse, sed eadem 'non dêstríbuít, ímmo penes se reservavìt ; . . . pecunia ejus et omnia mo- bílía mo3c ínfiscantur ; . . . ; haeres autem jam defunctâ fundo patermo et ejus ám mobílíbus síbí víæ relíctís gaudeat. . . . Ec eo . . . quod clerí- cus usurês ênservâens dignîtatîs suae prêvêlegêum, demeretur, parem, laíco sác delínquentâ poenam, síb? mereatur, ut îpso vídelícet de medio sublato omnía ejus mobìlìa fisco debeantur. Ceterum sęc a prudentíbus accepêmus. In sęc delênquentem, clerícum vel laícum Chrístíanum regìa potestas actíonem non habet, dum vîta comes fuerìt : superest ením poenítentíae tempus ; sed ma g ès ecclesíastâco judícío reservatur, pro suâ status qualitate condemnandus : cum autem fatâ munus eæpleverít, sua omnia, ecclesía non reclamante, regę cedunt : násá, sícut dóctum est, vita comãte digne poenātuerìt, et testamento condíto quae legare decreverât a se prorsus alienaverìt . . . Glanvilla (circ. 1180-90), Βook VII c 16: . . . Usurarę . . . omnes res (sive testatus sive ántes- tatus decesserít) domón? Regís sunt. Vêvus autem non solet alíquís de crêmême Usurae appellarí nec convênc? : sed ánter caeteras regias ìnquìsitiones solet ámquêrâ et probarâ aliquem ëm talâ crêmême decessâsse, per duodecim legales homêmes de vîcîneto et per eorum sacramentum. Quo probato în Curía, Omnes res mobíles et omnía catalla, quae fuerunt psáus usurariâ mortu?, ad u$us domênâ Regìs cap?entur, . . . Book X c 8: . . . Cum quis ¢taque alíquíd tale (quod consistât în numero vel pondere vel mensura) credíderít, s â pl u s eo recep er ít, Usu ram, fac êt (cf. also c 8); et sê êm tal? crêmêne obíerít, damnabátur tanquam usuraríus per legem terrae, Vnde superíus dictum est plenîus . . . Ordinamce of Richard I between 1194 and 1199 (mentiomed in Itêneraríum. Råcardè; Rer. Brìt. Scr. No. 38; I, 449): . . . Item, ne quâs Chrístíanorum, deprehenderetur foenerator, nec amplíus quam commodaverat quacumque conventionís occasione recíperet ; quod sí forte reddátum vel terras quîs în pìgnus suscepísset, vel quódlibet aliud ab altero unde annuum provenêret emolumentum, recepta tamen sorte, oblógata possessâo pręstênum redêret ad dománum mom, obstante cujuscumque termênâ quas? nondum finêtê pactîone. Sí quís aufem contra haec statuta com- 442 ECCLESIASTICAL COURTS [W, 14A A statute of 1341 recognized that it belonged to the church to prosecute lenders upon interest in their lifetime, to the state to confiscate their property after death.” This act, with others of the same parliament, was repealed the following year,” and it seems that prosecution of lenders upon interest in their lifetime remained open both to state and church. Penal proceedings during the life of the offender were expressly encouraged by an act of Henry VII's reign; in it reservation was made to the spiritual authorities of their lawful punishments.” 9. Perjury and breach of promise (perjurium and fides laesa). • In the first century after the Norman conquest civil prosecution for perjury is only mentioned in cases of violation (against which feudal law provided) of vinceretur venisse, per annum et diem carcerali plecteretur penuria, regiae postmodum obnoacºus miser?cordžae. Enumeration of the subjects with which the itinerant judges in 1194 should deal (Hoveden; Rer. Brit. Scr. No. 51; III, 264) c 15: Item de foeneratoribus, eteorum catallis, quº mortui sumt. In 1198 (l.c. IV, 62) c 12: De usuris Christianorum, et eorum catallis qui sunt mortui. Similarly, the instruction to the itinerant judges in Bracton (Rer. Bråt. Scr. No. 70) II, 244. [Cf. Magma Carta v. 1215 c 10 (append. VII), 20 Hen. III (1235/6) Stat. Merton c 5 (append. VII, note 9).] Rot. Parl. 51 Hem. III (cited by Coke, Instit. IFI c. 70), Petitiones Cler? : Ad 16 Artic. de usuris respondetur: Quod lºcet Episcopis pro peccato illo poem?tentiam, usurario injungere salu- tarém. Sed quia committendo usuram, usurarius furtum committät, et Super hoc est convictus, catalla et tenementa usurarić, Sicut catalla furis Sunt Tegºs, et s? Qui sequi voluer?nt contra huju Smod? usurarium, restätuantur eis boma Sud, quae ips? usuraráž per usuram eactorserunt. Fleta, lib. II.c 1 § 19: Item, atroac injuria est quae omnium mobiläum amissionem confert, et Legem liberam aufert, et quae locum habet in USurarº's Christian?s, et de perjurčo convictis, . . . . . lib. I c 20 De Capitulis Coronae et Itineris $28: De Usur- ariis Christianis, qui fuerint; et si quº mortui fuerint, qui Catalla eorum habuerint, et quantum. Mørrour awa, Justices c 1 s 16 De Viewes de Franck-pledge : Les articles sont ceux : . . . De Christians usurers ; et de touts lour biens. * 15 Ed. III (1341) st. 1 c 5: Item accorde et assentuz est qe le Roi et ses heires eient la comżsaunce des usereres mortz et qe les. Ordinares de Seinte esglèse eſſent la com?saunce des usereres väfs, des?come a euac attéent, faire com- pulsioun par censures de Sečnt esglèse pur le pecche, de faire restitucion des wsures prises contre la le? de Sečnte esglèse. Temporal penalties during lifetime against lenders upon interest are threatened by ordinance of Edward III, 7th March, 1864 and the proclamation, based thereon, of the town of London (Lib. Albus ; Rer. Bråt. Scr. No. 12; I, 368 ft.). º * 15 Ed. III st. 1 was revoked by the king (15 Ed. III st. 2): volentes tamen. quod articuli in dicto statuto . . . content, quº per alia statuta nostra vel progenitorum mostrorum Regum Angliae Sumt prºvis approbat?, ?uacta formam dźctor u'm statuto ru'm . . . observentur. .* 3 Hem. VII (1487)c 6 fixes for loans upon interest disguised underform of Sale, bargain etc. a penalty of £100, to be imposed by chancellor or justice of peace, peservant all Esglèse, cest pumissement mient contrösteamt (temporal punishment notwithstanding), la correccion de lour almes a les leies dicell accordant (cf. also c 7). 11 Hem. 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 profit 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 of record. The act ends: Reservyng alwey to the spirituall jurisdiccion their lawéfull punysshmentis in every case of Usurie, - - - - • * * * - § 60] FROM NORMAN CONQUEST TO THE REFORMATION 443 the feudal vow and of the oath which juratores tº 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, presumably, at the same time used their influence to bring about a fulfilment of the broken 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 * Juratores had an intermediate position between witnesses and jurymen in the modern sense. * Laws of William I (preface p. ci to Hoveden, Rer. Brit. Scr. No. 51, vol. II) C 6: . . . s? Francigend appellaverit Anglum de perjurio . . . Anglus sé défendat per quod melius voluerit, aut judicio ferrà, 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 Incarnatione Dominº 1107 Henricus reac proceres suos convocavit, et Rodbertum de Montefort placº- t?s de violata fide propulsavit. Unde idem, quia rewm se sensit, licent?am. eundº Jerusalem accepāt, totamque terram suam regi reliquit. Leges Henricº I (law-book; probably 1110–18). c 53 $ 4: S: dominus de felon?a vel fide mentita compellat (=brings before the court) homżnem Suſum, Ass?sa de Essomżatoribus (preface p. cv to Hoveden, l.c. vol. II): . . . s? essOn?atores voluerint inven?re vadium et plegium quod ad diem habebunt warantum suum, et sº mom habuerint, deinde capiamtur ut perjur. 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 ft.); Fleta, Book V c 16; Britton, Book IV c. 9. Cf. also Fleta, Book II c 1 § 19: Item, atroac injuria est quae omnium mobiläum amissionem confert, et Legem liber- am aufert, et quae locum habet in Usurarážs Christianºs, et de perjurio com- victis. . . . According to Fleta, Book V c 16 $ 4 and Britton, Book IV c. 9 $ 3. 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 Mºrrowr antoc 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 chéent vers le Roy . . . touts centac subjects le Roy qui le maud?ssent Ou escomemgent. - - * c 15: Placita de debâtés, quae fide interposita debentur, vel absgue interp0- słłome fide?, simt, in justátia 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 Wezelay con- demned (1166) as contained in the constitutions, among other things, the rule : Quod mom liceat episcopo coercere aliquem de perjurio vel fide laesa. (Report of Becket to Alexander III, Materials for History Becket; Rer. Brit. Scr. No. 67; V, 387.) Alexander III writes 1165–6 to Henry II: . . . negotia eccles?- astica, et praesertim crim in a lia, gua e de laes Äome fide? vel jura- ment & emerg unt, causas quoque super rebus et possessionibus ecclesiarum, person's ecclesiasticis tractanda relinquere . . . mon adeo seren?tatem tuam deceret quam etéam eacped?ret. (Materials, l.c. VI, 554.) * Glanvilla, Book X c 12: Dže autem statuta debitore apparente in Curia, creditor Žpse s? non habeat &mde vadium négue plegios meque aliam diracºoma- t?omem mºs; solam fidem, mulla est haec probatão in Curia domin? Regis. Verumtamen de fide? lesãone vel transgressione inde ag' poterit ºn Curia Christianitatis. Sed Judeoc ipse ecclesiasticus, licet super crim? me tal? possit cognoscere et convicto pen?tentiam vel satisfact?omem ànjungere, placăta tamen. de debâtés laicorum vel de tenementis &m. Curia Christianitatis per Ass? Sam. regni, ratione ſided interpositae, tractare vel terminare non potest. #444 FCCLES IASTICAL 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 eac 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 (Wilkins, Concilia I, 726) c 27: . . . ; si inter laicos in contractibus intervenéat fide; datio, vel infringat jusjurandum qués juramentum vel fidem, et judeac (Sc. ecclesiasticus) vel?t cognoscere de tal; peccato mortal: (saltem ad poenitentiam injungendam) porrègitur regia prohibitio ; et salus animarum &mpeditur in damnationem, plurimorum, ea Occasione, quod ratione catallorum praestitum fuerat jusjurandum. * In some MSS. the words et sémiliter defic'e? laesione are wanting; and so in the text adopted in Statutes of the Realm. Cf. St. of R. I, 101, note 9. If the words stood in the ordinance, they laid down that the ecclesiastical courts might try such causes dummodo mom petatur pecunia, Sed agatur ad correc- º peccat. With this would agree the royal answer, printed above, note 162. - m. § Ass. 70; Fitz. Prohib, 2, cited in Reeves, Hist, of Engl. Law, Ed. 1869, , 104. - - * 34 Hen. VI, 70 cited in Reeves, l.c. * Reeves l.c. cites the following instances: (1) 2 Hen. IV, 15. Bro. Praem, 16; (2) 11 Hen. IV, 83 (88?); (3) 38 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 perjurči et defamationis qwum in foro ecclesiastico agitur dumtaacat ad poenam canonicam &mpon- endam s? general's prohibitio regia judic? porrigétur, quamvis judeoc ille constare faciat sub sigillo 'suo in cancellaria regis de huju Sºmodº causa, et Quod procedatur tantum-modo ad poenam canonicam ea occasione inflègendam, consultatio regia (cf. § 27, note 10, sub finem) denegatur. Unde perjurium 'ncurrentibus et defamantibus grave imminet periculum morum, cum per- jurium et defamatio hujustmodž s?c perpetuo maneant impunita. Quare Sup- plicant . . . wit reac digmetur gratiose concedere, Quod in his castbus poterit consultatio emanare. * According to Reeves, l.c. 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. * Reeves, l.c. * 11 Hen. VII (1495) c 21 An Act agaynst Perjurye. Relates to proceedings § 61] FROM THE REFORMATION TO THE PRESENT DAY 445 § 61. c. From the reformation to the present day. 1. PARTICIPATION OF ECCLESIASTICAL PERSONS IN TEMPORAL COURTS. 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 Am Act for Writtes of Attaymt to be brought agaymst Jurors for wntrue Verdictes. As the preceding, but without limitation to London. Walid until the next parliament. c 25 An Act agaynst Perjury unlawfull mayºte- mawnce and corrupcion in officers. ss 2 ft. relate to perjury on occasion of inquest before a justice of peace; s 6 concerns the case, ºf perjury bee COm/mytted by proves in the Könges Courte of the Chauncery or before the Könges honorable Councell or els where, Walid until the next parliament. In these three acts ecclesiastical jurisdiction is not mentioned. - * 34 & 35 Hen. VIII (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, or 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: Reac ſº Episcopo L. salutem. Praecipimus tibi quod tu Cancellarius tuws vel alºus deputatus tww.s sufficienter eruditus sits cum Justiciarážs mostrás ad pacem, Żm Comitatu nostro B. conservandam assignatis apud D. tali die ad sessionem mostram ad tumc et àbādem tenemdam ad dam du m, conv S 2 lºw m et a dºv is a memtºw’m eisdem Justiciarážs mostrás ad pacem Super arramamentum et deliberacºomem offendencium contra formam statut? concernent's Sacrosamc- tum Sacramentum. Altaris. 2 & 3 Ed. 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 Archebºsshopp or Bisshopp shall or maye . . . joyme and associate him selfe . . . to the said Justices . . . 1 Eliz. (1558/9) c 2 Act of Um?- form?ty; 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 and the Justices of Assise shall likewise take measures to prevent transgression; S 6: all and every Archebishope and Bishope shall or maže at all time amal times at his libertie and pleasure; joyme and associate himself by vertue of thºs. Acte to the said Justices of Ożer 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 dead and for which special 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 FCCLES IASTICAL COURTS [V, 14A 2. ECCLESIASTICAL COURTS. 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. S. } a. Competence in respect of 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. VIII (1512) c 2.4 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. VIII (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. VIII (1540) c 3 the two preceding Suche person . . . shall for:fayte and lose Suche summe . . . of Money as to the said Bysshoppe or Chauncelowr and two Justices of the Peace g shalbe thought meeté and convenient, . . . Similarly, according to s 37, in the case of other charitable foundations. - * 4 * 1 Ed. VI (1547) 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. This 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 (1603/4) c 12 s 8. When under Charles I doubts were raised whether the provisions of 1 Ed. VI 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 Cardwell, 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 notable 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 enorm?- ties we reserve to our eacamination ; other crèmes we leave to be ordered by the clergy, not because we may not intermeddle with them, for there is no doubt but as well m?ght we punish adultery and insolence in priests, as emperors have dome, and other princes at this day do, - § 61] FROM THE REFORMATION TO THE PRESENT DAY 447 statutes 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. VIII (1530/1) c 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. VI c. 12 s 1, whereby treason is only to be what is so under 25 Ed. III st. 5 c 2; the act of Ed. VI, however, in SS 9 and 12 maintains the withdrawal of benefit of clergy in cases of poisoning.] * 23 Hen. VIII (1531/2) c 1 An Acte that no person commyttyng 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 c. 3 (cf. On this point $ 60, note 44). s 1: Clergy is taken from all persons (whether the actual perpetrators or their abettors) founde gyltye after the lawes of this londe for any maner of pety treason, or for any wylfull murder of malyce prep ensed, or for robby mg of any Churches Chapells or other holy places, or for robbyng of any . . . persons in theyr dwellyng howses . . . . or in . . . the highe wayes, or for wyllfull bºur my ng of any dwellyng houses or berné8 . . . . SS 2 f : 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 convicke. 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 penaltze and losse of landes and 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- ºnary, 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 perempfordlie 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 (1533/4) c 6 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 32 Hem. VIII c. 3. 25 Hen. VIII c. 6 was repealed by the provision in 1 Mar. st. 1 c 1 s 3; 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 Elż2. c 17). 28 Hen. VIII (1536) c 1 An Acte that Felons abjurymg for Pety Treason murder or felony shall not be admytted to the benefyte of their Clergye. The validity of 22 Hen. VIII c. 14 (touching abjurations and sanctuaries), 23 Hen. VIII c. 1, 25 Hen. VIII c. 3, 25 Hen. VIII c. 6 is prolonged to the last day of the next parliament (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 1 Ed. VI 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 Hem. VIII c 448 ECCLESIASTICAL COURTS [W, 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 Hem. VIII c. 1, 25 Hem. 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 g that suche persomes as ben or shalbe within holy orders, whiche by the lawes of this Realme ought or may have their clergie for any felon yes, and shalbe admitted to the same, shal be b rent in the hande, ºn like maner and fourme as lay clerkis ben accustumed in Suche cases; and shall suffre and incurreafterwarde (i.e. in case of relapse) all suche paymes daungiers and for- factures as be ordered and used for their offences of felony, to all intentis q. as lay personnes admitted to their clergie be or ought to be ordered and wsed by the lawes and statutes of this realme. - 33 Hen. VIII (1541/2) c 8 The 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 Hem. VIII (1541/2) c 14, Similarly false prophecy. 37 Hen. VIII (1545) c 10. Similarly diffusing written, unsigned charges of high * (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 Acte for the Repeale of certaine Statutes concerninge Treasons, Felonyes etc. s 9: No benefit or sanctuary shall be allowed in case of m wºrder of malyce prepensed . . . poison in g of malyce prepensed *” e. break: mg of how se by day or might . . . and . . . person therby putt in feare or dreade . . . robbing of any person in or near highway . . . felonyous steal? mg of horses, geldinges or mares o , 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 verdºtte of 12 men, or confess wpon 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 polysom?nge of malyce pre- pensed, a peer shall under, this act of common grace uppon h is or their 'request or prayer alleging that he is a Lorde or Pier . . . . . and claym- ing the benefitt of this Acte, thoughe he can not reade, withowt anny burnynge in the hande Losse or Inheritaunce or corruption of his bloude, be juged . . . for the first time on elie . . . as a Clerke convicte, and shalbe in cace of a Clercke convicte which maye make purgacion; (Cf. also ss 14, 15.] 2 & 3 Ed, VI (1548) c 29. Sodomy felony without benefit or sanctuary. 2 & 3 Ed. VI (1548) c 33 explains 1 Ed. VI c. 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 pumyshment of Unlawfull Assem- blyes and rysinge of the Kºnges 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. . 3 & 6 Ed. VI (1551/2) c 9 explains 23 Hem. 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. 5 & 6 Ed. VI (1551/2) c 10. 25 Hen. VIII c. 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. VI c. 12; it is in so far hereby revived. § 61J 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. (1575/6) 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. dº Mar. (1555) c 17 takes benefit from a certain accessory to murder before the act. 4 & 5 Phil. & Mar. (1557/8) c 4 An Acte that Accessaries in Murder and divers Felonies shall not have the benefitte of Clergie. s 1: Enacted . . . that all and every person . . . that shall mal?cº ousl?e com/mande hire or councell any person or persons to commit or doo any Petàe Treason wilfull Murder, or to doo any Robberie in any dwelling House or Howses, or to committ or doo any Rob- berie in or mere any Highe Waye in the Realme of Englande, or in any other the Quenes Domžnions, or to committ or doo any Robberie in any Place within the Marches of Englande against Scotelande, or wilfully to burne any dwelling. Howse or any parte therof, or any Barne then having Corne or Grayne in the same ; that then everye such Offender or Offenders and every of them. . . . shall not have the benefite of his or their Clergie. s 2: Provided alwales and be it enacted, That every Lorde and Lordes of the Parliament, and Piere and Pieres of the Realme having Place and Voice in the Parliament, upon every Inditement for any of thoffences aforesaid, shalbe tryed by their Piers as hathe bene accustomed by the Lawes of this Realme. * 5 Eliz. (1562/3) c 14 An Act agaynst the forgyng of Evydences and Wryt- ; S 6 declares such forgeries on a second offence to be felony without benefit. 5 Elż2. c 16 makes witchcraft and conjuration, under certain circumstances, felony without benefit. 5 Eliz. c. 17 An Act for the punishement of the Wyce of Sodomye revives and makes perpetual 25 Hen. VIII c. 6 as it stood at the king's death. 5 Elż2. 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) c 4. An Acte to take awaye the benefitte of Clargye from certen Jelon?ouse Offendors. 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 for fellonious takinge of any Money Goodes or Cattelles Jºrom the person of any other privylye without his Knowledge in anye place whatsoever, and thereupport foundé gyltée etc. . . . shall from hensforthe be admytted to have the benefyte of his or their Cleargée . . . and shall suffer Death in such maner and fourme as they shoulde if they were no Clarkes. 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. I c 5 § 10, 25 Ed. III (1351/2) st. 6 c 5]. This is now declared permissible. if there was no clergy for the earlier offence. 18 Eliz. (1575/6) c 3's 3 declares a rogue guilty of a third offence to be a felon without benefit. s § the double meaning of beneficium cleri in the older time see § 60, notes ; : v - * 18 Eliz. (1575/6) c 7 An Acte to take awaye Cleargie from thoffendours ºn Rape and Burglarye, and an Order for the Deliverye of Clarkes convicte with- Out Purgacion. H.C. G. G. 450 ECCLESIASTICAL COURTS [V, 14A Even after the effect of beneficium had been thus curtailed, statute after statute in course of the Succeeding centuries reduced the num- ber of cases in which it was pleadable.” When in practice it had almost become the rule that clergy was no longer allowed, 7 & 8 Geo. IV (1827) c 27 repealed the various clauses etc. relative thereto," whilst 7 & 8 Geo. IV c. 28 declared that, “it being expe- dient to abolish benefit of clergy,’ the plea of ‘not guilty' without more shall be deemed to put the prisoner on his trial by jury in any indictment of treason, felony or piracy, and that benefit of clergy with respect to persons convicted of felony shall be abolished.” 4 & 5 Vict. (1841) c 22 removed any privileges in cases of felony which might still have belonged to peers.” 2. s 1: For felonious rape or ravāshement of women, maids, wives and damo- sels and for felon?ous burglary benefit of clergy shall not in future be granted. s 2: And moreover be yt further enacted . . . , That every person and persons whº ch at any tyme after the ende of this present Session of Parliament, Shalbe adºm ytted and allowed to have the Benefitt or Prévèledge of h is or their Clergie, shall not thereupp on be de- lyvered to the Ordºn.arye as hath ben accustomed; but after such Clergie allowed, and burninge in the Hande accordinge to the Statute in that Behalf provided (cf. 32 Hen. VIII c. 3 s 2, above, note 5), shall forthwith be enlardged and delivered owte of Prison by the Justices before whome suche Cleargie Shalbe gravinted, that cawse notwithstandinge. s 3: Provided nevertheles and be yt also enacted by thaucthoritye aforesaide, That the Justices before who me any suche Allowawnce of Clear g? e sh albe had, shall and may, for the further Correccion of suche persons to whome Suche Cleargie Shalbe allowed, detey me and kepe them in prys on for suche conven? ent tyme as the same Justices in their disc re- cºons shall th? nke conven? ent, so as the same do not eacceede one yeeres Impryson ment, s 4: Intercourse with a girl under ten years of age is declared to be felony without benefit. s 5 (corresponds to 8 Elżz. c. 4 s 2; see above, note 7): . . . every person and persons which shall hereafter be admitted to have the Benefitt of his or their Cleargie shall, notwithstanding his or their Admission to the same, be put to answere to all other Felonies, whereof he or they shalbe hereafter indicted or appealed, and not beinge thereof before acquited convicted attainted or par- doned, and shall in Suche manner and fourme be arraigned tried adjudged and suffer Suche eacecucion for the same as he or they shoulde have doome yf. as Clark or Clarkes convicte, they had ben delyvered to the Ordinary, and there had made his or their Purgacions; © g * See more in Blackstone, Commentaries IV, 369 ft. * Among the acts touched is 25 Ed. III st. 6 c 4, which granted clergy in certain cases of treason (cf. § 60, note 44). * 7 & 8 Geo. IV (1827) c 28 An Act for further improving the Administra- tion of Justice in Criminal Cases in England, s 1: enacted . . . That ºf any Person, not having Prévèlege of Peerage, being arraigned upon any Indictment for Treason, Felony, or Piracy, shall plead thereto a plea of “Not guilty,” he shall by Such Plea, without any further Form, be deemed to have put himself upon the Country for Trial; and the Court shall, in the usual Mammer, order a Jury for the Trial of such Person accordingly. s 6: And be ât enacted, That Benefit of Clergy, with respect to Persons convicted of Felony, shall be abolished ; . . . * It had become doubtful whether in spite of the provision in 7 & 8 Geo. IV c 28 the special clause touching peers in 1 Ed. VI c. 12 s 13 (cf. above, note 9) remained in force. 4 & 5 Vict. c 22, therefore, expressly repeals the clause in § 61] FROM THE REFORMATION TO THE PRESENT DAY 451. b. Competence in respect of causes. The competence of the ecclesiastical courts in civil causes re- mained almost untouched long after the reformation.* Not until the nineteenth century was it finally abolished in regard to all important matters. In the collection of church. dues the greater number of cases to which it was applicable disappeared with the commutation and partial redemption of tithes under 6 & 7 Gul. IV (1836) C 71 and later acts, and with the abolition of compulsory church rates under 31 & 32 Vict. (1868) c 109. In testamentary causes and matters of probate the competence of ecclesiastical . courts was ended and transferred to a secular court by 20 & 21 Vict. (1857) c. 77.” In like manner 20 & 21 Vict. (1857) c. 85 extinguished the jurisdiction vested in such courts in matters matrimonial.” By question and declares . . . that every Lord of Parliament or Peer of this Realm having Place and Woźce in Parliament, against whom any Indictment . for Felony may be found, Shall plead to such Indictment, and Shall upon Con- viction be liable to the same Punishment as any other of Her Majesty's Sub- jects are or may be liable upon Conviction for such Felony, . . . * Cf. 1 Ed. VI c. 2 s 3 (printed § 6, note 42). Of changes in this sphere to be mentioned is perhaps only the competence given to secular courts in Some cases relating to the collection of tithes and other church dues. Cf. e.g. 2 & 3 Ed. VI (1548) c 13 ss 1, 15 (thereon, Phillimore, Eccles. Law 1502), parliamentary ordinance of 8th Nov. 1644 (in place of proceedings—become inadmissible— before an ecclesiastical court, action before two justices of the peace), for some parishes in the city of London: 22 & 23 Car, II c. 15 ss 11–14, for recovering of tithes and offerings of a small amount, and of tithes owed by Quakers, by sum- mary proceedings before two justices of the peace: 7 & 8 Gul. III c. 6; 7 & 8 Gul. III c.34; 1 Geo. I st. 2 c 6 s 2; 53 Geo. III c. 127; 7 Geo. IV c. 15; 5 & 6 Gul. IV c. 74; 4 & 5 Vict. c 36 (brought together in Phillimore 1502). * Originally the Court of Probate. See more in Gneist, Verwaltungsrecht p. 156. 20 & 21 Vict. c. 77 s 3 runs: The voluntary and contentious Jurisdic- tion and Authority of all Ecclesiastical, Royal Peculiar, Peculiar, Manorial, and other Courts and Persons in England, now having Jurisdiction or Autho- Tity to grant or revolce Probate of Wills or Letters of Administration of the Effects of deceased Persons, shall in respect of such Matters absolutely cease ; and no Jurisdiction or Authority in relation to any Matters or Causes Testa- mentary, or to any Matter arising out of or connected with the Grant or Revocation of Probate or Administration, shall belong to or be eacercised by any such Court or Person. s 23: . . . no Suits for Legacies, or Suits for the Distribution of Residues, shall be entertained by . . . any Court or Person whose Jurisdiction as to Matters and Causes Testamentary is hereby abolished —After the reformation, 22 & 23 Car. II (1670/1) c 10 An Act for the better setling of Intestates Estates had (a first secular injunction) regulated the procedure of the ecclesiastical courts in administrations, and had at the same time fixed a definite order of succession.—During the first revolution an ordinance of the rump parliament, 8th Apr. 1653, vested judicial power in these matters, so far as the provinces of Canterbury and York were concerned, in a commis- sion. Cf. also Cromwell's ordinances of 24th Dec. 1653 and 3rd Apr. 1654, together with the act of the Cromwellian parliament of 1656 c 10. * 20 & 21 Vict. c. 85 s 2 runs: As soon as this Act shall come into operation, all Jurisdiction now eacerciseable by any Ecclesiastical Court ºn England in Tespect of Divorces a Mensa et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so eacerciseable, eaccept So far as relates to the granting of Marriage Licences, which may be granted as 452 ECCI. ESTASTICAL COURTS [V, 14A 21 & 22 Vict. (1858) c 93 the secular court for divorce and matri- monial causes was declared competent to determine questions of legitimacy, the validity of marriages and the right to be deemed natural-born subjects.” Thus the civil jurisdiction of the ecclesi- astical courts as to the laity is confined at present to a very small field,” and is, furthermore, restricted therein by the competence claimed (as in the middle ages) by the secular courts on the most various grounds. The penal jurisdiction of the ecclesiastical courts has likewise not been abolished in principle so much as driven back step by step. 5 Eliz. (1562/3) c 23 made the writ de eaccommunicato capºendo more effective by directing that it should be returnable in the court of king's bench ; the latter, if the accused were not found, was to award a capºds against him; for- feitures were fixed for not appearing on a first, second, third etc. capias. The same act, on the other hand, limited the competence of the ecclesiastical courts in criminal matters, in that it laid down that the party concerned might plead that all pains and forfeitures against him were void if the excommunication were not for heresy, or for refusing (1) to have his child baptized, (2) to receive the communion as it is now commonly used in the church of England, (3) to attend divine service according to the forms of that church, or for incontinency, usury, Simony, perjury in the ecclesiastical court, or idolatry.” The limitations corresponded in the main to the law as it had been hitherto; new, however, is it that the party may invoke the decision of the secular courts as to the compe- Žf this Act had not been passed.—To deal with all such matters there was instituted a secular Court for Dávorce and Matrimonial Causes, the chief judge of which was, however, identical with the judge of the court of probate. The constitution and procedure of this court were frequently altered in unimportant points. Cf. 22 & 23 Vict. (1859) c 61; 23 & 24 Vict. (1860) c 144; 25 & 26 Vict. (1862) c 81. See more in Gneist, Verwaltungsrecht $ 157. Probate and matri- monial courts, have since 36 & 37 Vict. c. 66 Judicature Act 1873 been merged in the Probate, Divorce and Admiralty Division of the supreme court.— According to Phillimore 1207, note k, the ecclesiastical court of the isle of Man still retains the old jurisdiction of the ordinary as to testaments and marriages. —During the first revolution an act of the Barebone parliament, 24th Aug. 1653 (confirmed for a limited time by act of the parliament of 1656 c 10), jurisdiction in matrimonial causes was vested in temporal courts. " An Act to enable Persons to establish Legitimacy and the Validity of Marriages, and the Right to be deemed matural-born Subjects.-The compe- tence of the ecclesiastical courts is not mentioned in the act. - * According to Phillimore 1076, civil jurisdiction as to the laity relates now only to the fabric and ornaments of the church, the churchyard and the church- wardens. Gneist, Verwaltungsrecht $171 mentions a few further cases. * s 7: . . . . And . . . yſ in the Sºgnificawit (i.e. the communication of the Court of Chancery to the sheriff touching the request of the bishop, on which the capias follows) yt bee not conteymed that Theoccommunicatyon dothe proceade upon some Cause or Contempte of some originall Matter of Heres?e, or refusing to have h is or their Childe baptysed, or to receave the Holy Comm u my on as yt commonlye ys mowe used to bee recey'ved ºn the Churche of Englande, Or to come to Dyvy me Service mowe commonlye wsed in the said Churche of Englande, or Errowr in Matters of Religy on or Doctºry ne move recey'ved and alowed in the sayd Churche of Englande, In continencye Usurye Symonye Perjurye in the Eccles? ast? Call Courte or Idolatºrye, That them all and every paymes and forfaitures lymitted agaynst Suche persons eaccommunicate by this Estatute, by reason of . . . . suche Significavit wanting all the Causes afore mentiomed, shalbee utterly voyde ?n Lawe and by waye of Plea to bee alowed to the partie greved : tº § 61] FROM THE REFORMATION TO THE PRESENT DAY 453 tence of the ecclesiastical, even after the issue of the writ de eaccommunicato capiendo. Penal powers against heresy were restricted in the sixteenth and seventeenth centuries, and still further after the end of the seventeenth, without, however, being wholly annulled.” Serious offences against morality have been made liable to punishment in the temporal courts; the right of the ecclesiastical courts to deal with such offences has never been formally annulled, but, as against laymen, it has long been in abeyance; against clerks only may the Ordinary ecclesiastical punish- ments be employed.” The jurisdiction of the ecclesiastical courts in suits for defamation was extinguished by 18 & 19 Vict. (1855) c 4.1.” Blasphemy is punished by the secular court.* 29 Car. II (1677) c. 9 left the spiritual courts still competent in respect thereto; * how far their power has been taken away by the various toleration acts is doubtful.” 23 & 24 Vict, (1860) c 32 abolished the competence of the ecclesiastical courts as against laymen for brawling in church, and fixed a civil penalty for riotous, violent or indecent behaviour in any church or churchyard of the church of England and Ireland, or in any duly certified place of religious worship, or in any burial ground.” * Cf. § 19, nr. notes 19 ft., § 54 mr. notes 62–65. * Errington, The Clergy Discipline Act, 1892, and Rules and the Church Discipline Act, 1840, with notes. London, 1892, p. 3. The royal commission on ecclesiastical courts, 1832, reported : it is competent to institute criminal proceedings for incest, adultery and fornication: but in the Arches Court and the Consistory Court of London no such Suit has been brought for a long series of years; in some of the country courts they have been very rare. According to the report of a committee of the lower house of the convocation of Canterbury (appended to Chr0m. of Conv., 1872), in 1828 there were proceed- ings in a case of incest in the Arches Court; in 1829 in the Chancery Court of York for incontinence; in 1830 for immoral conduct. According to 27 Geo. III (1787) c. 44 s 2 suits in ecclesiastical courts for formication, incontinence or brawling in church had to be commenced within eight months; prosecution for fornication was not allowed after the parties offending had intermarried. The right to inflict criminal punishments upon clerks for offences against morality, which belonged to the spiritual court under 1 Hen. VTI c 2 (cf. § 60, note 29), was annulled, that act being repealed by 3 & 4 Vict. (1840) c 86 Church Disciplôme Act. Only power of disciplinary punishment was retained. * An Act for abolishing the Jurisdiction of the Ecclesiastical Courts of Eng- land and Wales in Suits for Defamation. s 1: From and after the passāng of this Act it shall not be lawful for any Ecclesiastical Court in England or Wales to entertain or adjudicate upon any Suit for or Cause of Defamation. . . . —By 27 Geo. III (1787) c. 44 s 1 suits in ecclesiastical courts for defamatory words had to be commenced within six months. * Blasphemy is punishable by common law. Cf. further the statutes: 3 Jac. I (1605/6) c 21; 21 Jac. I (1623/4) c 20, prolonged by 3 Car. I (1627) c. 5 s 3; ordinances of the rump parliament, 28th June and 9th Aug. 1650; 6 & 7 Gul. dº Mar. (1694) c 11, 9 Gul. III (1697/8) c 35 An Act for the more effectual suppressing of Blasphemy and Profaneness threatens civil disadvantages Žf any Person or Persons having been educated in or at any time having made Profession of the Christian Religion with in this Realm, shal by writing prānting teaching or advised speaking deny any one of the Persons in the Holy Trinity to be God or shal assert or maintain there are more Gods than. One or shal deny the Christian Religion to be true or the Holy Scriptures of the Old and New Testament to be of Divine Authority. With the latter act cf. 53 Geo. III c. 160, repealed as obsolete by 36 & 37 Vict. (1873) c 91. * 29 Car. II G 9 S 2. * Phillimore, Eccles. Law 1084. * Cf. 5 & 6 Ed. VI c. 4 touching the jurisdiction of the ecclesiastical court in 454 FCCLESIASTICAL COURTS {W, 14A In cases of perjury acts of Elizabeth reserved to the ecclesiastical courts Such jurisdiction as they had before possessed.” The competence of such courts was, however, only recognized for cases in which the perjury was com- mitted in a spiritual court.” The opinion now is that perjury in any court may be punished by indictment or information in the temporal courts.” The civil penalties against usury were regulated anew under Henry VIII and Edward VI, without any mention being made of proceedings before the ecclesiastical court.” When in the reign of Elizabeth the law was again amended, punishment under ecclesiastical law was retained side by side with the civil penalties, but only if the interest charged exceeded ten per cent.” By cases of brawling in church. 23 & 24 Vºct. c. 32 repeals that act as far as refers to laymen ; it is further laid down in s 1: That it shall not be lawful for any Ecclesiastical Court in England or Ireland to entertain or adjudicate wpon any Suit or Cause of Brawling commenced after the passing of this Act against any Person not being in Holy Orders . . .—As early as 1 Gul. & Mar. Sess. 1 (1688) c 18 s 15 penalties were fixed for disturbing a congregation or misusing a preacher; similarly, in 52 Geo. III (1812) c 155 s 12, the terms there being somewhat wider; S 13 contains a proviso for the ecclesiastical jurisdiction of the church of England. * 5 Eliz. (1562/3) c 9 An Act for the Punyshement of suche persomes as shall procure or com/mºt any wyllful Perjurye. s 1 fixes a penalty for procuring a witness to commit perjury (32 Hem. VIII c. 9 s 3 cited), or for committing perjury in the king's courts, people's courts or private courts. In s 1 the ecclesiastical courts are not mentioned. s 5 runs: Provided alwayes, That this Acte mor any th?ng therºn conteyned shall mot eactende to any Spirituall or Ecclesiasticall Courte or Courtes within this Realme of Englande or Wales or the Marches of the same ; but that all and everye suche Offendour or Offendours as shall offende in fourme aforesaid shall and maye bee punished by Suche wSwall and Ordynarye Lawes as heretofore hathe been and yet ys used and frequented ºn the said Ecclesiasticall Courtes; . . . By s 7 the authority to punish perjury given by 11 Hen. VII c. 25 is reserved. The act is only to continue until the end of the next parliament. * By 5 Eliz. (1562/3) c 23 s 7 (cf. above, note 19) the judgment of the ecclesi- astical court could only be carried into effect if the perjury had been committed in such a court. * Cf. Phillimore, Eccles. Law 1085. * 37 Hen. VIII (1545) c.9 repeals as obscure the earlier acts against usury. If more than 10 per cent. be taken, sentence of imprisonment, fine or forfeiture is to be pronounced by the king's courts. 5 & 6 Ed. VI (1551/2) c 20 repeals the preceding act. No interest whatever may be taken; otherwise proceedings will follow before the king's courts. * 13 Eliz. (1571) c 8 An Acte agaynst Usurie. s 1: 5 & 6 Ed. VI c. 20 is repealed, and 37 Hen. VIII c. 9 revived. S 4: . . . as all Usurie Loane and forbearing of Monye . . . . for Gayne . . . (=charging of any interest) being forbydden by the Lawe of God is synne and detestable, where the interest charged is not more than 10 per cent, the gain is forfeited, all such forfeitures to be recovered by the process prescribed in 37 Hem. VIII c. 9. S 8: Provided alwayes, . . . That yf anye person or persons shall . . . offend con- trary to the saide Statute 37 Hen. VIII c. 9, that then all and every Suche Offendour and Offendours shall and maye also be punished and corrected accord?'ng to the Eccles? a st?call Lawes heretofore made agaymst Usurie ; And that all and every person and persons offendinge in Usurie Shyfies or Chevysaunce agaynst this present Acte, and not taking or receyvänge but onely after the Rate of Tenne Poundes in the Hundred or under for a yeare, shalbe omely punyshed by the Paymes and Forfaytures provyded and appoynted by th?’s Acte agaynst Suche as shall mot take or receave over and above the Rate of Tenne Poundes in the Hundred for a yere, and not otherwyse. S 9: The validity of this act is for five years and then to the end of the first session of the next parliament.— *The time was prolonged by 27 Eliz. (1584/5) c 11 s 1, 29 Eliz. (1586) c 5 s 2, § 61] FROM THE REFORMATION TO THE PRESENT DAY 455 later enactments (of Jas. I, Charles II and Anne) the penalties for taking interest at ten per cent. were imposed for taking eight, then six, then five. But Whether the ecclesiastical punishments were also applicable under these altered Circumstances is not plain from the acts in question.” & Against Simony 31 Eliz. (1588/9) c 6 was the first act to allow procedure before civil courts, but it left the powers of the ecclesiastical courts untouched.” The secular courts are inclined to leave the question whether there have been ºal practices in any given case to the determination of the spiritual CO UITUS. Thus in theory the ecclesiastical courts still retain a considerable Sphere of competence in criminal causes; but in practice their jurisdiction is seldom or never appealed to against laymen.” Against Officers of the church their punitory powers are still exercised, but as disciplinary rather than punitory. 