The years that followed the Articuli Cleri produced even more radical examples of judicial interference with ecclesiastical administration. In October, 1608, a minister was deprived of his benefice for simony, nonresidence, and gross neglect of his charge; and yet he secured a prohibition to suspend the sentence against him. Several judgments for adultery and incest were practically nullified, and the culprits allowed to go unpunished. A bailiff who had dragged people out of church when on their knees at the communion rail; a man arrested for "scandalous abuse" of the ecclesiastical courts in general; a man summoned to explain why he left his wife without support; another who asked a prohibition to avoid paying the costs of a suit which he had just lost at ecclesiastical law; all were granted prohibitions apparently without hesitation. One case particularly scandalised the churchmen. One Sunday, during the service at Burnham, a man named Green, who was probably a fanatical Puritan, assailed the minister, forcibly stripped his surplice from his back, and then, before the astounded congregation could recover its wits, escaped, carrying with him all the bread and wine which had been prepared for the communion, so that there could be no celebration of the Eucharist on that day. Yet he had no difficulty in obtaining a prohibition to stop proceedings against him in the High Commission.1 Fuller's case was thought by Bancroft and the King to exhibit a singular desire to block the ecclesiastical procedure, without an atom of excuse that anything of temporal cognisance was at stake; and the awarding of writ after writ, all of which the judges successively refused to sustain, was, in the Archbishop's eyes, a scandalous abuse of power. Coke, however, was on pleasant terms with Bancroft and had done. all that he could, by personal interviews with prelates and judges, to mend the breach between the King's Bench and the High Commission.2

court by the words of some reporter of dubious authority. Such, however, is the condition of all the old law books, and yet common lawyers usually see no harm in basing learned and close distinctions on their wording. If the Reports are assumed by the lawyers to contain the law exactly as it was delivered, historians may also accept them as valid evidence.

1 Copies of the prohibitions issued in these cases will be found in Stowe

MSS. 424, f. 158. et seq.

2 So considerable had been his efforts that, on November 30, 1607, the King sent him a special message of thanks and begged him to continew his advices and conferences with my lo: of Canterbury, for the settling of those differences between the King's Bench and the High Commission." Hatfield MSS. 123, f. 66, November 30, 1607. Holograph. Lake to Salisbury.

Meanwhile, the Archbishop had not been idle; and in these three years, 1606-1608, no less than six notable tracts appeared, espousing the side of the Church in these controversies. Dr. Cowell, the Regius Professor of Civil Law at Cambridge, and Master of Trinity Hall, had already figured prominently in the preparation of the Canons of 1604; and now published, in 1605, at Bancroft's suggestion, his Institutiones Juris Anglicani, in which he maintained the essential unity of both the ecclesiastical and common law in practice and procedure; and advocated the theory that inasmuch as the ecclesiastical jurisdiction was now united to the Crown, the temporal courts should cease their hostility to it, give up prohibitions and other writs by which they blocked its procedure, and admit those courts to a position of practical as well as legal equality. In 1607, he published the famous Interpreter, a little dictionary of political terms in which he sought to set before the English reading public such definitions of the various ordinary phrases then in use, as would in his opinion more nearly accord with precedent and history than did the views which were espoused both by the Puritans and by the common lawyers.

It now remained to show that, because of this great similarity between the common and civil law treatment of various subjects, the elevation of the ecclesiastical law and its courts to equality would involve no sweeping changes; but would, at the most, demand only a little forbearance on each side, and the concession of some technicalities in the granting of prohibitions. The task of developing the ecclesiastical offer of compromise was entrusted to Sir Thomas Ridley, another of those civilians who were probably responsible for the drafting of the Canons of 1604. He published, in 1607, a View of the Civile and Ecclesiasticall Law, which shows a thorough grasp of the situation and much learning.

Shortly before, the Bishop of Chichester had published, in 1606, a tract upon Tithes examined and proved to be due to the Clergie by a divine right, which contained much solid learning, of which Selden afterwards made good use. What Carleton meant by divine right was, after all, nothing more than biblical sanction, coupled to the consent of the early Christian Church. The sixteenth century and the Jacobean prelates did not mean by that much misunderstood phrase, that tithes or episcopacy were created by a special volition on the part of the Deity; but merely that their

institution must possess the divine approbation, inasmuch as it was found to be authorised by Scripture. Two tracts, written by two converted Puritans, were directed against the Puritan ideals,— Thomas Sparke's Brotherly Persuasion to Unity and Uniformity in Judgment and Practice, (1607) and George Downame's Sermon defending the honourable function of Bishops. (1608) The former of these was intended to demonstrate the advisability and harmlessness of subscription and conformity to all the ceremonies and observances urged by the Canons of 1604; while the latter was a temperate and learned exposition of the basis for Episcopacy, as found in the writers of Christian antiquity.

Thus was the ecclesiastical contention made strong on paper. It now remained to be seen whether it could be supported in debate, for the number of prohibitions had gradually increased, and their interference had become so much more marked, that Bancroft really believed that they would bring the whole administration of the Church to a standstill. In other directions, too, the judges had been seeking to extend their jurisdiction. The Council in the Marches of Wales, and the Council of the North, the Court of Requests, the Court of Admiralty, and the Marshalsea, had all felt the pressure of the common law through these same prohibitions, and had all complained to the King. James was wroth, but finally came to the conclusion that he must renounce his hunting and appear in London, to settle the dispute in person. In February, and in June, 1608, therefore, the judges were summoned before the Privy Council to answer for their obstruction of administration in Wales and in the North; and in November, the debates began upon the ecclesiastical jurisdiction.

