others, as, in these dangerous times, when none can appear in London, and few stir in the country, without taking, their voices could not be had without imminent danger." But comparatively few were found who actively opposed the petition for bishops. The Capuchins, the Benedictines, and the Franciscans were wholly in its favour, for, like the seculars, they wished to break the exclusive Jesuit influence over the English clergy.

Meanwhile, an obstacle had been removed from the road of the secular priests. Robert Parsons died at Rome, on April 15, 1610. When the news began to spread about, More wrote to Birkhead that the Pope was reported to have remarked that "we shall be more quiet now that Parsons is dead." Yet, as Bancroft's death six months later changed neither the policy of the secular priests nor that of the Government, so Parsons' death left the Jesuit plans intact. The struggle went on without the two great leaders. The long list of signatures collected in 1610, when finally transmitted to Rome, did not produce the effect expected; and, in truth, it was only after thirteen years of further effort, that William Bishop was finally consecrated titular Bishop of Chalcedon in 1623; and not till more than half a century later that Catholic bishops were firmly established in England.

1 Birkhead's holograph letter explaining the situation to the Cardi

nal Protector, Stonyhurst MSS. Anglia, A, III, no. 101.

CHAPTER IX

STRUGGLE WITH THE COMMON LAW, 1608

1

Whatever was the legality of the flood of prohibitions which were issued in 1607 and 1608 by the courts of common law, there can be little doubt that they threatened utterly to wreck the administration of the Church and to crush its new institutional life. So long as a prohibition was to be had upon the bare statement that the ecclesiastical courts had refused to allow a plea of modus decimandi; so long as the surmise that the case was neither matrimonial nor testimentary would be accepted, no layman or cleric would consider final any decision of the ecclesiastical court which diminished his income. With the renunciation of the idea of ameliorating incomes by this means, there disappeared the hope of improving the character, learning, and ability of the clergy in general; and there could be no further thought of reforming pluralities and nonresidence. With all these departed any expectations, which Bancroft. had entertained, of being able to dispense with the services of the High Commission by so improving the capability of the individual clergy that the old medieval constitution, which depended upon the willingness of each man in the ecclesiastical fabric to perform his own duty, would of itself discharge again its proper functions. Without the power to fine and imprison, without the right to summon men to London from all dioceses, without the authority to try all subjects of ecclesiastical cognisance, the High Commission would be a broken reed, utterly unfit for most uses to which it had been put. Without it, the administration of the Church would again. sink into the lethargy in which Bancroft found it.

Yet the judges were not contented that the ecclesiastical courts should be weak: they meant to destroy their power altogether; and to this end educed new claims.

1 This was the statement made by the ecclesiastics and admitted by the judges to be in substance true.

They declared that the oath ex

Coke said during the debates that prohibitions had been "infinite" in number.

officio, as employed by the ecclesiastical courts and the High Commission, had been abrogated by the reformation statutes as repugnant to the common law of England and to the statute of Henry V.1 If this contention was true, it certainly had not been heard of before in any such uncompromising way, and would in effect nullify a cardinal ecclesiastical procedure, without which a culprit could not be legally examined, tried, convicted, or sentenced. Whether it was or was not legal, and whether it was or was not unjustly and tyrannically used, the oath ex officio certainly was the keynote of ecclesiastical procedure and without it the ancient process, which had been in vogue for centuries, would be simply unworkable. To make matters worse, the judges declared that the use of excommunication, for small offenses or for contempt of court, was not as consonant with the customs and habits of English legal practice as it might be; and hinted very broadly that they would be glad if it were restricted to purely ecclesiastical offences. This would rob the courts of whatever punitive power the other claims of the judges did not destroy. If the Commission might not fine or imprison; and if neither it, nor the ecclesiastical courts, might use the oath ex officio, they would be weak enough; but to be reduced to the use of excommunication, in such cases only as the common law judges considered ecclesiastical and serious, would leave the church courts merely power to suspend, and perhaps to deprive the clergy; to admonish the laity, and to commend the use of penance. These judicial "reforms" would, in fact, leave the Church no effective power of any sort, no sanction whatever for the most trivial order. Even had the judges' contentions been most equitable; had they been the law of the land beyond all possibility for even

66

12 Henry V, c. 3 provided that the libel should be granted to the party in the ecclesiastical court without any difficulty" "at what time the libel is grantable by the law." The oath ex officio required a man to swear to tell the truth in the case before he had seen the libel, and the common law judges almost unanimously interpreted the statute's somewhat ambiguous phrasing to mean that the party should be delivered the libel whenever he asked for it, even before he had taken the oath. Such, however, was not and had not been the ecclesiastical practice; if such was the

2

meaning of the statute, it had never been enforced.