53 Geo. III (1813) & 127 further weakened ecclesiastical jurisdic- tion, in that it circumscribed more closely and modified the harsh- ness of the measures which the spiritual court had at its disposal to enforce its judgments. It allowed for the future excommunication to be pronounced only as a spiritual censure in matters within ecclesiastical cognizance, and only in definitive sentences or final ‘interlocutory decrees.” Thus excommunication ceased to be a punishment, especially for not answering to a summons, for dis- obedience to other orders of the spiritual court, and for contempt. In these latter cases, instead of the previous writ de ea communicato capiendo, a writ de contumace capiendo was to be sought from the 31 Eliz. (1588/9) c 10 s 1, 35 Eliz. (1592/3) c 7 s. 1; the act was made perpetual by 39 Eliz. (1597/8) c 18. ** 21 Jac. I (1623/4) c 17 An Acte agaynst Usury. s 1: In future only 8 per cent. may be charged; contracts in breach of this act are void ; penalty thrice the sum lent. s. 3: Act valid for seven years [made perpetual by 3 Car. I (1627) c 5 s 2}. s 4: provided that no wordes in this Law contaymed shalbe construed or expounded to allow the practise of Usurie in point of Religion or Con- SC26?? C6. 12 Car. II (1660) c 13 An Act for restraining the take?ng of Eaccessive Usury reduces (in agreement with an ordinance of the rump parliament, 8th Aug. 1651) the permissible interest to 6 per cent. (“All acts of the irregularly summoned parliament of 12 Car. II were confirmed by 13 Car. II (1661) st. 1 c 7 ; the acts confirmed are cited singly, but this is not among them.) - 13 Amm, (1713) c 15 Am Acte to reduce the Rate of Interest fixes 5 per cent. as the highest allowable. I On later secular legislation touching usury see Blackstone, Commentaries V, 156 f. * An Acte against Abuses in Election of Scollers and presentacions to Benefices. s 8: Provided alwałes, That this Acte or any Thănge herein con- teyned, shall not ºn any wise eactende to take awaye or restrayne any Punysh- ment Payne or Penaltie lymitted prescribed or instituted by the Lawes Ecclesiasticall for any the Offences before ºn this Acte mencioned, but that the same shall remayne in force and may be putt in due eacecucion as it might be before the makinge of this Acte, * Phillimore, Eccles. Law 1133 ff. * Phillimore v. Machom, 1 P. D. p. 487, Dictum of the dean of the arches, lord Penzance (cited in Errington, l.c. p. 3): It cannot, I think, be doubted, that a recurrence to the punishment of the laity for the good of their souls by ecclesiastical courts, would not be ºn harmony with modern Żóleas, or the position which ecclesiastical authority now occupies ºn the country. 456 THE SEVERAL COURTS IV, 14B temporal authorities, but without change of effect or procedure.” In the cases in which excommunication was still allowable, every civil penalty or incapacity resulting from excommunication was abolished, excepting imprisonment, under sentence of the eccle- siastical court for not more than six months or until absolution by the court before the expiry of that time.” Procedure upon a writ de contumace capiendo was regulated by later acts.” gº B. THE SEVERAL COURTS. a § 62. a. Royal court. After that the ecclesiastical courts, up to and including the * 53 Geo. III c. 127 An Act for the better Regulation of Ecclesiastical Courts Žn England; and for the more easy Recovery of Church. Rates and Tithes. s 1: . . . . That, from and after the passing of this Act, Eaccommunication, together with all Proceedings following thereupon, shall in all cases, save those hereafter to be specified, be discontinued, throughout that Part of the United Kingdom of Great Britain and Ireland called England; . . . (then follow the regulations as to the writ de contumace capºendo). s 2: Provided always . . . . . That nothing in this Act contained shall prevent any Eccle- siastical Court from pronouncing or declaring Persons to be Eaccommunicate Žn definitive Sentences, or in interlocutory Decrees having the Force and Effect of définitive Sentences, such Sentences or Decrees being pronounced as Spiritual Censures for Offences of Ecclesiastical Cognizance . . . * 53. Geo. III c. 127 s 3: . . . . That no Person who shall be so pronounced or declared Excommunicate, shall incur any Civil Penalty or Incapacity what- ever, in consequence of such Eaccommunication, save such Imprisonment, not exceeding Słac Months, as the Court pronouncing or declaring such Person Eaccommunicate shall direct, and ºn such case the said Eaccommunication, and the Term of such Imprisonment, shall be signified or certified to His Majesty Žn Chancery, ºn the same manner as Eaccommunications have been heretofore signified, and thereupon the Writ de Ea.com/municato Capčendo shall issue, and the usual Proceedings shall be had, and the Party being taken into Custody shall remain therein for the Term so directed, or until he shall be absolved by Such Ecclesiastical Court. For Scotland 10 Ann. (1711) c 10 had already abolished all civil consequences of ecclesiastical (?.e. pronounced by the presbyterian state church) excommuni- cation. s 12: . . . That no Civil Pain or Forfeiture or Disability what- soever shall be in any ways incurred by any Person or Persons by reason of any Eaccommunication or Prosecution in order to Eaccommunication by the Church Judicatories in . . . Scotland and all Civil Magistrates are hereby eacpressly prohibited and discharged to force or compel any Person to appear when summoned or to give Obedience to any such Sentence «when pronounced . . . * 2 & 3 Gul. IV (1832) c 93 An Act for enforcing the Process upon Con- tempts in the Courts Ecclesiastical of England and Ireland.—3 & 4 Vict, (1840) c 93 An Act to amend the Act for the better Regulation of Ecclesiastical Courts Žn England. a Blackstone, Commentaries III, 64 f.-Coke, Institutes IV, 321 ff.—Gmeist, Englisches Yerwaltwmgsrecht $171.-Phillimore, Eccles. Law 1201 ff.—Report of the Royal Commission on Ecclesiastical Cowrts, 1883, I, pp. xx f., xxvi f. (Parliamentary Reports vol. XXIV); on Cowrt of Delegates and Commission of Review: Stubbs, Historical Appendia, I pp. 47 ff. in Report just cited.—Stephen, New Commentaries, 11th Ed. III, 325 ft. § 62, ROYAL COURT 457 highest, had been for centuries independent, Henry VIII again called into existence a supreme civil court to determine appeals from the archiepiscopal court." This was not, however, by the (first) ‘Statute for Restraint of Appeals,’ 24 Hen. VIII (1532/3) c 12. That act had laid down that in ordinary cases the decisions of the archbishops or their courts should be final, whilst in causes testamentary, matrimonial etc. which concerned the king, appeal should lie from the archiepiscopal court to the upper house of convocation. It was the second act relating to appeals, 25 Hen. VIII (1533/4) c 19, that first allowed appeal from the decisions of the archbishop's court to a commission to be named by the king on each occasion.” It was subsequently ruled that the jurisdiction reserved in the earlier act to the upper house of convocation was by the later abolished.” - Both the acts just mentioned were repealed by 1 & 2 Phil. & Mar. (1554 & 1554/5) c 8s 3; but revived by 1 Eliz. (1558/9) c 1 s 2. The several commissions (judices delegati) named to determine appeals lodged were termed collectively the “High Court of Delegates in Ecclesiastical and Maritime Causes.” By 8 Eliz. (1566) c 5 it was enacted that beyond this court no further appeal should lie.” Nevertheless, the kings granted, in some extraordinary cases, after the final decision of the court of delegates a re-examina- tion by a ‘Commission of Review.’ The party concerned had no right to such re-examination of the case; and the practice was 1. Cf. § 23. * s 4: . . . And for lacke of justice at or in any the Courtes of the Archebisshopes of this Realme or in any the Kynges Domynyons, it shalbe lawfull to the parties grewed to appele to the Kynges Majest?e ºn the Kynges Courte of Chawn cerie, and that upon every suche appele a com- nvºss? on Shalbe directed under the greate seale to suche persones as shalbe named by the Kynges Highnes . . . lyke as in case of appele from the Admyrall Courte, to here and dyffynytyvely determyne Suche appeles and the causes concernyng the same ; . . . Similarly, according to S 6, in the case of appeals from places exempt from the archiepiscopal jurisdiction. * Gorham v. Bishop of Eaceter. 15 Q. B. R. 52 against Blackstone, Commen- taries III, 67. * The court was competent to determine appeals in cases which fell under 25 Hen. VIII c. 19'ss 4 and 6, also appeals against decisions of the admiralty court.—On the constitution of the commission of delegates see const. of Whit- gift, 1587 (Wilkins, Conc. IV, 328) c 11: . . . delegat? plerumque e judi- cibus, advocatis, aut eacercentibus &n curážs archiepiscopé selčguntur § In about half the cases only judges and other laymen were delegates, in about half bishops were also delegated. Stubbs, Høst. App. I, p. 47 to Report of the Eccl. Courts Comm. 1883, after Rothery, Report to House of Commons, 1868. * An Acte for thabridgement of Appeales in Suites of Cyvill and Maryne Causes : . . . That from the last daye of this present Session of Parlya- ment, all and everie Suche Judgment and Sentence diffinytyve as shalbe gevin or pronounced in anye Civile and Marène Cause upon Appeale lawfully to be made there?n to the Queenes Majestée in her Highnes Court of Chauncery, by suche Com/myssioners or Delegates as shalbe nomymated and appointed by her Majestée her heyres or successours, by Commy'ssion under the Half Seale as it hath ben heretofore used in such Cases shall be finall, and no further Appeale to be had or made from the sayd Judgement or Sentence diffinytyve, or from the sayd Commy'ssioners or Delegates for or in the same ; . . . 458 THE SEVERAL COURTS [V, 14B without any statutory basis. The justification of it was that the popes had appointed such commissions ad revidendum after a verdict properly final, and that the pope's powers as head of the church had passed by the acts of supremacy to the king of England.” t Supreme appeal remained in this condition down to the nine- teenth century. The first alteration was effected by 2 & 3 Gul. IV (1832) c 92. This act abolished the king's power to name special commissions to determine appeals in ecclesiastical causes, and from 1st February, 1833, transferred the powers of the high court of delegates to the king in council; no commission of review was to be granted after the passing of the act." Next year 3 & 4 Gul. IV (1833) c 41 established a ‘Judicial Committee of the Privy Council’ to exercise all the judicial functions” which still in various depart- ments belonged to the privy council. To this judicial committee Were also referred appeals against the judgments of the ecclesias- tical courts. Its constitution was so ordered that those members of the privy council who filled or had previously filled certain (specified) high judicial posts were to be members also of the Committee. To the king was reserved the right of appointing under sign manual any two other persons, being privy councillors, to be members. Nothing in the act made it necessary that any Spiritual person should be on the judicial committee.” The clergy actively opposed this constitution of the court. For some cases, viz. * Coke, Inst. IV, p. 341 : It was so decided by the King's Bench ; Trân. 39 Elż2. Hollingworth's case; such commissions were always admissible as courts of appeal from special commissions named by the king; explicitly such an appeal was reserved e.g. in a clause of the high commission. (This clause appears first, according to Stubbs, Hist. App. I, p. 50 l.c., in the commission of 29th Apr. 1620, Rymer, Foedera 3rd Ed, vol. VII pt. III p. 134, and is omitted again in the commission of Charles I, 1st July, 1625, Rymer, Foedera 3rd Ed. vol. VIII pt. I p. 90, and in the later commissions printed.) " An Act for transferring the Powers of the High Court of Delegates, both in Ecclesiastical and Maritime Causes, to His Majesty in Council. S 1 : 25 Hen. VIII c. 19, in so far as therein appeal to the King in Chancery is granted, and in So far as the king is empowered to name a commission of judges to determine such appeals, is repealed. S 2: 8 Eliz. c. 5 is repealed. S 3: . . . it shall be lawful to and for every Person who might heretofore, by virtue of either of the said recited Acts, have appealed or made Suit to His Majesty in His High Court of Chancery, to appeal or make Suit to the King's Majesty, His Heirs or Successors, in Council . . . ; and that every such Judgment . . . shall be final and definitive, and that no Commission shall hereafter be granted or authorized to review any Judgment or Decree to be Tmade by virtue of this Act. * Brought together in Gneist, Engl. Verwaltungsr. § 18. C * An Act for the better Administration of Justice in His Majesty's Privy Owncil. s 1: The judicial committee is to consist of the president of the privy council, the lord chancellor and those members of the council who are or have been president of council, lord chancellor, lord chief justice or judge of the court of king's bench, master of the rolls, vice-chancellor of England, lord chief justice of judge of common pleas, lord chief baron or baron of exchequer, judge of the prerogative court, judge of the high court of admiralty, chief judge of the court in bankruptcy; it shall furthermore be lawful for his majesty to appoint § 62] ROYAL COURT 459 all those concerned with discipline, 3 & 4 Vict. (1840) c 86 ‘An Act for better enforcing Church Discipline' brought about a change : every archbishop and bishop sworn of the privy Council was to be, for the purposes of ecclesiastical appeals, a member of the judicial committee, and no such appeal was to be heard unless at least one archbishop or bishop were present.” By 36 & 37 Vict. c 66 (Supreme Court of Judicature Act, 1873) various (specified) courts were united into One Supreme Court, a division thereof having appellate jurisdiction under the name of ‘Her Majesty's Court of Appeal.” Under this act power was given the sovereign to assign by order in council all cases hitherto belong- ing to the judicial committee of the privy council to the newly formed court of appeal. For ecclesiastical causes, according to standing orders to be made subsequently, archbishops or bishops of the church of England were to be called in as assessors.” The exercise of the power conferred on the crown was, however, postponed by 38 & 39 Vict. c 77 (Supreme Court of Judicature Act, 1875),” and the power itself revoked by 39 & 40 Vict. c. 59 (Appellate Jurisdiction Act, 1876). By the last mentioned act the sole competence of the judicial committee of the privy council was restored, the special provision as to the constitution of that committee when determining disci- plinary causes against the clergy was repealed, and a general regulation made that a definite number of archbishops and bishops was to be fixed by order in council, such archbishops and bishops to attend as assessors at the hearing of all ecclesiastical causes.” by sign manual two other persons, being privy councillors, to be members of the committee. s 3: . . . That all Appeals or Complaints in the Nature of Appeals whatever, which, either by virtue of this Act, or of any Law, Statute, or Custom, may be brought before His Majesty or His Majesty in Council from or in respect of the Determination, Sentence, Rule, or Order of any Court, Judge, or judicial Officer, . . . shall . . . be referred by His Majesty to the said Judicial Committee of His Privy Council, and that such Appeals, Causes, and Matters shall be heard by the said Judicial Committee, and a Report or Recommenda- tion thereon shall be made to His Majesty in Council for His Decision thereon as heretofore, in the same Manner and Form as has been heretofore the Custom with respect to Matters referred by His Majesty to the whole of His Privy Council or a Committee thereof (the Nature of such Report or Recommendation being always stated ºn open Court). * s 16–By degrees several minor changes took place in the constitution of the judicial committee. Cf. especially 20 & 21 Vict. (1857) c. 77 s 115; 34 & 35 Vict. (1871) e 91; 39 & 40 Vict. (1876) c 59 c 14; 44 Vict. (1881) c 3. * s 21: . . . The Court of Appeal, when hearing any appeals in Ecclesłas- tical Causes . . . shall be constituted of . . . Judges thereof, and shall be assisted by . . . assessors being Archbishops or Bishops of the Church of England, ° S 2, ** s 24 repeals: 3 & 4 Wict. c. 86 s 16, 36 & 37 Vict. c 66 s 21 u, a., 38 & 39 Vict. C 77 S 2. s 14 enacts: . . . Her Majesty may by Order in Council, with the advice of the Judicial Committee of Her Majesty's Privy Council or any five of them, of whom the Lord Chancellor shall be ome, and of the archbishops and bishops 460 THE SEVERAL COURTS [V, 14B § 63. b. Archiepiscopal courts. a. Provincial court. In connexion with the new ordering of procedure in liturgical disputes the ‘provincial court’ was created as the common court of both archiepiscopal provinces by 37 & 88 Vict, (1874) c 85, the ‘Public Worship Regulation Act.’ It is to be presided over by a judge (‘Judge of the Provincial Courts of Canterbury and York’), who is to be named by both archbishops and confirmed by the king." The act vests in the new court—in this respect, as a rule, a court of first instance—the jurisdiction in causes relating to orna- ments or divine service.” As soon as a vacancy should occur in the office of Official principal of the arches court of Canterbury, or of official principal or auditor of the chancery court of York, or of master of the faculties to the archbishop of Canterbury, all the powers of these officers were to pass to the judge of the provincial court for the time being. Thus, with a few insignificant exceptions to be mentioned below, all earlier archiepiscopal courts of both provinces were united by the combination of their jurisdiction in a single person. But in name those earlier courts still survive:– 1. Appeal court of province of Canterbury (Arches court).” 2. Appeal court of province of York (Chancery court of York). These were the regular archiepiscopal courts having contentious jurisdiction. Each of them was presided over by a judge named by the archbishop of the province. In Canterbury the title of the judge was official principal or dean of the Arches, in York official principal or auditor.” These courts decide appeals from the diocesan being members of Her Majesty's Privy Council, or any two of them, make rules jor the attendance, on the hearing of ecclesiastical cases as assessors of the said Committee of such number of the archbishops and bishops of the Church of England as may be determined by such rules . . . The order in council is to be laid before parliament. * The judge must be a member of the church of England. The person. appointed must be a barrister-at-law in ten years' actual practice, or must have been a judge of one of the superior courts of law or equity. If the archbishops do not appoint within six months, the Sovereign may appoint by letters patent. * See S 8 of the act for full terms. * The name “Court of Arches’ is due to the fact that the court formerly sat in the church Sancta Maria de arcubus, St. Mary-le-Bow, which was exempt from the jurisdiction of the bishop of London. At a later time the sessions were held in Doctors' Commons Hall. Besides St. Mary-le-Bow twelve other parishes in London were exempted out of the bishop's jurisdiction. The dean of peculiars under whom they were placed was called from the name of the church ‘dean of the Arches.' Originally the dean of the Arches was a subordinate of the official, subsequently he became his commissary, and finally the two offices were regularly held together. The latter title thus came to be employed for the arch- bishop's judge. Ecclesiastical Courts Commission, 1883, Parliamentary Reports, Vol. XXIV. * The name is a reminiscence of the ‘Court of Audience,’ mentioned under B. § 63 ARCHI EPISCOPAL COURTS 461 and other courts within the province ; or they may take original cognizance if the judge of the lower court sends the case to the court of appeal by letters of request.* 3. Court of Faculties. This was an archiepiscopal court which existed only in the pro- vince of Canterbury, but was competent for both provinces. Its president, appointed by the archbishop of Canterbury, bore the title of master of the faculties. To the sphere of Operations of this court belongs certain business of a non-contentious character, such as the granting of special dispensations, licensing to marry without banns or to hold pluralities, permitting a son to succeed to his father's benefice and the like ; lastly, the preparation of appointments of public notaries, to be made by the archbishop of Canterbury.” b. The (former) courts of audience. An archiepiscopal court called the ‘Court of Audience' existed side by side with the archiepiscopal court of appeal in Canterbury down to about the middle of the seventeenth century and probably also at an earlier time in York. Originally the name seems to have been applied to the archiepiscopal tribunal in the cases in which the archbishop—with or without assessors—adjudicated in person, instead of leaving the cause to be heard by his official. Afterwards each court of audience received a judge appointed by the archbishop and entitled ‘official of the audience' or “auditor.' But even at “As a rule the higher judge is not bound to take the case upon letters of request from the lower. It has, however, been decided by the privy council that the court of appeal must accept letters of request sent it under 3 & 4 Vict. c. 86, the Church Discipline Act, the practical effect of which is to convert the court of appeal, in Such cases, into a court of first instance. See on this point and generally on letters of request Phillimore 1278, 1824. The patent of a judge of the Arches court (1867) is given in Phillimore 1205. Cf. also $ 38, notes 5 and 6.-Accord- ing to the Report of the Ecclesiastical Courts Commission, 1883, I, p. xx the court of Arches was likewise a court of first instance in all ecclesiastical matters, whether in virtue of its own rights or of those derived from the lega- time capacity of the archbishop of Canterbury. Cf. letter of Alexander III to the bishops of the province of Canterbury, 1168–70, in Materials for Høst. Pecket (Rer. Bråt. Scr. No. 67) V, 297. * The chief part of the competence of this court and the extension of its powers to the whole of England are based on 25 Hen. VIII c 21 (An Acţe for the eaconeracion frome eacaccions payde to the See of Rome; repealed by 1 & 2 Phil. & Mar. c. 8 s 3; revived by 1 Eliz. c 1 s 2). This act empowers the archbishop of Canterbury to grant to the king or to his subjects all such licenses, dźspen- Sacions, composłcłons, faculties, grauntes, rescriptes, delegacies or any other £nstrumentes or writings as before had been obtained by the king or any of his subjects from Rome, but . . . in no maner . . . for any cause or matter Tepugnant to the law of Almyghty God (SS 2, 3). Dispensations in causes un- wonted to be licensed were not to be granted until the king or his council would be advertised thereof and not without the king's licence being obtained (s.3). Licences for things whereof the tax at Rome exceeded four pounds were to be under the great seal (s 4).-On the appointment of notaries see Stubbs Introduction to Rer. Brit. Scr. No. 76, vol. I, p. lxxix and Phillimore, Eccles. Law pp. 1232 ff. - 462 THE SE VERAL COURTS [V, 14B this later stage the archbishop appears to have frequently sat in person with the official as his assessor. The competence of the court of audience was apparently the same as that of the appeal court. Courts of audience were practically obsolete in the beginning of the eighteenth century." c. The (former) prerogative courts. A court of this name was found in each of the two provinces from the later middle age to the middle of the nineteenth century. The prerogative court was originally a division of the Ordinary archi- episcopal court, subsequently becoming independent. The judge, though sometimes official principal as well," received a distinct commission from the archbishop. The court had jurisdiction in testamentary and probate cases which, exceptionally, belonged to the archiepiscopal not the diocesan court, viz.— 1. When the testator had left bona notabilia i.e. above five pounds (in the bishopric of London, above ten pounds) in another diocese than that in which he died; 2. When the testator was a bishop. By 20 & 21 Vict. (1857) c. 77 jurisdiction in testamentary matters and matters of probate is now vested in secular courts. § 64. c. Episcopal courts. a. Consistory courts. In every see there is a consistorial court over which presides a judge (“official principal') appointed by the bishop. The post has long been filled (apart from a few exceptional cases) in all the bishoprics of England by the same person as is named vicar-general, that is, the representative of the bishop in the current business of administration. The holder of the combined offices of vicar-general and official principal is called chancellor." Hence the consistorial court is sometimes termed the chancellor's court. This court is concurrently with the archidiaconal court competent 6 Cf. on the Courts of Audience Phillimore, Eccles. Law 1201, the writers cited by Phillimore 1204, and the Report of the Eccles. Courts Commission, 1883, I, p. xx. Coke, Inst. IV, 337 says of the Court of Audience : This Court is kept by the archbishop in his palace, and medleth not with any matter between party and party of contentious jurisdiction, but dealeth with matters proforma, as confirmations of bishops elections, consecrations and the like, and with matters of voluntary jurisdiction, as the granting of the guardian shºp of the spiritualities sede vacante of bishops, admission and institution to benefices, dispensing with banes of matrimony, and suche like. The account, however, is probably not quite accurate. 7 Report of the Eccles. Courts Commission, 1883, I, p. xxiii. * Cf. § 38, notes 7, 8. § 65] ARCHIDIACONAL COURTS 463 as a court of first instance; but it also serves as a court of appeal from the latter. From it appeal is to the archiepiscopal Court. The consistorial court has been deprived of a large part of its competence by the church discipline act, 3 & 4 Vict. c. 86, and the public worship act, 37 & 88 Vict. c. 85, which assign disputes which come under them to the bishop, to special commissions, or to the provincial court. The ‘Clergy Discipline Act,” 55 & 56 Vict. (1892) C 32, has, however, again given the chancellor the presidency in pro- ceedings against a clergyman for immorality. The chancellor alone is to decide any question of law; but if any question of fact has to be determined and either party to the case so requires, five assessors are chosen as members of the court.” - For the diocese of York there is a consistorial court at York; * for the diocese of Canterbury, only a court of the commissary of the archbishop.” In Canterbury there is also a ‘Court of Peculiars,’ for a number of parishes exempt from the jurisdiction of the bishops and immediately subject to the archbishop.” - b. Courts of episcopal commissaries. In rare instances episcopal commissaries are appointed to exercise administration and jurisdiction within definite parts of a diocese. The commissaries are practically equal to the archdeacons; but their powers rest not on their own rights as holders of certain offices, but on the special commission granted by the bishop. It has been ruled that appeal from the court of the commissary goes, not like appeal from the archdeacon's court to the consistorial court, but immediately to the archiepiscopal court. The bishop may appoint commissaries, or commissions consisting of several members, to perform judicial acts in all cases in which he is himself competent. The commission issued is for the particular cause, not general. The chancellor, like any other person, may be a special commissary. § 65. Archidiaconal courts. The process by which in the middle ages the archdeacons grew from assistants of the bishop for the time being to be independent officers, had as a consequence that the jurisdiction which they Originally exercised in the name and as representative of the bishop came to be regarded as naturally attaching to the office. Thus most archdeacons in England obtained a jurisdiction which covered, for * On the question how far the bishop may sit instead of his chancellor see § 36, note 9. * The office of judge is usually given to the archiepiscopal vicar-general. * Phillimore, Eccles. Law pp. 1201, 1207. A 5 jºhen. New Commentaries 11th Ed. III, 381: a branch of the court of I’C ſleS. 464 THE SEVERAL COURTS [V, 14B the most part, the same matters as that of the consistorial courts." Where this competence of the archdeacon's court had not arisen or had been only incompletely developed, it was established to the full extent by 6 & 7 Gul. IV (1836) c 77* As judge in such a court the archdeacon may officiate in person or through an ‘official’ appointed by him. Appeal is to the consistorial court.” § 66. Other ecclesiastical courts. a. Chapter courts. Some chapters had down to the middle of the present century jurisdiction in various exempt districts. (*) As the chapter is not subject to the archdeacon it has also frequently a jurisdiction, cor- responding to the archidiaconal, for the precincts of the chapter church. Most such rights are now obsolete; though the chapters in certain cases perhaps still possess some small jurisdiction as to matters connected with the fabric and interior arrangements of the cathedral. But 37 & 38 Vict. (1874) c 85, establishing as it does other authorities solely competent to deal with such matters, has left the competence of the chapters of a shadowy nature. Some deans and chapters still preserve their “officials,' who act, however, not as judges but as legal advisers in matters affecting the interests of the chapter. (*) b. Rural dean's court. Some rural deans about the twelfth and thirteenth centuries exer- cised in minor matters independent jurisdiction in their districts. (*) But this jurisdiction was afterwards absorbed by the archdeacon's court; and but few traces of it have survived until the nineteenth century. (*) 1. Cf. § 42. * s 19: . . . enacted, That all Archdeacons throughout England and TWales shall have and eacercise full and equal Jurisdiction within their respec- tive Archdeaconries, any Usage to the contrary motwithstanding. * In the Isle of Man an act of the Insular Legislature in 1874 abolished the voluntary and contentious jurisdiction of the archdeacon's court and transferred it to the courts of the bishop. Supplement to Chron. of Conv. Cant. 1885, No. 183 p. 17 note. Report of the Ecclesiastical Courts Commission, 1883 II, 322. g (*) It has been decided, Parham v. Templar (in 1820; Phillimore, Eccles. Re- ports III, 223 ff.) that appeals from the judgment of the chapter court when acting as the court of an exempt district go to the archiepiscopal court of appeal. rº Phillimore, Eccles. Law 1203. (*) Cf. § 43, note 6. (*) Here belong, e.g. the jurisdiction of the dean in Jersey and Guernsey, established by the canons of 1623, Phillimore 1202, notes; also, the independent jurisdiction of the dean of the Arches, the dean of Bocking and the dean of Croydon over exempt parishes. Cripps, Law relating to the Church Ed. 1886, p. 99.-On the jurisdiction of the dean of Norwich down to the reformation cf. Hudson (for Selden Society, 1892), Leet jurisdiction in the City of Norwich, Introduction p. xci. APPENDIX. I. 0rdinanee of William I touching the competence of ecclesiastical courts.* Willelmus, gratia Deô Reae Amglorum, R. Bainardo et G. de Magmavílla et IP. de Valoênes ceterásque meis fidelíbus de Esseae et de Hertfordscháre et de Middelseae,* salutem. * § 1. Sciatis vos omnes et ceterâ meâ fideles, quê ín Anglia manent, quod epís- copales leges, quae non bene mec secundum sanctorum canOnum praecepta, usque ad mea tempora ín regno Anglorum fuerunt, communì concílío et com- sólío archiepíscoporum, et epíscoporum, et abbatum, et omnêum prìncìpum, 'regmâ meâ emendandas judicavâ. § 2. Propterea mando et regia auctorìtate praecípio, ut mullus episcopus vel archêdiaconus de legíbus episcopalíbus amplius êm humdret placáta teneant, nec causam, quae ad regìmem anìmarum pertìnet, ad judícíum, secularíum, homínum, adducamt, sed quîcumque secundum epíscopales leges de quacumque causa vel culpa ínterpellatus fuerit, ad locum, quem ad hoc epìscopus elegerìt; vel mománaverít, veníat, îbique de causa vel culpa sua respondeat, et non $ecun- dum humdret, sed secundum canones et epíscopales leges, rectatºm, Deo et epís- copo suo facíat. § 3. Sí vero alíquís per superbiam elatus ad justítíam epìscopalem vemáre contempserit vel moluerìt, vocetur semel, secumdo, et tertìo ; quodsâ nec s?c ad emendatíonem venerit, eaccom'mum?cetur ; et si opus fuerìt ad hoc vìndicandum, fortitudo et justítia regís vel vicecomitis adhîbeatur. Ille autem, quâ vocatus ad justítíam epíscopè venêre moluerit, pro unaquaque vocatíone legem epîsco- palem, emendabât. § 4. Hoc etiam dèfendo et mea auctorìtate ìnterdíco, me ullus vócecomes aut praepositus seu mêmêster regís, nec alìquìs laícus homo, de legíbus, quae ad epíscopum pertínent, se ìntromìttat, mec alìquìs laïcus homo al?um homónem, sêne justítía epíscopè ad judícíum adducat. Judícíum, vero în mullo loco * Another MS. has also beem preserved. The heading therein runs: W., gratìa Deâ Reae Angliae, comótábus, vicecomitìbus et omníbus Francigenâs et Anglás, quê ín epíscopatu Remegêâ epìscopâ terras habent, salutem.—In the middle of the thirteenth century there was also known am Anglo-Saxom form of ;', gument primted in the text. Liebermamm in The Athenaeum, Sept. 1898, I). a^ d • * Printed after Schmid, Gesetze der Amgelsachsem, p. 357. Spelmam, who only knew the form the heading of which is givem in mote I, supposes (Conc. II, 15) that the Ordinamce was issued circ. 1085, because it is inter privilegia, [Episc. Lìncolm. post qva m, tra/nslatus erat Episcopatus ; Hardy, Syllabus to Rjmer, also assigns it to theTyear 1085. _ Am earlier date (say, soom after the appointment of Lamframe, 1070) is supported by the words usque ad mea, tempora, in § 1 ; moréóyer, the provisiom printed in § 60, note 2, if really proceeding. from a council of Winchester in 1076, presupposés am earlier dáte, in that it implies that William's ordinanee had already been issüed; perhaps the letter primted in § 60, note 83 also points to a, time before 1080. IH. C. 465 H H 466 - APPENDIX portetur, nîsî în epìscopali sede, aut ín íllo loco, quem ad hoc epìscopus constătuerãt. II. Charter of Stephen, 1136.* Ego Stephanus Deí gratia assensu cleri et populí ín regem Anglorum electus, et a Willelmo Camtuaríensâ archiepiscopo et samctae Romanae ecclesîae legato consecratus, et ab Innocent í o sancte romam e sed is pontífíce confír- Tm at vt S, re$pectu, et amore Dei sanctam, ecclesiam liberam esse concedo et debîtam, reverentiam íllí confirmo. • INíhíl me in ecclesía vel rebus ecclesíastícís Símoníace acturum, vel permis- surum esse promítto. Ecclesìastìcarum persona?'um, et om n îu m clerí- corwm, et rerum eorwm, justît îam, et potestatem, et d í strìbutìone m. ò o no rw ^m, * eccles íastícorum, în manu, epìscoporum esse perhíbeo et confírmo. Dígnítates ecclesíarum prìvilegììs earum, confirmatas, et C07i- suetudìnes earum antíquo tenore habitas, ìnvìolate manere statuo et concedo. Omnes ecclesìarum, possessíones et temuras quas die ìlla habuerunt qua Willel- anus reæ avus meus fuit vivus et mortuus, sine omni calumníantíum reclama- tíone, eís líberas et absolutas esse concedo. S? quìd vero de habìtìs vel possessís ante mortem ejusdem regìs, quíbus modo careat ecclesia, deìnceps repetíerít, ?ndulgentíae et dispensatíoná meae, vel restìtuendum vel discutíendum, reservo. Quaecumque vero post mortem ípsíus regís líberalitate regum, vel largítíone príncípwm, oblatîone vel comparatìone, vel qualíbet transmutatíone fidelíum eis collata sunt, confirmo, Pacem, et justitiam, me án, Omnîbus facturum, et pro posse meo conservaturum, eós promítto. - Forestas quas Willelmus avus meus et Willelmus avunculus meus ínstítue- 'runt et habuerunt, míhí reservo. Ceteras omnes quas reac Henrìcus super- addídít ecclesêås et regno quietas reddo et concedo. Sí quís epíscopus vel abbas vel alia ecclesíastíca persona ante mortem suam, 'rationabìlìter sua dístríbuerit vel dìstrìbuenda statuerít, firmum, manere con- cedo. S? vero morte praeoccupatus fuerìt, pro salute animae ejus ecclesíae consilio eadem, fiat distríbutío. Du m vero sedes pro prò ìs pastoríbus vacatae fuerá nt, îpsas et ea ru m possessìones omnes ín mamw, et cat Stod ? a cleríco ru m vel probo ru m hom á mu m ejusdem ecclesíae c0m m átta m, donec pastor camom áce substìtuatur. Omnes eacactíones et ìnjustítias et meschemámgas, síve per vîcecomites vel per alíos quoslibet male ìnductas, fundátus eacstìrpo. IBomas leges et antáquas et justas consuetudínes, în murdrás et placátás et alíís causâs, observabo, et observarê praecípío, et constituo. Haec omnía con- Cedo et confirmo salva regí a et justa d í gnìtate mea. Testíbus . . . Apud Oacemeford., anno ab Incarnatìone Domêmê 1136, sed regnâ meâ prîmo. III. Charter of Henry II, 1154.' ' Henrícus dei gracia Reae Anglie, Duae Normammie et Aquitannîe et Comes Andegaváe, omníbus Comitíbus, Baroníbus et fidelíbus suis francìs et Anglícís Salutem. Scíatís me ad homorem de? et sancte ecclesîe et pro commúnâ emen- dacíone tocìus Regmâ meâ concessisse et reddídísse et presentâ carta mea con- .firmasse deo et sancte ecclesîe et ommíbus Commótìbus et Baroníbus et Omníbus homíníbus meãs omnes comcessíones et domacìones et líbertates et líberas consuetudínes quas Reae Hem rècùs avus meus e% s ded êt et concessât. Símílíter ecîam omnes malas consuetudónes quas ìpse delevât et remísít, ego 'remitto et delerò concedo pro me et heredibus meis. - Quare volo et firmâter praecípío quod sancta ecclesia et omnes Comètes et * Amother MS.: homorum. * Printed from Stubbs, Select Charters. * From Statutes qf thé Realm, Charters, p. 4. IV. CONSTITUTIONS OF CLARENDON, 1164 467 Barones et omnes met homânes, omnes éllas consuetudźnes et donaciones et tibertates et liberas consuetudines habeant et tenednt libere et quiete, bene et in pace et &ntegre de me et heredibus mels, sib? et heredibus sufts adeo libere et gwěete et plenarie in omnibus s?cut Reac Henricus avus meus eis dedit et con- cess?t et carta Sua confirmavit. Teste Ricardo de Luci apud Westmonasterium. IV. Constitutions of Clarendon, 1164.” Anno ab Incarnatione Domžni milles?mo centesimo Seacagesimo quarto, pa- patus Alexandrà anno quarto, illustrissim? regis Anglorum Henric' secund? anno decimo, in praesentia ejusdem regis facta est recordatio et recognitio cujusdam partis consuetudinum, et libertatum, et dignitatum antecessorum suorum, videlºcet regis Henricº avº swº et al?orum, quae observari et teneri debent in regno, Et propter dissensiones et discordias quae emerserant Žnter clerum et justētēas domżn? regis, et barones regmi, de consuetudinibus et dignitatibus regmi, facta est ista recognitio coram archiepiscop's et episcop's et clero, et comitibus et baronibus et proceribus regmi. Et easdem consuetu- dines, recognitas per archiepiscopos et episcopos et comètes et barones, et per *Obiliores et antiquiores regn?, Thomas Cantwardensis archiepiscopus, et Rogerus Eboracensås arch? episcopus, et Gºlebertus Londomiensis episcopus, et Henricus Wintomiensis episcopus, et Nigellus Eliensis episcopus, et Willelmus Norwicensis episcopus, et Robertus Lincolniensis episcopus, et Hilarius Cicestrensis episcopus, et Jocelinus Sarāsberäensås episcopus, et Ricardus Cestrensis episcopus, et Bartholomeus Eaconiens's episcopus, et Robertus Here- ..fordensis episcopus, et David Menevens's episcopus, et Rogerus Włgormensis electus, concesserunt, et in verbo veritatis viva voce firmiter promiserunt tenendas et observandas dom?mo regà, et haeredibus sués, boma fide, et absgue 2malo ingenio, praesentibus istès: Roberto comite Leghecestriae. Ricardo de Lucº. Reginaldo comžte Cornubiae. Reānaldo de Sancto Walerico. Comano comite Britanniae, Rogerio Bigot. * Ioanne com?te de Augo. Reinaldo de Waremme. Bogerio comite de Clare. Rächer?o de Aquila. Comite Gaufrido de Mandevèle, Wilhelmo de Braosa, Hugome comžte Cestriae. Ricardo de Camvilla. Wöllelmo comºte de Arundel. Nigello de Mowbray. Comºte Patricio. Simome de Bello-Campo. Matthaeo de Herefordia. Humfrido de Boun. Waltero de Medwana. Gaufrido de Weir. Manasser Băseth dapifero. Willelmo de Hastinga. Wöllelmo Maleth, Hugone de Moravilla. Wöllelmo de Chlºrcz. Alamo de Nevill. Ičoberto de Dunestavälla. Simone filio Petrž. Jocel?mo de Bażllolio. |Willelmo Maldwit camerarão. Wºllelmo de Lahºval?s. Ioanne Malduit. Willelmo de Ca2Sneto. Ioanne Marescallo. Willelmo comºte de Ferrarážs. Petro de Mara. Eff multés al??s proceribus et mobilibus regn?, tam clericis Quam laïcis. Consuetudimum vero et dignitatum recognitarum quaeda'm pars praesent: scripto continentur. Cujus partis capitula haec Sunt. * Hae sunt avitae leges, quas Henricus reac Angliae petićt Sºbě confirmar: a beato Thoma martyre. 1. De advocatione et praesentatione ecclesiarum si controversia emerserit inter laicos, vel inter clericos et laicos, vel inter clericos, ºn curia domżnº regis tractetur et term? netwºr. * From Materials for the History of Becket (Rer. Brit. Scr. No. 67) V, 71, where the various readings are given.—Of these constitutions the pope rejected 1, 3, 4, 5, 7, 8, 9, 10, 12, 15. Cf. Materials, l.c. 468 APPEND IX 2. Ecclesiae de feudo domini regis mom possunt in perpetuum dari absºue assemSºl et concessione &psius. - 3. Cleric? retati et accusatà de quacumque re, summonitº a justitia regis, venient in curiam &psius, responsurī ābādem de hoc unde widebitur curiae regis quod sit ºb? respondendum, et in curia ecclesiastica unde videbitur quod ibidem. sit respondendum. Ita quod justitia regis mittet in curiam sanctae ecclesiae ad videndum qua ratione res ibi tractabitur. Et s' clericus convictus vel confessus fuerit, mom debet de caetero eum ecclesia tueri. 4. Archiepiscopis, episcopis, et person's regmi non licet eacăre de regno absgue licentia domini regis. Et si eacierint, si domino regi placuerit, asse- curabunt Quod mec in eundo mec in moram faciendo mec in redeumdo perquërent malu’m vel damnum domino regi vel regmo. - 5. Eccommunicatº mom debent dare vadium ad remanens,” mec praestare juramentum, Sed tantum vadium et plegium standi judicio ecclesiae, ut absolvamtur.” 6. Laici mom debent accusari nisi per certos et legales accusatores et testes in praesentia episcop?, ?ta quod archidiacomus mon perdat jus swum, mec quid- quam quod inde habere debeat, Et s' tales fuerint qui culpantur, quod more velit vel mom audeat aliquis eos accusare, vicecomes requisitus ab episcopo jacief jurare duodecim legales homimes de visneto sew de villa coram episcopo, quod &mde veritatem secumdum conscientiam Suam manifestabwnt. 