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and, as the weeks slipped by, all the Puritan fears of Popery were confirmed threefold. On the other hand, the gentry's confidence was increased by the consciousness that they had gained a powerful ally in the common lawyers.) The archbishop's scheme for remodelling the ecclesiastical fabric by administrative orders and through the decisions of his courts, had received a severe check from the readiness of the common law judges to issue prohibitions, and, what was more, to sustain them. Had not the clergy acknowledged the serious obstacle thus put in their way, by the complaint against the common law courts which the Archbishop had just presented to the Privy Council? Had he not as much as said that, if the existing practice in regard to prohibitions could be maintained, the administration of the Church would be wrecked? The Puritans intended to lose no opportunity of strengthening the hands of the common lawyers. The contest between the Puritans and the Church was, therefore, not ended, but was resumed with new vigour, new courage, and a new purpose.
During the last fifteen months, the Puritan ministers had not been idle and had produced at least a dozen pamphlets, full of legal and theological arguments, which furnished their lay friends ample material for parliamentary speeches. The Lincolnshire and Devonshire ministers printed long defences of their conduct. William Bradshaw published at least three books, A Protestation of the King's Supremacy, made in the name of the afflicted ministers, A Proposition concerning Kneeling in the very act of Receiving, and, most significant of all, A Treatise of the Nature and Use of Things Indifferent tending to prove that the ceremonies in present controuersie are ... neither in Nature or Use Indifferent. Then came Twelve Arguments to prove the ceremonies “unlawful," and A Short Dialogue by Samuel Hieron, declaring that the arguments used to justify them had previously been employed by the Papists to defend their superstitions. Richard Bernard (?) issued a Dissuasion from the way of Separation; Henoch Clapham wrote An Epistle to such as be distracted in mynd in respect of the present styrres in the Church, while a pamphlet entitled Certaine Demandes with their Groundes drawne out of holy writ, demanded from the archbishop and five bishops a "true, plaine, direct, honest, and resolute answere.” Many of these hinted that the Canons of 1604 were illegal, because they had not been confirmed by Parliament,
and the point had been included among those sent out by the leaders in the summer and fall of 1604) This idea was now fully developed in the tract, Certain considerations drawne from the Canons of the last sinod, and was answered in an official publication, dedicated to Bancroft, written by Francis Mason. B. D.-The Authoritie of the Church in making Canons and Constitutions concerning things indifferent and the obedience thereto required. The point was continually alluded to during the years 1604 and 1605 and assumed prominence early in the session of 1606 and 1607.
Like the Puritan attitude toward subscription, the argument was a development and a consequence of the idea which had survived from the old Teutonic law, that no man could be bound by anything to which he had not personally assented, except to the tribal or national law into which he was born. Therefore, inasmuch as the laity were not represented in Convocation at all, the Catholics and the Puritan laymen claimed that the Canons were not binding upon them. The Puritan ministers felt that they too were not represented in Convocation, that the bishops and their underlings were “anti-christian, Baal's priests,” without proper authority to legislate for the Church at all; and they too rejected the Canons as illegal. Pressed, however, by political and ecclesiastical forces to obey, they agreed to accept the Canons, if they should be confirmed by Parliament, hoping that their lay friends in the House of Commons would effectually oppose that confirmation. Accord ing to the legal views of that date, however, confirmation was superfluous.
Henry VIII, Elizabeth, and James all considered that the assent of the laity to ecclesiastical legislation had been given, once for all, by the assent of Parliament to the legislation of Henry VIII; that right of the laity to assent to Canons had then been delegated for all future time to King and Convocation.
The twelve judges, in February, 1604-5, declared in the Star Chamber advisedly, before a dignified concourse of lawyers, nobles, gentry, and ecclesiastics, that " They held it clear that the King without Parliament might make orders and constitutions for the Government of the clergie.') Although nothing was said here about the laity (probably because the authority of the Canons over the laity was not then in question), the Canons of 1604 seem to have
been considered, till at least 1640, by the common law judges, as well as by the ecclesiastics and statesmen, to be legally binding upon both clergy and laity. Later legal opinion was to the contrary, and for two centuries it has been said by judges, chiefly in obiter dicta, that Canons which had not been confirmed by Parliament, would not bind the laity; and that the Canons of 1604, being still unconfirmed, were legally effective only on the clergy. The growth of the power of Parliament, the assumption by the temporal courts of most of the lay offences covered by the Canons and the ecclesiastical law, the complete denial of the right of the clergy to hold jurisdiction over the laity at all, made such a legal dictum necessary and inevitable. Such, however, was not the best opinion in 1606.
The consideration of the Gunpowder Plot, and the discussion of the measures to be employed for the repression of the Catholicsin all of which Bancroft was very active consumed so much time and so engrossed the attention of both Houses of Parliament, that the Puritans and Church matters proper were not reached till the month of January, 1606, was far spent. On January 21, Bancroft ? secured the appointment, by the Lords, of a committee to “consider how the Laws are already in Force, that tend to the Preservation of Religion ... and what Defects are in the execution of them or what New Laws may be thought needful.” This roused the House of Commons to action, and on the following day, Mr. Wentworth lamented the scandal caused by the presence of ignorant and nonresident clergymen, and declared that “an able ministry, learned (and) resident” was a necessity. A great committee was appointed to confer with the Lords, and many letters were written “into the country to understand the Grievances.'