2 This appeared in various forms usually tangled with some other issue, as in Smith vs. Smith, I, Croke, 741, where a woman was excommunicated by the High Commission for adultery, and, paying no attention to it, was arrested by the pursuivants: she then sued out a prohibition on the ground that the High Commission had no right to enforce excommunication by breaking into her house to arrest her -it is not clear that actual violence was used-and the court sustained the writ.

a bishop to doubt, the Church could not have consented thus tamely to renounce forever its traditional authority. With such an issue before it, the Church could make but one answer a flat denial of the justice and legality of the common law position. There was therefore at stake more than a legal technicality, more than a quibble about jurisdiction, more even than the relative authority of the two systems of courts: the institutional and administrative life of the Church itself was threatened with extinction.

Such, however, seemed to be the aim of the prohibitions issued at this time. By these writs, the judges attempted to dictate to the ecclesiastical courts what their decisions ought to be in cases concerned purely with ecclesiastical administration. A patron had presented a clergyman to a benefice, and, receiving notice from the Bishop that he was insufficient, presented a second. Meanwhile,

the first candidate managed to remove the technical objections to his induction, and was duly admitted by the Bishop; whereupon the second candidate attempted to oust him by a prohibition. The judges upheld it, declaring that "the Bishop was a disturber, for he, having once refused him for insufficiency, cannot afterward admit him." 1 Even such a question as the exact status of deprivation was adjudicated by the common law, when the judge said that "this Church became void by the not reading of the (Thirty-Nine) Articles and there needed not any deprivation. For otherwise the Statute should be defrauded at the Ordinaries pleasure if he would not deprive."2 This last sentence made it clear that the judges considered it their duty to oversee the episcopal execution of statutes. Again, they undertook to say what was and what was not assent to the Thirty-Nine Articles; and did not stop there, but proceeded to decree what was simony; when a marriage was or was not prohibited by Levitical law; and, having already delivered a dictum concerning the bishop's power to deprive men, they added another informing him how a candidate ought to be admitted." The Bishop had declared a man disqualified because he had not presented, within the time limit, his letters of orders as deacon, and various other papers required by the Canons of 1585. In his

indignation at seeing another inducted into the benefice he expected to receive, the disappointed candidate sued out a prohibition to stay the Bishop from admitting another man. The common law judges declared that the reasons assigned by the Bishop "were not causes to stay the admittance and the clerk is not bound to shew his Letters of Orders or Missive to the Bishop, but the Bishop must try him upon examination for one and other.' This ruling was flatly contrary to the first Canon of 1585, which the Bishop had been trying to put into effect.

Nor did the judges stop here their determination to rule the state ecclesiastical; for, according to the Articuli Cleri of 1605, "Prohibitions are awarded upon these surmises, viz.-that the libel, the articles, the sentence of the ecclesiastical court, according to the ecclesiastical laws, are grievous and insufficient, though the matter there dealt withal be merely ecclesiastical." By this means, the common law judges issued "consultations" ordering the plaintiff in the ecclesiastical court to accept half his fees; or to be content with the payment of his legacy, and lose his costs; or the prohibition should stand and he would not recover anything at all. Here, under cover of restraining the ecclesiastical court from holding plea of temporal matters, the judges were virtually deciding ecclesiastical cases over which they confessed that they had no jurisdiction; and tried to alter the sentences, and even the amount of costs assessed, so as to make them harmonise better with their own ideas of justice, utterly regardless of the fact that the ecclesiastical judge had not in the least overreached his powers.2 The judges said in reply to this accusation that the bishops were wholly mistaken. Although much weight ought to be given to the judges' denial; and true, as it may very well have been, that they entertained no thoughts of unduly interfering with the ecclesiastical administration; there are enough prohibitions recorded by the common lawyers themselves, in their own reports, to demonstrate the essential truth of this contention.3

1 Articuli Cleri, art. xxiii.

2 A very specious plea of this type was uttered by one of the judges in Wright's case, 38 Eliz. Moore, 425. "Le prohibition n'est foundus sur ascun misdemeanor del spiritual judge en tener de plea del chose que il ne poit tener plea, mes est foundus sur ceo que lour ley ne point minister

droit al party sur le plea le dismes: issint que les dismes et nemy le tener del plea est le substance del suit, per que le refusal del plea n'est material."

3 It is true that none of the Law Reports can be supposed to contain the actual words spoken, so that we are really judging the attitude of the