7. Nullus qui de rege temeat in capite, mec aliquis dominicorum ministrorum éjus eaccommunicetur, mec terrae al?cuffus eorum sub interdicto pomantur, mºsº privas dominus reac, sº in terra fuerit, conveniatur, vel justitia regis sº fuerit eactra regmum, ut rectum de îpso faciat, et àta ut quod pertimebit ad curiam regiam ibidem terminetur, et de eo quod spectabit ad ecclesiasticam curiam, ad eandem mºttatur ut ºbādem termºmetur. 8. De appellationibus, sº emerserint, ab archidiacomo debent procedere ad episcopum, et ab episcopo ad archiepiscopum. Et s' archiepiscopus defuerit (another MS.: defecerit) in justitia each?benda, ad dominium regem pervenien- dum est postremo ut praecepto ipsius in curia archiepiscopé controversia. terminetur, ita quod nom debeat ulterius procedere absque assensu domini régºs. 9. Sº calumnia emerserit inter clericum et laicum vel inter laicum et cleri- cum, de Qullo tenemento, quod clericus attrahere velit ad eleemosynam,” laicus vero ad laicum feudum, recognitione duodecám legalium homimum per capi- tal’s justitiae regis considerationem terminabitur, utrum tenementum sit per- timens ad eleēmosynam sive ad feudum laicum, coram ipsa justitia regis. Et s? recognitum fuerit ad eleemosynam pertimere, placitum erit in curia eccles?- astica; S: vero ad laicum feudum, misi ambo de eodem episcopo vel barome advocaverint, in curia regis erit placitum. Sed si uterque advocaverit de feudo illo eundem episcopum vel baronem, erit placitum in curia ipsius; ita quod propter factam recognitionem saisinam.” non amittat qui prºus Saisītus juerat, domec per placitum dirationatum fuerit. 10. Qui de civitate, vel castello, vel burgo, vel dominico manério dominº Tegis fuerit, s? ab archidiacomo vel episcopo super aliquo delicto citatus fuerit, wnde debeat eisdem respondere, et ad citationes eorum satisfacere moluerit, bene licet eum sub interdicto pomere; sed nom debet eaccommunicari, privsquam. º, •. ^ * Hefele, Konzáliengeschächte § 625, 2nd Ed. vol. V pp. 625 fſ, translates here and in other passages of the constitutions personae regm; by Persomen, welche €n Reichslehn haben. But it is improbable that in the present article personae Tegm? should include secular persons, as the constitutions were only intended to regulate the rights of spiritual persons. Cf. below, notes 7 and 10. * I.e. for future good behaviour. * The sense of the article is that absolutio must be granted as soon as Security for appearing before the ecclesiastical court is given. The consequence thereof is that the right to arrest ceases forthwith. * Cf. § 21, note 36. * I.e. seysin. IV. CONSTITUTIONS OF CLARENDON, II64 469 capital's minister domini regis villae illius conveniatur, ut justèciet eum ad satisfactionem venire. Et s' minister regis inde defecerit, ipse erit in miseri- cordia" domºn? regis. Et eacánde poteråt episcopus accusatum ecclesiastica justitia coercere. .* 11. Archiepiscopi, episcopi, et universae personae regmi," quº de rege tement £n capite, et habent possessiones swas de domżno rege sicut barončam, et 2nde respondent justițiis et ministris regis, et sequwntur et facăunt omnes rect?txt- dines regia's et consuetudimes, sicut barones caeter; debent interesse judici's curiae domini regis cum baronibus, usque perveniatur in judicio ad dimºnu- tionem membrorum, vel ad mortem. 12. Cwm vacaverit archiepiscopatus, vel episcopatus, vel abbatia, vel prior- atus de dominio regis, debet esse in mamu ºpsius, et inde percºpiet Ommes 7'édètus et eacătuş, Săcut dom?nicos. Et cum ventum fuerét ad consulendum ecclesiae,” debet dominus reac mandare potiores personas ecclesiae,” et in capella Žpsius domini regis debet fier8 electio, assensu domini regis, et consilio person- arwm regn: * @was ad hoc facáendum vocaverit. Eł żbādem faciet electus homagłum et fidelitatem domżno regi, sicut ligio domino, de vita sua et de 2membris, et de honore Suo terremo, salvo ordine suo, prévºsquam consecratus s?t. . 13. Sº Quisquam de proceribus regni defortiaverit” archiepiscopo vel epis- copo vel archidiacomo de se vel de Swis justitiam, eachäbere, dominus reac debet eos justētēare. Et s? forte aliquês defortiaret domino regi rectitudinem, Swam, archiepiscopi, episcopº, et archidiaconi debent eum justētēare, wi regé satisfaciat. - * 14. Catalla eorum qui sunt in forisfacto regis mon detineat ecclesia vel coeme- terium contra justitiam regis : quia &psius regis sunt, sive ºn ecclesås, Søve eactra fuerint inventa. &; 15. Placºta de debitºs, quae fide interposita debentur, vel absgue interpositione fide?, sint in justitia regis. *. 16. Fºliº rusticorum mom debent ordinari absºwe assensu domână de cujuts Žerra nati esse dignoscumtur. Facta est awtem praed?ctarum consuetudimwm et digm?tatum regiarum re- cordatio ab archiepiscopis, episcopis, comitibus, baronibus, mobilioribus, et antiquioribus regmi, apud Clarendumam, quarto die ante Purificationem, Sanctae Mariae [perpetuae] virgºnis, domino Henrico filio regis cum patre suo domino rege praesente. - Sunt autém et aliae multae et magmae consuetudines et dignitates sanctae amatrès ecclesiae, et domºn? regis et baronum regmá, quae in hoc scripto non con- timentur, quae Salvae sine Sanctae ecclesiae et domżno regà et haeredžbus swis et baronibus regm', et in perpetuum inviolabiliter observentur. * Subject to fine at the king's discretion. * That the term personae regrº does not here include secular persons is sup- ported by sicut, barones caeter. The addition qui de rege tement ºn capite seems to argue that without such addition the words would have a wider sense. On the other hand it is hardly to be assumed that personae regnè has here the restricted meaning of parsons, parish priests (cf. § 44, note 10). See notes 1 and 10. * To care for the vacant church. ° The chapter of the special church in question. - * Personae regni here, probably, generally ‘spiritual and temporal mag- nates.' But possibly in accordance with the usage in article 11 to be restricted to the former. Cf. above, notes 1 and 7. * I.e. resist by force. 470 APPENDIX W. Documents touching the submission of John to the pope's suzerainty, 1213." 1, CONVEYANCE OF THE KINGDOM TO THE POPE. Johannes, Dei gratia, Reac Anglie, dominus Ibernie, dua: Normannie, et Aquitanie, comes Andegavie, omnibus Christi fidelibus praesentem cartam in- specturis, salutem. Universitat vestre per hamc cartam mostram sigillo mostro munitam volu- mus esse motum, quia cum Deum et matrem mostram sanctam ecclesiam offend- erimus in multis, et proënde Divina misericordia plurimum indigere noscanyº, mec quid digme offerre possimus, pro satisfactione Deo et ecclesie debèta fact- enda, mist nos ipsos et regma nostra humiliemus. Wolentes mos ipsos humiliare pro illo, qué se pro mobis humiliavit usque ad mortem, gratia Sancti Spiritus inspirante, non vi änduct; mec timore coact?, sed mostra boma spontameague volumtate, ac communi consºlio baromum mos- trorum, offeri mºus et libere com cedi mºus Deo et samct is a postol is ejus Petro et Paulo, et sancte Romane ecclesie matri most re; a C dom? no most ro Pape Innocent i o ejwsque catholic?s successor? bus, tot wºm regnum Anglie et totum regnum Ibermºe, cum omn? jure et pertinenci's sués, pro remissione peccatorum mostrorum et totius generis mostri, tam pro věvis Quam defunctis ; et amodo ill a a Deo et eccles? a Roºm a ma. tang w a m feodata rºws recip? entes et ten entes, in presentia prudent’s viri Pandulph?, domini Pape subdiaconi et familiaris, fidelitatem eacánde pre- dicto domino mostro Pape Innocentio, ejusque catholicis successoribus et ecclesie Romane Secundum subscriptam formam facimus et juramus, et homagium. ligium ºn presentia dominº Pape, sº coram eo esse poterimus, eidem faciemus ; successores et heredes mostros de Quacore mostra in perpetuum obligantes, ut simili modo Summo Pontifici, qui pro tempore fuerit, et ecclesie Romane, sºme contradictione debeamt fidelitatem prestare et homagium recogmoscere. Ad indicium autem hujus perpetue mostre obligationis et concessionis volu- mus et stabilimus, ut de propriis et specialibus redditibus predictorum reg- norum mostrorum, pro om nº servº tºo et cons wet w dºme quod pro 7 ps?s facere debere mºus, salvo per omnia demarão beat? Petrž, ecclesia, Roman a mºlle marcas sterling orwm percăpă at annuati m, scilicet Żm festo Sanctæ Michaelis quingentas marcas, et in Pascha quingentas marcas ; septingentas, Scălicet pro regno Anglie, et trecentas pro regmo Ibernie; salvºs mob is et here dibºws most ris justic? is, libert at à bus et regal bus no strº s : quae omnia, sicut supradicta sumt, rata esse volemtes perpetuo atque firma, obligamºus mos et successores mostros, contra mom venire. Et s' nos vel aliqués successorum mostrorum hoc attemptare presumpserit, quicumque fuerit, ille, mºst rite commonitus resipuerit, cadat a ju're regn?, et haec carta obligation?s et concession is mostre semper firma permaneat. 2. OATH OF FEALTY. Ego Johammes, Dei gratia, Reac Anglie, et dominus Ibernie ab hac hora Żmantea fidel is ero Deo et beato Petro et ecclesie Romane, ac dom?mo ºmeo Pape Innocentio, ejusque successoribus catholice intrantibus : mom ero in facto, dicto, consensu, vel comsilio, ut vitam perdant vel membra, vel mala captione captamtur. Eorum dampmum, s? Scivero, impediam, et removere faciam, s? potero ; al?oquim quam citius potero, intimabo, vel. tal? persome dicam, quam. e's credam pro certo dicturam. Consilium quod mºch? crediderint, per se vel per mumcios sew per literas Suas, secretum temebo ; et ad eorum dampnum mull? pandam, me sciente. Patrimonium beat; Petri, et specialiter regnum Amglie et regnum Ibermie, adjutor ero ad temendum et defendemdum contra omnes homºnes, pro posse meo. Sic Deus me adjuvet, et haec sancta Evangelia. Teste meipso, apud domum Militie Templé, juacta Doverdam : coram (then $9. the names of the witnesses) . . . XV" die Mač, ammo regmi moströ XIV". a Printed from Rymer, Foedera 4th Ed. I, 111, 112. V. DOCUMENTS, 1213. VI. CHARTER OF JOHN, 12I4 471 WI. John's charter, 21st November, 1214, touching elections of prelates." Johannes Dei gracia, Reac Anglie, Dominus Ybernie, Duac Normannie et Aquitannie, Comes Andegavie, Archiepiscopis, Episcopis, Comitábus, Baron?- bus, Militibus, Ballévis, et omnibus has litteras visuris vel audituris Salutem. Quonºam &nter nos et venerabiles patres mostros Stephanum Camtuariensem, Archiepiscopwºm, tocłus’Anglie Primatem, et Sancte Romane Ecclesie Cardin- alem, Willelmu'm Londomiensem, Eustachium Elyensem, Egydium. Hereford- ensem, Goscelinum Bathoniensem et Glaston?ensem, et Hugonem Lincolnáensem Episcopos, super dampnis et ablatis tempore Interdict, per Dei graciam de nvera et libera voluntate utriusque partis plene convenit: Volumnus mon solum, eis quantum Secundum Deum possumus satisfacere, verum eciam tot: Ecclesie Anglicane salubråter et utiliter imperpetuum providere: Inde est quod qualis- cwnque consuetudo, temporibus mostrás et predecessorum mostrorum hactenus Žn Ecclesia Anglicama fuerit observata, et quicquid juris mobis hactenus vend?- caverimus in election?bus quorumcumque praelatorum, Nos ad petic?omem. Žpsorum pro salute anime mostre et predecessorum ac successorum mostrorum. Tegum Anglie liberaliter mera et spontanea voluntate de communi consensu Baronwm, mostrorum concessimus et constitušmus et hac present: Carta mostra confirmavčmus ; wſſ de cetero in un? vers is et simg ulis ecclesi is et m on- aster? is cathedralibus et conventualibus to cºus regnº nostri Anglie libere sºmt 7 m perpetuum election es quorum cumque prelator wºm. major u'm et minor wºm. *; salt; a mob is et he red? bus most rās custodža eccles a rºtºm et monaster? Or wºm vacancº wºm, q we ad mos pertiment. Promºttºm us et am quod mec impediemus, mec impediri permittemus per mostros mec procurabimus quin in singulis et universis eccles? is et monasterås memoratis postguam vacaverint prelature, quandocumque voluerint libere sibi praeficiant electores pastorem. Pet?ta tamen pri ws a mob is et her edibus most r is licencia el? gem d?, q wa m mom de megabºom ws, mec differem us. Et s' forte, quod absºt, de mega rem us vel differ remºts, procedant m ich? lo mºnus electores a d electionem camon cam faciem dam ; et sºm & liter post celebratam eleccio me ºn moster req \tº ratur assems us, quem similiter mon denegabimus, misi aliquid racionabile proposuerimus et legitime probaverimus, propter quod mom debeamus consentire: Quare volu- mus et firmäter &nh?bemus me gºt?s vacantibus Eccles??s vel monaster??s contra hamc mostram concessionem et constitucionem in aliquo ven?at vel ven?re pre- swºmat. Si quês vero contra hoc aliquo unquam tempore venerit, maledictionem, omnipotentis Dež et mostram incurrat. Hè is Testibus . . . Data per manum Magistri Ricardi de Marisco, Cancellarić moströ, apud Novum Templum London., vices?mo prºmo die Novembrºs anno regn? nostr; sea to decimo. VII. Extract from the Magna Carta of 1215." ' Johammes Dei gratia reac Angliae, domimus Hybermiae, dua: Normanmiae et Aquitanniae, comes Andegaviae, archiepiscopis, episcop?s, abbatibus, com?ti- * Praelate majores, i.e. diocesan bishops and higher ecclesiastics, and abbots with episcopal rank; praelati minores, all other church officers with episcopal jurisdiction and the heads of exempt corporations. Richter, Kirchemrecht $118. * This charter was first confirmed, 12th Nov. 1216, by Henry III per consilium. etc., but with considerable omissions (cf. c.42 of the charter of 1216 in note 29). See more in Stubbs, l.c. 339 ff. The second confirmation, probably in autumn 1217 (the document is undated) de consilio etc. contains further variations. Cf. Stubbs, l.c. pp. 344 ft. The third confirmation, 11th Feb. 1225 (9 Hem. III), spontamea et boma volum- a From Statutes of the Realm, Charters, p. 5. b After Stubbs, Select Charters 4th Ed. pp. 293 ff. 472 APPEND IX bus, baronibus, justiciarºs, forestarčs, vicecomitibus, praepositis, ministris et omnibus ball?vis et fidelibus Swis salutem. Sciatis mos intuitu De? et pro salute animae nostrae et Omnium antecessorum et haeredum mostrorum, ad honorem Dei et exaltationem sanctae ecclesiae, et emendationem regmi mostrº, per consili wºm, venerabilium patrum mostrorum Stephan? Cantuariensis archiepiscop? totius Angliae primatés et sanctae Romanae ecclesiae cardinal?s, Henric; Dublimensis archiepiscopi, Willelmi Londoniensis, Petrž Winton?- ensis, Joscelin? Bathomiens's et Glastomiensis, Hugonis Lincolniensis, Walter? Wigormensis, Willelmá Coventrensis, et Benedict: Roffensis episcoporum; magistri Pandulfi domini papae subdiacon? et familiaris, fratris Eymeric; magistrå mälätiae templi in Anglia ; et mobilium virorum Willelm? Marès- calli comitis Penbrok, Willelmº comités Saresberiae, Willelmº comitis War- enniae, Willelmº comités Arundelliae, Alam? de Galwaya constabularáð Scottiae, Warini filii Geroldi, Petri filä Herebertà, Huberté de Burgo semescalli Pic- taviae, Hugonis de Nevilla, Mathei filii Hereberti, Thomae Basset, Alam? Basset, Philippi de Albiniaco, Roberté de Koppelay, Johannis Mariscalli, Johannis fili; Hugon?s et allorum fidelium mostrorum. 1. In primis concessisse Deo et hac praesent carta mostra confirmasse, pro mob?s et haeredibus mostris in perpetuum, quod Anglº cana eccles & a libera sº t, et habeat jura swa integra, et lºbertates swas illaes as ; et ita volumus observarā; quod apparet eac eo quod libertatem electionum, quae made- Żma et magis necessaria reputatur ecclesiae Anglicanae, mera et spontamed woluntate, ante discordiam inter nos et barones mostros motam, concess?mus et carta nostra confirmavčmus, et eam optºnwºmws a domino papa Innocentio tertão confirmar: ; quam et mos observabimus et ab haeredibus mostris &m per- petuum boma fide volumnus observard. Comcessimus etiam Omm?bus liberăs homânăbus regn? nostri, pro mobis et haeredibus mostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de mobis et haeredibus nostris ; * : * 5. Custos (the guardian of a minor) autem, quamdīnt custodiam terrae habue- rāt, sustentet domos, parcos, vivaria, stagna, molémdāna, et cetera ad terram, Žllam pertimentia, de eacătăbus terrae ejusdem ; et, reddat haered?, cum ad ple- mam aetatem pervenerit, terram swam totam instauratam de carrucis’ et wačnnagážs Secundum quod tempus wačnmagić eact get et eaclius terrae ration- abiliter poterunt sustinere.” 7. Vidua post mortem marité suð statiºn et sime difficultate habeat marita- givn" et haereditatem swam, mec aliquid det pro dote" sua, vel pro maritagio suo, vel haereditate sºta quam haereditatem maritus Suws et psa tenterint die tate nostra, agrees almost exactly with the charter of 1217. See Stubbs, l.c. . 353 f. Pº. fourth confirmation was in 1237, reference being made in it to the text as until then accepted. Stubbs, l.c. pp. 365 f. Nor was that text changed in any later confirmations. Cf. Greist, Engl. Verfasswºmgsgeschächte § 18, note * *. * 1216 c 1: The wording is the same from In prim?s to illaesas, and from Concessimus to mostris. From et éta to observarè is omitted.—1217 c 1: as in 1216.-1225 c 1: also as in 1216. * = ploughs. * * =Properly the extent of land worked by the plough; in some cases (per- haps here) farming stock. Stubbs, glossary. * 1216 c 5: The same from Custos to carrucis ; then this ending: et Omºmżbus aliis rebus ad minus secundum quod ºllam recepºt. Haec 07m mºa observen- twº de custod? is arch Žepč scopatuum, ep? scopatºlºtºm, abbat a rum, prioratwum, ecclesiarum et d? gn?tatum vacant? wºm, eaccepto quod custodžae hºuju's mod? vend? nom debent.—1217 c 5: as in 1216. After vacanţăum is interpolated : que ad mos pertiment, 1225, as in 1217. * On maritagium see § 60, near note 104. * On dos see § 60, note 107. IVII. EXTRACT FROM THE MAGNA CARTA OF I2I5 473 obátus ípsêus marātā, et maneat ån domo marítâ suâ per quadragínta díes post amortem ípsíus ínfra quos assignetur eâ dos sua.* ę o ¢ , • 0 a ę ę ¢ .• i • ę ¢ C* � 10. S? quís mutuo ceperit alíquíd a Judaeis, plus vel mánus, et moríatur antequam debátum íllud solvatur, debitum, non, usuret quamdíat, haeres fuerít Jnfra aetatem, de quocúmque teneat ; et sí debitum, ìllud íncíderít ín manus qvostras, nos non capîemus mósà catallum contentum ín carta.“ 11. Et sí quís moríatur, et debítum debeat Judaeis, vacor ejus habeat dotem, suam, et míhíl reddat de debito íllo ; et sê lîberî îpsîus defunctę quę fuerínt ánfra aetatem, remanserënt, provìdeantur eîs necessaría secundum tenementum, quod fuerít defunctâ, et de resíduo solvatur debítum, salvo servítío domín- orum ; sîmîlê modo fiat de debítís quae debentur alíís quam, Judaeis.'° 12. Null u m sc ut a g , w m, vel a uac íl í ú m ponatu r í n re g m 0 m O st r 0, a í s , p er com m u n e com s í l , vt m re g m â nostrâ, másá ad corpus nostrum, redímendum, et prìmogenítum filíum nostrum mólítem facìendum, et ad filíam, nostram, prímogenêtam, semel maritandam, et ad haec non fiat mósà ratíonabíle auacílíum : símílí modo fiat de auocílís de căvîtate Londoniarum.** 14. Et ad habemd wm commune cons íl ? u m regnę, de a u3c íl í o ass?- dendo alìter quam, în tríbus casìbus praedíctís, vel de scuta gêo assèdendo, s u m moner â facíemus archę ep í scopos, ep êscopos, abbates, co^m %tes, et majores barones, sigîllatim per litteras nostras ; et praeterea facíemus summonerí ín generali, per vicecomites et ballêvos mostros, omnes îllos quę de avobìs tememt ín capite ; ad certum, diem, scêlêcet ad termónum, quadragínta d?e- orum, ad mœnus, et ad certum locum ; et ín omníbus litterís illíus summonítíonís causam summonìtìonìs eaeprêmemus ; et sęc facta sum monítíone negotíum ad «liem assígnatum, procedat secundum consólíum íllorum, quâ praesentes fuerínt, quamvis non omnes sum monítí veneránt.* 15. Nos mon concedemus de cetero alícuí quod capiat auacálíum de líberís J\om?nibus suis, nisi ad corpus suum, redímendum, et ad facíendum, prímo- genítum filíum suum mîlîtem, et ad prímogenêtam filíam suam semel marí- tandam, et ad haec non fiat nisi rationabíle a*tacêlêwm.** 18. Recogn êt ? o nes de nova dissaêsêna, de morte antecessoris, et de 8 1216 c 7: The same with the addition : másá príus eâ fuerit assìgnata, vel, amâsâ domus ìlla sit castrum ; et si de castro recesserit, statêm provídeatur eâ domus competens ín qua possit honeste morarę quousque dos sua, eâ assígnetur secundum, quod praedáctum est.—1217 c 7: as in 1215 from Vídua to maneat ; them : ín capîtali mesuagìo marítâ suâ per quadragínta díes post obitum ípsíus amaritâ suâ, ínfra quos assígnetur eâ dos sua násá príus fuerit eâ assígmata, vel qvâsâ domus álla s?t castrum, et sâ de castro . . . (as im 1216, to) praedíctum, est ; et habeat ratíonabíle estuveríum (fuel; in a, wider sense, maintenance) suum ánterám de communì. A ss ígnetur autem e% p ro dote sua tertía pars totíus terrae marìt ? s^t , quae sua fu ît în vîta sua, n í s % de qm á morâ dotata fuerãt ad ost ìu m ecclesîae.— 1225, as in 1217; but tenu- eratmt for temvterínt. ° 1216 omitted; not restored in later confirmations.— Cf. 20 Hem. III (1235/6) &tat. Merton. c 5: Símílíter provisum est et a domino Rege concessum, quod de cetero non, currant usure comtra aliquem înfra etatem eocâstentem, a tempore amortás antecessorìs suâ, cujus heres ?pse est, usque ad legítímam, etatem suam. : Ita tamen quod propter hoc non remaneat solvtcìo debitâ prîncîpalis sêmul cu$m, ausura, ante mortem, antecessorìs suâ cujus heres ?pse est. *0 1216 omitted ; not restored in later confirmations. *' 1216 omitted ; not restored in later confirmations.—In 1217 c 44 is the mew provisiom : Scutagêum capíatur decetero sicut capâ consuevit tempore Henrócz, Regís Avâ nostrę. So in 1225.—A provisiom like that of 1215 was afterwards first made in 1297 (cf. § 4, mote 97). ** 1216 omitted ; im later confirmatioms mot at first restored. Cf. note 11. ** 1216 omitted ; mot restored im later confirmatioms. 474 A PPEN DI X ultima praesentatione, non capiantur misi in suis comitatibus et hoc modo; nos, vel si eactra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas praedictas.º - 19. Et si in die comitatus assisae praedictae capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerini comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negotium fuerit majus ſvel minus.º 20. Liber homo non amercietur pro parvo delicto, misi secundum modum delicti ; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo salva mercandisa sua; et villanus eodem modo amercietur Salvo acaimmagio suo, si inciderint in miseri- cordiam mostram ; et nulla praedictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.º 21. Comites et barones non amercientur misi per pares suos, et non misi secundum modum delicti." 22. Nullus clericus a merci etur de laico tememento suo, m is i se- cundum modum al iorum praedictorum, et non secundum quanti- tatem benefici i suºi ecclesiastici.º 23. Si aliquis temens de nobis laicum feodum moriatur, et vicecomes vel ballivus moster ostendat litteras mostras patentes de summonitione mostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et imbreviare catalla defuncti inventa in laico feodo, ad valentiam illius debiti, per visum legalium hominum, itatamen quod nihil inde amove- atur, donec persolvatur nobis debitum quod clarum fuerit ; et residuum re- linquatur eacecutoribus ad faciendum testa mentum defuncti ; et, si nihil nobis debeatur ab ipso, omnia catalla cedant defuncto,º salvis uacori ſi psius et pueris rationabili bus partibus sui s.º 27. Si aliquis liber homo intestatus decesserit, catalla sua per manus prop in quorum parentum et am i corum suorum, per visum eccle- º 1216 c 13 the same. –1217 c 13: The words et de ultima praesentatione are omitted ; otherwise the same wording as im 1216 down to mittemus; then : Justiciarios per unumquemque comitatum semel in anno qui cum militibus comitatuum capiant in comitatibus assisas praedictas.–1225, as in 1217; between dissaisina and de morte antecessoris the word et is inserted. º 1216 c 14 the same. 1217, omitted; instead: c 14. Et ea quae in illo adventu suo in comitatu per justitiarios praedictos ad dictas assisas capi- endas missos terminari non possumt, per eosdem terminentur alibi in itinere suo, et ea quae per eosdem, propter difficultatem aliquorum articulorum, ter- minari non possumt, referamtur ad justitiarios nostros de banco et ibi termi- mentur. c 15. Assisa e de ultim a praesentation e sem per capiantur cora m justiti a riis de banco et ibi termine ntur. 1225, as in 1217 cc 14 and 15. s º 1216 c 15 the same ; but at the end: proborum et legalium hominum de visneto.–1217 c 16 as in 1216 c 15, but with the words alterius quam noster inserted after villants.–1225, as in 1217. " So 1216 c 16, 1217 c 17, 1225. º 1216 c 17 the same, but with omission of the words de laico tememento suo. 1217 c 18 runs: Nulla ecclesiastica persona a merci etur se cum du mi quantitatem benefici i suºi ecclesiastici, sed secundum laicum contene mentum suum et secundum quantitatem delicti.–1225, as in 1217. - º I.e, they form the part of his movables which was at his free disposal. º So 1216 c 20.–In the charter of 1217 c 22 the words et pueris are omitted ; this is perhaps only a defect of the MS.–In 1225 c 18the words et pueris suis are introduced. Cf, $ 60, near note 117. VII. EXTRACT FROM THE MAGNA CARTA OF I2I5 475, sâ ae d í stríbuantur, salvìs um ícu ęque debêtês quae defunctus eô debebat.** 88. `Nulius bálivis pohat de cetero aiiquem ad legem 29 $impiici ioquela S?!0, sine testíbus fidelibus ad hoc ìnductis.* 42. Lìceat uná cu í que de cetero eacère de regmo nostro, et red â re, salvo et secure, per terram, et per aquam, salva fide mostra, másá tempore gwerrae per alíquod breve tempus, propter communem, utílítatem regnâ, eac- ceptós ímpręsonatis et utlagatis secundum legem regmâ, et gente de terra contra: ^os gwerrána, et mercatoribus de quìbus fiat sìcut praedíctum est.** 25 46. Omnes baromes qu á fumdaverunt abbatìas, wm de habent ea rtas 7'eg w'm Amgl * ae, vel antîqua m tem vtra m, habeant earum custo d í a m. cum vacaver? mt, s?c ut habere debent.*° 27 60. Omnes autem ìstas comsuetudínes praedíctas et líbertates quas mos concessêmus ín regno mostro tenemdas quantum ad mos pertìnet erga mostros, omnes de regno nostro, tam clerícá quam laïci, observent quantum ad se pertí- 7vet erga suos.** 63. Quare volumus et firmâter praecìpìmus quod Anglicama ecclesia líberat. sât et quod homìnes în regmo mostro habeamt et temeant omnes praefatas líber- tates, jura, et concessìomes, bene et în pace, líbere et quîete, plene et ìntegre, sêbô et haeredibus suìs, de mobìs et haeredíbus mostrìs, ìm omníbus rebus et locîs, în, perpetuum, sícut praedictum est. Juratum est autem, tam e0c parte mostra, quam, eae parte baronum, quod haec omnia supradicta boma fide et sáne malo. ¢ngemío observabuntur. Testibus supradictás et multìs alíís. Data per ^manum mostram, în prato quod vocatur Rumângmede, ìnter Wämdelesorum, et Stanes, quânto decìmo die Juniâ, anno regni mostrâ septìmo decimo.* ** 1216 omitted; mot restored in later confirmations. Cf. § 60, motes 124 ff. ** =ordeal (by water or fire). - * 1216 c 81 the same.—1217 c 84: Nullus ballâvus pomat de cetero aliquem. ad legem, m a náfesta m mec ad jwra memtu m (to oath with compurgators) sêmplící loquela sua, sine testíbus fidelibus ad hoc ìnductis.— 1225, as im 1217; omly instead of nec, vel. ** 1216 omitted, and mot afterwards restored. - *° There is a mew provision in 1217 c 89: Nullus líber homo de cetero det amplíus alícuí vel vendat de terra sua quam, ut de resìduo terrae suae possít sufficíenter fieri dománo feodi servitíum eâ debitum, quod pertinet ad feodum. ?llud.— 1225, the same.—[Cf. here Bractom, Book IV, tract. 1 c 9 § 1 (Rer. Bröt. Scr. No. 70, III, 70, 76).] *° 1216 c 37 the same with the additiom : et sicut supra [c 5, see above, mote 5] declaratum est.—1217 c 40 rums: Omnes patronã abbatìarum, quę habent cartas: regum Angliae de advocatione vel antîquam, temuram vel possessíonem, habeamt earum custodíam, etc. to end, as in 1216.— 1225, as in 1217. *" There is a, new provision im 1217 c 43: Nom l ? ceat alìcu , de cetero. dare terra m s u a^m, a l í cu ? d o m vt à rel ? g í os ae íta quod îlla m re- suºm at teme^ dam, de eadem, domo, mec liceat al ? cu ó d o m \t % rel ? g?- osae terra m al í cú íus s ? c accípere q uod t radat eam ? ll í a quo eam, receperêt tem emd a m. Sì quìs autem de cetero terram suam alicuâ domu? relêgêosae sęc dederit et super hoc convêncatur, domum suum, pemótus cassetur et terra ìlla dománo suo íllíus feodê êncurratur. (Cf. 1217 c 39; above, mote 25.)—1225 the same. * So 1216 c 41, 1217 c 45, 1225. *° 1216 omitted, and mot afterwards restored.—Im 1216 the end of the clause runs, c 42: Quîa vero quaedam capìtula êm prìore comtâmebantur quae gravía et dubitabília vìdebantur, scîlîcet de scutagîs et auocílíís assìdendâs, de debîtis; Judaeorum et aliorum, et de libertate eaceumdâ de regno mostro vel redeumdê ín. 476 A PPEND IX VIII. Statutum de Provisoribus, 25 Ed. III (1350/1) St. 4." Come jadis, en le parlement de bone memoire Sire Edward Rož Dengleterre, 4el nostre Seigneur le Roi gore est, lan de son regne trentisme quint a Kardoil ten?!?, oie la peticion mise devant le dit Ael et son conseil en le dit parlement par la communalte de son Rožalme, contenant qe come seinte eglöse Dengleterre estoft founde en estat de prelacie, deins le Rožalme Dengleterre, par le dit Ael et Ses progenitours, et Countes Barons et Nobles de son Rožalme et lour ancestres, pur evac et le poeple enfourmer de la leſſ Dieu, et pur faire hospital- Žtes awmoignes et autres oevres de charite es lieuac ou les eglises feurent ..foundes pur les almes de foundown's et de lour heirs et de touz Cristiens ; et Certeºus possessions, tant en feez terres et remtes come en avowesoms gese eacten- dent a grande value, par les ditz foundours feurent assignez as prelatz et autres gentz de Seinte eglöse du dit Rožalme, pur cele charge sustenir, et mome- ment des possessions ge feurent assignes as Ercevesqes, Evesges, Abbes, Priours, Religious et autres gentz de seinte eglise, par les Rois du dit Božalme, Countes, Barons et autres Nobles de son Rožalme, meismes les Rois, Countes, Barons et Nobles, come Seigneurs et avowes eussent et aver deussent da garde de teles voidances, et les presentementz et collacions des benefices esteantz des teles prelacies; et les ditz Roës en temps passe soloient aver la gréândre partie de lour conseils pur la salvacion du Roialme quant ils eneu- *ent mester, de tiels prelatz et Clercs issènt avances; Le Pape de Rome, acro- Chamt a lui la Seigneurie de tieles possessions et benefices, meismes les benefices dona et graunta as aliens g? wrºges me demew rerent el Rožalme Dengleterre, et as Cardinalac ge y demeurer me purrożent, et as autres tant aliens come den- 2éâns, autres; come ēl eust este patron ou avowe des dites dignites et benefices, come il me feust de droit selonc la loč Dengleterre; par les queux sils feussent Soéffertz a peine demewroit ascum benefice, en poè de temps, el dit Rožalme g?! 276 seroët es mečns daliens et denzeins, par vertue de têeles provisions contre la bone volunte et disposºcion des foundours de meismes les benefices, et issènt les eleccions des Ercevesqes, Evesches, et autres Religious faudroient, et les almožgnes, hospitalites et autres oevres de charite qe seročent faitz as ditz lieuw seročent sustretes, le dit Ael et autres lais patrons en temps de tieles voidances perderočent lovºr presentementz, le dit conseil periroit, et biens samz nombre seročent emportes hors du Rožalme, en admullacion del estat de Seánte eglöse dengleterre, et desheriteson du dit Ael, et des Countes Barons et nobles, et en offens et destruccion des lois et droitures de son Rožalme, et grant damage de $07, poeple, et Subversion del estat de tut son Rožalme Susqit, et contre la bome disposºcion 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 susdêtes en le dit plener parlement feust purveu ordine et establi ge les détes grevances, oppressions et damages, en meisme le Rožalme des adonges mes me seročent Soeffertz en ascum mamere. Et ja monstre soit a motre Seigneur le Rož, em cest parlement tenua, a Westminster a les Oetaves de Ja Purificacion de motre Dame, lan de son regne Dengleterre vintisme quint, et de France duszisme, par la greveuse pleºmte de towte la commune de Son regnum, et de forest's et forestarčs, warennis et waremmariºs, et de consuetu- dinibus com?tatuum et de réparºs et earwm custodibus, placuit supradictis praelatis et magmatibus ea esse in respectu quousque plenius consilium habu- erimus, et tumc faciemus plemässºme tam de his quam de al??s quae occur- Teránt emendanda, quae ad communem omnium utilitatem ºpertånuerºnt eff pacem et statum mostrum et regmi nostrº. . . . This provision was omitted in 1217 and in the ensuing confirmations,—There is a new clause in 1217 c 46: Salvis arch? episcopis, episcopis, abbatibus, prioribus, Templariis, Hospital- ar??s, com?tibus, baromżbus et omnibus al??s tam ecclesiasticis person’s quam. saecularăbus, libertatébus et låbergs consuetuděmčbus guas prºws habuerunt.—So in 1225. * After Statutes of the Realm. VIII STA TU TUM DE PROVISORIBUS 477 Ročalme qe les grevances et meschiefs susditz sabondent de temps en temps, a plus grant damage et destruccion de tut le Rojalme, plus qe unges me firent ; Cest assaver gore de movel motre se?nt piere le Pape, par procurement des clercs et autrement ad reservee et reservé de jour en autre a sa collacion, generalment et, especial ment, sibien Erceveschees, Eveschees, Abbe’es, et Priories, come totes dègnetes et autres benefices dengleterre, qe Sont del avowerie de gentz de Sejmte eglèse, et les donne auxibien as aliens come as denześns, et prent de touz tiels benefices les primeres fruitz et autres profitz plusours; et grande partie dw tresor del Roſſalme si est emporte et despendu hors du Rožalme, par les pur- chaceours de fieles graces ; et aux:int, partieles reservacions prives, plusours clercs avances en ceste Rožalme par les veroſſes patrons, qe ont temuz lour avancementz par long temps pesāblement, sont sodeinement ostes; sur quoč la dite Communalte ad prie a motre Seigneur le Roi ge desicome le droit de la Corone Dengleterre et la loi du dite Rojalme sont tieles, qe sur meschiefs et damages qe sº avčegmont a son Rožalme il dott 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 qens? avignont, qe lui pleīse de ce ordiner re- mede: Notre Seigneur le Roi, veiant les meschiefs et damages susnomes et eant regard al dit estatut fait en temps son dit Ael, et a les causes contenues en yeele, le quel estatut tient touz jours sa force et me feust unqes defaāt me anull: en mul point, et partant est ºl tenuz par son Serement del faire garder come la loi de son Rojalme, coment qe par Soeffrance et negligence ad este puis attempte a contraºre; et awa-int eamt regard a les grevouses pleintes a lui faites par son poeple, en ses divers parlementz cea emarere tenuz, voëllantz les tresgrantz damages et meschiefs qe Sont avenuz, et viegmont 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 d'êt Rožalme, Al honour de Dieu et profit de la déte eglöse Dengleterre et de tut son Rožalme, ad ordine et establº, ge les franches eleccions des Erceveschees, Eveschees, et tutes autres dignites et benefices electifs en Engleterre, se tiegment desore, em mamere come eles few rent grantes par les progen?tours notre dit seigneur le Roi, et par les auncestres dautres Seigneurs foundes. Et ge touz prelatz, et autres gentz de seinte eglise qi ont avowesoms de Quecomqes benefices des downs motre seigneur le Roi et de ses progenitours, ou dautres Seigneurs eff donours, pur faire divines services et autres charges ent ordines, eient lour collacions et presente- mentz framchement en mamere come ils estočent feffes par low, donours. Ef em. cas Qe dascume Erceveschee, Eveschee, dignite ow autre guecunge benefice, soit Teservacion, collacion, Ou provision faite par la Court de Rome, em destourbance des eleccions, collacions ou presentacions susmomes, qe a meisme les temps des voidances, getieles reservacions collacions et provisions deusent prendre effect, ge a meisme la voidance notre Seigneur le Roi et ses heirs eient et enjoicemi pur. cele foitz les collacions as Erceveschees, Eveschees et autres dignites electives, ge sont de savower; e, autºeles come ses progenitours avoient avant ge franche eleccion feust graunte, desłcome les eleccions feurent primes grantez, par les progenitours le Roi Sur certeines forme et condicion, come a demander du Roi conge de eslär, et puts apresla eleccion daver son assent roîal, et nemye en autre mamere, les queles condicºoms myent gardez, la chose doćt par reson Tesortir a sa primere mature: eige Si, dascume Meson de Religion del avowerie le Rož, soft tiele reservacºom, collacion, ou provision faite, en destourbance de franche eleccion, eit notre seigneur le Roi et ses heirs a cele foitz la collacion, a domer cele dignite a persome covenable. Et en cas ge reservacion, collacion ow provision soit faite a la Court de Rome, de mule Esglèse, provende, ou autre benefice ge sont del a vower Že des genz de se? mte esglèse, don't le Rož est avowe paramount in mediat, Qe a mesme le temps de voidance, a quel temps la reservacion collacºom out provision deusent premdre effeit, come desus est dit, Qe le Roi et Ses heirs de ce eſſent le presentement, ou collacion a cele foitz; et issènt de temps en temps a totes les foëtz qe tieles gentz de seinte eglise seront destourbes de lour presentementz Ou collacions par teles reservacions collacions ou provisions come desus est dºt ; Sauvee a euac le droït de loºr avowesoms et presentementz quant mul collacºom ou provision de la Court de 478 A PPENDIX Rome ent me soit faite, ou geles dites gentz de Seánte eglise osent et vuillent a meismes les benefices presenter ow collacion faire, et lour presentees puissent leffect de lour collacions et presentementz enjoðer: et en meisme la mamere eit chescun awtre Sečg neur de quel condicion qil soit, les presentementz ow collacions a les meson's de religion ge sont de sa vowerie, et as benefices de Seinte eglèse qe Somt apurtenantz a me?smes les mesons. Et sº tiels avowes me presentent point a teles benefices, deinz le demy an appes tieles voidances, me levesge de lieu me la donne par laps de temps deinz um mois apres le demy am, qe adonges le Roſſ eit ent les presentementz et collacions, come ēl ad dawtres de savowerie demeisme. Et en cas Qe les presentes le Roi, ou les presentes dawtres patrons de Sečnte eglèse, ou de lour avowes, ou cewa; as queuac le Roi ou tielac patrons ow avowes susdótz averont dome benefices apwrtenantz a lowr presentementz ow collacions, Sočent destowrbez par tºels provisours, issènt qāls me puissent avoir possession de têeles benefices, par vertue des presentementz et collacions issènt a eua faitz, ou ge cellac ge. Sont en possessions des tiels benefices so?ent empesches sur lour dźtes possessions par tºelac provisowrs, adonges sočent les ditz provisours et lour procuratours, eacecutours et notaires attaches par lour corps, et memes em. Tesponse, et sºls Sožent convictz demoergent en prisome samz estre lesse a mein- prise, en baille, ou autrement delivres, tamgöls averont fait fin et redempcion au Roi a sa volente, et gree a la partie gese sentera greve. Et mient meins, avant gils sołent delivres facent pleine renunciacion, et troevent sufficeamte sewrete gºls mattempteront tiele chose en temps avenir, me nul proces sueront par evac me par autre devers nuly en la d'ête Court de Rome, me mule part aillours, pur mules teles emprisonementz ow renunciacions, me mule autre chose dependant de evac. Et en cas qe tielac prověsours, procuratours, eacecutours et Totaires me Sočent trove?, qe leacăgemde courge devers evºc par due proces, et ge Öriefs issent de prendre lowr corps quel part gils sočent trove2, awa-ibien a la suite le Roſſ come de partie, et qen le mesme temps le Roi eit les profitz de têeloc Öenéfices, iss?nt ocupez partielac provisours, forspris Abbeies, Priories, et autres 'meson's gont college ou Covent ; et en tieles mesons eient les Covent et colleges les profitz, Sauvant totéfoëtz a motre seigneur le Rož et as awtres Seigneurs lour awmcøene droit. Et eit cest estatut lieu autres?bien de reservacions collacions et provisions faites et grantes en temps passe, devers tou2 ceaua qe me somt ^Inqore adept corporele possession des benefices, a euoc grawmtes, par me?smes les recervacions, collacºoms et provisions, come devers touac autres en temps avenºr. Et do?t cest Estatut tenºr lieu commenceamt a les oetaves susdźtz. IX. Extract from Edward IV's Charter, 2nd November, 1462." . . . quod de cetero, mullus justiciarius, vicecomes, commissarius, escaëtor, coronator, ballivus, alºusve officiarius, aut minister moster vel heredwm mos- trorum aut al?orum, quº curias legales eac concessione mostra aut praedeces- Sorum nostrorum, aliave auctoritate tement, inquêrat sew inquërë faciat de eaccessºbus, felon??s, raptºbus mullerum, prodition?bus al??sve quibuscumque transgression?bus perpetratis sew perpetrandês, sew sic dicta perpetrata fuisse per aliquem vel aliguos arch? episcopum vel archiepiscopos, episcopwm vel episcopos, abbatem vel abbates, priorem vel priores, decanum vel decanos, arch?diacomum vel archidiacomos, officiarios, commissarios, rectores, vicarios, sew eorum Successores, presbyteros, capellamos et clericos quoscumque infra sacros Ordºnes constitutos, aut religiosas personas Supradictas praesentes wel futuras. + Et s' contëngat aliquam duodenam, quaestamwe, alºquent vel aliquos huju S- 'modž archiepiscopos, episcopos, praelatos, abbates, priores, decanos, arch?- diaconos, officiarios, commissarios, rectores, vicarios et eorum successores, presbyteros, capellamos vel aliquos clericos in sacrés ordinibus constitutos de cetero indictare, praesentare, accusare vel &mpetere, quod twmc *pse vel ºps?, * Printed after Harduin, Acta Conciliorum, etc. IX, 1470. Also printed in Wilkins, Concilia. III, 583 and Rymer, Foedera, 3rd Ed. W, Pt. II, p. 111.-This charter was confirmed by Richard III, 23rd Feb. 1484. The deed of confirmation is in Wilkins, Conc. III, 616. X. 25 HEW, VIII (I533/4) c 20 ss 3 and 4 479 justiciarius, vicecomes, escaëtor, coronator, praepositus, ball?vus, minister, aliusve officiarius, statin post receptionem hujuSmod? &ndictation?s, praesen- £ationis, accusationis, impetition?sve, psam indictationem, accusationem, praesentationem, vel impetitionem absque arrestatione, sew captione, incarcer- ationeve cleric; vel clericorum hujus mod? &mdictatorum, praesentatorwm, accusatorumve, impetitorum bonorum aut catallorum, eorumdem, archiepis- copis, episcopis ac singul?s praelatis, abbatibus, prioribus, decanºs, arch?