1 There is abundant positive, as erences to the Journals of Lords and well as negative, evidence of this in Commons have not been given, bemost of the diocesan registries, and cause the dates indicate even better in many of the Law Reports. Papers the whereabouts of the entry. As in Coke's XII and XIII Reports and with the Parliament of 1604, there II, III, and IV Institutes are not the are a large number of manuscript best evidence in this connection. bills, petitions, etc., which may refer
2 A Latin copy of the summons of to this session, but which cannot be Bancroft to Parliament, as Archbish dated with sufficient certainty to op is in Cotton MSS. Cleopatra, F, justify acceptance by the critical. II, f. 43. In Stowe MSS. 168, f. These are in the State Papers; Cot320-323; 362, are notes of debates in ton MSS. Cleopatra, F, II; and in the this session which are interesting, but Report on the House of Lords MSS. not particularly valuable. Page ref
No response was received from the latter, and as the Lords were slow to act, the members of the House brought in bills of their own to remedy the difficulties. On February 8, Sir Edwin Sandys brought forward again that well-known measure, once more revised and revamped, the bill "for the better establishing of true Religion,” which, with the bills introduced toward the end of the month, against nonresidence, against pluralities, "for the more due execution of Ecclesiasticall government' contained the scheme for the introduction of Presbyterianism. Sir Francis Hastings also championed a bill for the restoration of the deprived ministers, which, with all the others, was duly read and committed. From the supporters of the Government in the House came a bill for the “Establishing of true Religion” which was “stayed from the Question.” Matters then drifted amicably along till the middle of March, and, as might be expected, Bancroft was glad to postpone, as long as possible, the struggle which he realised was inevitable between the House of Commons and the bishops.
On March 15th, Fuller, Morrice, and some of the more radical of the Puritan sympathisers, "much urged" the grievances of the deprived ministers. Sir Richard Spenser, on the other hand, , complained no less loudly of the "self-weening Opinion of some Ministers," and maintained that matters of discipline were to be changed by those in authority according to times and places. In no case were the ceremonies, agreed upon by a general convocation, to be subject to the judgment of private men. Sir Francis Hastings suggested a petition to the King, but wished the House to disavow any intention of innovation or of introducing the Presbytery, and was supported by Mr. Wentworth, who described the poverty and sufferings of the ministers since their deprivation. Both were, however, reminded by Sir George Moore that the issue in debate was not the extent of the ministers' sufferings, but whether their sufferings were not the necessary consequence of their disobedience to the clear law of the Church. The only point left to discuss, declared Moore, was the legality of the deprivation. Nevertheless, the deprivation of the ministers was voted a "grievnace." Two days later, Fuller produced the grievances against the High Commission, wished the numerous diocesan commissions revoked and the maintenance thereafter of only two general commissions, one at London, and the other at York, as had been
proposed at the Hampton Court Conference. “That is no fit grievance to be presented,” declared Sir Daniel Dun, somewhat warmly, as may be imagined, for he was one of the civilians closely associated with Bancroft, besides being himself a member of the Commission. Assisted by Sir John Bennett, later Judge of the Prerogative Court, he succeeded in recommitting the clause. But all in vain, for when the grievances were reported to the House on April 5, the strenuous efforts of the civilians to strike out such phrases as "the unlimited Authority of high commissions," were futile, and the grievances were accepted substantially as reported.
A message was then sent to the Lords, requesting a conference on the four points: the silencing of ministers, the multiplicity of ecclesiastical commissions, citation, and excommunication. The Lords had just begun to discuss in committee a lengthy proposal of Bancroft's regarding excommunication for small causes and the substitution of some other process for it. From the King had come a message stating that he wished the practice reformed, but desired at the same time to uphold the ecclesiastical jurisdiction in all respects as is fit." The Upper House was therefore busy, and its members were so nonplussed when they saw the grievances in which the Commons wished them to join, that they postponed immediate action. Two days later, by way of partially appeasing the impatience of the Commons, two of the hostile bills already sent up were read a first time, but a long debate on the grievances produced no result. A committee of which Bancroft was chairman discussed the topic and reported, but brought the Lords no nearer a decision. A strong party, of whom Bancroft seems to have been the leader, desired to refuse concurrence point blank, on the ground that the House of Commons had no right to take cognisance of ecclesiastical affairs at all, but they were finally won over to the proposal of a conference, with a committee from the Lower House. The Commons, well understanding the issue and the significance of the delay by the Lords, assented to the conference and then, as an earnest of their own unchangeable hostility to the Church, proceeded to read, a second time, the bill against scandalous and unworthy ministers.
1 See a manuscript journal on the f. 72 b, et seq. action of the House of Lords, during 2 The evidence the point is these months, in Harleian MSS. 767, vague, fragmentary, and confusing.