The opening debate upon ecclesiastical matters2 had been set for Sunday, November 6, and on that day accordingly judges and bishops met, by the King's command, in the Council Chamber at

1 Lansdowne MSS., 160, f. 431.

2 The chief authority for these debates is the holograph notes of Sir Julius Cæsar, taken in the council chamber while the speeches were delivered. These have been preserved in Lansdowne MSS. 160, and are now fully utilised for the first time. We could hardly have found a more impartial and able note taker. Cæsar had taken degrees in civil law at

Paris and Oxford; had been a judge of Admiralty; of Requests; of Chancery; and had also been a Bencher of the Inner Temple and twice its treasurer; but was, in 1608, Under Treasurer of the Exchequer. He had thus been connected with both parties, understood thoroughly both views of the controversy, but was at the moment connected with neither.

Whitehall. Neither, however, were ready to argue their contentions; and James remarked that either the High Commission's Patent was too long or the judges were much too busy to read it; and therefore bade them attend again on November 13, when he hoped that they would both be better prepared. To that end, he desired them to communicate to each other their respective briefs, so that they might be ready to rebut the charges against them, as well as to make accusations themselves. He evidently expected to dispose of the whole difficulty in one long Sunday forenoon's debate. Having thus instructed them as to their duties, he added, as was his habit, a maxim:-all the Courts, he said, were under one God, one King, and one Country; and, therefore, he had an excellent expectation of them all. Before the ecclesiastics could depart, Coke, the Chief Justice of Common Pleas, broke out into a long tirade, stating that the High Commissioners never paid into the Exchequer any of the fines levied by that court, but appropriated them to their own use.2 Bancroft lost no time in denying the charge, and the two waxed so warm over the difference of opinion that James interrupted, warning them "to take heede of heate in this business," for he intended to observe those who disobeyed his wishes, and would call them to account for it. With this premonition of things to come, the churchmen filed out and the judges remained to answer the complaints of the Lord President of the Council in the Marches of Wales.

The following Sunday, November 13, found the same assemblage gathered at Whitehall, with James in the chair, and the bishops and judges standing respectfully before him.3 Cæsar recorded, with

1 Lansdowne MSS. 160, f. 428.

2 Bancroft was right. In the Exchequer Documents, Q. R. Eccles. Bundle 12, will be found the original certificates made to the Exchequer by the Clerk of the Commission for the year 1592. There are a large number of such certificates in other bundles for varying dates from 1590 to 1640, but there seem to be none preserved for the period before 1590. Possibly Coke pursued his researches only in the earlier years. It is strange, however, that he could have been Attorney General for so many years and have displayed from time to time such ignorance of simple facts of ecclesiastical procedure.

3 The authorities for this account are: Cæsar's Notes in Lansdowne MSS. 160, f. 424-423; John Hercy to the Earl of Shrewsbury in E. Lodge, Illustrations, III, 248; Sir Rafe Boswell to Dr. Milborne, in Hatfield MSS. 125, f. 36; Coke's account in XII Reports, 65; and a French MS. copy of the Reports, which differs somewhat from the printed version, Lansdowne MSS. 601, f. 109, and another copy in Harleian MSS. 4615, f. 16. These have been printed and discussed by the present writer in the English Historical Review, October, 1903. The principal results are: (1), that the date of the meeting was November 13, 1608, and not Novem

his usual fidelity, that the King opened the meeting and said that he had come neither to hear nor to make orations, but intended to conclude the troubles between the two jurisdictions. "Now," he continued, "to the prohibitions against the ecclesiastical courts;" where the issue was, whether a case concerning tithes should be removed to the temporal court because the defendant alleged a commutation.1 Coke, as the spokesman for the common law, gave first, an exposition of the statutes of Edward II, Edward III, and Edward VI, and maintained that in stating that such cases of tithes were to be tried at ecclesiastical law, the statutes had not intended to take from the common law its exclusive jurisdiction ́over all matters temporal. He also laid particular stress upon the non obstante clause of the statute of Edward VI, which did, in truth, declare that the act gave the ecclesiastical courts no authority to hold plea of anything which the common law courts should of right and custom decide. Having thus laid down his premise, he deduced from it the "facts", that so long as no temporal matter became involved, the ecclesiastical courts had undoubted authority to proceed; but that, as soon as a matter of temporal cognisance became incident, even in a case which itself was clearly of ecclesiastical tenor, the whole question must be transferred to the common law courts and there decided. That the civil lawyers explained the law differently, he was well aware; but the law of the realm was the law, and it was the duty of the judges of the common law to expound it; and their interpretations must be received in preference to any reading adduced by men who, however learned in

ber 8 or 10, 1607; (2) that the account given by Coke, with its famous sentence from Bracton, is very likely a confused recollection of several of these debates fused into one, together with a long list of precedents concerning the King's right to try cases in person, or arrest a man, which he drew up afterward, in order to leave posterity a justification of his attitude; (3) that none of the other authorities mention Bancroft as concerned at all. He was very likely present, but there is no evidence but Coke's to prove that he told James he might decide all cases in person, although Article I, of the

Articuli Cleri, has usually been cited as evidence of that contention. This idea was current gossip at this time, for Bancroft himself, a little later, speaks of it in his letter to the Civilians, January 23, 1608-9, and denies it, probably with truth. The account in the text is an attempt to combine the most trustworthy of our material in a connected narrative.

1 For a discussion of this debate, see The Case of Modus Decimandi, Mich. 6, Jac. 1, in the Common Pleas, XIII. Reports, 12, which, if the date is right, was decided before or immediately after this debate.