- diaconis, qué in hujus mod? &ndictatis ordinariam habent jurisdictionem, £ransmittant. Et quod liceat &psis Ordinarić's contra hujus modi sãc indictatos, praesentatos, accusatos, impetitos, judicialiter Secundum jura ecclesiastica procedere, ŽpSam quoque causam sew causas cwm eorum consequentibus, dependentibus, emergentibus, incidentibus, et amneaeis finaliter decidere; licebit et?am ºpsºs archiepiscopis etc. . . . absgue hujus mod? aliqua indictatione, praesentatione, accusatione vel impetitione, ab hujus mod? just? czarº is etc. . . . sib? transmissis, indictationes, praesentationes, accusationes, impeti- tionesve privat as hujusmodé clericorum in sacrés Ordinibus constitutorum; avecnon religiosarum personarum, quarumcumque sib' subditarum recipere et super hujus modž praesentatione, indictatione, accusatione, detectione, vel &m- petitione, inquisitiones facere, ulteriusque Secundum jura ecclesiastica usque ad finem negotić procedere et éd finaliter terminare cum effectu . . . . . . Et s' quês justiciarāorum, vicecomitum, ballèvorum, escaëtorum, coronatorum, aut ministrorum mostrorum sew aliorum quemcumque vere vel praetense malefactores arrestaverint, attachiaverint, temuerint, incarceraverint vel custodžerint; et sic arrestatus, tentus, attachiatus, incarceratus vel custo- dźtus se clericum dicens ad Ordinarium locł mittà vel remitti petat, sive Ordinarius locł Żpsum petat aut repetat, station et indilate, et etiam ante causae cognitionem sew eacamánationem de clericatu, quia de praetensa spiritual? fit quaestio, ad ecclesiasticum swum judicém, vocato tamen judice Saecular; aut al?o ad cujus interesse dubitation's illius pertimeat decisio. Et s' per judiceſm. ecclesiasticum clericus reper?atur, sub jurisdictione eccles?astica judicamdus remaneat ; alias autem ad judicem sive curiam temporalem. Omnimo rest:- tudiºur. - . . . Insuper concess?mºus degratia mostra special?, quod mullus Ordinarius, judeºcue spiritualis, sive aliquès aliws causam Swam prosequens in curia ecclesiastica vel spirituali, aliquo modo gravetur, inquietetur, veacetur, aut al?o modo molestetur per breve de Praemum?re facias, pro prosecutione sew decisione alècujus causae in curia spiritual? determinandae, et infra regmum Žnchoatae, Et Quod mec judeoc mec pars prosequens causam, vel pars defendens, ºveque earum partium consiliarić, Žn aliquam poemam in statuto de Praemum?re facias contemtam, incidat. Proviso semper, quod haec mostra praesens con- cessio ad &mpetrantes beneficia vel eacemptiones, aut capacitates cum portione amonachal? nullatenus eactendatur. . . . Et hoc absºwe feodo inde ad opus mostrum capiendo sew sol- 2,61740 . . . X. 25 Hen. VIII (1533/4) c 20 ss 3 and 4 touching the mode of filling vacant sees.” s 3. And further more be it ordymed and established by the auctorytie aforsed, that at every advoyda’unce of every Archäbishopriche or Bishopriche within this Realme or in any other the Kynges Domyriyons, the Kynge our soveran Lorde hys heires and successours may graunt unto the Pryor and , Convent or the Deane and Chapytour of the Cathedrall Churches or Monas- teries where the See of souch Archäbishoprèche or Bishopriche shall happen to be voyde, a lycence under the greate seale as of old tyme hath byn accus- tomed to procede to eleccion of an Arch?bishopp or Bishopp of the See soo being voyde, with a letter myss y we conteynyng the name of the persone which they shall electe and chose ; By vertue of which licence the se?d Deane * After Statutes of the Realm. 48O A PPEND IX and Chapitour or Pryor and Covent, to whome any suche licence and letters myssyves shalbe directed, shall with all spede and seleritie in due forme electe and chose the seid person named in the seid letters myssyves to the dignitie and office of the Archebishopriche or Bishopriche soo being voyde, and mome other; and yf they doo or deferre or delay theire eleccion above XII dayes meat after Suche licence and letters myssyves to they’m delyvered, that then for every suche defaute the ICymges Highnes hys heires and successours at theire libertie and pleasure shall nomy nate and present, by theire letters patentes under theire greate seale, suche a person to the seid office and digmytče soo beinge voyde as they shall thymke abyll and convenyent for the same. And that every such nomy macºom and presentment to be made by the Kynges Highnes hys heires and successours, yf it be to the Office and dignytie of a Bishopp shalbe made to the Archebisshopp and Metropolitane of the provynce where the See of the same Bishopriche ys voyde, yf the See of the seid Archibishoprich be then full and not voyde; and yf it be voyde then to be made to suche Archebishopp or Metropolitame within this Realme or ºn any the ſymges Domynyons as shall please the Kynges Highnes hys he?res or successours: And yf any such nomymacion or presentment shall happen to be made for defaute of suche eleccion to the digmytče or office of any Archebishopp then the Kynges Highnes his heires and successours, by hys letters patentes wnder hys greate Seale, shall momymate and present such person, as they wyll dispose to have the seid office and dignitie of Archebishoprèche beyng voyde, to one suche Archebishopp and two suche Bisshoppes, or else to four suche Bishopes wythin this Realme or in any the Kynges Domymyoms as Shalbe assigned by our Seid Soveražgme Lorde hys heires or successours. s 4. And be it enacted by auctoritée aforseid, that whem. Soo ever any Suche presentment or momy macºom shalbe made by the Kynges Highnes hys heires or successours by vertue and auctoritie of this acte and accordyng to the temour of the same, that them every Archebisshopp and Bishopp to whos handes any suche presentment and nomymacºom shalbe directed, shall with all spede and seleritie investe and consecrate the person mominate and presentid by the Rymges Highnes his heires or successours to the office and dignitie that suche person shalbe Soo presented unto, and geve and use to hym, pall and all other benediccions ceremonyes and thymges requys?te for the same, without suing procurymg or optaymyng hereafter any bulles or other thymges at the See of Rome for any Suche office or dignitie in any behalf. And yf the seid Deame and Chapyter or Pryor and Convent after suche licence and letters myssyves to they’m directed, within the se?d XII dayes do electe and chose the se? d person ment?omed in the Seid letters myssy ves, accordymg to the requeste of the Kynges Highnes hys heires or successours therof to be made by the seid letters myssyves in that behalf, then theire eleccion shall stonde good and effectuall to all intentes ; and that the person soo elected after certificacion made of the same eleccion whder the commen and Covent seale of the electours to the Kynges Highnes hys heires or successours, shalbe reputed and taken by the mame of Lorde elected of the se?d Digm?tie and office that he shalbe electicl wnto; And then makyng Suche othe and fealt?e only to the Kynges Majestie hys heires and successours as shalbe appoynted for the same, the Rynges Hyghnes by his letters patentes under hys greate seale shall signyfie the seid eleccion yf it be to the dignytie of a Byshopp to the Arche- bishopp and metropolitane of the provymce where the see of the se?d Byshop- Tiche was voyde, yf the See of the Seid Archebishopp be full and not voyde; and yf it be voyde, than to any other Archebyshopp within this Realme or in any other the ICynges Domynyons, requy ring and com’m a wn dyng Suche Archebishopp to whome any suche significacion shalbe made, to confºrme the seid elecci on and to invest and consecrate the se?d persone so elect?d to the office and Dignitie that he is elected unto, and to geve and use to hym all suche benediccions ceremonyes and other thymges requys?te for the same with- out any suymg procurymg or opteynymg any bulles letters or other thymges frome the See of Rome for the same in any behalf: And yf the person be elected. to the office and dºgmitée of an Archebishopp accordymg to the tenowr of this acte, then after suche eleccion certified to the Kynges Highnes in forme afor- XI. THE THIRTY-VIAWE ARTICLES OF I563 48I seãd, the same person soo elected to the office and dignátíe qf an Archebáshopp shalbe reputed amd talcem Lorde electe of the se id Qffice amd dógmêtêe Qf Arche- bishopp wherumto he shalbe so elected ; and them, after he hath, made such othe and feaut?e only to the Kynges Majest?e hys heìres and successours as shalbe lymytted for the same, the Kynges Highmes by hys letters patentes under hys greate seale shall sâgmêfie the seåd eleccáon to one Archebishopp and two other Bisshoppes or els to four Bishoppes vêthêm thês Realme or wêthên, any other the Kynges Domymyoms to be assígned by the Kynges Hìghnes hás heôres or successours, requyrymg and commaundymg the seôd Archebishopp and IBysshoppes with all spede amd selerítíe to confirme the se id eleccáom and to jnveste and consecrate the seid person soo elected to the Qffice and dígnítíe that he ìs elected unto, and to geve and use to hym suche palle benedíccíoms ceremonyes and all other thymges requysíte for the same wáthout suóng pro- curyng or opteynyng any bulles breves or other thymges at the seôd See Qf Rome or by the auctorytie therQf ên, any behalf. XI. The thirty-nine articles of 1563 in the Latin form of 1571.* Artícul â de quóbus com vem ít ínter Archiepìscopos et Epíscopo s α tr??/sqwe p rov? nc ? ae et Cleru m u m à versu m á m Synodo Lond í n ? α η. D0m. 1562 secu m dum com putat ìonem, ecclesiae Angl êc amae, a d. tollendam op ê mêonum d ìs semt ? omem, et consensum, în vera rel à gìone J%r mandum. Aed êtê authorítate serem îssîmae Regìnae. 1. De fide in Sacrosanctam Trinitatem. Unus est vívus, et verus deus, aeternus, ìncorporeus, ómpartíbílís, ímpas- síbílís, ímºmensae potentíae, sapìentìae, ac bonítatís, creator, et conservator Omníum, tum vísíbílíum, tum ìnvìsìbìlìum. Et în unìtate hujus dîvînae Maturae, tres sunt personae, ejusdem essentiae, potentìae ac aeternìtatis, pater, filius, et Spíritus sanctus. - 2. De Verbo, sive filio dei, qui verus homo factus est. Fílíus, quâ est verbum patrìs, ab aetermo a patre genìtus, verus et aeternus Deus, ac patrâ consubstantíalís, ín utero beatae vìrgìnìs, eae ìllíus substantìa ^aturam humanam assumpsit: έta ut duae maturae, dîvîna et humama, ?ntegre atque perfecte %n unítate personae fuerìnt ìnseparabíláter coniunctae, eac quíbus est unus Christus, verus Deus, et verus homo, quâ vere passus est, crucîfiacus, mortuus, et sepultus, ut patrem, mobís reconcílíaret, essetque hostía, ^0m tantum pro culpa orìgìnìs, verumetìam pro Omnîbus actualibus homónum, peccatis. 3. De descensu Chrìstì ad Inferos. Quemadmodum Christus pro nobìs mortuus est, et sepultus, îta est etíam, credendus ad ìnferos descendisse. 4. De Resurrectione Chrîstî. ' Christus vere a mortuís resurreœât, suumque corpus cum carme, ossìbus, Omníbusque ad íntegrìtatem humanae maturae pertìnentìbus, recepìt : cum quíbus ín coelum ascendit, îbîque resídet, quoad, eactremo díe, ad íudícandos homónes reversurus sìt. 5. De Spiritu sancto. Spíritus sanctus a patre, et filío procedens, eíusdem est cum patre, et filío essentêae, maíestatìs, et glorìae, verus, ac aeternus, Deus. . 6. De dìvìnìs Scripturis, quod sufficiant ad salutem. Scríptura sacra contênet omnía, quae ad salutem sunt necessaría, íta, ut a Printed after Cardwell, Symodalia, I, 73. IH. C. I I 482 A PPE VID IX quícquíd ín ea nee legîtur, neque índe probarâ potest, non sit a quoquam, éxigendum, ut tanquam articulus fideâ credatur, aut ad salutás necessitatem requêrê putetur. ¢ Sacrae Scrípturae nomine, eos Canonìcos líbros veterìs et novâ Testament? £ntellígímus, de quorum authoritate, ín Ecclesía nunquam dubítatum est. De nomêmêbus, et mwmero l íbrorum, sacrae camon ícae Scrìpturae veterìs Testa me nt ę. Gemesis. IEacoduS. Levîtîcus. INumerô. 1)euterOm. Josuae. Judícum. IRut. Prîor lîber Samuel ęs. Secundus lîb. Samuelis. Prîor líber Regum. Secundus líber Regum. Prìor líber Paralipom. Secundus liber Paralipomen. IPrómuS lîber Esdrae. 8ecundus líber Esdrae. Lîber Hester. Lîber Iob. IPsalmâ. IProverb£a. Ecclesîastes, vel concíonator. Cantîca, Salomonis. 4 Prophetae maiores. 12 Prophetae minores. Alios autem, lîbros (ut ait Hìeronámus) legit quidem Ecclesia, ad eœempla vitae, et formandos mores: ìllos tamen ad dogmata confirmanda non adhíbet, vt Su^t. Tertîus lîber Esdrae. Quartus líber Esdrae. Lîber Tobîae. Lîber Judât. Reliquum, líbrí Hester. Lîber sapîentîae. Líber Jesu filíj Sírach. Baruch Propheta. Cantâcum, Tríum, puerorum. Hóstoria Susannae. De Bel, et DraCone. Oratío Manasses. Prîor líb. Machabeorum. ASecundus liber Machabeorum. INovâ Testamentí omnes líbros (ut vulgo receptę sunt), recìpìmus, et habe^us pro Canonícís. * 7. De veteri Testamento. Testamentum vetus, novo contraríum non est, quandoquìdem tam in veteri, quam ín novo, per Christum, quâ unâcus est mediator Deâ, et homìnum, Deus et homo, aeterna vîta, humano generâ est proposita. Quare male sentíunt, quâ veteres tantum ín promíssàones temporarias sperasse contingunt. Quamquam leœ a Deo data per Mosen (quoad ceremonías et ritus) Chrìstìanos non astrór- gat, neque civílía eíus praecepta ín aliqua republìca necessarío recípí debeant ; níhílominus tamen ab obedíentía mandatorum, (quae moralia vocantur) (nullus quantumvîs Chrístíanus) est solutus. 8. De tribus Symbolis. Symbola trìa, Nycoenum, Athanasij, et quod vulgo Apostolorum appellatur, omnìno recìpìenda sunt, et credenda, nam firmíssêmês Scrípturarum, testá- monijs probarâ possunt. 9. De peccato orîgînali. Peccatum orígínís non est (ut fabulantur Pelagîanâ) ên êmêtatíone Adam? situm, sed est vêtêùm, et depravatìo maturae, cujuslíbet homínís, eae Adamo maturaliter propagatí : qua fit, ut ab orígínalí íustícía quam longíssíme dêstet, ad malum sua natura propendeat, et caro semper adversus spîrîtum, concu- piscat, unde ín unoquoque nascentíum, ìram Deâ, atque damnatíonem meretur. Manet etíam ín renatis haec maturae depravatâo. ' Qua fit, ut affectus carnês Grece φρόνημα σαρκόs, (quod alíj sapientìam, alìj sensum, alíj affectum, alíj studíum, carnìs ìnterpretantur,) legì Dei non subjciatur. Et quanquam, q•enatis et credentibus, nulla propter Chrìstum est condemnatìo, peccatâ tamen 3n sese ratíonem habere concupáscentíam, fatetur apostolus. XI. THE THIRTY-VIVE ARTICLES OF I 563 . 483 10. De libero arbìtrìo. Ea est homìnìs post lapsum Adae condítáo, ut sese naturalibus suás várábus, et bonís operibus, ad fidem, et învocatíonem, Deî convertere, ac praeparare non, 7)0ssât. Quare absque gratía Deâ (quae per Christum est) mos praeveníente, ut velìmus, et cooperante, dum volumus, ad píetatis opera facíenda, quae De0 grata sunt, et accepta, níhíl valemus. 11. De hominis iustificatione. Tantum propter merítum, Domânî, ac Servatoris nostri Jesu Chrístí, per fidem, non propter opera, et merita nostra, íustâ coram Deo reputamur. Quare sola fide nos ìustáfícarí, doctrìna est saluberrìma ac consolatíonís plen- Âssêma, ut ín homílía de iustíficatíone homêmês, fusíus eœplicatur. 12. De bonis operibus. JBona opera, quae sunt fructus fideâ, et ìustíficatos sequuntur, quanquam peccata nostra eacpîare, et dívání íudícij severìtatem, ferre non possunt : Deo tamen grata sunt, et accepta ín Christo, atque eae vera et víva fide, necessarío profluunt, ut plane eae ìllis, aeque fides vîva cognoscá possít, atque arbor eae fructu, óudícarí. 13. De operibus ante iustíficationem. Opera quae fiunt, ante gratiam Christi, et spíritus eius afflatum, cum eæ fide Jesu Christi non prodeant, mêmême Deo grata, sunt, neque gratiam (ut mult? vocant) de congruo merentur. Immo cum non sânt facta, ut Deus ílla fier? voluít, et praecepìt, peccatâ ratíonem habere non dubítamus. - - 14. De operibus supererogationis. Opera quae supererogatíonís appellant, non possunt sáne arrogantia, et £mpíetate praedìcarì. Nam, állás declarant homìnes, non tantum se Deo red- dere, quae tementur, sed plus ín eâus gratìam facere, quam, deberent, cum aperte Christus dícat : Cwm fecerítís omnia quaecunque praecepta sunt vobís, dícíte, servi ìnutíles sumus. 15. De Christo, qui solus est sine peccato. Christus, ìm nostrae naturae verîtafe, per omnîa, sêmêlês factus est nobis, eaccepto peccato, a quo prorsus erat ìmmunis, tum ín carne, tum ín Spírítu. Venìt ut agnus, absque macula, quâ mundí peccata per ímmolatíonem, suô semel factam, tolleret, et peccatum (aut ìnquìt Iohannes) în eo non erat : sed nos relíquá etíam baptízatâ, et ín Chrìsto regeneratî, în multis tamen Qffendimus Omnes. Et sê dêocerêmus, quía peccatum mon habemus, nos ἀpsos seducámus, et veritas êm mobís non est. 16. De peccato post Baptismum. Non omne peccafum mortale post Baptísmum, voluntaríe perpetratum, est peccatum, êm Spîrîtum, sanctum, et ìrremissìbìle. Proinde lapsôs a Baptísmo ¢n peccata, locus poenítentíae mon est negandus, post acceptum spárátúm Sanc- tum possumus a gratía data recedere, atque peccare: denuoque per gratíam, Dei resurgere, ac resipíscere: ídeoque íllí damnandę sunt, qui se quamdiu hîc vìvant, amplíus non posse peccare affirmant, aut vere resipáscentibus veníae locum denegant. 17. De praedestimatione, et electione. Praedestímatío ad vêtam, est aeternum, De% proposítum, quo ante íacta mundó fundamenta, suo consílío, nobìs quìdem occulto constanter decrevât, eos quos êm Chrìsto elegít eae homínum genere, a maledìcto et eacítío líberare, atque (ut vasa în homorem efficta) per Chrìstum, ad aeternam, Salutem adducere. Unde quâ tam praeclaro Dei beneficão sunt donatí, íllí spírótú eíus, oportuno 484 A PPE VID IX tempore operante, secundum propositum eíus, vocantur, vocatíoní per gratíam parent, ìustíficantur gratís, adoptantur êm filios Dei unìgenítí eíus Jesu Chrístí * magînî efficiuntur comformes, ìm bonis operíbus sancte ambulant, et demum, eæ Deí míserícordia pertingunt ad sempäternam foelîcîtatem. Quemadmodum praedestêmationis, et electîonîs mostrae în Christo pia com- sîderatio, dulcís, suavis, et ìneffabílís consolatíonís plena est, vere pôjs, et h?js quâ sentíunt in se vim, spíritus Chrìstì, facta carmis, et membra, quae adhuc sunt super terram, mortíficantem, anìmumque ad coelestia, et superna rapí- entem. Tum quía fidem nostram de aeterna salute consequenda per Christum plurímum stabílít, atque confirmat, tum quìa amorem nostrum ín Deum vehe- imenter accendit. Ita homíníbus, curìosis, carmalìbus, et Spìrìtu Chrìstì destítutís, ob oculos perpetuo versarì, predestínatíonis Dei sententíam, permá- tìosìssìmum est praecîpîtêum, unde ìllos diabolus protrudát, vel ín despera- tìonem, vel în aeque pernítíosam, ìmpurìssìmae vitae securìtatem, deínde promìssìomes dívìmas sic amplectâ oportet, ut mobìs ìn sacrís líterís generalíter propositae sunt, et Dei voluntas ìn mostris actìonìbus ea sequenda est, quam ín verbo De% habemus, d?serte revelafam. 18. De speranda aetei'ma salute tantum im momine Christi. Sunt et illâ Amathematizandâ, qui dícere audemt unumquemque ìn lege, aut Secta quam, prqfitetur esse servandum, modo ìuQcta ìllam, et lumen, maturae accurate vóacerìt, cum sacrae literae tantum Jesu Chrístí momen praedicent, êm quo Salvos fieri homónes oporteat. 19. De Ecclesîa. Ecclesìa Chrìstì vìsìbìlìs est coetus fidelium, ìm quo verbum Dei purum, praedícatur, et sacramenta, quoad ea que necessarío eæigantur, ìuacta Chríst? ?nstítutum, recte admìnìstrantur. Sicut erravit Ecclesia Hìerosolêmêtama, Aleacandrîna, et Antíochema : îta et erravit ecclesia Romama m0m solum, quoad agenda, et ceremoníarum rátus, verum ín híjs etíam, quae credemda sunt. 20. De Ecclesiae authoritate. Ecclesiae mom lícet quícquam ìnstìtuere, quod verbo Deâ adversetur neque unum Scrìpturae locum, sîc eœpomere potest, ut alterâ contradicat. Quare lícet IEcclesîa sìt dìvìmorum, líbrorum, testìs, et conservatríæ, attamen \it adversus eos mihíl decernere, îta praeter ìllos, móhíl credendum, de necessitate salutís debet obtrudere. 21. De authoritate Conciliorum generalium. General?a concìlìa, sìne ìussu, et voluntate prìncìpum congregará mom pos- sunt, et ubî convenerínt, quía e0e homóníbus constant, quę non omnes spírítu, et verbo Dei reguntur, et errare possunt, et ìnterdum errarunt etíam ín hís que ad mormam pòetatis pertínent : ìdeoque quae ab íllís constituuntur, ut ad salutem mecessaría, meque robur habent, meque authorítatem, másá ostendâ possìut e sacrís líterís esse desumpta. 22. De purgatorio. Doctrina Romanensîum de purgatorío, de ìndulgentíjs, de veneratíone, et adoratíone, tum îmagînum, tum relíquíarum, nec non de ínvocatíone sanc- torum, res est futílís, ínam íter conficta, et mullís Scrípturarum testímoníjs, Ømmótátur : ímºmo verbo De? contradîcît. 23. De vocatione ministr07*^17m. Non licet cuiquam sumere sîbî munus publice praedicandâ, aut admínís- trand; sacramenta in ecclesia, nìsì prìus fuerit ad haec obeunda, legítíme vocatus, et missus. Atque ìllos legîtîme vocatos et missos eæistímare de: bemus, quâ per homìnes, quíbus potestas vocandí mínístros, atque màttend? XI. THE THIRTY-VIVE ARTICLES OF I563 485 ên víneam Domênâ, publìce concessa est în ecclesía, coaptatâ fuerint, et ascit? ¢n hoc opus. 24. De precibus publicis dicendis in lingua vulgari. Lìngua populo non ìntellecta, publícas în ecclesia preces peragere, aut sacramenta, ad mœnístrare, verbo Deò et pręmôtêvae ecclesíae consuetudînâ plane 'repugnat. 25. De Sacramentis. Sacramenta a Chrìsto ìnstìtuta, non tantum sunt notae professíonís Chris- tìanorum, sed certa quaedam, potêus testímonía, et efficatía sígna gratíae, atque bonae în nos voluntatís Deí, per quae ìnvìsêbêlêter ìpse ín nos operatur, nostramque fidem^ în se non solum, eaccátat, verum etíam confirmat. Duo a Christo domino nostro în evangelío ín$títuta sunt sacramenta, Scílícet, Baptísmus, et coena domênâ. Quámque îlla vulgo nomìnata sacramenta : scîlîcet, confirmatìo, poenitentía, ordo, matrîmonîum, et eactrema unctío, pro sacramentis evangelicis habenda non sunt, ut quae, partêm, a prava Apostolorum, ímítatíone proflu3cerunt, par- têm, vitae status sunt în scripturís quìdem, probatâ: sed sacramentorum eandem, cum baptísmo, et coena Domíní ratíonem, non habentes, ut quae signum aliquod vísíbíle, seu caeremoníam a Deo ìnstìtutam, non habeant. Sacramenta non, în hoc ìnstituta sunt a Christo ut spectarentur, aut cārcum- ferrentur, sed ut ráte íllís uteremur, et ín híjs duntaœat quâ digne percípíunt salutarem habent effectum : Quâ vero índígne percípíunt, damnatìonem (ut ¢nquít Paulus) síbí ípsís acquírunt. 26. De v; institutionum divinarum, quod eam non tollat malítia Ministrorum. Quamvís ín ecclesìa vìsìbìlí, bonis malâ semper sunt admíactâ, atque ínter- dum, mínísterìo verbô, et Sacramentorum, ad mínístratíoní praesênt, tamen, cum, non suo, sed Chrístí nomêne agant, eíusque mandato, et authoritate mânîstrent, illorum minísterìo utí licet, cum ín verbo Deâ audiendo, tum ín sacramentis percípíendís. Neque per îllorum malítiam, effectus ínstítutorum Chrístâ tol- lătur, aut gratía donorum, Deí mínuítur, quoad eos quâ fide, et ráte sîbî oblata percîpîunt, quae propter ínstítutíonem, Chrìstâ, et promissàonem efficatìa sunt, licet per malos ad mênîstrentur. Ad ecclesìae tamen discíplínam, pertínet, ut ín malos mìnìstros ìnquìratur, accusenturque ab hós, quâ eorum flagítía moverínt, atque tandem, íusto convictâ ¢udícío deponantur. 27. De Baptismo. Baptísmus non est tantum, prQfessóonìs sìgnum, ac discrêmênês mota, qua Chrístíaní a non Christianís díscernantur, sed etìam est ságnum, regenera- tíonís, per quod, tanquam per ínstrumentum, recte Baptísmum, suscîpîentes, ecclesîae înserúntur, promíssíones de remissîone peccatorum, atque adoptione nostra ín filios Deî per Spêrêtum sanctum, vásábólíter obsignantur, fides con- firmatur, et vê dêvênae ínvocatîonîs gratía augetur. Baptísmus parvulorum omníno în ecclesîa retínendus est, ut quâ cum Chrìst? ¢nstitutíone optíme congruat. 28. De Coema, Domzîmâ. Coena Domênê non est tantum signum mutuae benevolentìae Chrístíanorum, £nter sese, verum potíus est Sacramentum nostrae per mortem, Christâ redemp- tíonís. Atque adeo, ráte, d?gne, et cum fide Sa/mentíbús, panís quem frangámus est communìcatio corporis Chrìstì : símílíter poculum benedíctíonis, et communí- catìo sanguínis Chrîstî. Panós et vênâ transubstantíatío ín Eucharistía, eae sacrìs láterís probarí non 486 - APPEN DIX potest. Sed apertis Scripturae verbis adversatur, Sacrament; naturam evertºt, et multarum superstitionum dedit occasioném. º Corpus Christ; datur, accipitur, et manducatur in Coena, tantum coelest?, et spirituali ratione. Medium autem quo corpus Christi accipitur, et mandu- catur Żm Coema, fides est. º Sacramentum Eucharistiae, eac institutione Christi mon servabatur, circum- Jerebatur, elevel»atur, mec adorabatur. 29. De manducatione corporis Christi, et impios illud mon mandu care. Impéj, et fide viva destituti, licet carnaliter, et visibiliter (wt Augustimus loquitur) corporås, et sanguin's Christi sacramentum, dentibus premant, mullo tamen modo Christi participes efficiumtur. Sed potius tantae re?, Sacramentum, Sew Symbolum, ad iudicium sábi mamducant, et bibwnt. 30. De utraque specie. Caliac Domžni laicis mom est demegamdus, utraque emian pars Dominic; Sacra- ment, effe Christ? institutione, et praecepto, omnibus Christianºs, eac aequo admºnºstrar; debet, 31. De unica Christi oblatione in cruce perfecta. Oblatio Christi Semel facta, perfecta est redemptio, propitiatio, et satisfactºo pro Omnibus peccatás totius mundi, tam originalibus, quam actualibus. Neque praeter illam unicam, est ulla alia pro peccatºs eſcp?atio, wrºde mºss- arum sacrificia, quibus, vulgo dicebatur, sacerdotem offerre Christum, ºn ºrem?ssionem poenae, aut culpae, pro věvis et defunctis, blasphema figmenta Sumt, et perm?cºosae ºmposturae. 32. De coniugio Sacerdotum. Episcopis, Praesbiterås, et Diacom’s mullo mandafo divino praeceptum est, wt aut coelibatum voveant, aut a matrimonio abstineant. Licet 'gītwr etiam Żllis, ut caeter's Omnibus Christianis, ubi hoc ad pietatem magis facere £udº- caverint, pro Suo arbitratu matrimon?um contrahere. 33. De eaccommunicatis vitamdis. Quº per publicam ecclesiae denunciationem rite ab unitate ecclesiae praecº- Sws est, et eaccommunicatus, is ab universa fidelium multitudène (domec per poemºtentiam publice reconciliatus fuerit arbitrio judicis competentis) habem- dws est tanguam Ethnºcus et publicanus. 34. De traditionibus Ecclesiasticis. Traditiones atque ceremon?as easdem, mom omnino necessarium est esse wbique, aut prorsus cons?mºles. Nam et variae semper fuerunt, et mºufar? possunt, pro Regionum, temporum, et morum diversitate, modo mºhºl contra cerbum, Dež önstituatu’r. Traditiones, et ceremonias ecclesiasticas quae cum verbo Deč mom pug- mant, et Sunſ authorºtate publica institutae, atque probatae, Quisquis privato consilio volens, et data opera, publice violaverit, is, ut qui peccat in publicum ordinem Ecclesiae, quºque laedit authoritatem magistratus, et quº infirm orwm fratrum conscientias vulnerat, publice uſ caeteri tāmeanſ, arguendus est. Quaelibet ecclesia particularis, sive Nationalis, authoritatem habet institu- endi, mutand?, aut abrogandé Ceremonias, aut ritus ecclesiasticos, humama . . fantum authoritate institutos, modo omnia ad aedificationem fiant. XI. THE THIRTY-NINE ARTICLES OF I563 487 35, De Homiliis. Tomus secundus Homiliarum, quarum singulos titulos huic articulo sub- 2umacimus, continet piam et salutarem doctrinam, et hijs temporibus neces- Sardam, non minus quam prior tomus Homiliarum, quae editae sunt, tempore Edvardº seacti: Itague eas in ecclesiis per ministros diligenter, et clare, ut a populo intelligi possini, recitandas esse iudicavimus. De no minibus Homiliarum. Of the right use of the church. Of almes dogmg. Agaynst perill of Idolatrie. Of the Nativitie of Christ. Of repairing and Iceping cleane of | Of the passion of Christ, Churches. - Of the resurrection of Christ, Of good workes. Of the worthy receiving of the Sacra- First of fasting. ment of the body and bloude of Agaymst gluttomy and drunkennes. Christ. Agaymst eaccesse of apparell. Of the giftes of the holy ghost. Of prayer. - For the Rogation dayes. Ofthe place and time of praier. Of the state of Matrimonie. That common prayers and Sacra- | Of Repentaunce. mentes ought to be ministered in a Agaymst idlenes. lenovne tonge. Agaynst rebellion. Of " ſreverent estimation of Gods QUO)”Cl, 36. De Episcoporum et Ministrorum consecratione. Libellus de consecratione Archiepiscoporum, et Episcoporum, et de ordina- tione praesbyterorum, et Diaconorum, editus nuper temporibus Edward VI et authoritate Parliamenti illis ipsis temporibus confirmatus, omnia ad eius- modi consecrationem, et ordinationem necessaria continet, et nihil habet, quod eac Se sit aut superstitiosum aut impium : itaque quicumque iuacta ritus illius libri consecrati, aut ordinati sunt, ab anno secundo praedicti regis Edwardi, usque ad hoc tempus, aut imposterum iuocta eosdem ritus consecrabuntur, aut ordinabuntur, rite, atque ordine, atque legitime statuimus esse, et fore conse- cratos, et ordinatos.º n 37. De civilibus magistratibus. Regia maiestas in hoc angliae regno, ac caeteris eius dominijs, summam habet potestatem, ad quam, omnium statuum huius regni, sive illi ecclesiastici sint, sive civiles, in omnibus causis, suprema gubernatio pertinet, et nulli eacternae iurisdictioni est subjecta, nec esse debet. - Cum Regiae Maiestati summam gubernationem tribuimus, quibus titulis dntelligimus, animos quorundam calumniatorum offendi, non damus Regibus nostris, aut verbi Dei, aut Sacramentorum administrationem, quod etiam iniunctiones ab Elizabetha Regina nostra, nuper editae, apertissime testantur. Sed eam tantum praerogativam, quam in sacris scripturis a Deo ipso, omni- bus pijs Principibus, videmus semper fuisse attributam, hoc est, ut omnes status, atque ordines fidei suae a Deo commissos, sive illi ecclesiastici sint, sive civiles, in officio contineant, et contumaces ac delinquentes, gladio civili COerceani. Romanus pontifex nullam habet iurisdictionem in hoc regno Angliae. Leges Regni possunt Christianos propter capitalia, et gravia crimina, morte punire. Christianis licet, eac mandato magistratus, arma portare, et iusta bella ad- ministrare. º 14 Car. II (1662) c 4 (Act of Uniformity) s 26 enacts that article 36 of the 39 articles shall in future in all subscriptions to the 39 articles have reference to the ordinal appended to the new prayer-book introduced by that act. 488 A PPENVDIX 38. De illicita bonorum commumicatione. Pacultates et bona Chrístíanorum non sunt communia, quoad íus et 120ssessionem (ut quídam Anabaptistae falso iactant) debet tamen, quisque %; hís quae possídet, pro facultatum ratione, pauperíbus elemosynas benigne £stríbuere, 39. De iureiuramdo. Quemadmodum íuramentum vanum, et temerarìum à Dománo nostro Jesu Christo, et Apostolo eius Jacobo, Christianis homíníbus ìnterdíctum esse, fate- 'mur : íta Chrístíanorum relígíonem, mêmême prohíbere censemus, quám íubente 'magístratu ín causa fidei, et charítatís íurare líceat, modo ìd fiat $uacta Pro- phetae doctrínam, în îustótáa, în îudîcîo et verìtate. [40. Confirmatio Articulorum.] XII. ExtraGt from the Canons of 1604.* 1 (I) De ecclesia Anglicana. 1. Suprema in ecclesiam Anglicanam auctoritas regiae majestati asserenda. Prout Qfficâ nostrâ ratíone erga serenissimam majestatem regìam oblígamur, 6mprímás statuímus et Ordinamus, ut archiepiscopus Cantuaríensís pro tempore eæistens, omnes epîscopè hujus provìncìae, decanì ìtem, archidiacomâ, 'rectores, vícaríí, caeteráque eae clero quîcunque, tum îpsâ fideláter custodiant ac observemt, tum, (quantum, ìm ìpsis est) ab alíìs curent observarâ, et custodírá Omnía et sángula statuta, ac leges sancitas et constitutas, pro antîqua jurìs- díctíone ín statum, ecclesíastícum hujus regni coronae restituenda, omníque eactranea potestate, quae eâdem repugnet, eœtermêmanda. Porro etiam, ut Omnes ecclesíastícae personae ad curam, amāmarum, constitutae omnesque alíí concìonatores et theologêcê ín quìbuscunque ecclesêás praelectores (quantum in- genío, cognítíone, ac doctrína valebunt) pvre et sáncere absque omnê fuco aut dolo, Sángulás annós quater ad mânîmum publice ìm, concîonîbus, alísque homêlêês, ac praelectìonìbus suís doceant, divulgent, enumcîent, ac declarent, v$urpatam, Omnem et peregrìnam potestatem, (utpote mullo jure dìvìno niacam, et fundatam) justìssìmìs de causās sublatam esse et abolátam ; et propterea ^ullam obedíentíam aut subjectíonem înfra majestatís suae regna et domínía huju$modò eætraneae potestatâ cuîcumque ullatenus deberí : sed auctorítatem, * The Latim text of the mew camoms 86, 87, 88 and 40 agreed (in English and Latim forms) in 1865 is givem after Chrom. qf Comv. Cant. 1865, p. 2400. The Latin text of the camoms agreed and set forth (im English amd Latin) im 1887-8, which alter im some respects canons 62 and 102, is givem after Chrom. Qf Conv. Cant. 1888, behind p. 2. In 1892 the following mew camom was set forth. On the way im which it passed cf. § 55, mote 25. It runs: If any beneficed Práest shall by reasom, qf any crime or ímmorality proved against him become legally dísqualified from hold- �ng preferment it shall be the duty qf the Báshop qf the Diocese whereâm, his benefice ìs sìtuate to declare without further trìal the benefice with cure qf souls (£f any) vacant and åf êt should mot be so declared vacant vêthêm twenty ome days fit shall be declared vacant by the Archbishop of the Province or under his çgitu. The adoption of this canom was caused by 55 & 56 Víct. (1892) ss 5, 6; cf. s 8. EHow far the several camoms of 1604 are merely a, repetition of previous symodal resolutions is showm by Mackenzie E. C. Walcott, The Constítutions and Canons Ecclesíastícal qf the Church of England (only the canons of 1604 are meant), referred to theôr orìgìnal Sources, and âllustrated with eacplanatory notes, Oxfqrd amd Londom, 1874, a From Cardwell, Synodalia I, 164. XII EXTRACT FROM THE CAVONS OF I6o4 489 regìam ìnfra regna sua Anglíae, Scotiae, et Háberniae, ac reliqua ípsíus domínia et territoría proæime et secundum, Deum, primam esse et supremam, cuâ omnes earundem regionum, tam êncolae, quam índígenae fidem omnem, et obedíentíam, supra alíam, quamcunque în terrìs potestatem, lege divîna tenentur e3chábere. 2. Regii in ecclesiam Anglicanam primatus impugnatores coërciti. Quâcumque ìnposterum, affirmabìt, majestatem, regíam, non habere eandem, auctorìtatem ín causis ecclesíastícís, quam, pêá príncipes apud Judaeos, et chrêstíaní ómperatores ín prêmêtíva ecclesìa obtìnuerunt, vel regalem îpsîus în iisdem, causîs pręmatum, hujus regnâ coronae jamdíu víndicatum, ac legíbus ejusdem regnã ín ea stabilitum, ullatenus laedere aut eactenuare praesumpserít, eaccomºmum ícetur ípso facto, non násá per archìepíscopum, restítuendus, ídque postquam resópuerít, ac ímpíos hosce errores publíce revocarët. 8. Ecclesia Anglicana orthodoaca. Quęcunque ìnposterum affirmabìt, ecclesìam Anglicanam, sub regia majes- tate legîbus stabîlîtam, mom esse orthodoacam, et apostolícam ecclesiam, aposto- lorum vídelícet doctrínam, tradentem, et astruentem, eaccommunìcetur ípso facto, non nìsi per archiepiscopum restìtuendus, îdque postquam resópuerít, ac ímpium, hunc errorem publice revocarit. 4. Divina cultus ratio in ecclesia Anglicana stabilita, pia et Orthodoaca. Quâcumque ínposterum affirmabát, liturgiae formam, în ecclesia Anglicana legíbus stabílítam, et ín líbro precum publícarum, ac admìnìstratíonís sacra- mentorum comprehensam, corruptum, superstìtìosum, aut îllîcîtum esse De? cultum, vel quícquam, în se contìnere, quod Scripturarum, canomâ sit contraríum, eaccommunìcetur ípso facto, non nász per epóscopwm dêoecesanum, vel archâ- epîscopum, restìtuendus, ídque postquam, resópuerít, ac împîum, hunc errorem, publìce revocarit. 5. Doctrinae artîculî în ecclesia Anglicana stabiliti, pii et orthodoxi. Quâcunque ìnposterum affirmabít, ullum eae trìgìnta movem artículís, ín quos consensum est ab archîepîscopîs et epîscopis utríusque provìncìae, ac relìquo omn? clero în synodo Londimâ habita anno Dominâ MDLXII (ad tol- lendam utique opìnìonum varìetatem, et consensum ín causa fidei firmandum, et stabîlîendum) ulla, eœ parte superstitíosos aut erroneos eocâstere, vel omníno ejusmodi, ut în eorum, verìtatem, salva conscíentía subscríbâ nequeat, eaccom- munícetur ípso facto, non nìsì per archiepìscopum, restìtuendus, îdque post- quam resópuerít, ac ímpíos hos errores publíce revocarìt. 6. Ceremoníarum in ecclesia Anglicana obtinentium usus, pius et lícitus. Quâcunque ìnposterum affirmabát, ecclesiae Anglicanae ritus ac ceremonías legíbus constìtutas, împîas, antìchristianas, aut superstitiosas esse, vel denìque ejus generís, ut homónes p?? ac relígíosâ, quantumvîs legítíma auctorítate jussâ, non possint íntegra conscíentía eas approbare, aut observare, vel etiam, (prout occasío tulerãt) eîsdem subscríbere, eaccommunìcetur ipso facto, nulla- tenus absolvendus, prìusquam, resópuerìt, ac ìmpìos hos errores publíce revocarìt. 7. Ecclesiae Anglicanae administratio verbo divino consona. Quâcunque ínposterum affirmabát, ecclesiae Anglicanae sub regia majestate regìmen et díscíplínam, per archiepìscopos, epíscopos, decanos, archídíaconos, et relíquos ad ejusdem gubernaculum, constitutos, antìchrístíanum esse, ac verbo divîno contrarìum, eaccommunìcetur îpso facto, nullatenus absolvendus, príusquam, resópuerít, ac împîum, hunc errorem publice revocarit. 490 APPENDIX 8. Cleri ordinandi ratio in ecclesia Anglicana verbo divino consona. Quicumque &nposterum affirmabit, aut docebit, formam et ritum episcopos, presbyteros, et diacomos Ordinandº, et inaugurandé guìcquam ºn se comtºmere, quod pugnet cum verbo divino, illosque omnes, quotguot ad eum modum epis- copi, presbyteri, et diacom? Ordinantur, mom esse rite ordinatos, neque vel a Seipsis vel ab alº's pro episcopis, presbyteris, aut diacom’s habendos, prºws- guam ad sacra illa officia aliam ordinationem fuerint adept., eaccommunicetur Žpso facto, nullatenus absolvendus, prºwsquam resipuerit, ac Żmp?os hos errores publice revocarit, 9. Auctores Schismatis ac dissidii ab ecclesiae Anglicanae communione COérciti. 10. Schismaticorum in Ecclesia Anglicana fautores coèrciti. 11. Conventiculorum in ecclesia Anglicana propugmatores coèrciti. 12. Ordinationum in conventiculis conditarum propugmatores coèrciti. (II) De cultu Divino, et sacramentorum administratione. 13. Liturgia publica, et reliqua pietatis eacercitia diebus sacris celebranda. 14. Liturgiae publicae praescriptus canon diebus sacris observandus. 15. Litamia diebus Mercurii et Veneris recitanda. 16. Liturgiae publicae praescriptus canon in academiis observandus. 17. Inter liturgiae publicae celebrationem superpellicia, et epomides in academiis adhibendae. 18. Inter liturgiae publicae celebrationem reverentia Solennis adhibenda. - 19. Inter liturgiae publicae celebrationem otiosi ab ecclesiae ambitu. repellendi. 20. Pamis et vimum in Sacrae coenae usum paramda. 21. Coenae trina perceptio quotannis indicta. 22. Coenae administrationem solennis indictio praeire jussa. 23. Coenae usus frequentior academicis indictus, et coena utentibus genwum flexio injuncta. 24. Coenae in festis Solemnibus administratio in ecclesiis cathedralibus indicta, et coenam administrantibus capparum w8ws injunctus. 25. Superpelliciorum et epomidum usus, coena non administrata, in ecclesiis cathedralibus indictus. 26. Notorii peccati consuetudime infames a sacra Coena repellendi. 27. Schismatici a coemae communione arcendi. XII. EXTRACT FROM THE CANONS OF I6o4 49I 28. Eactramei a coenae communione repellendi. 29. Parentes în liberorum suorum baptísmate, et puerì coenae Dominici 'incapaces, susceptores esse prohibiti. 30. Crucis in baptismo ceremonia eæplicata. (III) De ministris, eorumque ordinatione ac functione. 31. Jejunia quatuor temporum ministrorum ordinationi decreta. Cum prisca sanctorum patrum auctorìtas, apostolorum eœemplo freta, ?n solennâ mânîstrorum ordìnatìone preces ac jejunia celebranda praeceperìt ; ¢îsdemque adeo precum et jejunâorum, Qfficîis stata, quaedam, tempora eac prqfesso decreverìt, ìm, quíbus duntaaeat sacri ordínes essent conferendi ; nos sanctum, et píum íllorum ínstítutum colentes, volumus et statuìmus, ut nullâ ¢mposterum presbyterâ aut díaconá ordímentur, nísí ên diebus dom?n?cás ?mmedíate sequentibus jejunîa quatuor temporum, vulgo Septìmamas Cinerum, ad preces et jejunìa (ìdque hunc ípsum, ίη usum) antiquitus ìnstìtutas, atque ¢m, ecclesia Anglicana hodie contínuatas. Quod utique fierí volumus ín ecclesía cathedralí, vel parochíalí, ubi epîscopus commoratur ac tempore dêvênorum, assistente mom solum, archidiacono, sed et decano, et duobus ad mêmus praeben- darás, aut (îllás legátáme detentâs) quatuor alíís gravìorìbus personìs, quae magîstrî artìum ad mêmêmum, eactóterìnt, et pro publícís comciomatorìbus legítíme approbatae. 32. Utrumque ordinem eodem die mon conferendum. Cum, eac patrum antíquorum sententia et prìmìtìvae ecclesîae pra3câ dîacon? Qfficium, ad mìnìsterí dígnítatem gradus quâdam sit constitutus ; statuêmus et ordinamus, ut mullus deínceps epîscopus aliquam, cujusvìs condítíonis personam (quîbuscunque fandem anímá dotíbus commendatam) vno et eodem díe díacomum, et presbyterum constituat ; quám, ut ritus ea în parte prae- scriptus ín líbro de epîscopós, presbyteris, et diaconìs ordínandis, et ìnaugu- randis, strìcte observetur ; mon quo díaconos omnes presbyteríí adítu per ctmmum íntegrum, prohíbeamus, cum tamen epìscopus justam ejus admíttendâ causam alíoquê ínvenerát, verùm, ut cùm quatuor tempora diaconorum et presbyterorum ordínatíoní êm sángulos annos sínt decreta, alìquìd saltem spatíí detur, ad perículum de sángulìs faciemdum, quales ín Qfficio díacon? Se eachìbuerìnt, priusquam în ordánem, presbyterorum, suscîpîantur. 33. Nemìnem sine certo tîtulo Ordinandu7n. Multìs jam olìm patrum, decretís cautum est, me quem líceret diaconum, vel presbyterum ordínarí, nîsî quem constaret, certum alíquem et desìgnatum, qmumerās suâ eacercendę locum, per ád tempus obtênere ; quorum nos auctorì- tatem secutâ, statuímus et ordìnamus, ne quis deínceps ín Sacros Ordínes admîttatur, mîsâ quâ eodem, tempore praesentatíonem, sau??psîus ad promo- tìonem, aliquam ecclesîasticam, ênfra dìoecesên íllíus epíscopâ, a quo manuum, ¢mposîtîonem petît, tunc vacantem, e0chìbuerìt ; vel verum, et ìndubítatum, certíficatorìum attulerãt, síve de ecclesia aliqua ìnfra dìoecesên seu jurìsdic- tìonem, dictâ epîscopâ, cujus cura fungí possât, sîve de loco díaconî vel presby- terî în cathedrali aut collegìata aliqua ecclesia, înfra eamdem dìoecesên vacante, în quo functíonem suam, eacerceat ; vel másá fidem, fecerít, se esse actu, socêum, aut jura socíí obtínere, vel desígmatum esse conductôtêum, síve capel- lanum în al?quo collegío Cantabrágáensi aut Oaconìensâ, vel etíam ad magìstr? gradum ante quínquenníum, provectum, suís íbídem sumptíbus degere ; vel mis? ab epìscopo ípsum, Ordömamte ám, benefic?um, sève ad eacercendam, aliquam, curam, tunc etíam, vacantem, brevâ post sît admittendus. Sì quìs vero epís- copus în sacros ordines quemquam ascíverít, quâ praedictorum, al?quo tãtulo mon sit praeditus, tunc omnía íllí necessaría eatenus sub mánístrabât, donec eêdem de aliqua ecclesía prospeacerít. Quod sì facere recusaverit, per archá- 492 A PPENDIX epíscopum, uno praeterea epìscopo assidente, ab Ordínatione díaconorum et presbyterorum, per íntegrum annum, suspendetur. 34. Certae conditiones in ordinandis requisitae. INullus epìscopus ìn sacros ordínes quemquam, de caetero cooptabít, quâ non eœ sua îpsêus díoeces? fuerit, másá vel eac altera nostratíum academ îarum, prodierít ; vel másá líteras, quas vocant, dêmêssorías attulerìt ab epíscopo de cujus jurisdíctíone eæistât ; et, si diaconus fierè eæpetãt, vócesimum, tertìum, sim, presbyter, vîcesάmum quartum aetatis suae annum, jam compleverít, ac etîam în altera dóctarum academìarum, gradum, alíquem scholasticum, susce- perit ; vel saltem, misí ratîonem fidei suae, juQcta artículos relêgîonîs ên synodo epîscoporum, et clerâ, ann. MDLXII approbatos, Latino sermone reddere possit, et eamdem scrípturae testìmomêês corroborare ; ac ulterîus de vita sua laudabîlâ, et morum, ìntegritate literas test? moníales eachìbuerit sub sìgóllo alicujus collegêá Cantabrágáensis, aut Oaconìensâs, ubî antea moram fecerít, vel certe trìum, aut quatuor gravìum mânîstrorum, una cum subscríptíone et testìmonìo alíorum probabílíum, et fide dìgnorum, homínum, quíbus ejusdem vita, et mores per pro3cimum tríenníum fuerínt eæploratâ. 