CHAPTER X

DEBATES UPON LEGAL CONTROVERSIES, JULY, 1609

The effect of all this argument over the validity of ecclesiastical jurisdiction, soon became apparent by the small amount made of its process and procedure by various individuals of more than dubious character. A week or so after the debate just recorded, a case occurred which brought this fact home to Bancroft in a most forcible manner. News having been brought to him that a certain Christopher Roper was concealing Jesuits at his house just outside London, the Archbishop judged it expedient, for one reason or another, to arrest them. With the pursuivants of the Commission he sent the constables of the district, so that Roper could not object that there was not authority enough before him. Roper, nevertheless, refused to admit the officers; but sent his wife to interview them, so that he might swear, (if by chance he afterward fell into the hands of the Archbishop) that he had never refused to admit them. His lady demanded a warrant under the seals of six of the Privy Council; and when the pursuivant answered that his warrant was from the Archbishop and three High Commissioners, "shee flurted at it," wrote the angry prelate to Salisbury. However, she informed the messenger that he might come in if he would not search certain rooms, which the owner of the house, Lord Howard, from whom they leased it, had reserved for his own use. So transparent a ruse deceived no one; and the pursuivant, leaving the constable and his fellows on guard, posted back to London for instructions. Bancroft then penned a letter to Roper, saying "that he should be better aduised and suffer the search;' and letters to the justices of the peace and constables of the district commanding them to guard the house until further notice; and with these sent the officer back. Then he sent a messenger to Salisbury and begged him either to tell the King of the matter or to send him a warrant under the seals of six of the Council, for search the house he would. "Your Lordship may preceaue by the premises

of what estimation his Majesty's sayd Commission (through the insolent contempt thereof by some and the audacious and factious disposition of others) is growne to be: which is a high degree toward the neglect of greate authoritie." Here, at the interesting point, we lose the thread of the story and its conclusion.1 In all this, the Archbishop saw Coke's influence; and he found additional traces of the same spirit among the other judges, for, during the summer assizes of 1609, Justice Warburton released a Catholic who had been imprisoned by the High Commission, on the ground that the Commission could not fine and imprison.2

James had thoroughly approved the main contentions of the Church in the debates, but he was far from satisfied with the legal showing made by the Archbishop and his advocates. Believing that the crown lawyers could do better, he ordered Hobart and Bacon to prepare briefs for the new debates which were appointed for the Trinity Term. After an interval of a little more than a month, the contestants again assembled on July 6, 1609, at Whitehall.3 Coke took the floor and made some considerable concessions in regard to the issuing of prohibitions, which, had they been made in 1605 or 1608, might have settled the dispute for the time being and have avoided the issue which the judges had forced. That the latter should have made any offers at all shows how serious they now believed the matter was.] Coke's first statement, however, was no concession: they would grant prohibitions, he declared, only "in such cases when they may doe it by the law, by the statutes, and by the custome time out of memory of men, videl. by judgments at comon lawe confirmed." That answer was too general, interrupted the King; they ought to specify exactly their rights, and above all ought not to be judges in their own case.

They would grant no prohibitions, continued Coke, except in open court; they would insist upon an examination of the truth of the suggestion and require proof of it by two witnesses; they would summon the party whose suit was to be prohibited and hear his arguments. They would see to it that no such writ contained more than the suggestion presented by the suitor; they would even go so far as to force the party seeking the prohibition to give bond for the charges which his opponent might incur in se1 Bancroft to Salisbury, June 7, 2 Lambeth MSS. 933, f. 25. 1609. Hatfield MSS. 127, f. 67. Original, signed.

3 Cæsar's notes in Lansdowne MSS. 160 f. 416-415.

curing a consultation. They would shorten the length of the writs issued; would prosecute the cases speedily; and, if the defendant was poor, provide counsel for him at their own expense. If these offers had been effectively carried out, most of the technical grievances would have been rectified.1 That they were not accepted as satisfactory is the best possible indication of the distance which now separated the parties, of the greatness of their mutual distrust, and of their consciousness that more than a mere technicality was at stake. Of course, the only guarantee that these reforms would be made or would be permanent, was the word of the judges. In their good intentions Bancroft and James had little confidence. That was all very well, said the King, but it was not to the point. The question was not how they might best reform their practice to decency and order, "or to open a fair gate for those suits," through which they could be regularly drawn before the common law courts for adjudication; but whether the common law should decide questions of modus decimandi at all. ·