85. Neminem, nisi praevio solenmi eaeamine, ordinandum. Epíscopus, priusquam cuílíbet Ordínando manus ómponat, dílígent? eum, eacam ìne eoccutiet ac eœplorabât, praesentíbus eisdem mêmêstrìs, quos velít óm, ¢mposîtîone manuum, sîbî assistere. Quodsi epîscopus legítíme împeditus praedìcto eacam?n? vacare nequeat, ìllud tamen a praefatìs mìnìstrìs solicite fierâ procurabât. Províso semper, ut quâ epíscopo ìm dìcta eacamêmatione, et 7manuum, ímpo$ítíone adesse debeant, de îpsîus cathedralí ecclesîa eocâstant (sìquìdem eorum facultas dabîtur) alíoquí tres ad mânus ìdoneâ concìonatores eac eadem díoecesí adsciscantur. Quod sí quîs epîscopus vel suffraganeus ín sacros Ordínes quempiam, sême praedíctís qualìtatìbus, aut justo (ut supra) eacamême cooptarât, per províncíae suae archîepiscopum, ea de re certiorem, factum, assídente uno alío epîscopo, ab 0mmâ ordines conferendí potestate ín ¢ntegrum bíenníum, secludetur. 36. Neminem, nisi praevia trium articulorum subscriptione; ordimamdum. Nemo ad sacros Ordines, vel ecclesíastícum aliquod beneficíum per ínstí- tutìomem, aut collatíonem, vel ad concìonatorís, praelectoris, aut catechistae munus eœercendum síve ín alterutra academ ìa, síve ín cathedrali vel collegìata alíqua ecclesîa, sîve ín urbe aut oppìdo mercatorìo, sìve în parochialâ ecclesia vel capella, vel alío denìque hujus regnô loco deìnceps admittetur, násá príus vel ab archìepiscopo, vel epîscopo ejus díoeceseos, în qua est vìcturus, vel ab altera academiarum, lícentiam, et facultatem earumdem subscríptíoníbus, et sigîllîs munítam ìmpetraverít, tribusque sequentíbus artículís, modo et forma a nobis praéfinîtîs, subscrìpserìt. - I. Quod majestas regía secundum. Deum unicus est et supremus gubernator hujus regnô, Omniumque aliorum, îpsîus domíníorum, ac territorìorum, tam, in omnîbus spîrîtualíbus sive ecclesîastìcìs rebus aut causis, quam, în secu- laríbus ; et quod nullus eactraneus prínceps, vel persona, nec ullus praelatus, status, aut domìnatus habet aut habere debet ullam jurìsdìctìonem, potestatem, superìoritatem, praeemónemtíam, vel auctorítatem, ecclesiastícam, sive spîrî- tualem înfra majestatis suae dicta regma, domìnìa et terrítoría. II. Quod líber publícae líturgêae, et epíscopos, presbyteros, et diaconos ordinandę et consecrandâ, móhìl in se contíneat, quod verbo Deî sât contraríum, quodque eodem taliter utí líceat ; et quod ìpse în publícís precìbus, et sacra- qmentês admónóstrandìs ìllam prorsus formam, quae ín dícto libro praescri- bìtur, et mon aliam, sít observaturus. III. Quod libro de relígíonís artîculîs, în quos consensum est ab archíepís- copìs, et episcopis utríusque provìnciae, ac relíquo omní clero ín synodo Londónensâ an. MDLXII omnìno comprobat ; et quod omnes ac sìngulos artí- XII EXTRACT FROM THE CANONS OF I6o4 493 culos în eodem, contentos quí trígínta movem, citra ratificatíonem, numerantur, verbo Deâ consentaneos esse agnoscit. Hisce trìbus artículís quâ volet subscríbere, ad vitamdam omnem, ambìguì- tatem, hac verborum formula, nomine et cognomine suo eaepressís, ín subscrí- bendo utetur : “ Ego N. N. tríbus his praefiacis artículís, omnibusque ín eisdem, contentis, lubens et eac animo subscribo.” Quodsí quís epíscopus alíquem, ordinaverìt, admíserít, vel facultate aut lícentìa, ut superìus dictum est, vlla domaverìt, misí príus sub modo et forma praestítutís subscrìpserít ; ís a collatíone Ordínum, et lícentíarum, ad concìomandum per annô spatêùm sub- movebátur. Academ ías vero, sì quòd hac ín parte delíquerínt, jurís ultíoní, et regiae censurae relínquímus.* 37. Ordinatis, dioecesim mutantibus, subscriptio coram episcopo dioecesamo iteramda. Sí quís comc?omandâ, legendâ, praelegendâ, vel catechízand? legítíma alioqu? potestate praeditus (ut supra) în ullam dioecesín íbídem commoraturus devenerìt, ìs ad hujusmodâ munera eacercenda, vel ad Sacramenta celebranda, aut quamlibet ecclesíastícam functionem îllîc obeundam, nullatenus admíttetur, a quocumque tandem, dictam potestatem, acceperìt, nísí príus coram epíscopo ejusdem díoeceseos, ín qua munerum praefatorum alíquo fungí debeat, ín supradictos artículos per manus suae subscríptíonem, consenserít.* 38. Ordinati, post subscriptionem praevaricantes, a ministerio removemdi. Síquís mánister, postquam, praefatìs artículís subscrípserít, líturgiae formula, vel rãtibus et ceremonís quìbuscumque în libro precum publícarum ?ndictás, utí deínceps omìserìt, suspensíonís poena coerceatur, ac nísí post mensem, se emendarât ac submiserìt, eaccommunìcetur ; quods? per alíum adhuc 'mensem, ín contumacia permanserìt, a mânîsterîo sacro amoveatur.* * Canom 36 of 1865 (cf. note 1) runs:— Ne m ín em, n ìs ì p ra ev êa affêrm at ïonês êmfra d ictae promu mt % at åo me atque sub scrìptìo me ord â mandum. Prom Nemo to împetraverit the text is as above, then : et sequentem affirma- tíonem pronuntiaverít, eâdemque subscrípserìt ; cuâ quâ volet subscrìbere, ad vêtandam omnem ambìguìtatem, hac verborum formula, nomême et cognomême suo eacpressis, êm promumtíamdo atque subscrìbendo utetur : “I, A. B., do solemnly make the followáng declaration : I assent to the Thärty- mâne Articles Qf Relígíon, and to the Book Qf Common Prayer, and of Orderìng Qf Bishops, Práests amd Deacoms ; I belíeve the doctrême of the Unîfed Church, Qf England and Ireland, as thereám set forth, to be agreeable to the Word of God ; and ån Publîc Prayer and Admónístratìom of the Sacraments I will use the foram ín the saìd Book prescrìbed, and mome Other, eaccept so far as shall be ordered by lawful authoríty.” Erom Quodsi quis episcopus to relínquímus as above ; but added is pronum- tåaverit atque before subscrìpserìt. • * Canom 87 of 1865 (cf. note 1) rums :— O rd ? natìs, d íoeces ín m ut a nt ìbus, affír m at íon ís praefatae pro m um- t íatío a t qwe subscrìptìo coram epìscopo d ? oecesano îteram dae. Prom S? qu?s to debeat as above; them : praefatam affirmatíonem, pronun- tíaverit, eâdemque subscrípserit. * Camom 38 of 1865 (cf. mote 1) has the rubric :— Qrd â natâ post affírmatìon ìs pronunt ? at åonem atque subscríp- t? o mem, praeva r £c amtes a, m, â m, â ste río re m ovem d ?. The text is as above; omly, at the begimming we have: postquam praefatam, affirmationem pronuntîaverît eîdemque subscrípserit. 494 A PPE VID IX 39. Ordinati sine congruo testîmonîo ac eaeamine in beneficia non instituendi. INullus epíscopus mânîstrum quemvis ab alío epíscopo ordinatum, ín bene- ficium aliquod de caetero ínstítuet, nísí quí líteras ordínatíonís suae eôdem ostenderit, et de morum honestate, vitaque probabílè congruum testámoníum, episcopo ìd postulante, eaehibuerít ; ac misí debite eacaminatus, mînîsterìo suo dignus ìnventus fuerít. 40. Instituendi in beneficia sîmonîae suspicionem solemni jurejuramdo * jussi avertere. Ad detestabîle símoníae peccatum coercendum, (quonìam Spirítualíum, et ecclesíastícarum, functìonum, Qfficiorum, promotionum, dignitatum, et bene- ficìorum mundínatío ín Dei conspectu, odiosa est, et eacecranda) statuîmus et ordìnamus, ut archíepíscopus, omnesque et sángulę epìscopâ, atque alíá, quíbuscumque jus competít admíttendí, ênstìtuendâ, conferendâ, consecrandi, vel electíonem, confirmandâ cujusvìs archíepiscopâ, epíscopâ, vel alteríus personae ad ecclesíastícam aliquam functíonem, dignitatem, promotionem, títulum, officîum, jurísdictíonem, locum, aut beneficium, cum cura, vel sêne cura, vel ad ecclesíastícum ullum munus quodcunque, ante omnem ejusmodò instítutíonem, collationem, consecrationem, vel confirmationem, electíonís re- spectáve facîendam, unumquemque deânceps admittendum, ínstítuendum, con- ferendum, ìnaugurandum, aut confirmandum, ên, vel ad archíepíscopatum, epîscopatum, vel alíam, spíritualem síve ecclesiastícam functionem, dígnítatem, promotìonem, títulum, Qfficíum, jurìsdìctìonem, locum, aut beneficium cum 8ura, vel sine cura, vel ad ecclesiasticum ullum munus quodcunque, praesentí juramento oneret (quod utìque per omnes, quorum, íntererìt, ìn propríís 7)ersonis, et non per procuratorem, erit praestandum) sub modo et forma $equentíbus: “ Ego N. N. juro, me nullam símoniacam solutìonem, stípula- tíonem, vel promissum, directe aut îndîrecte per me, vel per alium, quemlíbet (me conscio, aut consentíente) cuívis personae vel personís quíbuscunque fecisse, pro vel de procuratíone, vel acquisítíone ecclesiasticae hujus dígnítatís, locí, promotíonís, Qfficiâ, vel beneficā (eaeprêmendo respectìve et nomínatím locum, íllum, în quem admíttendus, ínstituendus, conferendus, înstallandus, aut confirmandus erât), neque deìnceps ullam ejusmodò solutíonem, stípula- tíonem, vel promissum, absque mea notítía aut consensu factum, quovis tempore praestóturum. Ita me Deus adjuvet per Chrìstum, Jesum.''° 41. Beneficiorum pluralitas parcius dispensanda, et de personali dispen- Satorum residentia, cautîo îneujnda. 42. Cathedralium ecclesiarum decani ad congruam residentiam tenentur. 43. Decani et praebendarii, in ecclesiis cathedralibus residentes, ad sedulam concionandi diligentiam tementur. 44. Praebendarii beneficiati ad congruam in beneficiis suis residentiam tenemt^tr. ° Camon 40 of 1865 (cf. note 1) is identical, except that in the rubric and text for jusjurandum, or juramentum, we have affirmatío ; moreover, the declara- tiom prescribed in the new canom js:— I, A. B., solemnly declare that I have mot made by myself, or by an?/ Other person on my behalf any payment, contract, or promîse qf any }când whats0- ever, which to the best qf my lcnowledge or beläef îs sîmonîacal, touchông or concernêng t]ue obtaêmêng the preferment qf . . . ; mor will I at any tìme hereafter perform or satìsfy, in vhole or èn part, any such Hcónd Qf payment, contract, or promíse made by any other without my lcnowledge or consent. XII. EXTRACT FROM THE CANONS OF 1604 495 45. Beneficiati concionatores, in beneficiis suis residentes, jugiter tementur Concionari. 46. Benéficiati non concionatores vicariam concionatoris operam jubentur Singulis mensibus adhibere. 47 Beneficiati, a beneficiis suis legitime absentes, curatum concionatorem jubentur adhibere. 48. Ministri, nisi ea: episcopi vel ordinarii approbatione, pro curatis Tºon admittendi. Null? curato aut ministro permittetur ullibi curae anºmarum Żnservère, mis? prºus per episcopum dºoecesanum, vel loci ordinarium episcopalé jurisdic- tione praeditum eacamánatus ac admissus fuerit, ejusque rei testimonium 7manu episcop? et sågållo consignatum obtinuerit; habito semper respectu tum. ad cºurae &psius magnituděmem, tum ad personae admittendae habilitatem. Quânețam dict curati et ministri, sīquando eac una dioeces? in alteram trans?erint, nequaquam ad curam ullam eacercendam admittentur, mis? ep?scop? ejus dioeceseos, wrºde advenerint, vel loci ordinarić (ut supra) literås testimonialibus de psorum homesta conversatione, sufficientia, et conformitate ad ecclesiasticas regn? Anglican? leges munit; accesserint. Nec vero eorum cu?!?bet lºcłtum erit, pluribus quam uni ecclesiae aut capellae uno eodemgue dźe mºnistrare, nás? forsan capella illa ecclesiae parochialis membrum eacăstat, aut eidem unita, vel mis; ecclesia aut capella, cui taliter inserviet, judicio episcopº vel ordinarić (ut supra) curato alendo mon sufficerit. 49. Ministris ad concionandum non admissis glossae et paraphrases in publica scripturarum lectione interdictae. 50. Concionatores adventitii absºue legitima missione ad concionandum nor admittendi. 51. Advenae concionatores, nisi auctentico testimonio commendati, ad Concionandum in ecclesiis cathedralibus mom admittendi. 52. Concionatorum advenarum nomina in librum referenda. 53. Concionatorum mutwis oppositionibus pulpita non patebwnt. S; quis concionator doctrinam, ullam, ab aléo concionatore in eaden vel oicina aligua ecclesia traditam, particulariter aut mom?natºm eac professo Żmpugnare, et pro concãome refellere attentabit, privsquam episcopum dioeces- anºm de ea certiorem fecerit, et ejusdem mandatum acceperit, guam eo in casu Tatēonem sequž debeat, cum alloqui eac publicis ejus mod? opposition?bus mul- tum Scandal? et perturbationis populo oriri possit; oeconom?" vel pars laesa abs(ſue Omn? 'mora dicto episcopo illud significabunt, megue praefatum con- cionatorem patientur illum locum, quo semel abusus sit, dežnceps occupare, nºs? Sancte receperät se ab omni ejusmodé contention’s materia ºn ecclesia temperaturum, donec episcopus de ea re ulterius statuerit : quº item quam pri- 7mum commode poterit in ea taliter procedet, ut parti laesae in eaderm ecclesia, ºn qua oblatum est scandalum, publice satisfiat. Proviso Semper, wt sº altera pars appellationem interposuerét, eidem concãomand? officium, pendente lite, sit Žnterdictum. 54. Concionafores schismatici licentiis swis mulctat?. Sº guès per archiepiscopwm, aut episcopum ullum, vel alterwtram academiam Žn praeteritum ad concãomandum admissus, quovº's dečnceps tempore recusa- * = churchwardens. 490 APPENDIX verit legibus, institutis, et ritibus ecclesiasticis infra regnum Anglicanum stabilitis seipsum conformem reddere, eundem per episcopum dioecesanum, vel loci ordinarium quam primum admoneri volumus, ut eorundem usui et debitae observationi se submittat. Quodsi, tal? admonitione praemissa, infra mensem se minime reformarit, ejusdem facultatem sive licentiam ad concion- andum eo &pso irritam esse et pro nulla habendam decermºmus. 55. Precationis formula a concionatoribus in concionum Suarum fingressu imitanda. 56. Ministris mere concionatoribºs precum publicarum lectio, et Sacra- mentorum administratio bina annuatim injuncta. 57. A ministris non concionatoribus sacramenta efficaciter administrari. 58, Ministris Sacra peragentibus superpelliciorum et epomidum usus $njunctus. 59. Catechizandi diligentia ministris injuncta. 60. Confirmationis solemnitas in triemmali episcoporum visitatione celebranda. Cwm solemnis, antiqua, et laudabilis in ecclesia Dež consuetudo fuerit, ab ipsis usque apostolorum temporibus observata, ut episcop? quique parvulis baptizatis, et in catechismo christianae religionis instructis manus imponentes, super illis orarent ac benedicerent, quod vulgo confirmatio nominatur; cumque *n triennali episcoporum visitatione mos Sanctissimº istius operis peragend? Žn ecclesia per multas aetates obtinuerit; volumus et ordinamus, ut quilibet episcopus vel ejus suffraganeus in consueta visitatione sua morem et ritum Žllum in propria persona diligenter observet ; quods? tertão demum ammo aliqua infirmitate impeditus visitationem Suam personaliter obire nequeat, at saltem illud confirmation?s munus illo proacºmo anno, prowt Commode poterit, nequaquam. Omºttet. 61. Catechumeni episcopo visitanti per ministrum ad confirmationem Sistendi. - 62. Ministri sine bannis rite indictis, vel legitime dispensatis matri- monium celebrare prohibiti.7 63. Ministri in locis eacemptis sine bannorum justa indictione, vel dispen- satione legitima matrimonium celebrare prohibiti. 64. Feriae a ministris Solemniter indicemdae. 65. Recusantes et eaccommunicati a ministris Solemniter denunciamdi. Ordinarić locorum, infra suas respective jurisdictiones, sollicite provide- bunt, ut tam eaccommunicati eac eo, quod divin's precibus intra hoc regnum Angliae publica auctoritate stabilitis, interesse pertinaciter recusaverint, quam Ži etiam, praecipue qui melior's notae et conditionis eactiterint, legitimaeque * Altered (not repealed) by the following canon of 1887–8 (cf. mote 1):— Mān āstrī matröm on 7 wºm, nº s? intra certas horas celebra re proh £bºt . Nullus Minister matrimonium inter quaslibet personas solennisabit misi intra horas octavam ante meridianam et tertiam pomeridianam. Tempore Dövånorum solemnºsar? matrºn On?a nOn necesse est. XII. EXTRACTS FROM THE CANONS OF I604 497 €200mmunicationis sententia propter insignem contumaciam, vel graviora aliqua crimina obstrict fuerint, mis; infra tres continuos menses post latam eaccommunication's sententiam seemendaverint, et absolution?s gratiaſm fuerint Consecutº Singul?s eac mensibus sequentibus publice in ecclesia tum parochial', tum effºam cathedral; dioeceseos, ºn qua habitant, die aliquo dominico, ac tem- ſpore d?včnorum pro eaccommunicatis per ministrum denuncientur, quo reliqui et ab eorum communione declènent, et proclévéores reddantwr ad breve de eſc- Communicato capºendo procurandum, quo illos ad officium et debitam obedien- łżam reducant. Quânetiam registrarº cujuslibet curiae ecclesiasticae de praem?ss?s Omnibus et singulis, quolibet anno infra festa S. Michaelis, et Tatalºs Domžná, archiepiscopum hujus provinciae in script's facient certãorem. 66. Recusantium conversio a ministris sedulo elaboranda. 67. Aegrotarºtes a ministris sedulo visitamdi. 68. Ministri baptismum, aut sepulturam demegare vetiti. Nullus mºm?ster aut renuet, aut detrectabit infantem ullum, qui die quov's domºnºco aut festºvo ad &psum in ecclesiam baptizandus adducetur, juacła *ētum ºn libro precum publicarum editum baptizatre; vel defunctum aliquem, quº ºn eccles?am vel coemeterium inhumandi causa deferetur, data privas ejus Te? not?tia competente, sub modo et forma in dicto libro praefinitàs sepel?re. Quods? hunc vel illum baptizare, aui sepulturae tradere recusaverit (nish forte défunctus denunciatus fuerit majoris eaccommunicationis vinculo propter grave aliquod et insigne crimen obstrictus, meque de ejus poenitentia testar? Quisquam potuerit) a ministerio suo per episcopum dioecesanum trimestri Spatºo secludeţur. 69. Ministri baptismum in articulo necessitatis differre vetiti. 70. Ministri baptizatorum, nubentium, et sepultorum registrum conservare jussi. 71. Ministri concionum et coenae dominicae publicam religionem in privatas aedes invehere prohibiti. 72. Ministri publica jejunia, prophetias appellatas, et eacorcismos * privato awsu celebrane prohibiti. 73. Ministri conventicula privata conciliare prohibiti. 74. Ministris in vestitu, gravitas praecepta. 75. Vitae sobrietas ministris praecepta. 76. Ministris a vocatione swa resilire interdictum. Nullus ºn diacom? aut presbyteri ordinem semel admissus quov's de?nceps tempore ab eodem volens recedet, mec in vitae suae instituto pro laicose geret, sub poena eaccommunicationis; eorumque omnium nomina, si quº vocationem suam tal?ter abjöcient, per oeconomos & parochiarum, in quibus habitant, ad €p?scopum dioecesanum, vel loci ordinarium episcopali jurisdictione praedi- tum deferentur. (IV) De paedagogis sive ludimagistris. 77. Publice vel privatim injussu ordinarii docere prohibitum. 78. Curati ad docendum habiles ab ordinario aliis praeferendi. 79. Ludimagistrorum officia. * = churchwardens. 498 APPEAV DIX (W) De ecclesiis, et rebus ecclesiasticis. 80. Libri sacri in ecclesiis paramdi. 81. Baptisteria in ecclesiis paranda. 82. Mensae in sacrae coenae usum in ecclesiis paramddé. 83. Pulpita idomea in ecclesiis paramda. - 84. Cistae ad eleemosynarum custodiam in ecclesiis comparamdae, 85. Ecclesiae Sartae tectae conservandae. 86. Ecclesiae de tertio in tertium annum perlustrandae, et earum. defectus regiis commissariis intimandi. 87. Terrarum et peculiorum ad ecclesias spectantium inventaria conficienda, et in episcoporum archivis asservanda. 88. Ecclesiarum religio profanis usibus non pollwenda. (VI) De ecclesiarum oeconomis,” et inquisitoribus,” sive assistentibus. 89. Oeconomorum electio, et rerum ecclesiasticarum procuratio. Ommes ecclesiarum oeconomż, sive inquisitores parochianorum et ministri Su? un?to consensu, siquidem żd fieri possit, eligentur. Qui sã in talà electione dissenser?nt, tum mºnistro licebit unum eligere, parochian's alterum ; mec Quisquam pro Oeconomo habendus erót, nºs? quem ejus modi consensus sive conjunctus, Sève divºsus elegerät, neque &alem etiam ºn officio Suo ultra annum, mºst de integro ad modum praedictum elect?, permanebunt. Omnesque Oeconom? ad dict; ann? terminum vel saltem infra ejusolem terming mensem, wnwm, pecuniae twm acceptae twm eacpensae, s?ve in reparationes, s?ve in alios quoScunque ecclesiae usus verdºm et particularem, rationem ministro et paroch?- an’s reddent; Quinetiam officio Suo abeuntes, parochian's cedent quicquid pecuniae aut alterius re; cujuscumque ad ecclesłam sive parochiam jure perté- nent?s, in ºpsorum man?bus residuum supererêt, ut per eos in succedentium. Oeconomorum custodiam per billam indentatam transferatur. 90. Inquisitorum sive assistentium electio, eorumque cum oeconomis officii communitas. Ecclesiarum Omnium oeconom?, sive inquisitores, adhābātās in singulis par- Ochºżs duobus, tribus, aut etiam, pluribus discretis homżnibus, quº per mânăs- trum, et Oeconomos, siquidem inter eos convenºre poterit, alias per locł ordinarium pro assistentibus eligentur, sedulo invigilabunt, ut parochian? omnes ecclesias Suas diebus dominic's et festivās debite frequentent, atque in Žisdem per integrum tempus re; sacrae perdurent; quo item tempore mem?nem Żm ecclesia ejusdemºve porticu aut coemeterio deambulare, vel otiari, aut garrºre patientur ; s? quos autem comperer?nt remissius aut negligentius eccles?am. adºre, mulla magma aut ardua absentiae suae causa constante, eosclem Ser?o admonebunt, et, mºst debite admonité se emendaverint, ad loci ordinarium deferent. Horum autem oeconomorum, et inquisitorum, vel assistentium ammºuan electionemv Žn paschalº hebdomade celebrandam decermºmus. (VII) De ostiariis sive clericis parochialibus. 91. Clericos parochiales eligend; jus ministro cedet. Nullus in parochialis clericó, quem vocant, locum vacantem infra civitatem Lond?nensem, vel alib’ infra provinciam Camtuariemsem elägetur, mis? per Tectorem aut vicarium, vel defectu rector's aut vicar??, per ejusdem ecclesiae * = churchwardens. * Cf. § 48, note 2. YII. EXTRACTS FROM THE CANONS OF 1604 499 n?n?strum pro tempore eacistentem; quam electionem dictus rector, vicarius, aut mºn?ster Subsequente die dominico tempore divānorum parochian?'s su's demºcłabit. Omnàs autem ejusºmodº cler?cus parochialés annos ad minus v?g?ntº natus erit, et de vita probabili, ac domea legend?, scribendi, et cantandi, quoad ejus fier; potest, scientia dicto eligent; cognitus. Iłdemque cleric? tal?ter elect? Stipendia sua antiquitus consueta, absgue dolo aut diminutione, vel ab Oeconomis, ad tempora hactenus usitata, vel eac propria collectione perc?p?ent, juacta parochiae cujusque ritum, ac consuetuděnem maocºme in- ©eteratam. (VIII) De curiis ecclesiasticis ad archiepiscopi jurisdictionem spectantibus. 92. Testamentorum probatio, justa bonorum notabilium summa constante, praerogativarum curiae dumtaa’at competit. | 93. Testamentorum probatio, justa bonorum notabilium summa non comparente, ordinariis vendicatur. 94. In curias de arcubus, et audientiae eactra proprium territorium (nisi consentiente episcopo dioecesano) memo citandus. 95. Duplices querelae, misi justi gravaminis facta fide, in curiis archiepiscopi mon concedendae. 96. Inhibitiones in causis instantiae absque advocati subscriptione non concedemdae. 97. Inhibitiones in causis correctionis, misi gravamine judici priws cognito, mOn concedendae. 98. Inhibitiones Schismaticis, misi subscribentibus, mom concedendae. 99. Intra gradus prohibitos matrimonium contractum ipso jure Tºullum. 100. Minores 21. annis absºle parentum consensu matrimonium contrahere prohibiti. - 101. Facultates pro bannis matrimonialibus omittendis, per quos, et quibus sint concedendae. 102. In facultatibus pro bannorum omissione concedemdis cautio interponenda, et Sub quibus conditionibus.” 103. Eaedem conditiones ob majorem cautelam jurejurando suffultae. 104. Parentum consensus viduis contrahentibus remissus. 105. Pro conjugio dirimendo muda partium confessio non audienda. 106. Sententiae divortii et separationis mom misi pro tribunali ferendae. 107. Separatis, eorum altero superstite, nova copula interdicta. * Altered (not repealed) by the following canon of 1887–8 (cf. note 1):— De facultat? bus pro matröm on to absº we ban n is celebra n do. Omn?s facultas pro matrimon?o absºle banm?s solemn?sando hanc condit?- Onem verbºs concept?s complectetur scºlºcet stud matrimon? wºm. &ntra horas Octavam ante meridiana.m. et tertiam pomerčdžamam celebrară debere. 500 APPEND IX 108. Sanctio in judices contra praemissa delinquentes. (IX) De curiis ecclesiasticis ad episcopos, et archidiaconos spectantibus. 109. Peccata et Scandala motoria in curiis ecclesiasticis denuncianda. S. Quº per man?festum adulterium, stuprum, ºncestum, ebrietatem, juramdž consuetudènem, lenocłmżum, foenerationem, vel aliam quamcumque vitae tur- p?tuděmem aut nequitéam fratres Suos offenderint; ecclesiarum oeconomż, et Žnquisitores, s?ve assistentes ºn proacim?s praesentation?bus su's ad ordinarios omnium et sºngwlorum ejus modž delinquentium nomina fideliter deferent, ut legum severitate pro meritis poss?nt castigarº. Tales autem notor?? delin- quentes ad Sacram coenam, domec mores in melºus commutarānt, nequaquam. admittentur. 110. Schismatici in curiis detegemdi. S. oeconom? ecclesiarum, et inquisitores, Sève assistentes de aliquo infra suam parochiam vel alib’ rescºverint, Qwº vel verbo De? legendo, aut sincere praedicamdo, vel constitutionum praesentium eacecution? obstare condbätur, vel et?am usurpatae ulli et eactºraneae potestat?, hujus regnº legibus jamdžw merito Tepudiatae, atque abolitae, favebit atque adhaerebit, vel dogma aliquod papás- ticum ac erroneum astruet, aut twebåtur; dict. Oeconomż, et ºnquisitores s?ve assistentes episcopo dioecesano, vel locł Ordinario eundem detegent, et indica- bunt, ut poem's et censur's per ecclesiasticas Sanctiones ărrogatºs coerceatur. 111. Precum divinarum perturbatores in curiis detegendi. 112. Puberes in festo Paschatis non communicantes in curiis detegemdi. s 113. Peccata motoria ministris jus est denunciare, privatim confessa Tetegere, nefaş. Quonºam saepenumero conting?t, ecclesłae Oeconomos, et ºnquisitores sºve assistentes alºosque e laïcis, quibus 7d offic??, mumerásque incumb?t, ut per admonitiones, reprehensiones, et delationes ad ordinarios peccatum et &mp?e- tatem coerceant, part?'m prae tºmore potent?orum, part?'m prae ºncurºa ºn hoc officio praestando remissiores esse, quam par est, sº horum temporum licen- £am consideremus ; statuºmus et Ordinamus, ut lºcłtum de?nceps sit Sºngwl?s lectoribus ac vicarážs, aut (ºpsis legitime absentibus) eorum curatºs, et Subst:- tutis, cum ecclesiae oeconomis et assistentibus, reliquisque supra nominatis, in crāmīnābus ad tempora imferºus praestituta detegendès, Operas Suas Conjun- gere; siquidem dict oeconomi et assistentes crimina et culpas enormes in suis parochi is notorias deferre voluerint. Quods?, ?? facere detrectaverint, tum licebit singulis rectoribus et vicariis, aut (illis ut supra absentibus). €orum curatis ac substitutis, omnia ejus mod? crimina, de Quibus dºctº officiar?? habent ânquirere, aut alia quaecumque àpsis (utpote quibus praecipua cura peccat? infra suas parochias coercendi incumbit) corrigenda vidébuntur, temporibus constitutis, vel alias, ubi com/modum judicawerint, ad ordžnarios Suos déferre et praesentare. Proviso semper, quods; quis peccata sua occultiora al?cu% ministro privatim confiteatur, conscientiam Suam eaconerando, quo ab Žllo spiritualem consolationem et levamen percipiat, eum hac nostra constitutione nullatenus teneri volumus ; quin potius stricte ill? praecºp?mºus, me éjus mod: aliquod crimen aut delictum fidei ac taciturnitati suae talāter commissum cuffvis personae aliquando retegat, nisi sit eac eo, genere crimºnum, quorum occultatio eac legibus hujus regn? sit capitalis : quº contrafecerit, eo ºpso 'rre- gularis esto. 114. Recusantes per ministros in curiis detegendi. 115. Ne ministris aut Oeconomis fraudi sit criminosorum detectio. 116. Oeconomi ad binas tamtuan detegemdi vices annuatim tementºr. XII. EXTRACTS FROM THE CANONS OF I604 50I 117. Oeconomi, binis detegendi vicibus debite perfuncti, non Sunt de reliquo in curiam vocandi. 118. Anni superioris oeconomi detectiones suas tenentur eachibere, privsquam recems electi munus Suſum adeant. 119. Detectionum schedulae fide bona, non perfunctorie et pro forma conficiendae. 120. Ne qua citatio, nisi eacpressis citandorum nominibus, e curiis emittatºr. 121. Ne quis in pluribus curiis super eodem crimine Cogatºr respondere. 122. Sententiae pro ministris a beneficio vel officio removemdis, mon mist per episcopum pronunciandae. 123. Actus judiciales mom misi publica, et auctentica manu eacpediendi. 124. Curiarum sigilla, unica. 125. Curiarum sedes opportuna. 126. Curiae inferiores testamenta originalia ad episcoporum archiva jubentur transmittere. (X) De judicibus ecclesiasticis. 127. Judicum ecclesiasticorum qualitas. Nullus imposterum ad officium cancellar??, commissar??, aut officialis ad- mittetºur ad jurisdictionem quamlibet ecclesiasticam eacercendam, mºsº quº wices?mum sea-tum ad minus aetatis Suae annum complever?t, et quº ºn jure civil? et canonico eruditus eacăstat, Sºtgue ad mºn?mum magister artium, aut ºn jure bacalareus, ac ºn praac. et caus?s forems?bus laudabiliter eacerc?tatus, mecnon recte affectus, et religion? Studźose ded?tus, de cujus vita et moribus nullus sºn?ster sermo audžatur; ac ºn Super mºsº prºusquam tal’s cujusque offic' functionem, aut eacercitºum adeat, ºn Supremam reg's auctor?- tatem ºn caus's ecclesiastic's coram episcopo, vel publice in curia juraverit ; ac religion's articulos ºn synodo, anno 1562, communiter conclusos, subscrip- tione sua comprobaverit; et et?am juratus receper?t se integre et eac aequo, pro captu suo, jus redditurum, absque Omn? 'intuitu vel gratiae, vel merced is ; quorum utique juramentorum, ac Subscription's per registrarium tum prae- sentem actum conscribetwr. Haud secus omnes cancellar??, commissaráž, officiales, registrar??, alºque quotguot jurisdiction?s, s?ve mºm?ster?? eccles?- astic? locum alèquem ºn praesent possident, aut eacercent, citra festwm Nativi- tatis proacáme venturum, coram arch? episcopo, aut episcopo vel etiam ºn aperta curča, Sub guo, et ºn gua mºunerºbus Swis funguntur, eddem juramenta Subºre, et, prout Superºus dictum est, subscribere tenebuntur. Quod s? facere recusave Tânț, a mumerum suorum eacecautione eousque suspendentur, guoad juramenta praemºssa, et Subscriptionem, ut supra, praestºter?nt. 128. Qualitas deputandorum. (XI) De procuratoribus. 129. Procuratores, nisi de partis mandato auctentico, causas attingere prohibiti. 130. Procuratores, sime advocati alicuffus consilio, causas retinere prohibiti. 502 APPEND IX 131. Procuratores, inconsulto advocato, in causa concludere prohibiti. 132. Procuratorium in causis testamentariis juramentum prohibitum. 133. Procuratorum voº importunior in curiis cohibita. (XII) De registrariis. 134. Registrariorum eaccessus coerciti. 135. Feodorum, quae juris ecclesiastici administris debentur, census debet esse statarius, 136. Statarius feodorum census in tabulas relatus, publice in consistoriis et archivis proponendus. 137. Feoda pro ordinum literis, aliisque licentiis episcopo eachibendis, tantº/m dimidia, praeterquam in prima episcopº visitatione } p 7 persolvenda. (XIII) Apparitores. 138. Apparitorum eaccessus coerciti. (XIV) Auctoritas synodorum. 139. Synodus nationalis, ecclesia repraesentativa. Quisqués de caetero affirmabºt, Sacrosanctam hujus nation's synodum ºn Christ? nomine, ac de regis mandato congregatam, non esse repraesentative weram eccles?am Anglicanam, eaccommunºcetur ; nequaquam absolvendus, präusquam resipuerit, et émp?um hunc errorem publice revocarát. 140. Synodi acta tam absentes, quam praesentes obligant. 141. Synodi auctoritati derogantes, coerciti. QužSquês de Caetero affirmabit, dictam Sacram Synodum, congregatam ut Supra, fužsse coetum eac talibus conflatum, quº ºn p20s et religiosos evangel?? professores conspirabant, ac proënde tum. Żpsos, tum. Żpsorum acta in canon?- bus s?ve constitution?bus circa causas ecclesiasticas eac regis auctor?tate, ut praedictum est, condemd's ac sanciend's rejęcz, ac contemnº debere, quantum- w?s eaedem per dictam potestatem regiam, ac Supremam éjusdem auctoritatem ratºhabitae, confirmatae, ac injunctae s?nt, eaccommunºcetur; havdquaquam. absolvendus, privisquam res?puerit, ac Żmp?um hunc errorem publice revo- carºt. XIII. Examples of instruction to and commission of a rural dean in the 19th century. 1. Instruction to the rural deans of the diocese of Canterbury, 1833.” The rural dean is required to visit once in the year at such time as shall be appointed by the archdeacon the several parishes within his deanry; and to make a return to the archdeacon, for the information of the archbishop, in Tegard to the several particulars here?nafter mentioned : The condition of the churches, chapels, chancels and churchyards; and the books, Ornaments, and utensils, thereto belonging, The preservation of the parish registers, the making due entries therein, and the regular transmission of the annual return, to the registry at Canterbury. The due performance of Divine Service in the church ; the administration of the Lord's Supper ; and the average number of communicants. The residence of the curates of non-resident incumbents ; the state of the * From Dansey, Horae Decanicae Rurales II, 347. XIII. EXAMPLES OF INSTRUCTION TO RURAL DEANS 503 national or parochial schools; and in general, the education of the poor, ??? conneacion with the established church. The state of the houses, buildings and glebe-lands, attached to benefices; Žncluding all additions to, or alterations, decays, or dilapidations, in, the premises. ſt will be advisable that the rural dean should request some beneficed clergy- man, residing in the deanry, to assist him in his visitation. The rural dean is also required to give information to the archdeacon of the avoidance of any benefice within his deanry, and of the measures to be taken to secure the performance of the parochial duties during the vacancy; and also to report to him, as occasion may require, on all matters concerning the church or the clergy, which the ordinary ought to know. 2. Rural Dean's Commission, as now used in the diocese of Salisbury. A, by Divine Permission Bishop of Salisbury, to our well beloved and re- verend brother . . . Clerk. . . . of . . . in the . . . portion of the Deanery of . . . and our Diocese of Sarum Greeting. Whereas We havé thought fit upon mature consideration to continue the ancient authority and wse of Rural Deans, in order that by persons of the best ability and integrity An each of the ecclesiastical divisions called Deaneries, we may be regularly and fully informed of the condition in which all things are in all parts of our said Diocese. We, therefore, having a good account and opinion of the piety and learning, and confiding ºn the diligence and prudence of you the Said do by these presents constitute and appoint you to be Rural Dean of the . . . portion of the Deanery of . . . aforesaid, during Our will and pleasure, requiring of you to observe, inquire into, and report to Us, all things and persons within all the Parishes of the portion of the said Deanery to you assigned, concerning which it may be proper for Us or useful to our Diocese that we should have information. And in order that you may be pre- pared to make the said reports to Us intelligently and upon sure grounds, We do especially desire, charge, and empower you on our behalf to visit personally and eacamáne every Church, Chapel, Chamcel, Church and Chapel-yard, with the books, ornaments, and utensils thereto belonging, and the glebe-house, buildings, and lands of the Incumbents, with their fences, and boundaries within the aforesačd portion of the said Deanery, according to the tenor of the Articles of Inquiry sent to you from time to time. And We further enjoin you after such eacamination made, to leave ºn writing under your seal and signa- ture an order at each place specifying the things which you shall judge wanting to be repaired, amended or done there, and at the end of the said order to require that every such paper be, by such a limited time as you shall think proper, returned to you, with a certificate at the bottom of it, signed by the Mănăster and Church or Chapel-wardens, that all things are prepared and done according to what is therein directed. And We also authorize you once in every year, and at any other tº me when you may see occasion so to do to £nspect the charitable foundations as well as National or other Schools, and Parochial Libraries in commea:70m with the Established Church within the aforesaid por- tion of the said Deanery, and to supply us with such information respecting their actual state and management as Our queries may demand or your judg- ment suggest. And We likewise give you full power to eacamine the Licences of all Stipendiary and Assistant Curates officiating within your jurisdiction, and desire that you will give immediate notice to Us of any who shall officiate as Curates without being duly licenced. And we also desire you to call the Clergy of the aforesaid portion of the said Deanery together whenever we shall appoint you so to do, and diligently to disperse such orders as shall be sent to gow for that purpose. s And furthermore, We require you, as soon as the avoidance of any living within the aforesaid portion of the said Deanery shall have come to your know- ledge, to notify the same to Us in order that due inquiry may be made into the state of the vacant benefice, and sequestration issued out of the Ecclesiastical Court. 504 APPEND IX And especially We enjoin you to report unto Us all undue disposal of Church Property in the hands of Churchwardens, and to require that in every Parish a distinct Churchwardens' Book be kept, and in it an entry made of all the moveable Church Property entrusted to the care of those officers. And lastly, We desire with the view to our being regillarly supplied with the Žnformation required upon all the foregoing matters, that you will carefully fill up, with particular and distinct answers under the name of each Parish, the several queries contained in your Articles of Inquiry (with which we will cause you from time to time to be supplied) subjoining thereto such additional observations as you may think needful, and that you will with all convenient speed transmit the same under your seal and Sigmature to Us at Our Palace at Sarum, to the intent that we may take Such measures as the circumstances of the several returns and the general welfare of our Džocese may require. In doing of all which things faithfully you the said Rural Dean will very 7much assist us your Bishop ºn the discharge of the great duty incumbent Qupon Us. In Witness whereof We have caused our seal which we use in this behalf to be to these presents afficed. Given under our hand this . . . day of . . . in the year of Our Lord and in the . . . year of Our Consecration. XIV. Conspectus of literature. T. Collections of documents. I. Documents issued mainly by ecclesiastical authorities. Athon (Actona), see Lyndwood. Cardwell, Edward. Documentary annals of the Reformed Church of England; being a Collection of Injunctions, Declarations, Orders, Articles of Inquiry etc. from 1546 to 1716. Oxford, 1839. 2 vols. Ditto. Synodalia, a col- lection of Articles of Religion, Canons and Proceedings of Convocations in the Province of Canterbury from 1547 to 1717, with notes historical and eſcplanatory. Oxford, 1842. Haddam, Arthur West, and Stubbs, William. Councils and Ecclesiastical Documents relating to Great Britain and Ireland. Oxford, 1869 f. 3 vols. (Relates only to the early middle age. The third volume, concerning England proper, comes down to the year 870.) Johnson, John. A collection of the Laws and Canons of the Church of England from its first foundation to 1519. Translated into English with eacplana- tory notes. Dondon, 1720. New Ed., Oxford, 1850. 2 vols. Lyndwood, Gulielmus. Provinciale sent Constitutiones Angliae, continens Con- stitutiones Provinciales XIV archiepiscoporum Cantuariensäum, viz. a Stephano Langtono ad Henricum Chºchleium (glossed by Lyndwood ; com- pleted in 1433, printed for the first time at Oxford about 1470–80). Tast Ed., Oxford, 1679.-Cui adžācāuntur constitutiones Legatinae Dom. Othon?s et Othobomºs (glossed by John of Actona. In the gloss., p. 129, to Quod habita possess?ome he mentions . . . Johannem de Stratford . 7 muper Wintomiensem Episcopºm, jam vero Cantwarżensem. . . . Strat- ford became archbishop of Canterbury in 1833. Cf. J. Brownbill in The Antiquary, XXIV, 164). —1 vol. Sparrow, Anthony. A Collection of Articles, Injunctions, Canons, Orders, Ordi- mances, and Constitutions Ecclesiastical, with other Publick Records of the Church of England , . . . (from the years 1547–1640). Dondon, 1661. 4th Ed., London, 1684. - Spelman, Henry. Concilia, Decreta, Leges, Constitutiones, in Re Ecclesiarum. Orbás Britannic? ab initio Christianae ibidem Religion?s, ad nostram wsque aetatem. Intended to be completed in 3 vols. There appeared vol. I (down to 1066), London, 1669; vol. II (edited by the grandson, Charles Spelman, coming down to 1530), London, 1664. Wilkins, David. Concilia Magnae Britanniae et Hiberniae. Accedunt consti- tutiones et alia. London, 1737. 4 vols. Eor the letters of the popes, with Philipp Jaffé, Regesta Pontificum Roman. XI. V. COWSPECT US OF LITERA TURE 505 orum (years 64–1198), 2nd Ed. (edited by S. Löwenfeld, F. Kaltenbrunner, P. Ewald), 2 vols., Leipzig, 1885, and August Potthast, Regesta Pontificum Roman- orum (years 1198–1304), 2 vols., Berlin, 1873-5, is to be compared W. H. Bliss, Calendar of Entries in the Papal Registers relating to Great Brétain and Ireland (as yet only 1 vol. has appeared, 1893, embracing the years 1198–1304; the papal registers are incomplete). [On the date of the extant archiepiscopal and episcopal registers in England (the oldest beginning in 1218) see Stubbs, Comst. Høst. I, 680, note 4 c 13 $ 166; Raine, Introduction to Rer. Brit. Scr. No. 61; Martin, Rer. Bråt. Scr. No. 77, vol. I p. xli. 2. Documents issued mainly by civil authorities. (a) Collections of laws. Record Commission (B. Thorpe). Ancient Laws and Institutes of England; comprising laws enacted under the Anglo-Saacon Kºngs from Aethelbörht to Cnut with an English Translation of the Saacon, the Laws called Edward the Confessor's ; the Laws of William the Conqueror and those ascribed to Henry I; also Monumenta Ecclesiastica Anglicana, from the 7th to the 10th century; and the ancient Latin version of the Anglo-Saacon Laws. With a compendious glossary. 1840. 2 vols. - Schmid, Reinhold. Die Gesetze der Angelsachsen, In the Original language with translation, explanations and a glossary, 2nd Ed. Leipzig, 1858. 1 vol. [Supplementary thereto: Liebermann, Zu den Gesetzen der Angel- sachsen, in the Zeitschrift der Savigny-Stiftung, vol. W (Weimar, 1885), Germ. Abtheilung, pp. 198 fij Record Commission (Tomlins, Raithby, Caley, Elliott). Statutes of the Realm. London, 1810-32 (a collection of royal charters from 1100 and of the Eng- lish statutes from the middle of the thirteenth century to 1714, exclusive of parliamentary ordinances during the first revolution and of Cromwell's ordinances. According to the introduction, p. 31, only the laws printed in earlier collections and the principal of the other enactments recorded with certainty are admitted; and it is expressly stated that any Decision upon the Degree of Authority, to which any new Instrument may be entitled, as being a Statute or not, is entirely disclaimed. For the 12th and 13th centuries see, as supplementary, especially Stubbs, Select Charters. Scobell, Henry. A Collection of Acts and Ordinances of general use, made Žn the Parliament begun and held at Westminster the 3rd of Novbr. 1640 and since, unto the Adjournment of the Parliament begun and holden the 17th of September 1656 (adjourned on 26th June, 1657), and formerly published in Print, which are here printed at Large with Margºnal Notes, or (when of less interest) Abbreviated. London, 1658. (Contains also titles of earlier printed acts and ordinances belonging to the time in question, which are not here included even in shortened form.) A more complete collection relating to the time of the first revolution is a deSºderatum. Eor the time since 1714 there are several private collections, e.g. those of T)anby Pickering, with continuations, and Edlyne Tomlins. For the years 1870 ff. see the official Public general Statutes. (b) Parliamentary proceedings in early times. Rołulº Parliamentorum ºf et Petăţāomes et Placºta ºn Parliamento. 6 vols. (Vol. 1: Ed. I and II; vol. 2: Ed. III; vol. 3: Ric. II and Herº. IV; vol. 4: Hen. V and VI; vol. 5: Hem. VI and Ed. IV; vol. 6: Ed. IV, Ric. III and Hen. VII.) Cf. also Charles Henry Parry, The Parliaments and Councils of England, chronologically arranged from . . . William I . . . to 1688. London, 1839. See, further, Parry's preface. (c) Miscellaneous. Birch, Walter de Gray. Cartularium Saaconicum, A collection of charters re- lat?ng to Anglo-Saacon Håstory. London. Appearing in numbers from 506 APPEND TX 1883. Three vols. (years 430–975) have appeared. (Contains the documents also printed in Kemble and Thorpe; gives genuine and spurious documents, purposely abstaining from passing judgment thereon, and reserving this subject to a table at the end of the work.) Kemble, John Mitchell (English Historical Society). Codeoc Diplomaticus Aevi Saaconic?. London, 1839–48. 6 vols. With which compare:— Thorpe, Benjamin. Džplomatarium Anglicum Aevi Saaconic?. A Collection of English Charters, from the Reign of King Aethelberht of Kent, 605, to that of William the Conqueror . . . with a translation of the Anglo-Saacon. London, 1865. (Chiefly after Kemble, with a few additions.) Prynne, William. An eacact chronological vindication and historical demon- stration of our British, Roman, Saacon, Danish, Norman, English kings supreme ecclesiastical jurisdiction. . . . 3 vols. Tondon, 1665–8. Usually quoted as Prynne, Records. (Contains numerous documents re- printed. Vol. I: ancient times to 1199; vol. II: 1199–1272; vol. III: 1199–1307.) Rymer and Sanderson. Foedera, Conventiones, Lºtterae et cužuscumque gener's Acta publica ºnter Reges Angliae et alºos quosvěs &mperatores, reges, pontº- fices, principes vel communitates ab ammo 1101 usque ad 1654. (Appendix: Letters of Queen Mary of England.) 20 vols. London, 1704–35.-Second edition, London, 1727–35. 20 vols.-Third edition, Haag, 1740–45. 9 vols., and a 10th containing Indeſc and Abrégé Historique des Actes Publics d’Angleterre-Fourth edition (for the Record Commission), London, 1816–30, 3 vols. (1066–1377). Vol. I, 1: Wilh. I-Hen. III; vol. I, 2: Ed. I; vol. II, 1: Ed. II; vol. II, 2: Ed. III 1827–44; vol. III, 1: Ed. III 1844–61; vol. III, 2: Ed. III 1861–77. The new edition was then discontinued, and only the already completed part of vol. IV, containing documents from 1877–83, published.—See Hardy, Thomas Duffus. Syllabus of the Documents re- lating to England and other Kingdoms contained in the collection known as ‘Hymer’s Foedera.” London, 1869. 2 vols, and a supplement. (Contains accounts of the several editions of Rymer, short chronological notices of the documents and supplementary matter.) Record Commission (Henry Cole). Documents illustrative of English History Žn the 13th and 14th centuries, selected from the Records of the Department of the Queen's Remembrancer of the Eagchequer. London, 1844. Stubbs, W. Select charters and other illustrations of English constitutional history. 4th Ed. Oxford, 1881. 5th Ed. Oxford, 1884. II. Church history. I. Chronicles. A view of the separate editions and collections of English chroniclers which were printed up to the end of the 18th cent. and of their contents will be found in Monumenta Historica Britannica I, 3 ff., edited by Petrie, Sharpe, Hardy. 1848. A complete account of the materials for the earlier history of England is given by Thomas Duffus Hardy, Descriptive Catalogue of Materials relating to the History of Great Britain and Ireland (Rer. Bråt. Scr. No. 26). In vol. I (pt. 2) pp. 681 ff a list is given of the materials printed up to 1862 (in some cases going beyond the limit named, viz. the end of the reign of Henry VII), the editions being specified. This catalogue now needs supplementing, especi- ally from the collection of Rerum Britannicarum Medii Aevi Scriptores (from No. 27 onwards); see under c. Cf. also F. Liebermann, Uber ostenglische Geschächtsguellen des 12., 18., 14. Jhdts, besonders den falschen Ingulf, 1893 (in * Archiv der Gesellschaft für öltere deutsche Geschächtskunde, XVIII, 225 ft.) (a) The most important of the older collections of chronicles are:— 1. Rerum Britann?carum Scriptores vetustãores. Heidelberg, 1587. 2. H. Savile. Rerum Anglicarum Scriptores post Bedam praecipuº. London, 1596, Frankfurt, 1601. 3. º, ºnlen. Anglica, Normann?ca, Hibernica, Cambrica. Frankfurt, 602. XIV. CONSPECT US OF LITERA TURE 507 4. R. Twysden and J. Selden. Historiae Anglicanae Scriptores decem. London, 1652. . J. Fell and G. Fulman. Rerum Anglicarum Scriptorum veterum tomus I. Oxford, 1684. . T. Gale. Historiae Anglicanae Scriptores quinque. Oxford, 1687. . T. Gale. Historiae Britannicae, Saaconicae, Anglo-Danicae Scriptores quºndecám. Oxford, 1691. . Wharton, Henr. Anglia Sacra, sive Collectio Historiarum, partim antiquitus, partim recenter scriptarum de Archiepiscop’s et Ep?S- copis Angliae, a prima fide? Christianae susceptione ad annum 1540. London, 1691. 2 vols. (b) Of later collections:— 1. The collection of the Surtees society. 1834 ff. 2. The collection of the Camden society. 1838 ff. - Cf. here Nichols, John Gough. A Descriptive Catalogue of the first series of the Works of the Camden Society, stating the nature of their principal contents, the periods of time to which they relate, the dates of their composition, their manuscript sources, authors and editors. Westminster, 1872. . The collection of the English historical society. 1838 ff. . Giles. Patres Ecclesiae Anglicanae, London, Oxford, Paris, 1843 ff. . Monumenta Historica Britannica. Official; edited by Petrie, Sharpe, Hardy. 1848. Only 1 vol. has appeared. . The collection of the Caxton society. . F. Liebermann, Ungedruckte Anglo-Normann'sche Geschächtsquellen. Strassburg, 1879. . F. Liebermann and R. Pauli. Eac rerum Anglicarum Scriptoribus saec. XII et XIII, in Mon. Germ. Hist, Scriptores, vols. XXVII, XXVIII. Hannover, 1885, 1888. Rerum Britann?carum Med?? Aevi Scriptores or Chromżcles and Memo- Téals of Great Britain and Ireland during the Middle Ages. A com- prehensive and critical edition of the several chronicles etc. Published (from 1857 onwards) by the authority of the lords commissioners of the treasury, under the direction of the master of the rolls. 8 8º: 9. (c) In this last mentioned collection, Rerum Britannicarum Med?? Aevi Scriptores, there have already appeared: *— No. Editor. - - Title, etc. 1 | Hingeston, F. C. The Chronicle of England by John Capgrave. Re- - lates to the time from the creation of the world to 1417; written 1462–64. Capgrave was born in 1893, was provincial of the friars hermits in England and prob- ably prior of the friary at Lynn; he died 12th Aug. 1464. Cf. No. 7. 2 | Stevenson, J. Chronicon Monaster?? de Abingdon. 2 vols. Muti- lated at the beginning, it commences with a short account of the introduction of Christianity into Britain and goes down to the year 1190. Written by a monk of this monastery. The MS, on which the printed text is based, appears to contain a second edition of this * The list is as given at the end of the volumes of the series. The notes are Only sketched in outline; they are drawn partly from the source just indicated, partly from the critical prefaces or from Hardy (No. 26 of the collection). For further information the reader is referred to the two latter sources. 508 APPEND TX 10 Editor. Title, etc. Luard, H. R. Vol. II Brewer, J. S Vol. II Howlett, R. Shirley, W. W. Turnbull, W. B. Hingeston, F. C. Hardwick, C. Haydon, F. S. Gairdner, J. chronicle, issued about the middle of the thirteenth century. The various readings derived from a MS. which contains the first edition are given. Lºves of Edward the Confessor.—I. La estoire de Sežnt Aedward le Re?. A poem in Norman French dedicated to ‘Alianore, riche Reine d'Engleterre,’ wife of Henry III; written probably in 1245; author un- known.—II. Vita Beat; Edward? Regis et Confessorås. An amonymous Latin poem ; written between 1440 and 1450 by command of Henry VI. Of no importance from a historical standpoint.—III. Vºta Aedu/uard? Regis quº apud Westmonasterium requiescit. Author anonymous ; probably written for queen Edith between 1066 and 1074. Monumenta Französcam.a. Vol. I: Thomas de Eccles- ton de Adventu, Fratrum MŽnorum ºn Angliam. Adae de Marisco Epistolae. Registrum Fratrum Minorum Londoniae. Vol.II: De Adventu Minorum, re-edited with additions. Chronicle of the Grey Friars. The ancient English version of the Rule of St. Francis. Abbreviatio Statutorum, 1451 etc. Fasciculi Zizaniorum Magistri Johannis Wyclif cum Tržićco. Ascribed to Thomas Netter of Walden, from 1414 provincial of the carmelites in England; the whole, however, cannot be by him. The only contem- poraneous account of the rise of the lollards. The Bučk of the Croniclis of Scotland; or a Metrical Version of the History of Hector Boece ; by William Stewart. 3 vols. A metrical translation of a Latin prose chronicle; of the first half of 16th cent. ; begim- ning with the earliest legends, ending with the death of Jas. I of Scotland (1437). Johannis Capgrave Liber de Illustribus Henricis. Written about the middle of the 15th century, shortly after 1446. The first part consists of six chapters, each containing a short sketch of an emperor of the name of Henry; the Second treats of English kings named Henry (Henry I-VI); the third, of famous Henries in various countries. Historia Monaster?? S. Augustin; Cantuartensås, by Thomas of Elmham, formerly monk and treasurer of that foundation. Relates to the time from the arrival of Augustine in Kent to 1191. After 804, almost made up of documents. A Chronologia Augustinensis is printed as an introductory conspectus. The author was probably Thomas of Elmham. The book was written circ. 1414. The documents contained are in part spurious; this is especially the case with those touching old privileges of the monastery. Eulogium (Historiarum sive temporis), a chronicle extending from the creation to 1866. 3 vols. Almost certainly by a monk of the abbey of Malmesbury; the larger portion was completed in 1862, other portions were added till cºrc. 1367. A continuation carrying on the history to 1413 was appended by an unknown author in the first half of the 15th cent. Memorials of Henry VII. Contains: 1. Bernard? Andreae Vita Henricº VII, 1457-97. (Bernard André XI. V. COMSPECT US OF LITERA TURE 509 11 12 13 14 16 Editor. Title, etc. Cole, C. A. Riley, H. T. |Ellis, H. Wright, T. Brewer, J. S. Luard, H. R. of Toulouse was Henry's poet laureate and historio- grapher). 2. Ejusdem Annales Henricº VII, 1504–5 and 1507–8. 3. Les douze triomphes de Henry VII, written in 1497, probably also by Bernard André. 4. Journals and reports of ambassadors, years 1488–90 and 1505. 5. A Narrative of the Reception of Philip Ring of Castile in England in 1506. 6. Various other documents of the time, given as appendices, Memorials of Henry the Fifth.-I. Vita Henric? Quintã, Roberto Redmanno auctore. II. Versus Rhyth- mic; in laudem Regis Henrici Quintã. Probably written by a monk of Westminster, contemporary with Henry W. III. Elmham? Liber Metricus de Henrico |V. By a contemporary writer, Thomas Elmham. Munºmenta Gºldhallae Londonàensis; Liber Albus, Liber Custumdrum, et Liber Horn, in arch?vis Gºld- hallae asservati. Vol. I: The Liber Albus compiled in 1419 by John Carpenter, Common Clerk of the City of London, gives an account of the Social condition, usages and institutions of the city from the 12th to the be- ginning of the 15th cent. Vol. II (in two parts): 1. Extracts from the Liber Custumarum, which , was composed, probably by different persons, circ. 1320, additions being Subsequently made. It contains a collection of laws, Ordinances etc. with accounts of the institutions of the city of London from the 12th to the beginning of the 14th cent. 2. Extracts from a col- lection of the same kind as the preceding, according to Riley identical with the Liber Horn, compiled (Riley I, 739) 1311. 3. Translations from the Liber Custoſ- 7marum. 4. Glossary of Anglo-Norman, Saxon and |Farly English words in Liber Custumarum, and Liber Horm. 5. Glossary of Medieval Latin. 6. Glossarial Index of festivals and dates. Vol. III: Translations of Anglo-Norman passages in Liber Albus, glossary of Anglo-Norman and Early English words in Liber Albus, extracts from Assºsa panºs and Liber Memo- Tandorum. Chronica Johann’s de Oxenedes. Embraces (after a short introduction) the period from 872 to 1293, break- ing off abruptly in the last year. Written by a monk of the abbey of St. Benet Holme. A Collection of Political Poems and Songs relating to English History, from the Accession of Edward III to the Reign of Henry VIII, 2 vols. The ‘Opus Tertium,’ ‘Opus Minus’, etc. of Roger Bacon. The author (born 1214, died 1292–4), a fran- ciscan, was a distinguished student of natural science and denied the possibility of witchcraft. In 1278 Bacon was condemned at a chapter held at Paris by the general of the franciscan order, and passed into a prolonged confinement. Bartholomae? de Cotton Monach? Norwicensis HZs- toria Anglicana (449–1298). The first book (De Regibus Britonum) is only a transcript of Geoffrey of Mon- mouth, and is not here reprinted. In the second book (De Regibus Anglès, Dacºs, et Normannis) the author has closely followed Henry of Huntingdon (No. 74) for 5IO APPENDIX 17 18 19 20 Editor. Title, etc. Williams ab Ithel, J. Hingeston, F. C. Babington, Churchill. Williams ab Itel, J. the time down to 1066; the part for 1066–1291 is a transcript of an (unprinted) chronicle composed at Norwich [this Norwich chronicle contains the follow- ing portions: the portion for 1066–1258 was compiled in the monastery of Norwich from various older chronicles, the principal authorities followed being Roger of Wendover and Matthew Paris; that for 1258–63 is a simple transcript of part of the chronicle of John de Taxster; the third portion (1264–79) is original; the fourth (1279–84) is a transcript of part of the chronicle usually ascribed to Everisden; the fifth (1285–91) is original, written at Norwich]; the part for 1291–98 is an original and contemporaneous produc- tion of Bartholomew. The greater part of the third book (Liber de Archiepiscop’s et Episcopis Angliae) is an abridgment of William of Malmesbury's De Gestés Pontificwm (No. 52), but it contains also later original additions. Of Bartholomew all that we know is that he was a monk of Norwich, and from the fact that the second book does not contain any date later than 1298 we may deduce that he did not survive that year. Brut y Tywysogion or The Chronicle of the Princes. Welsh text and English translation. Embraces the years 689 (681)–1282 and treats chiefly of Welsh his- tory; the chronicle is here printed in the form which probably originates from the monastery of Strata Florida. The compilation which forms the basis of the earlier part of the chronicle (until 1120 or perhaps until the middle of the twelfth century), is ascribed to Caradoc of Llancarvan who died before 1152, perhaps already 1124. The later portions have been added in part contemporaneously with the events described therein. Other chronicles are extant, which belong to the same group. A Collection of Royal and Historical Letters during the Reign of Henry IV; 1399–1404. The Repressor of over much Blaming of The Clergy. By Reginald Pecock, sometime Bishop of Chêchester. 2 vols. The author was born about the end of the four- teenth century, and is said to have been a Welshman; in 1444 he became bishop of St. Asaph and in 1450 was translated to Chichester. The work is directed against the views of the lollards and furnishes a good account of their opinions. Pecock was himself afterwards con- demned of heresy. Annales Cambriae. The most ancient portion, con- sisting of a short catalogue of dates, embraces the time from 444–954 and was written about the middle of the tenth century probably in South Wales; the writer is unknown ; it appears that besides using documents of Welsh growth he has availed himself of an Irish chronicle used also by Tigernach and by the compiler of the Annals of Ulster. Tater on a series of dates covering the time from the creation to 453 were added, a few additions to and omissions from the most ancient portion above mentioned were made and the YI TV. COWSPECT US OF LITERA TURE 5II No. 21 23 24 Edźtor. Title, etc. Brewer, J. S. (Wols. I–IV) Dimock, J. F. (Wols. V-VII) Warner, G. F. (Vol. VIII) Stevenson, J. Thorpe, B. Gairdner, J. chronicle was continued from time to time by various unknown writers down to 1286, and in another manu- script down to 1288. The Works of Göraldus Cambrensis. 8 vols. The author was Gerald du Barry, born circ. 1147 (vol. V, p. lvi, note 2) archdeacon in Wales and unsuccessful candidate for the see of St. Davids, was still living in 1221, year of death unknown. He travelled much in Italy, France, Ireland and Wales. Wol. I contains: De Rebus a se Gestis, Invectionwm Libellus, Symbolum Electorum and smaller pieces; vol. II: Gemma Eccles?- astica : vol. III: De Invection?bus, De Menevems? Ecclesia Dialogus, Vita S. David; vol. IV: Speculum Ecclesiae (relates largely to the condition of monks and monasteries) Vºta Galfridž Arch?ep?scopé Ebora- censis ; vol. V: Topographia Hibern?ca (the results of journeys to Ireland in 1183 and 1185–6; there were several editions’ issued by the author, the first early in 1188), Expugmatio Hibernica (first edition' circ. 1188–9, a second circ. 1209; vol. VI: Itinerarium Kambriae, Descriptio Kambriae; vol. VII (partly edited by E. A. Freeman): Vºta S. Rem?gº? (a history of the bishops of Lincoln from 1067–1200; in the con- cluding chapters are short notices of Becket and Bald- win of Canterbury, and bishops Henry of Winchester, Bartholomew of Exeter, Roger of Worcester, Hugo of Lincoln), Vita S. Hugonis (bishop of Lincoln 1186–1200; Distinctiones I and II were written circ. 1213–4, Dis- t?rºcłżo III between 1214 and 1219), appendices contain- ing documents illustrative of the history of the see and bishops of Lincoln; vol. VIII: Liber de Principis Instructione (the first book written and published prob- ably about 1192–93, the second and third books, treating chiefly of Henry II, were probably also begun about that time, but the whole as now extant was not pub- lished until about 1217), tables of contents to vols. I–IV and VIII. Letters and Papers illustrative of the Wars of the English in France during the reign of Henry VI. 2 vols., vol. II in 2 parts. The Anglo-Saacon Chronicle, according to the several original authorities. Vol. I: the various texts side by side; vol. II: English translation.—Embraces the time from the earliest history of Britain to 1154. The chronicle has been preserved in several texts which differ widely and do not always cover the same ground. In the composition of the oldest part, to the end of 891 king Aelfred was perhaps concerned. It is not known how far the later parts are based on contemporary records.-(Later and better edition: Earle, J. Two of the Saxon Chronicles parallel, with supplementary eactracts from the others, with introductory motes and a glossarial &mdeºc. Oxford, 1865. On the basis of this text: Charles Plummer, Two of the Saacon Chronicles e (text and glossary; full introduction in a later volume). Oxford, 1892.] Letters and Papers illustrative of the Reigns of Richard III and Henry VII, 2 vols. APPENDIX 27 2S Editor. Title, etc. Luard, H. R. Letters of Bishop Grosseteste (covering the time from 1210 to 1253). Grosseteste was the well-known bishop of Lincoln. Hardy, T. D. Descriptive Catalogue of Manuscripts (those already Shirley, W. W. iley, H. T. printed included) relating to the History of Great Britain and Ireland. Vol. I (2 pts.): till 1066. Wol. II: 1066–1200. Vol. III: 1200–1327. The MSS are given under the year in which the last event men- tioned in them took place, biographies under the death- year of the subject. A short notice of the materials is appended and a statement of the sources whence they are derived; also some account of the literary date and of the author. Royal and other Historical Letters illustrative of the Reign of Henry III. Vol. I: 1216–1235; vol. II: 1236–72. Chronica Monaster?? S. Alban?. I (vols. I and II) Thomae Walsingham. Historia Angli- cana. Vol. I: 1272–1881; vol. II: 1381–1422 (cf. also No. 64, introduction pp. xxi f., xxxi f). II (vol. III) Willelmº Rishanger Chronica et Annales. Contains: 1. a chronicle 1259–1306 (the part 1259–72 is probably by Rishanger, who lived under Edward I, and was written not before 1290; the part 1272–1806 is by an unknown author and pro- bably written not before 1327); 2. an account of the circumstances connected with the adjudication of the throne of Scotland to John Balliol, 1291–2 (also ascribed, but without sufficient reason, to Rishanger); 3. a short chronicle of English his- tory from 1292 to 1300, by an unknown author; 4. Willelmi Räshanger Gesta Edwardž primâ with Annales Regum Angliae, probably by the same hand; 5. fragments of three chronicles of English history, 1285–1307. III (vol. IV) Johannis de Trokelowe et Blaneforde Chronica et Annales. Contains: 1. chronicle, 1259–96; 2. annals, 1307–23 by John Trokelowe, monk of St. Albans; 3. continuation of the annals by Henry de Blaneforde; 4. chronicle, 1392–1406; 5. an account, written at the beginning of the 15th cent., of the benefactors of St. Albans. IV (vols. V-VII) Gesta Abbatum Monaster?? S. Albani, a Thoma Walsingham, regnante Ricardo II, ejus- dem Ecclesiae praecentore, compilata. Vol. V: 793–1290; vol. VI: 1290–1849; vol. VII: 1349– 1411. Mainly compiled by Walsingham, with a continuation. V (vols. VIII and IX): 1. a chronicle of the years 1422–31, by an unknown contemporary author living at St. Albans; 2. Annales Monaster?? S. Albani, covering the years 1421–40. The annals probably are the work of John Amundesham; there is internal proof that the author was a member of the abbey, but only at a late date in the time treated of. Written probably before 1452. VI (vols. X and XI) Registra quorundam Abbatum Monasteriž S. Albani, qui saeculo XVm.0 florueré. YI V. CONSPECT US OF LITERA TURE 5.I.3 29 30 31 3 2 33 34 36 Editor. Title, etc. Macray, W. D. Mayor, J. E. B. TO LI HX7. III: Horwood, A.T.; them: Pike, L.O. Stevenson, J. Hart, W. H. Wright, T. Cockayne, T. O. Luard, H. R. Vol. X: Registrum Abbatiae Johannis Whetham- Stede, Abbatés, Monaster?? S. Alban?, iterum Sus- ceptae, Roberto Blakeney, Capellano quondam. adscriptum. Vol. XI: Registra Johann’s Whet- hamstede, Willelm? Albon, et Willelm? Waling- forde, cum Appendice, continente quasalam EpiS- tolas, a Johanne Whethamstede conscriptas. + VII (vol. XII) Ypodigma Neustriae a Thoma Wal- Singham conscriptum. Contains a short history of England to the reign of Henry V (1413–22) and a history of Normandy in early times. Chronicon Abbatiae Eveshamensis. The first part (books I and II), written by Prior Dominicus who lived in 1125, relates to the life and miracles of Saint Egwin, bishop of Worcester from 693 onwards. It embraces the time from circ. 690 to circ. 1030. The second part (book III) covers the time from 714 to 1418, the first half of the 13th cent, being treated fully. The narra- tive down to 1213 is by Thomas de Marleberge (died 1236, as abbot of Evesham); the author of the con- tinuation is unknown. In the appendix, miraculous relations touching St. Odulph and St. Wistan, and a short history of the convent from 1418 to 1539. Ricardi de Cirencestria Speculum. Historiale de Gestis Regum Angliae. Vol. I: 447–871; vol. II: 872–1066. The author is mentioned as a monk of Westminster (for the first time in 1855); he died in 1400 or 1401. Year Books of the Reign of Edward I and III (col- lections of judicial decisions). There have appeared hitherto 11 vols., relating to the following years: 20–21, 21–22, 30–31, 32–33, 33–35 Ed. I; 11–12, 12–13, 13–14, 14, 14–15, 15 Ed. III. To be continued. g Narratives of the Expulsion of the English from Normandy 1449–1450–Robertus Blondelli de Reduc- tione Normanniae. Le Recouvrement de Normendźe, par Berry, Hérault du Roy. Conferences between the Ambassadors of France and England. HŽstoria et Cartularium, Monaster?? S. Petrž Glow- cestriae. 3 vols. The Historia contains a history of the monastery from its foundation (681) to the early part of the reign of Richard II, and a calendar of dona- tions. Walter Froucester, twentieth abbot, has been named as the author, but without reason. The second part is the Cartular??/m. Aleºcamdré Neckam de Naturis Rerum libri duo ; with Neckam's poem, De Laudibus Dávinae Sapientiae. Neckam lived 1157–1217; de Naturis Rerum was written in 12th cent. Leechdoms, Wortcunning, and Starcraft of Early England ; being a Collection of Documents illustrating the History of Science &n this Country before the Nor- man Conquest. 3 vols. Annales Monastic?. Vol. I: Annales de Margan, 1066 to 1232; Annales de Theolcesberia, 1066–1263; Annales de Burton, 1004–1263. Vol. II: Annales Monasterii de Wintonia, 519–1277; Annales Momas- ter?? de Waverleža 1–1291. Vol. III: Annales Priora- L L 5 I4 APPEND IX 37 39 40 41 42 Fºlitor. Title, etc. Dimock, J. F. Stubbs, W. Wols. I–III, Hardy, W. Wols. IV and V, Hardy, W. and |Bardy, E. Hardy, W. and Hardy, E. Wols. I and II, Babington, Churchill. Wols. III to IX, Lumby, J. R. Glover, J. tus de Dunstaplia, 1–1297; Annales Monaster?? de Bermundeseid, 1042–1432. Vol. IV: Annales Momas- ter?? de Oseneia, 1016–1347; Chronicom vulgo dictum Chronicon Thomae Wykes, 1066–1289; Annales Prä- Oratus de Włgornia, 1–1377. Vol. W: Indeae and Glossary. These annals are of importance especially for the times of John, Henry III and Edward I. Magna Vita S. Hugon's Episcop? Lincolnáems?s. Bishop Hugo was consecrated in 1186; he died in 1200 The author was probably Adam, abbot of Evesham, chaplain and confessor to the bishop. g Chronicles and Memorials of the Reign of Richard I. Vol. I contains: Jtimerarium Peregränorum et Gesta Reg's Ricard? (covering the years 1187–99, especially treating of the crusade); auctore, wi videtur, Ricardo, Canonico Sanctae Trinitatis Londom?ensis. Formerly ascribed to Guido Adduanensis or to Geoffrey Wimsauf. There are strong reasons for believing that one Richard, a canon, was the author. Of him nothing is known, unless he is identical with a prior of St. Trinity men- tioned in 1222, Ricardus de Templo. The work (con- sisting of six books) must have been written between 1199 and 1220; perhaps the 1st and 2nd books were published earlier, between 1193 and 1197 (cf. pp. lxvi-lxxi, lxxix). Wol. II contains: Epistolae Can- tuarienses; the Letters of the Prior and Convent of Christ Church, Canterbury, 1187–99. These letters relate to the struggle of the monks against the attempts of archbishops Baldwin and Hubert of Canterbury to found a body of secular canons. Recueil des Chroniques et anchiennes Istories de la Grant Bretaigne, a present momme Engleterre, par Jehan de Wavrém. Wol. I: mythological period—689. Vol. II: 1399–1422. Vol. III: 1422–31. Vol. IV : 1431–43. Wol. W: 1442–71. The author was born circ. 1394, and died probably soon after 1471. He was a knight and took part under the duke of Burgundy in the struggles between France and England. On the division and contents of the complete work (which also covers the years 689–1399) and on the time of the com- position of its several parts (1445–74) see vol. I pp. xlviii f. Translation of No. 39 (down to year 1431 has ap- peared). Polychronicon Ranulphi Higden, with Trevisa's translation. 9 vols. From the creation to 1852 by Higden, a monk of St. Werburg's in Chester, whose death probably occurred on the 12th of March, 1864; continuations by other hands (in vol. IX that of John Malverne). An universal history, much used in the 14th and 15th cents. Le Lºvere de Reis de Brittan?e e Le Lºvere de Re?s de Engletere. The former is an abridgment of English: history (for the most part borrowed from William of Malmesbury or Geoffrey of Monmouth) from the fabu- lous Brutus to Knut, with a short enumeration of the later kings down to Edward I. The latter is a chronicle covering the time from the earliest history of Britain YI V. COWSPECT US OF LITERA TURE 515 No. Edźtor. Title, etc. 43 44 46 47 48 Bond, E. A. Madden, F. Edwards, E. Hennessy, W. A. Wright, T. Todd, J. H. to 1274, almost entirely taken from known sources. The volume also contains the Wroxham continuation (1274–1306) and the Sempringham continuation (1280– 1326). Dates and histories of the several writers not certainly known. Chronica Monaster?? de Melsa (the Cistercian abbey of Meaux), 1150 (foundation)–1396; written about 1394–1400 ft. by Thomas de Burton (abbot, 1896; re- signed, 1399; died, 1437) with a continuation down to 1406, written by an unknown monk of the abbey who lived under abbot John of Hoton (died, 1445). An ap- pendix covers the years 1406–17. The chronicle gives a history of the abbey and some general history. Text formed from two MSS, both author's autographs, which differ considerably from one another (cf. vol. I, p. xlvi f.), 3 vols. Matthae? Parisiens's Historia Anglorum, sive, ut vulgo dicitur, Historia Minor. 3 vols. 1067–1253. An abridgement of the Chronica Majora (cf. below, No. 57) made under the author's Supervision or, partly, by himself, the abridgment being from the second edition, which was continued to 1253. The passages which affect the king are softened down. Matthew, a monk of St. Albans from 1217 onwards, called Parisiensis perhaps from a sojourn in France, died in 1259. Liber Monaster?? de Hyda: a Chronicle and Chartu- lary of Hyde Abbey, Winchester, 455–1023. Contains, after a short introduction, a history of the kings from Alfred to Knut ſuse has been made of Higden (No. 41) and earlier writers], also, a large number of documents from Anglo-Saxon times. As appendices are given a Chronicon Monaster?? de Hêda, a grant from king Edward, and Privilegium Regis Cºwton’s de Draytone; also, translations of the Anglo-Saxon documents con- tained in Liber de Hyda. Chronicon Scotorum, A Chronicle of Irish Affairs from the earliest times to 1135; with Supplement, con- taining the events from 1141 to 1150. With transla- tion. The parts which relate to earlier affairs are not trustworthy. The Chronicle of Pierre de Langtoft, in French verse, from the earliest Period to 1307. 2 vols. The author is stated to have been canon of Bridlington in Yorkshire (cf. also No. 61, p. 101); he lived in the reign of Edward I, and on into that of Edward II. The chronicle falls into three parts. The first is an abridg- ment of Geoffrey of Monmouth's Historia Bråtomum ; the second (684–1272) is a compilation from different writers; the third is a contemporary and independent record of the reign of Edward 1. Cogadh Gaedhel re Gallaibh, or Wars of the Gaidhāl (i.e. the Irish) with the Gaill (?.e. the foreigners). Irish text with English translation. Embraces the years from about 795 to 1014, giving an account of the in- vasions of Ireland by the Danes and other Norsemen. Portions of the work are extant in two MSS, of about the beginning of the twelfth and about the middle of the fourteenth centuries respectively. The only known 5I6 APPEND IX 49 50 51 52 JEditor. Title, etc. Stubbs, W. Anstey, H. Stubbs, W. Hamilton, N. E. S. A. copy of the whole work is a transcript made in 1635, apparently not without Some deviations from the original. The work was probably written at the be- ginning of the eleventh century; the author is un- known. Gesta Regis Henric; Secund? Benedict; Abbatis, the Chronicle of the Heigns of Henry II and Richard I, 1169–1192, commonly known under the name of Bene- dict of Peterborough. 2 vols. According to Stubbs the following parts are to be distinguished: 1. 1169–77, begun about 1171, worked back to 1169 and continued contemporaneously with the events recorded; 2. 1177–80, few signs that the work is contemporaneous, but none of later composition; 3. 1180–8, probably con- “ temporaneous, but foreign episodes introduced after- wards; 4. 1188–92, evidently contemporaneous; brought to an abrupt conclusion. “Whether these divisions represent different issues, different editions, the work of different authors, or of the same author under differ- ent circumstances,’ cannot be decided. Of the history of the author, if one person, nothing is known; he was probably connected with the court. A possibility is suggested by Stubbs that he is to be identified with Richard Fitz-Neal (bishop of London, 1189; died 1198), writer of the Dialogus de Scaccario. Against this view see Liebermann, Introduction to Dialogus, Göttin- gen, 1875, pp. 66 ft. For the use of the chronicle by Howeden see Stubbs, I pp. xxvi, xliii and liv; also Introduction to No. 51, vol. I pp. liff. Munºmenta Academica or Documents Illustrative of Academical Life and Studies at Oagford. In two parts. Chronica Magistré Roger de Hovedene. 4 vols. The first part, relating to the years 732–1148, is based on the Durham Historia post Bedam, etc. (a compila- tion made between 1148 and 1161, and itself resoluble into the Hästory of Sºmeon of Durham and the History of Henry of Huntingdom), to which Hoveden added but little. The second part, 1148–69, cannot be re- ferred as a whole to any previously existing authority; yet the probability is strong that Howeden's share is confined to a few occasional memoranda. He certainly used the Chronicle of Melrose and some of the Lives and letters of Becket. In the third part, Christmas 1169 to 1192, Hoveden is re-editing Benedict's chronicle (cf. No. 49). The fourth part, 1192–1201, is original. The author, probably originally a royal official, after- wards parish priest of Hoveden, lived at the end of the 12th cent. Dates of birth and death not known; but he died before 1207. (Cf. also No. 58, vol.II, pp. lxxxix ff, No. 61, p. xxxiii f.) |Willelmº Malmesbärſſensºs Monachº de Gestãs Pomż- ficum Anglorum Libr. Quinque. The author was probably born circ. 1095. The work was first written in 1125, shortly after the Gesta Regum (cf. below, No. 90), but revised at a later time (1140) by the author. Book I contains the history of the archbishopric of Canterbury and of the bishoprics of Rochester; book XIV. COWSPECT US OF LITERA TURE 5 IZ 53 54 56 57 58 59 60 Editor. Title, etc. Gilbert, J. T. Hennessy, W. M. Twiss, T. Williams, G. Luard, H. R. Stubbs, W. Wright, T. Campbell, W. II, of the bishops of London, East Anglia, Winchester, Sherborne, Ramsbury, Wells, Crediton, Chichester and of several religious houses; book III, the history of the archbishopric of York and of the bishopric of Dur- ham (Lindisfarne); book IV, the history of the bishoprics of Worcester, Hereford, Lichfield, Lincoln (Dorchester), Ely, and several monasteries; book V is a life of saint Aldhelm. Historic and Municipal Documents of Ireland, from the Archives of the City of Dublán etc. 1172–1820. The Ammals of Loch Cé. A Chronicle of Irish Affairs, from 1041 to 1590. 2 vols. With translation. Monumenta Juridica. The Black Book of the Ad- 7mºralty, with Appendźces. 4 vols. Contains old rules and orders about admiralty matters; also sea-laws and customs for various places. - Memorials of the Reign of Henry VI.-Official Cor- Tespondence of Thomas Belcynton, Secretary to Henry VI, and Bishop of Bath and Wells. Matthaei Parisiensis, Monachi Sancti Albani, Chro- nica Majora. Vol. I: 1–1066; vol. II: 1067–1216; vol. III: 1216–1239; vol. IV: 1240–1247; vol. W: 1248–1259; vol. VI: Additamenta; vol. VII: Indeoc. (Cf. above, No. 44.) For the time up to the middle of the year 1235 it is a new edition of earlier compila- tions; especially to the end of 1188, of a compilation which probably (vol. II p. x and vol. VII p. ix; on the other hand see Hewlett in No. 84, vol. III p. xi f.) is to be assigned to John de Cella, abbot of St. Albans, 1195–1214; from 1189–1235 it is drawn from Roger de Wendover (No. 84). The rest is all by Matthew of Paris himself. At first he ended his work with the year 1250; afterwards he added the history to 1253; lastly, a continuation to 1259. He died in 1259. Vol. VI contains documents derived from the Cotton MS written at St. Albans under Matthew's own direction and with corrections in his hand. He often refers to this Lºber Additamentorum. Memoriale Fratris Walteri de Coventria, The His- torical Collections of Walter of Coventry. 2 vols. Of the author nothing is known; the book was composed between 1293 and 1307. It covers the time from the first kings of Britain to 1226. The period down to 1002 is treated very briefly. (For the sources of this part of the work see vol. I, pp. xxx ff.) From 1002–1225 the Memoriale is based on an intermediate compilation preserved in MS. [In this intermediate compilation, the part for 1002 to 1131 goes back to Florence of Worcester and Marianus Scotus; 1131–54, to Henry of Huntingdon (No. 74); 1170–1177, to Benedict (No. 49); 118.1–1201, to Hoveden (No. 51); 1155–69, 1177–80 and 1201-1228 to a chronicle of the monastery of Barnwell, now represented by an unprinted MS in the College of Arms, which for the years 1201–1225 is a good, contem- poraneous and, so far as is known, original record.] The Anglo-Latin Satirical Poets and Epigramma- tists of the Twelfth Century. 2 vols. Materials for a History of the Reign of Henry VII, 518 APPENDIX Editor. Title, etc. 61 62 63 64 65 66 67 Raine, J. Hardy, T. D. Stubbs, W. Thompson, E. M. Magnússon, Eiríkr. Stevenson, J. Wols. I–VI, |Robertson, J.C. Vol. VII, Sheppard, J. B. from Original Documents preserved in the Public Record Office. 2 vols. Historical Papers and Letters from the Northern Registers. From the years 1265–1415; mainly taken from diocesam registers; they relate both to ecclesi- astical and to temporal matters, especially to occur- rences in the northern border-districts of England. Registrum Palatinum Dunelmense. The Register of Richard de Kellawe, Lord Palatine and Bishop of Durham ; 1311–1316. 4 vols. This is the oldest regis- ter of the county palatine of Durham; it relates to both temporal and ecclesiastical affairs. Memorials of Saint Dunstan, Archbishop of Canter- bury, Vol. I contains: 1. biography of St. Dunstan (died 988) by an author with the initial B; written circ. 1000; 2. letter of the monk Adelard of Blandinium to archbishop Elfege touching the life of St. Dunstan, written between 1006 and 1011; 3. Life by Osbern, precentor of Canterbury, written between 1070 and 1098; 4. Life by Eadmer (cf. No. 81), probably written before 1109; 5, Life by William of Malmesbury, after Gesta Regum (No. 90), written, therefore, after 1120; 6. Life by John Capgrave (No. 1); 7. Reliquiae Dum- stamºanae; 8. Fragmenta Ritualia de Dunstano. Chronicon Angliae, 1328–88, Auctore Monacho quo- dam Sanct? Albanº. A contemporaneous or almost contemporaneous record; author and date of composi- tion unknown ; perhaps to be assigned in part to Thomas Walsingham (No. 28, I). Cf. p. xxxiv. Thomas Saga Erkbyskups. A Life of Archbishop Thomas Becket, in Icelandic, 2 vols. With English translation. Taken from the life of Becket by Benedict of Peterborough; contains apparently the missing parts of Benedict's biography. Radulph; de Coggeshall Chronicon Anglicanum. Contains: 1. The Chronicom Anglicanum of Ralph, abbot (1207 to 1218) of Coggeshall. Date of death not known. The chronicle covers the years 1066–1224; 2. Libellus de Expugmatione Terrae Sanctae per Sala- dºnum, usually ascribed to the same writer, but author unknown; 3. Magistri Thomae Agnell? Wellensis Archidiacon?, Sermo de Morte et Sepultura Henric; Regis Junºoris (son of Henry II, died 1188); 4. Degend of Fulco Włł2-War?n ; 5. Extract from Gervasius Tileburiensis, Otia Imperialia (the author was in the service of Henry the lion ; the work is dedicated to Otto IV, emperor of Germany). Materials for the History of Thomas Becket, Arch- bishop of Canterbury. Wols. I–VII. (Cf. No. 65.) Vol. I: Vita et Passio S. Thomae and Miracula glorios? martyr's Thomae, both by William, a monk of Canter- bury. (With regard to the Miracula, the author was at work in 1172; according to Robertson the Vita was probably written after the Miracula.) Vol. II: Passºo S. Thomae and Māracula S. Thomae, both by Benedict, a monk of Canterbury, who later on (from 1177; cf. No. 49) was abbot of Peterborough. (The Passºo, which only treats of the last day of Becket, was written earlier YIV. COWSPECT US OF LITERA TURE 5 IQ 68 69 70 71 Editor. Title, etc. Stubbs, W. Graves, J. Twiss, T. Raine, J. than the Miracula, the Miracula of Benedict probably earlier than those of William); Other Reports of Miracles; Vita S.Thomae by John of Salisbury (distin- guished scholar, partisan of Becket) with introduction and additions by Alan (monk of Canterbury from 1174, afterwards abbot of Tewkesbury, died 1202; the trust- worthiness of his additions is doubtful; written as preface to his collection of letters and documents relat- ing to Becket); Vita S. Thomae by Edward Grim (probably one of the secular clergy, he was wounded shortly after his arrival at Canterbury in trying to protect Becket against his murderers). Wol. III: Vita S. Thomae by William Fitzstephen (according to his own assertion, which is quite credible, he was a chap- laim of Becket and present at the council of Northamp- ton and at Becket's death ; his name is not mentioned by the other writers, perhaps, because he also had Some connexion with the royal court); Vita S. Thomae by Herbert of Boseham and Extracts from the Liber Melorum of the same author (Herbert was a staunch partisan of Becket and his constant companion; he wrote the Vita in 1184 and the following years, after this the Liber Melorum, which contains a few particulars of the time subsequent to Becket's death). Vol. IV: Vºta S. Thomae, perhaps by Roger, a monk of Pontigny and contemporary of Becket; Vita S. Thomae by an anonymous author (designated as ‘Anonymus Lambethensis' because the MS is pre- Served at Lambeth ; written between 1172 and 1174, the Vita by John of Salisbury being much used); short treatises and extracts from chronicles; Quadrilogus (life of Becket, written 1198–99 by E [lias P] of Eve- sham, a compilation from the works of William, Bene- dict, John, Alan and Herbert; this is the so-called ‘second Quadrilogus'; the so-called ‘first Quadrä- logus' is of later date and has not been here reprinted). Wol. W-VII: Letters. Radulfi de Diceto Decanº Lundon?ensis Opera His- torica. 2 vols., containing : 1. Abbreviationes Chron?- corum (extracts from older writings) relating to the time from the creation to 1148; 2. Ymagines Historiarum, a chronicle covering the years 1148–1202 (it is not certain whether the history of the three last years is to be ascribed to Ralph de Diceto or not); 3. Minor works of R. de Diceto. The author, probably born circ. 1120–30, was archdeacon of Middlesex, 1152. As such he was during Becket's struggles subordinate to Becket's greatest enemy, Foliot, bishop of London. In 1180 Ralph became dean of St. Paul's. The date of his death, not precisely known, was perhaps 1202. Boll of the Proceedings of the King's Council in Ireland, for a Portion of 16 Ric. I, 1392/3. Henricó de Bractor de Legibus et Consuetudinibus Angliae Lºbrá Quángue in varios Tractatus distinct. 6 vols. On the work see under 2 (law-books). The Historians of the Church of York, and its Archbishops. 3 vols. Vol. I contains: 1. Vºta Włl- jºr?dº by Eddius Stephanus (written about 710); 2. APPEAW DIX Editor. Title, etc. Brewer, J. S. and Martin, C. T. Stubbs, W. Vita St. Wilfrid; by Fridegodus; 3. Vita Wilfridž by Eadmer; 4. Brevåloquium Vitae St. Wilfrēdà (by Eadmer?); 5. Appendix: Vita S. Wilfrēdà by an un- known author; Vita et Miracula St. Wilfrid' (the collection in which it has been handed down is ascribed to John of Tynemouth); 6. Vita St. Johann’s, Epis- copi Eboracensis by Folcardus; 7. Miracula St. Johannºs; 8. Several other miraculous histories; 9. Appendix: five minor biographies of St. John ; 10. Alcuin, De Pontificibus et Sanctis Ecclesiae Eboracensis (a poem); 11. Vita Oswald? (died 992) Archiepiscop? JºbOracensis (contemporaneous, probably written be- tween 995 and 1005).-Vol. II. contains: 12. Vita St. Oswald? by Eadmer (in two parts: biography and miracles. Based on the already mentioned biography and materials of Ramsey); 13. Vita St. Oswaldī by Senatus (the author became prior in 1189 and resigned in 1196. Mainly derived from Eadmer's biography); 14. Vºta St. Oswald? by an unknown author (almost entirely a compilation); 15. Vita St. Oswald? (the collection in which it has been handed down is as- cribed to John of Tynemouth); 16. Hugo Sottovagina, history of the four archbishops (Thomas I to Thurstan) of York (the author was precentor and archdeacon of York; the work was, as to the main portion, written before 1128; the history is carried on until 1127, and, by additions, to 1153); 17. Letter of archbishop Ralph of Canterbury to Calixtus II, 1119, after the consecra- tion of Thurstan (relates to the claim of the archbishops of Canterbury to supremacy over the church of York); 18. Letter of Simeon of Durham to Hugo, dean of York (1130–32); Vita Thurstim? Archiepiscopi, by an un- known author; 20. Vita St. Willelmi, by an unknown author; 21. Miracula St. Willelmà , 22. Lectiones in Festo Translationis St. Willelm; ; 23. Miscellamea, relating to archbishop Scrope; 24. Chronica Pontificum. Ecclesiae Eboracensis, 3 pts. (the second part perhaps by Thomas Stubbs, a dominican); 25. Chrom?cae Metricae duae; 26. Chrom?ca de Arch? episcopis Ebora- censibus.-Vol. III contains letters and other documents (from 930 to the reformation) connected with the his- tory of the northern bishoprics. Registrum Malmesburîense. The Register of Malmes- bury Abbey; Preserved in the Public Record Office. 2 vols. Historical Works of Gervase of Canterbury, 2 vols. Gervasius became a monk in 1163; he probably lived from 1141 to 1210. Vol. I contains the larger chronicle of Gervase, in which the reigns treated at length are those of Stephen, Henry II and Richard I. Some minor treatises precede. Vol. II contains: 1. Gervase's shorter chronicle (Gesta Regum), beginning with Aeneas; down to 1200 or 1210 written by Gervase; from that time to 1328 continued by different contem- porary writers; 2. Actus Pontificwm Cantuariens’s Ecclesiae (597–1207); 3. Mappa Mund?, contains, in particular, list of the monasteries in England and the episcopal sees of all countries. XI. V. COWSPAECTUS OF LITERA TURE 52I Edźtor. Tºtle, etc. Arnold, T. Arnold, T. Stubbs, W. Henricº Archidiacomº Huntendumensis Historia Anglorum. In eight books, covering the years 55–1154. Written in several editions, issued from 1130 to 1154. The Historical Works of Symeon of Durham. 2 vols. The author became a monk circ. 1083; between 1104 and 1109 he wrote the Historia Dunelmensis Ecclesiae, carried to 1096, many years later his general history Historia Regum; he died probably about 1130. Vol. I contains: Historia Dunelmen S7s, with con- tinuations to 1154. Also the following, by various authors: De Injusta Veºcatione Wºllelmº Episcop? prim? : Historia de St. Cuthberto; De Obsessione Dumelim?, an Anglo-Saxon poem; Epistola de Arch?- episcopis Eboraci ; Capitula de Miraculés et Transla- tionibus; Carmen Aethelwulf: ; Vita Bartholomae? Anachoretae; Vita St. Oswald? Regis. Vol. II con- tains: Simeon’s Historia Regum (the first part gives a history of the years 731–957, the second goes back to 848 and covers, much use being made [down to 1118 of Florence of Worcester, the time to 1129); John of Hexham's continuation embracing the years 1130–53; also the following minor treatises: second part of Capitula de Miraculés et Translationibus, De Primo Saaconſum. Adventu, Carmen de Morte Sumerled?, Series Regum Northymbrems?um. Chronicles of the Reigns of Edward I and Edward II. 2 vols. Vol. I contains: Annales London?enses. IFrom 1194 (begins in the middle of a sentence) to 1316, with some further notices from the years 1317, 1829, 1330. A lacuna between 1293 and 1801. Down to 1289 based largely on the Flores Historiarum (No. 95), after- wards original. When the Annales were written or by whom is not known ; Stubbs supposes (vol. I pp. xxiii. ff.) that Andreas Horn (died 1328) may perhaps have composed the part to 1316. 2. Annales Paulin?, 1307-41; the author is not known, he had some con- nexion with St. Paul’s, London; the part from 1332 onwards is almost identical with the chronicle of Murimuth (No. 93). Vol. II contains: 1. Commendatio Lamentabilis in Transitu Magn? Regis Edward?. A lament on the death of Edward I. The author is John of London,...of whose history nothing certain is known; written soon after the death of Edward I (1307). 2. Gesta Edward; de Carnarvon and Gesta Edward? III, 1307-39, with brief notes down to 1877. Both parts were composed in a house of regular canons at Brid- lington, contemporaneously and, down to 1889, perhaps by the same person; in the present form of the work the second part and at least the close of the first have been revised, not before 1361, probably after 1377. 3. Monach? cujusdam Malmesburgensås Vita Edward? II, 1307–25, with additions, taken from Higden (No. 41), down to 1848. According to Stubbs, the author was not (as Hearne supposed) a monk, but probably Some university teacher or learned lawyer; the connexion with Malmesbury is doubtful. It is uncertain when the work was written—Stubbs surmises towards the end of the reign of Edward II. 4. Vita et Mors Ed- APPEN DIX 77 78 79 80 81 82 83 Editor. Title, etc. Martin, C. T. Jones, W. H. R. Hart, W. H. and Lyons, P. A. Gilbert, J. T. Bule, M. Howlett, R. Macray, W. D. ward? Secund? Regis Angliae, ‘conscripta a Thoma de la Moore,’ 1807–1327. Not by Thomas de la Moore, but an extract, with trifling changes, from the shorter chronicle [he wrote also a longer chronicle] of Geoffrey le Baker of Swinbrook, Oxfordshire (edited by Giles, 1847), written in 1847. Baker states that he used a French biography by Thomas de la Moore; this French original is not known. Thomas de la Moore accom- panied (1827) one of the bishops who induced the king to abdicate. [In the appendix to the Introduction to vol. II is an extract from the chronicle of the monas- tery of Barling ; on this chronicle cf. Introduction, pp. xxxix ff.) Registrum Epistolarum, Fratris Johannis Peck- ham (archbishop of Canterbury, 1279–92). 3 vols. Register of S. Osmund (bishop of Salisbury, 1078– 99). Cf. No. 97. ** Chartulary of the Abbey of Ramsey. 2 vols. The 3rd vol. is in preparation. (Cf. also No. 83.) Chartularies of St. Mary's Abbey, Dublin, with the Register of its House at Dunbrody, County of Weac- ford, and Annals of Ireland, 1162–1870. Eadmeri Historia Novorum in Anglia, et opuscula duo de Vita Sanct; Anselmº et Quibusdam MŽraculis éjus. The several books of the Historia Novorum, were probably completed by degrees, what are now the four first (originally, three) probably in or shortly before 1112. The author kept making changes in his Original text down to his death (according to Hardy, No. 26, II, 147, circ. 1124; according to Haddan and Stubbs, Counc, II, 209, on 13th Jan., 1124; whilst Rule, pp. lv-lix, gives circ. 1144). The chronicle, after a short introduction beginning with the year 960, covers the time from 1066–1122. (Cf. also Ragey, Fadmer, Paris and Lyon, 1892; but he rates the trust- worthiness of Eadmer too highly.) Chronicles of the Reigns of Stephen, Henry II and Jężchard I. 4 vols. Vol. I contains: William of New- burgh, Historia Rerum Anglicarum (covers the years 1066–1198; written probably 1196–8; on the authorities used see Introduction to vol. I), books I–IV ; vol. II: book V of that work; the continuation down to 1298; and Draco Normannicus by Etienne de Rouen; vol. III: Gesta Stephan?" Regis (covers the years 1185–47); the chronicle of Richard of Hexham ; the Relatio de Standardo of St. Aelred de Rievaulx; the poem of Jordan Fantosme ; and the chronicle of Richard of Devizes; vol. IV : chronicle of Robert de Torigni [= de Monte (consists of additions to the chronicle of Sigebert de Gemblours from 94–1100, and of an original chronicle for the years 1100–86; written by degrees, 1150–86); and Continuatio Beccensis (relating to the years 1157–61). - Lºber benefactorum ecclesiae Rames?ensis. Prob- ably written circ. 1160–70 by an inmate of the Ramsey monastery; of the author's history nothing is known. The work covers the time from the beginning of the 10th century to 1167 (later additions made); it con- XI. V. COWSPECT US OF LITERA TU RE 523 84 S6 87 88 89 90 Editor. Title, etc. Hewlett, H. G. Sheppard, J. B. Wright, W. A. Eurnivall, F. J. Wigfusson, G. Stokes, W. Stubbs, W. tains a history of the founding of Ramsey, a biography of St. Oswald and a biography (covering the years 1135–60) of abbot Walter, the rest of the volume being made up chiefly of extracts from and copies of docu- ments serviceable for a history of the monastery. In the appendix similar documents down to 1471. Chronica Roger de Wendover, sive Flores Histori- arºm. 3 vols. The chronicle of Wendover covers the time from the creation to 1235. This edition is only of the part from 1154 to 1235. For the earlier period and probably down to the end of 1188 Wendover used nothing but an earlier compilation (cf. No. 57). He was (1224–31) deprived of his office as prior of Belvoir, and from then to his death (1236) was historiographer in the abbey of St. Albans. The Letter Books of the Monastery of Christ Church, Canterbury. The letters are from the years 1296–1833. The Metrical Chronicle of Robert of Gloucester. The chronicle (from the earliest time down to 1270) has been preserved in two forms. The second contains down to 1135 interpolations wanting in the first, them, after 1135, a shorter text totally different from that of the first. The variations of the second form are printed in the appendices. The chronicle is in Glouces- tershire dialect ; the author of the first form calls himself Robert, and probably wrote circ. 1300; nothing else is known of him. For the time down to 1135 an earlier work perhaps served as a basis; for that from 1256 onwards the chronicle is an independent autho- rity. Chronicle of Robert Manning of Brunne, 1338. 2 vols. Manning's English rhyming chronicle covers the time from the creation. Printed here is only the first part of the chronicle (down to king Cadwalader, end of 7th cent.). This part is almost entirely a translation from the French of Wace. The second part (edited by |Hearne, 1725; reprinted 1800) is a translation from the French of Peter of Langtoft (No. 47). Manning, born in Brunne (Bourne), was a member of the Gilbertine order, and resided at Sempringham and other neigh- bouring establishments of the order ; he lived under |Edward I, Edward II and Edward III. Icelandic Sagas and other Historical Documents re- lating to the Settlements and Descents of the Northmen on the British Isles. Vol. I: Orkneyinga Saga, and Magnus Saga. Vol. II: Hakonar Saga, and Magnus Saga. Wols. III and IV (edited by Dasent) are in preparation. º The Tripartite Life of St. Patrick, with other docu- ments relating to that Saint. Willelmº Monach? Malmesbāržensis de Regum Gestis Anglorum, libri V, et Historiae Novellae, libri III. William of Malmesbury was probably born circ. 1095. The Regum Gesta were written shortly before the Gesta Pontificum (1125; cf. No. 52); the author, by circ. 1135 or 1140, had made at least two further revisions. The Historiae Novellae relate to the time from 1125–1142, and were written 1140–1142. APPENDIX Editor. 92 93 94 96 Hardy, T. D., continued by Martin, C. T. Lumby, J. R. Thompson, E. M. Gilbert, J. T. Luard, H. R. Arnold, T. Title, etc. Lestorie des Engles by Geffrey Gaimar, with transla- tion. 2 vols. Covers the time from the struggles of the Anglo-Saxons against the Britons to 1100. Of the author nothing certain is known. He wrote before 1147, probably after 1135. Chronicle of Henry Knighton, Canon of Leicester. The volume which has appeared covers the time from kings. Eadwi (from 955) and Eadgar (959–75) to 1335. (For the rest of the chronicle see, for the present, Twysden's edition.) The chronicle comes down to 1895. Continuation of this edition is preparing. Adae Mwrimuth, Continuatio Chronicarum, and Robertus de Avesbury, De Gestàs Mirabilibus Regis Edward? III. Adam Murimuth lived 1274(5)–1847; he was at last canon in London and rector (cf. No. 76, vol. I, pp. lx ff.; vol. II, p. cix, note 1); his chronicle embraces the years 1303–47; in its present form it was begun after 1825 and appeared probably in at least three successive editions, the first going down to 1337, the second to 1341, the third to the death of the author. Robert of Avesbury was registrar of the archiepiscopal court at Canterbury; particulars of his life are not known ; his chronicle, after a short introduction, covers the years 1325–56 and treats especially of external history. Chartulary of the Abbey of St. Thomas the Martyr, Dublin. Flores Historiarum. Vol. I: from creation to 1066; vol. II: 1067–1264; vol. III: 1265–1326. This chronicle was written down to 1265 at St. Albans, then removed to Westminster and continued there. To 1250 it is mainly taken from the Chronica Majora of Matthaeus Parisiensis (No. 57), To 1259 it is based on the works (Nos. 44 and 57) of Mat. Paris. and other authorities for the most part still extant; for the later time made up of notes of a large series of apparently contem- poraneous writers. The chronicle was long ascribed to Matthew of Westminster; but probably no such person ever existed and the name is due to a misunder- standing. Memorials of St. Edmund's Abbey. 2 vols. have appeared; a third is in preparation. Vol. I contains: Abbo de Fleury, Passio St. Eadmund' (written towards end of 10th cent.); Hermannus archidiaconus, De Miraculis St. Eadmundź (covers the years 870–1095); Gaufridus de Fontibus, De Infantia St. Eadmund? (dedicated to the abbot Ording, 1148–56); abbot Samson, De Miracul’s St. Eadmund? (introduction written before 1180); Jocelin de Brakelonde, Chronica (con- temporaneous, covers the years 1173–1203); appendices. Vol. II contains: Annales S. Edmund' (author un- known; covers years 1–1212; only in part printed); Electio Hugonis Abbatis (1211–15); Epist. Robert? Abbat's de Thorneye; Denis Piramus, La Vºe St. Edmund (written approximately about 1240); Electio Symon's as abbot (1257); Processus contra Fratres Minores, qualiter eacpulsi erant de villa St. Edmund? (1256–63); Gesta Sacristarum (1065 to end of 13th X I V. COMSPECT US OF LITERA TURE 52 5 No. 97 98 Editor. Title, etc. cent.); Electio Thomae as abbot (1301–2); Depraedatio Abbatiae (1326–31); appendices. Jones, W. H. R. Charters and Documents, illustrating the History and Macray, of the Cathedral and City of Sarum, 1100–1300; form- W. D. Žng an Appendèac to the Register of S. Osmund. Cf. No. 78. Maitland, F. W. Records of the Parliament holden at Westminster on Feb. 28th, 1305. In preparation are:— Twiss, T. Ranulf de Glanvill, Tractatus de legibus et consue- tudinibus Angliae. Hall, H. The Red Book of the Ecchequer. (d) The most important of the chronicles which have not as yet appeared in the preceding collection, but are occasionally cited in this book are here given, with the best editions:— Asser. De Rebus Gestis Aelfred? in Monumenta Historica Britannica, vol. I. 1848 edited by Petrie, Sharpe, Hardy. Covers the years 849–893; down to 887 it is in great part a translation of the Anglo-Saxon chronicle. Asser died in 908 or 910. Beda. Historia Ecclesiastica Gentis Anglorum. Quoted from the edition of Stevenson for the English historical society, London, 1841. Also printed in Monumenta Høstorica Britannica. Beda died about 734; his work covers from the earliest period of British history to 731. Authorities are specified in the introductory letter to king Ceolwolf—The old English ver- sion of Bede's Ecclesiastical History of the English People, edited with a translation and introduction by Thomas Möller. (Publications of the Early English Text Society.) London, 1890.-Beda, minor historical works (Vita St. Cuthberté, etc.), edited by Stevenson for the English historical society. London, 1841. Florentius Wigormiensis. Chronicom. The author, Florence of Worcester, was a monk of Durham who died in 1118. The work covers the time from 450 to 1117. Various hands have carried on the chronicle to 1141 and then to 1297. The basis is the chronicle of Marianus Scotus, so far as that extends. Florence made additions, mostly borrowed from Beda, Asser, the Anglo- Saxon chronicle or the lives of the English saints. The additions of |Florence to the chronicle of Marianus down to the year 1000 and the chronicle of Florence, including the parts borrowed from Marianus, for the years 1000–66, are printed in Monumenta Britammºca. The additions of |Florence to the chronicle of Marianus and the continuations of Florence and others to 1297 were edited by Thorpe for the English historical society. 2 vols. 1848–49.-Marianus Scotus, born circ. 1028, died circ. 1082, was an Irishman, who spent the chief part of his life in Köln, Fulda and Mainz. His gronicle is printed in Monumenta Germaniae Historica, Scriptores V, 481 ff. Galfredus Monumetensis. Historia Britonum, ed. Giles. London, 1844. Geoffrey of Monmouth became bishop of St. Asaph in 1152. The work assumed its present form in 1147; but was extant in some earlier form in 1139. “It does not appear that Geoffrey was acquainted with a single historical fact relative to transactions subsequent to Julius Caesar, which he did not derive from Gildas, Beda or Nennius; it is probable that Eutropius and Orosius were consulted; and possibly Suetonius may have been known to him.” The whole as it stands is not, what it professes to be, a translation of a narrative written in the British tongue. Hardy in Her. Brit. Scr. No. 26, I, 341 ff.; Tedder in Dict. of Nat. Biography s.v. Geoffrey; Zimmer, Nenn?us Vindicatus, p. 277. Gildas. Liber querulus de eaccidio Britanniae. Printed in Monumenta His- 526 APPEAV DIX torica Britannica. Another edition by Stevenson for the English histori- cal Society, 1838; after the latter a German edition by San-Marte (A. Schulz), Berlin, 1844. Gildas lived from circ. 516 to circ. 570. He wrote this book about 560, going back therein to the conquest of Britain by the Romans. See more in Stevenson's introduction, in Haddan and Stubbs, Counc. I, 44, note t, and in Hardy, Rer. Brit. Scr. No. 26, I, 132 ft. Ingulphus, abbot of Croyland. Chrom?cle. Latest edition by Walter de Gray Birch, Wisbech, 1885. Previously last by Fulman, Oxford, 1684. Ingul- phus was Secretary of William the conqueror; but the monastic history ascribed to him belongs, according to Palgrave, Essay on the sources of Anglo-Saxon history, Quarterly Review, 1826, vol. 34, No. 67, pp. 289–98 (quoted in Schmid, Gesetze der Angelsachsen, Introduct. p. 59), at earliest to the end of the 12th or beginning of the 13th cent. ; it contains spurious documents. On the credibility of the chronicle see Riley in the preface to his translation in Bohn's historical library, 1854; Henry Scale English. A light on the historians and on the history of Crowland Abbey, London, 1868; Liebermann in Neues Archiv der Gesellsch. f. deutsche Geschächts- lcunde, XVIII, 225 fſ. Nennius, Eulogium Britanniae sive Historia Britonum in Monumenta His- torica Britannica. Another edition by Stevenson for the English historical society, 1838; German edition by San-Marte (A. Schulz), Berlin, 1844. On this work see Heinrich Zimmer, Nenn?ws Wºnd?catus, tiber Entstehung, Geschächte und Quellen der Historia Brittonum, Berlin, 1893, by whom the subject of the personality of the writer and the authenticity of the Historia Brittonum has been exhaustively discussed. According to him the original work, Volumen Brittania, based on Gildas and later continua- tions, was written in 796 by Nennius, who lived in South Wales. As to the later corruptions and additions, cf. p. 275 l.c. Nicholaus Trevet. Annales Sea Regum Angliae, quº a com?tibus Andegavens?- bus Orăgănem traocerunt, 1186–1807. Edited by Hog for the English historical society, 1845. The author was the son of Thomas Trevet, one of the itimerant justices in 1272; he entered the Dominican order and died after 1830, probably not much later. Ordericus Vitalis. Historiae Ecclesiasticae libri tredecám. Edited by Augustus le Prevost for the Société de l'histoire de France. 5 vols. Paris, 1838–55. The writer was born in England, 1075; from 1085 onwards he lived as a monk in Normandy. His history, in which English affairs are fully treated, covers the time from the birth of Christ to 1141. He wrote his book circ. 1123-41; whether he lived long after the latter year is not known. See more in Introduction to vol. V of the edition cited. Unknown author. De Inventione Sanctae Crucis nostrae ºn Monte Acuto et de ductione ejusdem apud Waltham. Edited by Stubbs, Oxford and London, 1861. Relates to the foundation of Waltham abbey, 1059–60. The author was probably born in 1119, and was canon at Waltham till 1177. Walterus de Hemingburgh (called also Hemingford or Gisseburn). Chron?con de Gestis Regum Angliae, Edited by Hamilton for the English historical society, 1848, 49. The chronicle covers the years 1048–1815 and 1327–46. The author was sub-prior of Gisburn. (Rer. Bråt. Scr. No. 61 p. 160); he died after 1st Nov. 1302, but how long after is not known. The part of the chronicle after 1307 is not by him; perhaps also not the part from 1297– 1307. Yet the history of the three Edwards seems to be by contemporane- Ous writers. + 2. Law-books and legal treatises from the beginning of the 12th to the beginning of the 14th century. Instituta Cnut allorumque regum, Anglorum. Printed complete (with a Pro- Cºmžum and conclusion belonging not to this work, but to the Cons?!?atio Cnut') under the title Legum Reg’s Canut Magn? . . . versio antiqua latºna €3: Codžce Colbertimo by Kolderup-Rosenwinge, Kopenhagen, 1826. Consists of three parts; the first two are chiefly a translation of the eccle- siastical and Secular laws of Knut with slight alterations; the third is a X I V, CO WSPECT US OF LTTE RATURE 527 freer compilation of translations and extracts from various Anglo-Saxon enactments and legal documents with some remarks by the author himself. The third part (with the concluding lines not belonging here) is printed in Schmid, Gesetze der Angelsachsen, append. XX, under the title Pseudo- leges Canuti. On this law-book cf. Felix Liebermann, On the Instituta Cnut allorumque regum Anglorum in Transactions of the Royal Histori- cal Society, new series VII, 77, London, 1893. The book was certainly written before 1140 (that being the date of the oldest MS), probably (Liebermann, pp. 83, 93) about 1110, because there is allusion in it to the ordinance of Henry I touching hundred moots (cf. § 60, note 4). Quadrápartitus. Only the introductions and books I and II are known ; whether books III and IV, which were intended to be written, as we gather from the scheme indicated in the preface, were really written has not been ascertained. The part preserved has been edited by Liebermann, |Halle a. S., 1892; where see more about the book. Bk. I contains a trans- lation of most of the still extant Anglo-Saxon laws and legal treatises. [Liebermann generally gives only the headings, referring to Schmid l.c., who prints the text as Vetus versio.] Book II contains a collection of documents of the years 1100–1109/11, partly with connecting text. Accord- ing to Liebermann, l.c. pp. 39 ft., the various passages were prepared for several years down to 1114, the preface to bk. II between 1114 and 1118; correction in matters of detail could have been made by the author down to circ. 1150; the writer was probably an ecclesiastic at the king's Court. - Consiliatio Cnut. Edited by Liebermann, Halle a. S., 1893. Consists of a short introduction, of a translation of the laws of Knut and of three short Anglo-Saxon treatises. The translation contains Small changes and addi- tions. The work was, according to Liebermann, written between 1102 and 1163, very probably before 1150. Cnut. Constitutiones de Foresta. Printed in Schmid, Gesetze der Angelsachsen, as Knut III. The treatise professes to be a law of Knut, but is in reality of the twelfth century; the Instituta Cnut are used. Liebermann in Zeit- schrift der Savigny-Stiftung, German. Abteilung XV, 174; cf. Schmid, l.c. p. lvi. Leges Edward? Confessoris. Printed in Schmid, Gesetze der Angelsachsen, append. XXII, not, however, according to the oldest MSS. The time of composition is unknown ; probably, the first third of the twelfth century. William II is mentioned as if no longer reigning. According to Lieber- mann, Introduction to Džalogus de Scaccario, pp. 71 ff., written in the reign of Henry I. Phillips, relying on a remark in the chronicle of Hove- den, supposes that Glanvilla was the author; this view is rejected by Schmid and Liebermann; cf. also Stubbs, Rer. Bråt. Scr. No. 51 vol. II p. xlix. A revision of the book was made before 1154, probably after 1139; the version in Hoveden rests on this revision (Liebermann, Uber die Leges Angl. saec. XIII ineunte Londoniis collectae, pp. 28 f.; cf. also Liebermann, Zu den Gesetzen der Angelsachsen, in the Zeitschr. der Savigny-Stiftung, Germanic section, V, 224; Stubbs, l.c. pp. xliii f.).- William I and Henry I referred to the leges Edward? as amended by William I as to valid law. William I, Laws III, 13 (in the better text in Hoveden II, 217, c. 17), Carta Henric; I in Statutes of the Realm. I Charters, p. 2. Leges Regis Henric; Prim?. In Schmid, l.c. append. XXI. The first two chap- ters are charters of Henry I. The preface, which refers to these two chapters, must have been written before 1118, as Mathilda, Henry's con- sort, is mentioned as living; from c 3 onward the leges are a private work. It has been disputed when the latter part was written ; but as the legisla- tive reforms of Henry II are not noticed, we gather that the law-book is not later than the first years of his reign. According to Liebermann, Dže Abfassungszeit der leges Henric; I, in Forschungen zur Deutschen Ge- sch?chte XVI, 582, there is no reason to suppose that the part from c 3 onward was written later than the preface. Cf., however, the authorities 528 APPEN DIX he cites for a contrary opinion. As in c. 7 § 1 the ordinance of Henry I touching hundred-moots (cf. § 60, note 4) is referred to as lately (nuper) issued, the leges are, at any rate, not older than circ. 1110. According to Schmid l.c. Introduction p. lxx the Vetus versio (cf. above, Quadrápartitus) was used. As to the title, whether it is original and whether it belongs to the whole law-book or only to the introductory charter (of 1100), these are questions not yet satisfactorily answered.—Stephen in his shorter charter (Statutes of the Realm, I Charters p. 4) confirmed the laws of Henry I and the leges Edward?, i.e. the law as it was in the time of Edward. Henry II referred to the law as under Henry I as valid law. Cf. § 4, note 40. In the leges Henrici I the reference is to the leges Edwardź. Cf. § 60, note 24. Dialogus de Scaccario. Printed in Madox, History of the Exchequer and in Stubbs, Select Charters. Written in the reign of Henry II—according to the preface, in 1177—by Richard, king's treasurer from circ. 1159 to 1198, from 1189 onwards bishop of London. . Cf. Liebermann, Einleitung in den Dialogus de Scaccario, Göttingen, 1875. According to Stubbs, Rer. Brit. Scr. No. 49, vol. I p. lx the Dialogus was probably written between 1181 and 1188. Tiebermann, on the other hand, supposes that the date of com- position was 1178–9. Radulphus de Glanvilla. Tractatus de Legibus et Consuetudźnibus Regn? Angliae. Edited by John Rayner, London, 1780. Also printed as an appendix by Georg Phillips, Engl. Reichs- und Rechtsgeschächte, Berlin, 1827. An edition is in preparation for the Rer. Brit. Scr. series. Glan- villa was chief justiciar of England, 1180–90. It is disputed whether he wrote the treatise himself, or whether it was only written during his tenure of office and by another. (For the latter view see especially F. W. Mait- land in Džct. of Nat, biography under Glanville.) The date of composition is not precisely known; the assize of Northampton (1176) is, however, noticed. According to Liebermann, Einleitung in dem Dialogus de Sc. p. 74, the completion of the work falls between November 1187 and July 1189. London collection of legal documents. Carefully described and some small parts printed by Liebermann, Uber die Leges Anglorum saeculo XIII ineunte London??s collectae. Halle a. S., 1894. The collection contains some intro- ductory explanations of words and statements of the number of counties and hides in England (both explanations and statements based on older compositions); further, an edition of the Quadrápartitus and of a revision of the laws of William I and of the Leges Edward; Confessoris ; lastly, legal monumenta from the time of the first Norman kings (included are the leges Henrici I) down to 1197, also documents to Magna Carta of 1215 inclusive, probably added afterwards by the same writer; all this inter- spersed with other matter; the documents are in many places intention- ally corrupted. The author is unknown ; according to Liebermann, l.c. p. 91, the work was written after 1206, probably all except the later addition mentioned, before 1215; this addition probably circ. 1217, perhaps, how- ever, not until after 1244.—Cf. the collections (related to this) from a later time in Rer. Bråt. Scr. No. 12. - Henricus de Bracton (= Bratton). De Legibus et Consuetuděmčbus Angliae. Edited by Twiss in Rer. Brit. Scr. No. 70. 6 vols. In this edition, as not all the MSS have been regarded, several passages have been admitted into the text which are apparently later additions. On the work of Bracton cf. Rarl Güterbock, Henricus de Bractor, und se?n Verhältn?s 2wm Römischemi Rechte, Berlin, 1862; English translation of the last named work by Brinton Coxe, Philadelphia, 1866, with some additions of his own ; F. W. Maitland, Bracton's Note-Book (?.e. a collection of notes of cases, probably made at Bracton's suggestion, at all events largely used by him for his work. Wols. II and III contain the text; vol. I, the introduction, index etc.), London, 1887, 3 vols. Bracton was justiciar under Henry III. The date of his birth is unknown. He died probably in 1268 (Twiss, vol. II, p. xii). In no part of his work are the alterations in the provisions of XIV CONSPECTUS OF LITERATURE 529 law made in 1258 and 1259 noticed. In one passage there is an allusion to the possible election of Richard of Cornwall to the imperial throne (negotia- tions in 1256–7). Thus the work was probably completed in 1257. Twiss supposes that the several tractatus of which it is made up grew by degrees, the oldest being before the resignation of judicial office by Pateshull (1232; so Twiss, vol. I p. xiv.; but the year given is due to a mistake in the dating [16 instead of 11 Hen. III=1226–27] in some MSS; Pateshull died in 1229. Maitland I, 45, note 3); for particulars as to the times when the various tractatus were written see Twiss, Introduction to the several volumes. According to Maitland, I, 37–44, Bracton used preferentially decisions be- fore 1240, but wrote the book as a whole probably circ. 1250–7. Revision of Glanvilla's law-book. Written or only transcribed by Robert Carpenter of Hareslade, who laboured in 1265, but also long after 1272. See Maitland, Glanvill revised, in Harvard Law Review, 1892, and Intro- duction, p. 6, to The Court Baron (Selden society, 1891). Les Encoupemen2 [=?nculpamenta] en Court de Baron. Printed by Maitland, The Court Baron, pp. 19 ff. Date of composition not precisely known. Consisting of three parts, of which a portion of the second part and the third part are probably later additions; the apparently older part was tran- scribed by Robert Carpenter of Hareslade. Brevia Placitata. Unprinted; probably written in the years before 1272; described by Maitland, The Court Baron, Introduction p. 11. Treatise probably by John of Oxford. Consisting of four parts, of which there belong here: 1. Collection of formularies (unprinted; probably com- pleted shortly after 1280; extract given by Maitland in The Law Quarterly Feview, 1891, pp. 63 ff.); 3. De Placătăs et Curiès tenendès (probably * shortly after 1269); printed by Maitland, The Court Baron, pp. 68 ff.). Officium Justiciarżorum (probably written soon after 1280) and two other treatises. All unprinted; described by Maitland, The Court Baron, Intro- duction pp. 15 fſ. Fleta, seu Commentarius Juris Anglican? (called Fleta, because written in the prison of that name). The author is unknown. The treatise is apparently to be assigned about to the year 1290. Latest edition in Houard, Traités Sur les Contumes Anglo-Normandes, publiés en Angleterre depuis le On 27ème jusqu'au, quatorzième Siècle. Rouen, 1776. Vol. III. Britton, The French Teact . . . with an English translation, Introduction and Notes, by Francis Morgan Nichols, 2 vols. Oxford, 1865. In its present form (which is probably the original one) it belongs to the time be- tween 18 and 23 Ed. I, probably 1291–2. Professes to be a codification of existing law, published by king Edward I. Probably the king did cause Such a treatise to be written, but this work was not set forth by public authority. The authorship is disputed. Perhaps the name Britton is identical with Bracton. Bracton and Fleta are both used. Radulphus de Hengham. Summa Magna and Summa Parva (edited, as an appendix to Fortescue, De Laudžbus Legum Angliae, by Selden. London, 1616). The author was Chief Justice of the King's Bench, 1274–90, Chief Justice of the Common Pleas, 1301–9. He died about 1308–11 (Hardy, Rer. Brit. Scr. No. 26, III, 346). When he wrote the treatises is not precisely known. According to Twiss, Bracton, vol. VI pp. lix, lxi, the Summa Magna was written after 54 Hen. III (1270), the Summa Parva after 18 Ed. I (1289–90). Mºrrow'r awa, Justices, in five chapters. Printed at London, 1642. The first four chapters are in Houard, Traités,etc. IV, 463 ff. A new edition by T. W. Whitaker for the Selden society is in preparation. According to Houard l.c. the first four chapters are by Andrew Horne, who—Coke, Re- ports, Ed. 1826, pt. X, p. xxv, “as it is supposed '—wrote at the end of the thirteenth century; whilst the fifth, which mentions usages which origin- ated under Edward II, was added by some unknown writer after Horne's death. But Horne died in 1328. On this Andrew Horne see Riley in Rer. Brit. Scr. No. 12, vol. II p. ix, and Stubbs, Rer. Bråt. Scr. No. 76, vol. I p. H.C. M. M. 530 APPENDIX xxiii. According to Twiss, Bracton, vol. III p. xiv, the Mžrrour awa, Ju8- tices was written at the earliest in Britton's day, probably later. Modus tenendi curias (probably composed for John of Longueville), printed by Maitland, The Court Baron pp. 79 f. Written in or shortly after 1307. [Another Modus tenendi curias, composed for the abbey of St. Albans, written or revised about 1842, is printed l.c. 93 ff.) - Regiam Majestatem, mainly identical with Glanvilla, but in different order and with some alterations and additions, of which a part are old Scottish laws. The author is unknown. The book professes to have been issued upon the mandate of David (I) of Scotland (1124–53), but is in reality, at earliest, of the beginning of the 14th cent. Printed as appendix I to Acts of the Par- liament of Scotland (edit. of Record Commission), I, 597 ff.; in I, 135, Regiam Majestatem and Glanvilla are printed side by side for purpose of Comparison. 3. Modern works on church history. (a) Referring to both ancient and modern periods. Baxter, J. A. The Church History of England from the Introduction of Chº?s. tianity into Britain to the Present Time. 2nd Ed. London, 1849 (first Ed., London, 1846). Collier, Jeremy. An Ecclesiastical History of Great Britain, chiefly of Eng: land, from the first planting of Christianity, to the end of the Reign of King Charles II; with a brief account of the Affairs of Religion in Ireland. 1708 ft. New Ed., London, i952, by Lathbury, 9 vols. (The last volume contains a collection of documents.) Dodd (= H. Tootell). The Church History of England from 1500 to 1688, chiefly with regard to Catholicks; . . . to which is prefixed a general history of ecclesiastical affairs under the British, Saacon and Norman Periods. 3 vols. Brüssel, 1737. Foxe, John. Commentariº Rerum in Ecclesia gestarum, maacºmarumque, per totam Europam, persecutionwm, a Wiclevå temporºbus ad hanc usque aetatem descriptio. Strassburg, 1554. A later Latin edition : Basel, 1559, The first English: London, 1563, with the title Actes and Monumentes of these latter and perilous dayes, touching matters of the Church e (Contains in particular a history of religious persecutions from 64 to 1558, with ſºcial reference to England.) New edition in 8 vols. Dondon, 1843–49. Fuller, Thos. The Church History of Britain ; from the Birth of Jesus Christ wntill 1648. London, 1655. New edition in 6 vols, by Brewer. Oxford, 1845. Jennings, Arthur Charles. Ecclesia Anglicana, A History of the Church ºf Christ in England from the earliest to the present times. London, 1882. 1 vol. Inett, John. Origines Anglicanae, or, A History of the English Church from the conversion of the Énglish Saxons till the death of King John. 1704 ft. New Ed. in 2 vols. by John Griffiths, Oxford, 1855. . . . . Parker, Matthew, archbishop of Canterbury. De Antiquitate Britann?cae Ecclesiae et Privilegås Ecclesiae Cantuariensis, cum Archiepiscop's eiusdem 70. London (Lambeth), 1572 (probably only 25 copies issued). 2nd Ed. Hanoviae, 1605. (Covers the time from the introduction of Chris- tianity to 1558.) § Perry, G. G. A Hºstory of the English Church (from the first planting of Christianity to the present day). References are to the following editions: vol. I, 4th Ed., 1888; vol. II, 5th Ed., 1888; vol. III, 1st Ed., 1887 (an older book by the same author, covering the period 1603–1800, bears the title The History of the Church of England from the death of Elizabeth to the present tº me. 3 vols. Iondon, 1861–64). tº & Stăudlin, Carl Friedrich. Allgemeine Kärchengeschächte von Grossbråtann?en, Göttingen, 1819, - XI. V. CO.VSPECT US OF LITERA TURE 53 I (b) Roman, British, and Anglo-Saxon periods. Bright, William. Chapters of Early English Church. History. 2nd Ed., Ox- ford, 1888 (from the introduction of Christianity in Roman times to the death of Wilfrid, circ.709). Lingard, John. The History and Antiquities of the Anglo-Saacon Church. London, 1845. 2 vols. (this is the edition to which reference has been made). Reprinted London, 1858. Lloyd, William. Am. Historical Account of Church Government as it was ºn Great Britain and Ireland when they first received the Christian Religion. London, 1684. Republished in 1842 along with Stillingfleet's Orăgănes. Loofs, Friedrich. Antiquae Britonum Scotorumque Ecclesiae quales fuerint mores, quae ratio credend? et vévemdi, quae controverside cum Romana Ecclesia causa atque vis quaes?vit F. L. Leipzig and London, 1882. Schrödl, Karl. Das erste Jahrhundert der englischen Kärche, Oder Einführung wnd. Befestigung des Christentumes bei den Angelsachsen in Britannien. Passau and Wien, 1840. Soames, Henry. The Anglo-Saacon Church; its History, Revenues and General Character. 3rd Ed., London, 1844.—The same. The Latin Church during Anglo-Saacon Times. London, 1848. (History of papacy in A.-S. times, particularly of its progress in England.) Stillingfleet, Edward. Origines Britannicae or The Antiquities of the British Churches. London, 1685. New edition in 2 vols., Oxford, 1842. (History of British churches to end of 6th cent.) Usher (Usserius), James. Britannicarum Ecclesiarum Antiquitates (also with title De Britannicarum Ecclesiarum Primordiès). Dublin, 1639. 2nd Ed. London, 1687. (History of ancient Keltic churches in England, Scotland and Ireland.) (c) Reformation and modern times. Amos, Andrew. Observations on the Statutes of the Reformation Parliament Žn the Reign of King Henry the Eighth. Iondon and Cambridge, 1859. Böhme, Anton Wilhelm. Acht Bücher von der Reformation der Kirche in England und was von dem 1526. Jahre an . . . bis zu Carol? II Regierung be? derselben Merkwürdiges Sich 2Mgetragen. Altona, 1734. 1 vol. Burnet, Gilbert. The History of the Reformation of the Church of England. 3 parts. London, 1679, 1715. (A collection of documents is appended to each part.) New edition in 7 vols. Oxford, 1865. Carwithen, J. B. S. The History of the Church of England. 3 vols. London, 1829–33. (Covers, after a short introduction, the time from 1524–1689.) Hetherington, W. M. History of the Westminster Assembly of Divines. 4th Ed. by Robert Williamson. Edinburgh, 1878. Heylin, Peter. Ecclesia Restaurata or The History of the Reformation of the Church of England. London, 1661. Several later editions; the last by James Craigie Robertson for the ecclesiastical history society. 2 vols. Cambridge, 1849. Neal, Daniel. The History of the Puritans; or Protestant Nonconformists; from 1517 to 1688, comprising an account of their principles ; their at- tempts for a farther reformation ºn the Church ; their sufferings; and the lives and characters of their most considerable divºnes. 1732–38, in 4 vols. 2nd Ed., Dublin, 1755, in 4 vols. New Ed., London, 1822, in 5 vols. Stoughton, John. History of Religion in England, from the opening of the Long Parliament to the end of the eighteenth century. 6 vols. London, 1881. (The several parts had been issued at intervals, beginning from 1862.)—Ditto. Religion in England from 1800 to 1850. A history with a postscript on Subsequent events. 2 vols. London, 1884. Stubbs, William. Historical Appendèac IV to Report of Royal Commission on Ecclesiastical Courts 1883 (parliamentary Reports, vol. XXIV): A Colla- tion of the Journals of the Lords, with the Records of Convocation from 1529 to 1547, showing the Dates and the Processes by which the Convoca- 532 APPEND IX tions and the Parliament cooperated in Ecclesiastical Legislation and J3vsiness; with such further Information on this point as can be obtained from the State Papers. Strype, John. Ecclesiastical memorials, relating chiefly to religion, and the reformation of it, and the emergencies of the church of England under king Hen. VIII, king Ed. VI and queen Mary I; with large appendžaces contain- Žng original papers, records etc. London, 1721, 3 vols. New ed. Oxford, 1822–Ditto. Annals of the reformation and establishment of religion . . . during . . . Queen Elizabeth's . . . reign. 1st ed. London, 1709; 2nd, London, 1725–31; 3rd, 1735 ff. New ed. Oxford, 1824.—Ditto. Memorials of . Cranmer, first published in 1694, New edition, with additions, in 2 vols. Oxford, 1812. Special works relate to the lives of archbishops Parker, Grindal (new ed. Oxford, 1821), Whitgift. Weber, Georg. Geschächte der Kärchen reformation in Grossbråtanmäen, Leip- zig, 1856. 2 vols. III. Ecclesiastical law. Ayliffe, John, Parergom Juris Canonic? Anglican?. 1726. 2nd ed., London, 1734. (Arranged alphabetically.) Brownbill, John. Principles of English Canon Laºw. Part I, General Intro- duction. London, 1883. (The author often transfers to the Church of #sº legal doctrines which in reality are peculiar to the Roman-Catholic hurch. Burn, Richard. The Ecclesiastical Law. London, 1763. 2 vols. 9th ed., re- vised by Robert Phillimore. London, 1842. 4 vols. (Arranged alpha- betically.) - Clausnitzer, Ernst., Gottesdienst, Kärchenverfassung und. Geistlichkeit der bºschöflèch-englischen Kirche. . . . Berlin, 1817. (A short essay, in which the actual circumstances at the beginning of the 19th cent. are, in parti- cular, described.) Cripps, Henry William. A Practical Treatise on the Law relating to the Church and Clergy. 6th ed., revised by C. A. Cripps. London, 1886. (Systematically arranged.) Degge. The Parson's Counsellor, with the Law of Tythes and Tything. Two books, of which the first deals with the law as regards parishes, the second with the law of tithes. Gibson, Edmund. Codex juris ecclesiastic? Anglican? . . . methodically digested with a commentary. 2nd ed. Oxford, 1761. (Statutes, canons, rubrics etc. under their proper heads.) 2 vols. Godolphin, John. Repertorium Canonicum ; or An Abridgment of the Eccle- : siastical Laws of this Realm, consistent with the Temporal. 1 vol. London, 1678. 3rd ed. London, 1687. (Systematically arranged.) Mocket, Richard. Tractatus de Politia Ecclesiae Anglicanae. First published in 1616; ordered to be burned. 2nd ed. London, 1638. 3rd ed. London, 1705. (A short treatise on the fundamentals of the church constitution.) Phillimore, Robert. The Ecclesiastical Law of the Church of England. 2 vols. London, 1873. Supplement, London, 1876. Stillingfleet, Edward. Ecclesiastical Cases; vol. I relating to the Duties and Rights of the Parochial Clergy, vol. II relating to the Exercise of Ecclesi- astical Jurisdiction. Dondon, 1698, 1704. Zouch, Richard. Descriptio Juris et Judic?? Eccles?astic? Secundum, Canones et Constitutiones Anglicanas. First published in 1636. 2nd and 3rd editions incorporated with the corresponding editions of Mocket, 1638 and 1705. (Systematically arranged.) & * IV. Some important authorities on parts of the history and law of the church, though not specially devoted thereto. Coke, Edward. Institutes of the Laws of England. Part I contains a commen- tary to Littleton upon the different kinds of tenure. Part II contains a commentary to Some of the more important laws especially of the 13th and XI W. COMSPECT US OF LITERA TU RE 533 14th cents. Part III relates to criminal law [c 5, heresy; c 23, to depart the realm to serve forain princes; c 31, transportation of money; c. 36, bringing ºn of bulls; c 37, receiving of Jesuites; c. 50, clergy; c. 51, abjuration and sanctuary; c. 54, premum?re; c. 71, Simony; co 80–82, Rirchenfriede ; c. 84, fugitives etc. or such as depart the realm without lºcence . . . ; c. 92, recusants]. Part IV contains a treatise on the various Courts, among them the ecclesiastical. Freeman, E. A. The History of the Norman Conquest of England, its causes and Žts results, 5 vols. London, 1867–76; in 1879, an index volume. 2nd ed. Oxford, 1870 fſ. 3rd ed. Oxford, 1877 ff. Gneist, Rudolf. Englische Verfassungsgeschächte, 1 vol. Berlin, 1882. Kemble, John Mitchell. The Saacons in England. A History of the English Commonwealth till the period of the Norman Conquest. London, 1848. New ed. by Walter de Gray Birch, London, 1876. 2 vols. [BK. II c. 8, the bishop; c. 9, clergy and monks; c 10, income of clergy. Appendix B, tithes; D, church-scot.] Palgrave (Cohen), Francis. The Rise and Progress of the English Common- 106<h. Anglo-Saacon Period, 2 vols. (the second consists of minor Supplementary investigations, Proofs and Illustrations). London, 1832– Ditto. The History of Normandy and of England (to 1101). 4 vols. Tondon, 1851–64. Reprinted, London, 1878. Phillips, Georg. Versuch einer Darstellung der Geschächte des Angelsächs- Żschen Rechts. Göttingen, 1825.-Ditto. Englische Reichs- und Rechtsge- Schächte se?t 1066 (to 1189). Reeves, John. History of the English Law from the time of the Saocoms to the end of the reign of Philip and Mary, 1st ed. (only to the reign of Henry VII) London, 1783, 1784. 2 vols; 2nd ed. London, 1787; 3rd ed. London, 1814. 4 vols. A fifth vol. continuing the history down to the end of Elizabeth's reign was published at London in 1829. New edition by W. F. Finlason, London, 1869. Stephen, Jas. Fitzjames. A History of the Criminal Law of England. 3 vols. London, 1883. Stubbs, William. The Constitutional History of England. Oxford, 1874–8. 3 vols. The references are to the following editions: vol. I, 5th ed., 1891; vol. II, 3rd ed., 1887; vol. III, 4th ed., 1890. W. Statistics, lists of cathedrals, monasteries, bishops, etc. Birch, Walter de Gray. Fast? Monastic? Saocomici, or an Alphabetical Lºst of the Heads of Religious Houses in England previous to the Norman Con- quest, to which is prefixed a Chronological Catalogue of Contemporary Foundations. London, 1872. Brady, W. Maziere. The Episcopal Succession in England Scotland and Ireland, 1400–1875, with appointments to Monasteries and Eactracts from Consistorial Acts taken from manuscripts in public and private libraries Žn Rome, Florence, Bologna, Ravenna and Paris. Rome, 1876–77. (Relates Only to the Roman hierarchy.) The Clergy List [with which is incorporated the Clerical Guide and Ecclesias- tical Directory], contain?ng complete lists of the Clergy in England, Wales, Scotland, Ireland, and the Colonies, including army, navy, prison, union and foreign chaplains etc. with degrees, orders and appointments, an alphabetical list of Benefices with the dedication of the churches, post town, railway station, county, incumbent, curates, annual value, patrom, and population ; the Cathedral Establishments, Rural Deaneries and Com- stituent Livings, list of Public and Private Patrons of Benéfices, with ºvalue etc. Issued yearly. Dugdale, W. (and Dodsworth, R.). Monasticom Anglicanum. 1st (Latin) ed. London, 3 vols. 1655–1673.-Several later editions. Most used is: Mon- asticon Anglicanum, A History of the Abbies and other Monasteries, Hospitals, Fröeräes, and Cathedral and Collegiate Churches, with their dependencies, in England and Wales . . . , new edition enriched with 534 APPEAW DIX a large accession of materials . . . ; the history of each religious foundation in English being prefixed to its respective series of Latin charters. Edited by John Calley, Henry Ellis, Bulkeley Bandinel. 6 vols. 1817–30. Last ed. 1846.-Stevens, John. The History of the Antient Abbeys, Monasteries, Hospitals, Cathedral and Collegiate Churches, being two addi- tional volumes to Sir William Dugdale's Monasticom Anglicanwm, 2 vols. Tondon, 1722–23. Le Neve, John. Fast; Ecclesiae Anglicanae, or a Calendar of the Principal Ecclesiastical Dignitaries in England and Wales and of the chief offices in the Universities of Oa ford and Cambridge from the earliest time to 1715. London, 1716.-Corrected, and continued from 1715 to the present time by T. Duffus Hardy. Oxford, 1854. 3 vols. The Official Year-Book of the Church of England. London. Stubbs, William. Registrum Sacrum Anglicanum. An Attempt to eachābit the course of Episcopal Succession in England, from the Records and Chronicles of the Church. Oxford, 1858. Printed as appendices are: 1, a table of Saxon kingdoms and marriages; 2, a table of Saxon and English sees; 3, a list of palls, 1070–1556; 4, dates of legations in the twelfth cen- tury; 5, a list of suffragans and bishops in partibus; 6, a list of the bishops of Sodor and Man, 1066–1546; 7, catalogues of British and Welsh bishops; 8, indexes of bishops arranged under their sees. Tanner, Thomas. Notitia Monastica, or an Account of all the Abbies, Priories and Houses of Friers, heretofore in England and Wales and also of all the colleges and hospitals founded before 1540. Published by John Tanner, London, 1744. (Original ed. under similar title Oxford, 1695.) Reprinted with additions, Jas. Nasmith, Cambridge, 1787. Willis, Browne. An History of the Mitred Parliamentary Abbies and Conven- tual Cathedral Churches . . . together with a Catalogue of their Abbots, Priors etc. 2 vols. London, 1718, 1719. Additions by Richard Widmore (died 1764) in MS Cole XL, 86–88. xv. Chronological table of the kings of England from the Norman Conquest to the present day." Norman kings, 1066–1154. William I 25th Dec. 1066 (coronation; Harold fell, 14th Oct.)–9th Sep. 1087. William II 26th Sep. 1087 (coronation)—2nd Aug. 1100. Henry I 5th Aug. 1100 (coronation)—1st Dec. 1135. Stephen 26th Dec. 1135 (coronation)- 25th Oct. 1154. House of Anjou (Plantagenets, direct line), 1154–1899. Henry II 19th Dec. 1154 (coronation)–6th July, 1189. Richard I 3rd Sep. 1189 (coronation)–6th Ap. 1199. John 27th May, 1199 (reign reckoned from the coronation on Ascen- sion day)–19th Oct. 1216.” * In the first centuries after the Norman conquest the right to the crown was based not on inheritance alone, but also on election by the magnates of the land. Cf. Stubbs, Const. Hist. I, 366 ft. c 11 § 118. Thus on the death of each sovereign there was an interregnum. Until Edward I the reign began with the corona- tion which succeeded election. - * The years of John's reign are reckoned from Ascension day to Ascension day. Thus 1 Joh. begins on 27th May, 1199; 2 Joh. On 18th May, 1200; 3 Joh. a. The dates to Charles II are from Hardy’s Syllabus to Rymer-Hardy also gives a table of contemporary sovereigns from the reign of William I to Cromwell inclusive-In Perry, Płóst. of English Church I, 539 and II, 587, there is a chronological view of the English kings, the archbishops of Canterbury and the popes. A. V. CHRO WOLOGICAL TABLE 535 Henry III 28th Oct. 1216 (coronation)–16th Nov. 1272.8 Edward I 20th Nov. 12724 (day of father's funeral")–7th July, 1307. Edward II 8th July, 1307 (recognition ?”)—20th Jan. 1327 (abdication ; died 21st Sept. 1827"). Edward III 25th Jan. 1327 (his reign is reckoned from the day after his Peace was proclaimed *)—21st June, 1377. Richard II 22nd June, 1377–29th Sept. 1399 (day of abdication; when he died is not known). House of Lancaster (branch line of Plantagenets), 1899–1461 (and 1470–1). |Henry IV 30th Sep. 1399 (recognition by parliament)–20th March, 1413. Henry V 21st March, 1413–31st Aug. 1422. Henry VI 1st Sept. 1422–4th March, 1461 (proclamation of Edward IV).” House of York (branch line of Plantagenets), 1461–85 (interval, 1470–1471). Edward IW 4th March, 1461 (proclamation”)–9th Oct. 1470." Henry VI 9th Oct. 1470 (first measures in his name *)—April, 1471.” Edward IV April, 1471 *–9th April, 1483. Edward V 9th April, 1483–25th June, 1483.” Richard III 26th June, 1483 (day on which he declared himself king)–22nd Aug. 1485. • * House of Tudor, 1485–1603. Henry VII 22nd Aug. 1485–21st Ap. 1509. Henry VIII 22nd Ap. 1509–28th Jan. 1547. Edward VI 28th Jan. 1547–6th July, 1553. on 3rd May, 1201; 4 Joh. 23rd May, 1202; 5 Joh. 15th May, 1203; 6 Joh. 3rd June, 1204; 7 Joh. 19th May, 1205; 8 Joh. 11th May, 1206; 9 Joh. 31st May, 1207; 10 Joh. 15th May, 1208; 11 Joh. 7th May, 1209; 12 Joh. 27th May, 1210; 13 Joh. 12th May, 1211; 14 Joh. 3rd May, 1212; 15 Joh. 23rd May, 1213; 16 Joh. 8th May, 1214; 17 Joh. 28th May, 1215; 18 Joh. 19th May, 1216. - * Cf. also John de Oxenedes (Rer. Brit. Ser. No. 13) p. 163, on a change— made in 1234—in the mode of calculating the years of Henry's reign. * Hardy l.c. reckons the 20th Nov. in both years e.g. in 1284 and 1285. * Stubbs, Comst. Hist. II, 106 c 14 § 179. According to Hardy l.c. the 20th Nov., the day of the king's proclamation, is reckoned as the beginning of his reign. Edward himself issued a proclamation apparently on the 23rd Nov. ; the magnates had done so on 17th Nov. (Rymer, Foedera 4th Ed. I, 497). * Cf. Stubbs, Const. Høst. II, 329 c 16 $249. * For a false report of Edward’s escape to the continent see Stubbs in Chronicles of Edward I and II (Rer. Bråt. Scr. No. 76) II p. ciii. * The proclaiming was repeated on the day of the coronation, 29th Jan. 1327. Cf. Stubbs, Const. Hist. II, 386 c 16 $ 256. * 1st Sept. 1460 to 4th March, 1461 is reckoned as 39 Hen. VI. * According to Stubbs, Const. Hist. II, 107 c 14 § 179 and III, 195 c 18 $ 355 the theory was now first recognized that the new reign began immediately on the termination of the old. - * 4th March to 9th Oct. 1470 is reckoned as 10 Ed. IV. * Edward IV fled on 3rd Oct. Henry VI was released from the tower 5th Oct. Stubbs, Const. Hist. III, 214 c 18 $358. * Edward IV landed in England on 14th March, and at first acknowledged Henry VI as king. Shortly afterwards he proclaimed himself; on 11th Ap. he entered Tondon where Henry was. On 14th Ap. and 4th May he defeated the Lancastrians; on 21st May Henry died, probably murdered. Stubbs, Const. Hist. III, 216 c 18 $358. The second period of Henry's rule is called 49 Hen. VI. * Ap. 1471–3rd March, 1472 is reckoned as 11 Ed. IV. * When he died, apparently murdered by Richard's orders, is not known. Stubbs, Const. Hist. III, 231 c 18 $ 360. 536 APPEAW D TX Mary 6th July, 1553–17th Nov. 1558.1% Elizabeth 17th Nov. 1558–24th March, 1603. House of Stuart, 1603–1714 (interval, 1649–60). James I 24th March, 1603–27th March, 1625. Charles I 27th March, 1625–30th Jan. 1649. Commonwealth and protectorate 30th Jan. 1649"—8th May, 1660. Charles II 8th º 1660* (recognition by English Parliament)–6th Feb. 1685. James II 6th Feb. 1685–28th Jan. 1689 (day of resolution by parliament that the king had vacated the throne by flight. James died 16th Sept. 1701). William III and Mary 13th Feb. 1689 (acceptance of the crown offered by parliament)–28th Dec. 1694 (death of Mary). William III 28th Dec. 1694 *—8th March, 1702. Anne 8th March, 1702–1st Aug. 1714. House of Hanover, 1714 to present day. George I 1st Aug. 1714-12th June, 1727. George II 12th June, 1727–25th Oct. 1760. George III 25th Oct. 1760–29th Jan. 1820. George IV 29th Jan. 1820–26th June, 1830. William IV 26th June, 1830-20th June, 1837. Victoria 20th June, 1837– 22 a V 6 & Cº.: ;" Z%,” - A £2 & 3 * 6th July, 1554–24th July, 1554 is reckoned as 2 Mar.; 25th July, 1554–5th July, 1555 as 1 & 2 Phil, dº Mar. ; 6th July, 1555–24th July, 1555 as 1 & 3 Phil. & Mar. ; 25th July, 1555–5th July, 1556 as 2 & 3 Phil. & Mar. ; 6th July, 1556– 24th July, 1556 as 2 & 4 Phil. & Mar. ; 25th July, 1556–5th July, 1557 as 3 & 4 Phil. & Mar. ; 6th July, 1557–24th July, 1557 as 3 & 5 Phil. & Mar.; 25th July, 1557–5th July, 1558 as 4 & 5 Phil. & Mar.; 6th July, 1558–24th July, 1558 as 4 & 6 Phil. & Mar. ; 25th July, 1558–17th Nov. 1558 as 5 & 6 Phil. & Mar. * Cf. § 7, notes 52, 53. * The reign of Charles II is counted as beginning on 30th Jan. 1649. ** * The years of William's reign were counted regularly on, without regard to Mary's death, IN DE X. The larger figures denote sections; the smaller, the number of the note referred to. Figures in block type indicate pages, nr. =near. Abbess: 21, 35. Abbot : 37, 6; Election of: v. Appoint- ment; Conferment of Episcopal rank on abbots: 4, 127; 5, 9; Participa- tion in parliament: 21 ; in Church Councils; 353; 57, 2, 8. Absolution: 20, nr. 26; 59, nr. 16, 18. Acolutha : 195. Admission: 7, 56; 35, 3; 46, 9. Licence to officiate. Adultery : v. Offences against morality. Advertisements of 1566: I5, 7. Advowson: v. Patronage. Africa: I2, 7, 25. Cf. Alban: IO, 5. Aldermannus: 59, 6; 60, 15. Cf. Eal- dorman. Amenability of clergy: 59, nr. 12ff.; 60, nr. 22 f.; 6I, nr. 4 f. Amerciaments: 60, nr. 64 fº. America : I2, 7, 25; I3. Cf. Canada, |United States, West Indies. Anabaptists: 86; IQ, nr. 27, 33, 34. Annates: v. First fruits. Appointment: of archbishops, bishops, and abbots in Anglo-Saxon period: 2, nr. 10 fſ.; under Henry I.: 4, 23, 25; under Stephen : 4, 31, 34; 23, 7; under Henry II. : 4, nr. 43, 53; under John: 4, 62, 65; in later middle age : 4, 67, 407, nr. 113; 3O2; from the Reformation: 6, 9, 11, 17, 42, 56; 99; in Scotland: 111 f.; in Ireland: 130; II, 15, 20, nr. 22, 29; 140; in the colonies and abroad : 144 f.; 154; of Suffragan bishops: 39, 4; of coadjutors: 40, 4; of deans: 6, 56; 37, 23, 24, 32; of canons: 37, 31; of archdeacons: 42, 15, 20; of rural deans: 43, nr. 18 ft.; of rectors, vicars, etc.: 139; N9% 537 of churchwardens: 48, nr. 4 f.; of lecturers: 53, 2; rights of king in middle ages as to appointment: 27, nr. 24 ft. ; in modern times: 97; of the bishop : 295; of the chapter: 37, 38; of the parish priest (vicar, rector, etc.): 44, nr. 40 ff. Appeals: to the pope; II, 16; 23; to other authorities: 147; 62 ft. Approbation: 295; 44, 19. Cf. Admis- Slol], Appropriation, Impropriation: 4, 127, 128; 9, 5; II, 33; 27, 33; 31, 2; 44, nr. 11 ff. Archbishop : I.2, nr. 11; 31, nr. 5; 32, 7; 33–35; 41, nr. 10, 55, 56; alleged archbishops in Britain in ancient times: I, 3; in Wales: 33, 1 ; election of a. : v. Appointment ; legatine powers of a. : v. Legates. Cf. ArdepScop, Metropolitan. Archdeacon: 21, nr. 9; 32, 13, 14; 38, nr. 2; 42; 45, 7; 54, nr. 28 f.; 55, 3; 57, 8; 58, 2, 3; 65, 66. Archipresbyter: 43, 1; 54, 41. ArdepScop: IO, 5; II, 6; 33, 1. Arminians: 7, 25. & Arrest of clergy: 60, 43. Articles: v. Creeds, etc. Articulus Cleri: 55, nr. 23. Cf. Peti- tions—Statutum Articuli Cleri: 4. 107; 55, 23; 60, 8. Asia: I2, 25. Cf. East Indies. Assistant bishop: 39, nr. 8 f. Assistant curate: v. Curate. Assistants: 48, 2, 18, 19. Attack of clerici: 4, 54; 60, nr. 169 f. Auditor: 63, nr. 3; nr. 6. Augmentation of poor livings, etc.: 3 I ; 32, 16; 44, 15. Cf. Curate. Auricular confession: 6, nr. 40; 170. 538 I W DEX Austin friars: 37, 8. Australia : I2, 7, 25. Auxilium: 4, 72, 247. Cf. Taxes. Avranches, Reconciliation of: 4, 50. Baptism: IO, 17, 53; 123; 169; IQ, 37; 61, 19. Barony, Possession by: 209. Barrowists: 7, 50. Bastardy, Disputes as to: 23, 10; 60, nr. 85 ft.; 61, 17. Beadle: 5 I. Benefice: 44, nr. 35 fſ. w Beneficium cleri: 60, nr. 35; 61, 8, 9, 11. Cf. Amenability of clergy. Bible: 177; IQ, 27. Bigamy (= second marriage or marriage with a widow): 22, 4; in the com- mon sense: v. Marriage. Bishop: I2, nr. 11; 20, 3; 31, 5; 32,7; 33; 36; 57; 59, 3, 4, 6,7; 60, nr. 16; 61,2; Bishops of the Kelts: I; Election of bishops: v. Appointment; Consecration of bishops: v. Conse- cration; Participation of bishops in parliament: 21. Cf. Chorepiscopus, Episcopus in partibus; Suffragan bishop; Assistant bishop; Coad- Jutor. Bishoprics, the several protestant, in England: 33, 26, 27 ff.; 37, 6, 9; in British (Keltic) districts: 33, 29; in Scotland: IO, 69; in Ireland: II, 33, 34, 43; in the colonies and abroad: I2, 25; I3, 16; Roman catholic : 99; IO, 71; IS, 14. Blasphemy: 61, 23. Board of missions: I2, 12. Bona notabilia : 462. Book of common prayer : v. Prayer- books. Boundaries of ecclesiastical districts, alteration of: 32, 12; 42, 16; 43, 14; b. of provinces of Canterbury and York: 33, nr. 17 ff. Bounty (Queen Anne's): 31. Brawling: 6I, 26. Bretwalda: I, 2. Breve: v. Writ. Britons (Kelts), Use of, in respect of cal- culating Easter and of tonsure: I 3, 13 ff. Cf. Easter, Tonsure. Brotherhoods: 47. Brownists: 7, 50. Bulls, Prohibition to introduce : 25. Canada ; I2, 7, 25. Candle-scot: 3, 10. ? | Canons; I4, 16; c. of 1604: 7, 14; app. xii.; of 1640; 7, 31, 32, 69; other English c.: I4, 10; Scottish c. of 1635: IO, 39; other Scottish c.: IO, 46; nr. 68; Irish : II, 1, 26; 138 f.; American: I3, 2. Canons (Chapter): 2 I, 16; 22, 11; 32, 13, 14; 37; 37, 6, 28, 38; 4.I, 7; 42, 7, 14, 19; 45, 7; 53, 1; 66; regular: 37, 5, 8; honorary: 37, 36, 37; minor canons: II, 33; 32, 14; 37, 25, nr. 45 fſ. * Cantor (Precentor): 37, 14. Carlisle, Statute of: 4, 70, 111. Catechism : 164. Cathedraticum : 44, 7. Catholic: IS, nr. 3 ff. Cf. Old catholics, Christkatholiken, Greek catholics, Papists. Celibacy: 22. Central council of diocesan conferences: 55, 15, 16. Chancellor (king's): 4, 36, 37; patronage of lord chancellor: 32, 13; bishop's c. : 36, 9; 38, 8; 64, 1; c. of chap- ter: 37, 14; 54, 39. Chapel clerk: 49, 1. Chapel of ease: II, 35, 42; 20, nr. 29; 44, nr. 23. Chaplains, Examining: 2O, nr. 19, 21. Chapter: v. Canons. Close chapter, general chapter: 37, 35, 37. Chapter, Cathedral and Collegiate : v. Canons (Chapter). Chapter of old or new foundation : 303 ; Rural chapters: v. Synods; c. of monastic Orders: 54, 41. Chastity: v. Vows of c.; Chastity: 22. Chorepiscopus: 128; 39, 1, 2. Christkatholiken; IS, 15. Chrodegang, Rule of archbishop: 37, 8, 7; 42, 1. Church clerk: 49, 1. Church pews, Disputes as to: 61, 18. Church property, Confiscation, Seculari- zation, Various dealings with : 4, 106; 57; 6, 29, 47, 49, 55; 7, 45, 47, 51, 55, 65; IO, nr. 30; II, 16, 20, 33, 36; 29; 32, 13; 37, nr. 28, 34, 40–43. Church property, Timitation as to ac- quisition of -4, 48; 4, 68, 109; 6, 47; 27, 34. V. also Church Pro- perty, Confiscation, etc. Church rate: II, 38, 35; 48, nr. 10. Church-scot (cyric-sceat): 3, 10. Church trustees: 48, 10. > I W DEX 539 Churching: 46, 2. Churchwarden : II, 35; 139; 42, 11; 43, 9; 48; 6.I., 18. - Circumspecte agatis: 4, 71; 60, 7. Cistercians: 47; 37, 16. Claim of right: IO, 49. Clarendon, Constitutions of: 4, nr. 41 ff.; append. iv. Clerical disabilities act: 20, nr. 6; 211. Clerici: 37, 6. Clericis laicos, bull: 4, 80. Coadjutor: II, 35; 4O. Collation: 295. Colloquium (substitute for a parlia- ment): 4, 85. Colonial bishopric fund : I.2, nr. 11. Colonial bishoprics' council: 12, nr. 11. Commendams: 9, 12; 32, 12. Commissary, commissioner, commission: . I2, 2; I4, nr. 18 f.; I5, 12; IQ, 23, 24; 21, 24; 30, 2, 4; High c. : v. High commission ; Ecclesiastical C. and C. for building new churches: v. Ecclesiastical commissioners; C. of ecclesiastical duties and revenues: 32, 5; C. for approbation of public preachers: 7, 56; I5, 18; C. of re- view : 61, 6, 7; Commissary of the archbishop of Canterbury: 64, 4; C. of church temporalities in Ire- land: II, 36; Irish land commis- sion: II, 36. Competence of ecclesiastical courts in civil causes: 59, nr. 15; 6O, nr. 73 ff., 6 I, nr. 14 f.; in penal causes: 59, nr. 16 f.; 60, nr. 161 ff.; 6I, nr. 22 f.; re persons: see Amenability. Concubine: 22, 5, 13, 15. Conferences: v. Hampton Court c., Savoy c., Streoneshalch G.; Synods. Confession : v. Auricular confession. Confession of faith: v. Creed, etc. Confirmation: 199. Confirmation of resolutions of councils by the king: 54, 8, nr. 22 f., 56; by the archbishop : 55, 17. Congé d'eslire: 6, nr. 17; 40, 4. Cf. Appointment of archbishops, bishops and abbots. Congregation : 123; IQ, 37. Consecration of churches and burial places: 199. Consecration, Ordination: 116; 142 f.; 146. f.; 153 f.; I5, 12; IS, 6, 9, 13, 16 ft., 20, 35, nr. 3; 60, 69. Conservator: IO, 12; Conservatores privilegiorum of knights of Saint John and templars: 60, 67. Constance, Concordat of: 4, 127. Consulates, Churches in connexion with : I2, 14. Consultatio: 27, 10. Contempt: 4, nr. 47; 4, 109; 60, 50; in ecclesiastical court: 61, 38. Convent : 37. Conventicle acts: 7, 72. Conventual churches: 37, 10, nr. 19 ft. 4I, 7. Convocatio: 54, 14. Cf. Synods. Convocation: v. Upper house of C., and Lower House of C.; Synods. Cornwall: I, 22. Corodies: 27, 23. Coronation: 34, 22, 33, 34. C. oath: 0. Oath. - Corporation: v. Corporative fights. Corporation act: 7, 72. g Corporative rights: 140; I2, 4,6; 44, 9. County court: 59, nr. 2; 60, 11, 13, 14, 17. Court of Arches: 38, 5; 63, 2, 4; Chan- cery C.: 460; C. of Faculties: 38, 5; 63, 5; C. of Audience: 63, 6; Prerogative C.: 63, nr. 7; Confirma- tion C.: 38, nr. 6; Consistory (chan- cellor's) C.: 42, 11; 64; Vicar gene- ral's C.: 320; C. of Commissaries: 64,4; 463; C. of Peculiars: 38, 6; 463; Provincial C.: 99; 38, 5; 63; C. of Augmentation: 29; C. of Sur- veyors: 29; C. of First fruits and Tenths: 29. Cf. Ecclesiasticalcourts, Judicial committee, Delegates, High commission,Archdeacon, Ruraldean; Canon. Court of hundred : 59, 4; 60, 11, 18, 17. Covenant of 1557: 109; of 1581: 113 ; Io, 41; of 1688: 7, nr. 42,67, 70; IO, 41, 43, 46. • * Creeds, articles, professions of faith: 10; 378; Apostles' Creed, Nicene Creed, Athanasian Creed: II, 37; IS, 12; 170; I6, 18; I8, 2, 3; Ten articles: I6, 1; Six articles: v. Six article law; Forty-two articles: I6, 7 f.; Eleven articles: II, 20; I6, 9; * Thirty-nine articles: 7, 1 ff., 56; II, 20, 26; I6, 10ff.; append. xi.; Lam- beth articles: I6, 20; Westminster profession of faith: IO, 52, 54; 16, 21; other Scotch do. : IO, 17, 35, 41, cf. Covenant ; Irish articles of 1615: II, 24, 25; 28, 25; other Irish pro- 540 IAW DEX fessions of faith: II, 3, 20, 27; American : I.3, 15; Augsburg Con- fession : 169; 28, 18. Cross, carried before archbishop: 34, nr. 22 ft. Curate: 20, 18; 329 f.; 335f.; perpetual: 333 f.; 337 f.; 55, 8; stipendiary: II, 35; 335 f.; 45; 351; 55, 8; as- sistant : 2O, nr. 29; 45, 6; 53, 6; augmented: 44, nr. 24 f.; 335 ; 44, 36; cf. Augmentation. C. of Chapel of ease: 44, nr. 23; 335. Danegeld: 2, nr. 17; 4, 21, 31, 38; 27, 17. Darrein presentment: 60, 155. Deacon: 38, 1, 327. Cf. Consecration, Ordination, etc. Deaconess: 20, nr. 5; 47. Dean: 2 I, nr. 9; 31, nr. 5; 37, 6, nr. 13, 15, 23, 24, 28, 38; 42, 19; 54, nr. 28 ft.; 372; Dean of the province: * 55, 11; Dean of Christianity: 43, 1; Dean of the Arches: 38, 5; 63, 2; 66, 4; Dean of Bocking: 66, 4. Cf. Rural dean. Declarations: 7, 70; IO,25; I3,15; 48, 8; Declaration against; transub- stantiation: 7, 75; D. of assent: 7, 70; IO, nr. 66; 42, 21; 44, 48; 45, 15; 46, 8; 53, 3; Stipendiary Curate's d. : 45, 15 ; D, against Simony: 42, 21; 44, 48; 53, 3. Cf. Oaths. Defamatio: 60, nr. 173 ff.; 6I, 22. Degradation: 20, nr. 6; 60, 58. Delegates, High Court of: 6, 47; 232; 62, 2, 4, 5, 7. Deprivation (deposition): 24, 2; 35, 3; 49, 8, 9; 50, 4; 60, 58. Directory for public prayer: I5, 14. Cf. Brayer-books. Disciplinary power: 35, nr. 3; 297; 42, 11; 59, nr. 12; 60,29; 455. Disestablishment: 7, 87,88; 99; I2, 1, 2. Disobedience, to king's orders or those of royal officers: v. Ofer hyrnes, Con- tempt. Dispensation: 6, 2, 8, 25, 42, 47; 7, 15, 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: 6I, 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: v. Taxes. Ealdorman, Earl: 59, 2, 3, 4; 60, 15. Easter, Calculation of: I, 5, 18, 21; II, 3. East Indies: I2, 7, nr. 17, 25; 20,8; 39,9. Ecclesiastical commissioners: 32 (30, Ö); for Ireland: II, 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: 2I, 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, mr. 3. Cf. Bishop. Erudition of any Christian Man, The Necessary: 6, 27; IQ, 24. Estates Committee: 32, nr. 8 ff. Eucharist: 6, 34, 53; IO, 17, 20, nr. 67; II, 17; 135; 169; I6, 5; IQ, 37; 20, 26; 6 I, 19. Examination before ordination : 2O, nr. j9 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 ft.; 455. Cf. Writ de ex- communicato capiendo, de contumace capiendo, de haeretico comburendo. Execution of secular judgments against clergy: 27, 11, 12; 60, 36. Exemptions: 2, 9; 5, 8, 9; 6, 15, 18, 47; I9, 16; 32, 12; 42, 16, 20; 66, 1, 4, Exorcista : 195. Fasts: 6, 40. Fealty : v. Oaths. Fellow of College: 197; 20, nr. 29. Felony: 60, 45, 47. Feudal tie of higher clergy: 4, 9, 11, nr. 18 ft., nr. 43, nr. 74, 84, 86, 88; 27, mr. 28 f.; 60, nr. 51 ff. Feudal oath: v. Oath. Fides laesa: 60, nr., 186 ft. Fire insurance: 3T, 22, 23; 32, 15. Firstfruits, annates, primitiae: 6, 8, 9, 17, 49, 55; 29; 31, 1–3; in Ireland: II, 16, 18, 20, 33. IAW DEX 54I |Rish days: v. Fasts. Eorest courts, offences against f. laws : 60, 11, 19, 55, 56. Forgery of documents, coins, etc.: 6, 85; 60, 47. Foundations (of various kinds): 6, 29, 55; 9, 9; II, 36,42; 31, 11, 18; 32, 16; 53, 1. Franciscans: 5, nr. 9; IQ, 1. Erankalmoign : v. Eleemosyna. Free Church : 122. Galloway: IO, 11. Geféram, Gefèrscipe: 43, 2. General Assembly, General Convention, General Councils, General Synod : v. Synods. Gingra : 59, 4. Governors of the Bounty of Queen Anne : 3I. Gravamina : 55, nr. 22. ' Greek catholics: I8, nr. 15. Guardian of the spiritualities: 2 I, 37, 38; 4.I, nr. 9 f. Guild: 43, 2. Gunpowder plot: 7, 12. Haemed : 22, 6. IHampton Court conference: 71. Heathen : 22, 4, Heresy: 6, 53; IQ, 19, 30; 61, 19, Heretics, Prosecution of : 108; II, 19; I9; 364; 369. Pſeriot: 27, 21. High Church tendency: 75. High Commission: I5, 6; 259; 30 ; 6 I, 6; in Scotland: IO, 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. Iona. Images, Worship of: 6, nr. 40; I4, 2; 169; IQ, 37. Impropriation: v. Appropriation. Incorporation: v. Appropriation. Incumbent : 336. Independents: 7, nr. 50; I2, 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 Church property: 22, 3, 14, nr. 32; 63, nr. 5. Injunctions: v. Ordinances. Inquisition, Inquisitors: IQ, 15; 30, 2; Inquisitores: 48, 2, . Installment : 37, 23. Cf. Induction, In- vestiture. Institution : 295. Institution of a Christian Man: 6, 26; I9, 24. Interdict: 4, nr. 49 f, nr. 63, 6, 9; of Royal officials or Crown Wassals: 27, 8. Interim revenue of Bishopric: 4I. Intestacy: 27, 21; 60, nr. 118 f.; 6I, 15; 462. Investiture of Bishops and Abbots: 4, 23; of the inferior clergy: 42, 11. Cf. Induction, Installment. Iona : I, 21; TO, 4; 11, 3. Ireland: II; Union with England : II, 14, 29, 32. Irregularitates: 20, nr. 15. Jerusalem, Founding of Bishopric of: I2, nr. 18. Jesuits: 7, 7, 8, 12, 23; 93 ; IO, 21. Judges of Ecclesiastical Courts: 22, 16, 21. Cf. Official. Judicial Committee of Privy Council: 99; 61, nr. 9 f. Jus patronatus: 36,9; 60, 158. Justices of peace: 60, 19; 445. Justiciar: 4, 59. Ring: 23–28; 6.I., 2. Rirk session : 121. Lambeth articles: v. Creeds, etc. . Lambeth : 32, 14; 33, 6. Last Judgment : I9, 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, mr. 7; 34, 12, 13, nr. 15 f., 28, 29, 31; 54, 26. Leges Edwardi: 60, 24; app. xiv., ii., 2: Leges Henrici; 4, nr. 35; 4, 40; 41; on Law-books called Leges Ed. Conf. and Hen. I.: append. xiv., ii., 2. Legitimatio per Subsequens matrimo- nium: 60, nr. 90 ft. 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 IAW DEX Licence (royal) to make canons: 54, 56, 73, 74; 55, 19, 25. Licence to officiate: 295; 44, 19, 20; 339; 46, 6; 49, 5; 53, 2. Cf. Ad- mission. Iliturgy: v. Prayer-books. Livery: 6, 42. Ilocal Government Act : 102. Lollards: 4, 1, 121; 97; 108; 185; 188; 2O, 3. Lord Chancellor: v. Chancellor. Lower house of Convocation: 364; 369; 371; 55. Magna carta : 4, nr. 66. Maintenance of fabric of church, of churchyard, of instruments: 44, 6; 48, 2; 60, 177; 61, 18. Man, Isle and bishopric of : IO, 3; 2 I, 47; 33, 25; 42, 18, 20. Mandamus: v. Writ. Maps, relating to England : 33, 32, 35 ; to Scotland: IO, 5, 59. See also 5, 7a, and 33, 87. Maritagium: 60, nr. 104 f. Marriage, Civil: 7, 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, 18; 43, 9; 59, nr. 6; 60, nr. 82 ft.; 6I, 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. 85, nr. 37, 40. Methodists: 13, 10; IS, 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: IO, 1 ; in Ireland: II, 1; protestant missions and mission- ary Societies: I2, nr. 3 ff, nr. 10 ft., mr. 19 ft.; I3, 16. Moderator: IO, nr. 31, 33. Monasteries: 2, nr. 9; 3, nr. 6 f.; 4, 70; 5, nr. 7a f.; 6, 18, nr. 21 ff., nr. 29, 47, 55; II, 16; 37, nr. 1 ff.; 345, Monks: v. Monastery. Moravian Brothers: 18, 10. Mortmain : v. Church property. Nomination : 295. Nonjurors: 7, 81; IO, nr. 62; IS, nr. 8. Non-residentiary canon: v. Canon. Notaries: 63, 5. Nuns: v. Monastery. Oaths, to the king of allegiance and supremacy: 6, 25, 47, 58; 7, 12, 52, 65, nr. 77, 80; I5, 8; 18, 18; 20, 22; 28, 7, 24; 37, 21; 42, 21; 44, 48; 53, 3; in Scotland: IO, 33, 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; II, 5; 147; 20, 23; 42, 21 (43, 16); - 44, 48; 45, 15; 53, 3; oaths to pope: 6, 18; I4, 14; homage of king to pope: v. Pope, Claim to suzerainty; Coronation oath: 7, 83; 34, 34; in Scotland: IO, 20, mr. 48, cf. IO, 54; other oaths: 7, 31, 33, 36,69; IS, 9. Cf. Declara- tions. Obit: 6, 55. Oblations, Obventions: v. Taxes. Observance of Sunday: 71; 7, 57. V. also Holy days. - Oeconomus : 48, 1. Oferhyrnes: 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; 38; 63; 64; of the archdeacon: § 18; 58, 8; 65; of the chapter: 2 y - - Old catholics: 18, 15. Ordeal: 59, 7, 9; 60, 20, 21. Cf. Duel. Ordinal : v. Prayer-books. Ordinances, royal, in ecclesiastical mat- ters: 6, 25, 35, 40; 161; IQ, 21; 241; 255; 259. Ordination: v. Consecration, etc. Ordinatio pro clero: 4, 109. Ordines majores (=sacri) and minores: 22, 2. Organ, Organist: 52. Orkneys: IO, 3. Ornaments: I5, nr. 6 f., nr. 25. Ostiarius: 195. Ousterlemain: 6, 42. I W DEX 543 Pallium: 2, nr. 2; 6, 9, 17; 105; II, 8; 33, 5, 8, nr. 12; 275; 33, 16; app. x. Papists: 7, 10, 12, 15, 17, 23, 58, 67, 75, 82, 86; IO, 20; 136; I2, 4, nr. 5. Parish: 101 f.; 9, 16. |Parish clerk: II, 35; 49. Parish priest : 334; 44; 55, 7; 57, 2, 8. Parliament, Origin of: 4, nr. 2; nr. 78; nr. 110; 2 I ; 54, 14; Irish parlia- ment: II, 12–14; 133; II, 29, mr. 32; the Good p. : 4, 120; the short : 76; the Long: 7, 35; the Rump: 83; the Barebone: 7, 54; the Con- vention: 7, 54; Clergy in P. : II, 32, 36; 2 I ; 54, 14, 51; in the Scottish P.: IO, 25, 29. Parson: 44, nr. 32. Patronage: 7, 54; 295; 36, 7; 60, nr. 152 f.; in Scotland: IO, 58; 122; in Ireland: II, 36, 42. IPatron paramount: 27, 32. Peculiars: v. Exemptions. Peculiars: v. Court. |Penal Code: II, 31. Penance: 169; 59, nr. 17 ff.; 437. |Pensions: 27, 23. Perjury: 60, 149, 150, nr. 186 f.; 61, 19, nr. 27 ff. Persona: 44, 10, nr. 32; personae regni: append, iv., 1, 7, 10. Peter pence: 2, nr. 2; 4, 5; 6, 18; 60, 178. Petitions of the clergy: I4, 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, Provisions, Taxes. Claim to suzerainty: 4, 5 (cf. 4, nr. 30), 50, 64, 69, 117, 118, 123; 66; I4, nr. 7; 32, 25; to dispose of Ireland: II, 8, 9; to infallibility: I4, 14; Recognition in England in case of several claimants: 4, 12, 17, 50. Non-recognition since the Refor- mation: 6, 8; 53; 6, 25, 35, 47, 53; IO, 17, 20; II, 18; I7. Potestas ordinis, jurisdictionis: 28, 18; 59, 16. Court of Boyning's Act : II, 14. Prælati majores, minores: append. vi. 1. Præmonstratensians: 37, 16. Præmunientes-clause: 21, 19, 25, 26, 46; 54, 14. Præmunire, Præmunire Acts: 4, 114, 122, nr. 124 f.; 6, 4, 7, 15, 17, 18, 25, 44, 47, 53; 7, 67; 2 I, 31; 23, 11 ; 239; 27, 12; 35, 1; 39, 4; 60, 54, Inr. 160. Praepositus: v. Provost. Prayer-books: 6, 40; 7, 57, 59, 60, 66: I5; in Scotland : IO, 36, 40, 46; I5, 14; in Ireland: II, 17, 20, 30, 37; in the United States: I3, 14. Prebendaries: v. Canons. Precedence: v. Rank. Precentor: 37, 14; 54, 39. Preces regiae : 27, 23, 31. . Presbyterianism, Presbyterians: 6, 43; 7, nr. 4; 7, 46, 49, 51; 84; 108; 111–123; 134; I2, 2; IS, 16 ft. ; I9, 37; 20, 3. Presbytery: 7, 46, 49; IO, 56; 43, 12. Presentation: 295; Presentements in autri droit: 27, 30. Presiding bishop: 147; 155. Priest: 44, nr. 38. Cf. Consecration, etc. Priest vicar : 37, 46. t Primate: 34, 13; of England: 34, nr. 20, 21-23, 25; of Ireland: II, 6, 8; 140; 276. Primitiae: v. First fruits. Primus: 123; 125. - Prior: 2 I, nr. 9, nr. 35, nr. 36, 37 f.; 37, 6, nr. 12; 54, nr. 28 f.; 57, 8. Privilegium cleri: 60, 35; 61, 8, 9, 11. Cf. Amenability of clergy. Broclamations: v. Ordinances. Brocurations: 42, 11; 43, 3. - Procuratores (proctors): 54, 32 f.; 55. 4, 6. - Prohibitions: 25, 7; 27, 4, 10. |Prolocutor; 55, 9, 10; in Scotland: 125. Prorogation of convocation: 370 : 55, nr. 12 ft. Protestant: I8, 5. Erovincial court : v. Court. Provincial synod : v. Synods. Provisions: Acts against P.; Provisors: 25; 39; 4, 113, 122, nr. 124 f.; II, nr. 15; 2 I, 31; 23, 11; 25, 6; 239; 26, 6; 60, 54. Cf. Patronage. Provost (praepositus): 37, 6, nr. 13; 42, 1 : 57, 2, 8. Purgatory: 169; IS, 12; IQ, 37. 544 JAW DEX Puritans: 7, 4. Purveyance: 27, 22. Quakers: 7, 72; IS, 3, mr. 5, Quare impedit: v. Writ. Quare non admisit: v. Writ. Questmen: 48, 2. Rank, of cardinals: 34, 30; of the king's vicar-general: 34, 32; 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: IO, 14; of those of Armagh and Dublin: II, 8, Reader: 20, nr. 4; 46; 53. Bector: 44, nr. 10 ft. Reformanda : 55, nr. 22. Reformatio legum ecclesiasticarum ; I4, nr. 17 ff. Reformation: 6. • Reformed Episcopal Church in England: I8, 10. Registration of places in which service is held : IO, nr. 65 ff. 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, mr. 4. |Residentiary canon: 301; 303; 37, 28. JResignation: 2O, 6; 40, 4. Resurrection: I'9, 37. Roman catholics: v. Papists. IRubric (in prayer-book): 163. Rural chapters: v. Synods. Rural dean : 43; 45, 7: 54, 41; 58; 66; app. xiii. Sacraments; 169; IQ, 37; 20, 10; 46, 2. Sacrilege: 60, nr. 169 ft. Cf. Attack on clerici. Saint John, Order of: 4, nr. 106; 6, 29; II, 20; 60, 67. Saints, Adoration of : 169. Savoy conference: 88; 167. Sciregemót: v. County Court. Sciregeréfa : v. Sheriff. Scotland: IO; union with England: 70; 7, 54; 116; 121; claim of pope to suzerainty: 4, 69. Scotti: I, 18. Scutage: 4, 72; 27, 16a. Cf. Taxes. Sects: 7, 4, 10, nr. 61 ff., 72,84,85,86. Cf. Lollards, Puritans, Presbyterians, Independents, Anabaptists, Soci- 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: 37, 46. Sequestration: 31, 20; 45, 9; 48, 16. Sexton: 50. Sheriff: 59, 2, 3, 4; 60, nr. 11. Shetlands: IO, 3. - Sidemen (Sidesmen): 42, 11; 48, 2,17–19. Significavit: 61, 19. Simony: 9, 14; 60, 179, 180; 6 I, 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; I6, 3 ff., 19, nr. 22; 22, 19. Society for Promoting Christian Know- ledge : 142. - Society for the Propagation of the Gospel in Foreign Parts: 142. Socinians: IQ, nr. 27. Sodor and Man: v. Man. Soul-scot: 3, 10. Spolienrecht: 27, 21. Statutes of chapters: 37, 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: I6, 12. Succentor: 37, 14. Succession to throne: 7,83; IO, 55; 18, 5; in Scotland: IO, 48. Suffragan : 33, 18; 39, nr. 3 ff., 55, 1; used of a bishop in relation to his archbishop: I2, 20. Summoning of church councils: 54, 7, nr. 16 ft., nr. 55; 55, 11. Summus justiciarius: v. Justiciar. Supremacy: 28; 30, nr. 9: 54, nr. 15; in Scotland: IO, 24; 116; IO, 47; in Ireland: II, 16, 20. Supremacy oath : v. Oaths. Synodaticum : 44, 7. Synods. General council of the early Christian and medieval church: I4, IAW DE Y 545 2, 11, 13, 14; of the Roman catholic church : I4, 14; Pananglican con- ferences: I2, nr. 24. National Synods: 47; 21, 18; 54; 54, 49; North American General Con- vention : 154 f.; I3, 16; Scotch general assembly : 112 ; IO, 57; Scotch general synod : 125; Irish general synod: II, 38 f. Brovincial synods (convocations): 7, 29; 99; IQ, 17; 54–56; 59, 11; 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, Westry. Participation in synods abroad: 1; 6, 18; 26, 7; 33, 28. Taking of arms in self defence: IQ, 37. Taxes (in general sense), paid by clergy to State : 2, nr. 16, 17; 4, 21 (32), 56, 60, 61, nr. 72 ft., II, 33; 27, nr. 16 ft., 54, 14, 37, 50, 53, nr. 57 ff.; to higher church authorities: 4, 58; 31; 4, 70; 6, 18. Cf. Cathedraticum, Firstfruits, Procurations, Tenths, "Twentieths. Taxes paid by laity to clergy: 3, 10; 23, 18; 27, 6; 44, 6; (48, 11); 60, 143. Cf. Tithes. Templars: 4, 106; IQ, 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 f.; 61, 15; 462; testaments of the clergy: (4, 32); 27, 21; 462. - Testes synodales: 43, 9; 48, 2, 17; 57,9. Theological colleges: 2O, 21. Tithes: 3, nr. 10; 7, 54; 9, 10; II, 35; I2, nr. 2; IS, nr. 1; 23, 13; 27, 19: 44, 6, 8; 60, nr. 132 f.; 451. Titulus beneficii, patrimonii, mensae : 20, 12. Toleration Act : 7, 84. Tonsure: I, 5, 18, 21; II, 3. Transgressio: 60, 47. Translation: 40, 4. H. C., Transubstantiation: 7, 75; 169; IS, 12 Treason: 60, nr. 45 fſ, 6 I, 11. Treasurer (of chapter): 37, 14: 54, 39. Trinoda necessitas: 2, nr. 16, 27, 16. Turnus vicecomitis: 60, 11, 18. Twentieths: II, 16, 20, 33. Uniformity Acts: I5. Unio: v. Appropriation. United States: 142; I2. Upper house of Convocation: 364; 369; 371; 55. Usury (Lending at interest): 60, nr. 181 ff.: 61, 19, nr. 30 ft. Vacancy, Administration during (of bishopric): 4 I ; of benefice: 43, 5, 9; 45, 9; 48, 16. Westry: 101; 139; presidency (chair- manship) of: 44, 46; select vestry: 139. - Vicar: 329 f.; 335. Vicar-general (king's): 6, 20; 256; 30, 1: of archbishop or bishop: 36, 9; 38. Vicars choral : v. Minor canons. Vice-chancellor (of chapter): 37, 14. Vicecomes: v. Sheriff, Turnus W. Visitation, by pope: 6, 18; by foreign heads of monasteries: 4, 70; by the king: 6, 21–23, 25, 41; 30, 2, 8; by archbishops: 294; by bishops: 36, 1, 2; 48,2; 57, 3, 5, 7, 10; by arch- deacons and rural deans: 4, 127: 42, 11; 43, 3; 325; 48, 2. Vows of Chastity: 170; 22, 19, 22. Wales: I, 23–25; I5, 5; 45, 8. Warden: 37, 14. West Indies: I2, 7; 145; I2, 25. Westminster Assembly: 7, 41; IS, nr. 13; I6, 21. Whitby: v. Streoneshalch. Witenagemot: 200; 353 f, Women, Ordination of 20, 15. Cf. Deaconesses, Sisterhoods. Writ de excommunicato capiendo: 4, 71; I9, nr. 81; 27, 6; 61, 19, 36, 37; de contumace capiendo: 6 I, 36, 38; de haeretico comburendo: IQ, 11, nr. 20, 32, 39; 27, 6; mandamus : 27, 11; fieri facias de bonis ecclesiasticis: 27, 11; venire facias: 27, 11; quare impedit: 60, 155; quare non per- mittit: 60, 155; quare non ad- misit : 27, 11; praemunire facias: v. Praemunire; Indicavit: 60, nr. 138, 139, 158; scire facias: 60, nr. 140 ft. Cf. Prohibitions. N N - ; : – ſ.....INVERSITYQEMIGHIGAN . • . - ||||||||||| - º 3 9015 04925 7176 * | Fººt_j^\, . * 1936 J , , , , , (3 F tº i . A_i BRARY ; ' ' .** º < * v ºr º 7 . 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