Coke was somewhat taken aback; and, divining that the cause of opposition lay in their doubts of his sincerity, spoke of his good faith, of his search for the truth, and of the necessity of his obeying the oath he had taken as Chief Justice to preserve the law of the land. But he maintained his "former opinion that modus decimandi is merely belonging to the cognizance of the temporal judges, by a continual possession euer since the law of 2 Edward VI, by eighty learned Judges at the least." Read the statute, he begged them, and examine carefully its wording. Clearly, he said, a piece of land must not pay double tithes; if it is to pay by a modus decimandi in money, it cannot also pay in kind. The modus decimandi is a custom, and "customes are parcell of the lawe of England," as was declared by the statute of 19 Edward III. The common law may therefore try the case, and therefore may issue a prohibition to prevent its trial at ecclesiastical law.

Not so, retorted James. The statutes were made to facilitate the proper payment of tithes and not to enable men to evade them; to allow the ecclesiastical courts to try suits brought for tithes, and not to take away from that jurisdiction all cases of tithes, whether brought by clergy or laity. No act should be so construed as to de

1 Some of them at least seem to have been carried out in later years, but the evidence is so fragmentary,

and susceptible of two interpretations, that no more definite statement can be made.

feat its object; and the common law interpretation, and the unlimited number of prohibitions issued under specious pleas, tended, in some parts of England, to stop the payment of tithes altogether. He quoted many statutes in support of his contention. After some further debate between Coke and Ellesmere, the sitting adjourned.

On the morrow,' Bacon argued at great length that the Common Pleas could not issue original writs, and, hence, could not grant a prohibition to the ecclesiastical courts, unless the same case was also being heard at its own bar.2 Bancroft had already raised the point in the Articuli Cleri; and if it could be maintained, it would go far toward stopping the deluge of prohibitions from the Common Pleas, most of which were issued when a case was not impleaded at common law. Coke replied with an equally long array of precedents, and both he and Bacon asserted that their own list was not once crossed or contradicted; Bacon declaring that his contention was demonstrated, not only by the books of the Chancery but out of the mouths of the judges of the Common Pleas themselves. In rebuttal he said the disagreement of precedents was nothing extraordinary, for in Edward VI, the judges had disallowed lists of them and in the eighth year of Elizabeth nearly a hundred had been rejected at once. The King said, in conclusion, that the Lord Chancellor's books were far preferable to the Lord

1 July 7, 1609. Cæsar's notes in Lansdowne MSS. 160 f. 414-413. We also have the speeches in full. Casar's notes and the "Preface" to Coke's Answers has made it possible to date and arrange a great mass of papers, and to ascertain definitely their authorship. These it is believed have now been utilised for the first time; and have also been shown for the first time to be the work of Coke, Bacon, and Hobart. In most of the MSS. repositories, the numerous copies of these speeches now in exisand dated, and such varied authors assigned, that an attempt has been made to collect a bibliography of the copies of these speeches now in existence. None of them have been printed, although the substance of Coke's replies can be traced in the II, III, and IV Institutes at various places. The important speeches by Bacon and his connection with these debates is now shown for the first

time. Mr. Spedding was able to find but little about Bacon's doings in 1608 and 1609, but we can now make good the deficiency.

2A Breuiar of the selected proofes: prohibitions out of the Common Pleas noe Recorde being before them. Cotton MSS. Cleopatra, F, I, f. 215; Tanner MSS. 120, f. 25; Petyt MSS. 511. 16, f. 228; and 538. 55, f. 5 b; Rawlinson MSS. B. 20, f. 224 and B, 157, 18 b, and C, 731, f. 48.

3 Indeed a clear precedent, which no quibble could explain, took exactly Bacon's position. Brook's Abridgement, (1573), f. 165 a, No. 6, a case of 38 Henry VI. This is rather damaging to Coke's asseverations that his view was "not once crossed or contradicted." It was Coke's weakest point that he steadfastly refused to recognise the plain fact that the common law decisions had been far from uniform or unanimous.

Coke's precedents, and quoted Justice Yelverton as stating, in Fuller's case, that the Common Pleas might issue no prohibitions except when the case depended before them. There the debate was adjourned for the day.

1

When it was resumed the next morning, on July 8, the King commanded Sir Francis Bacon to deliver the opinion which he had required him to prepare upon the subject of treble damages for tithes. This dispute had arisen over the interpretation of a clause in the statute of 2 and 3 Edward VI. For the fault of not separating the tithes the statute imposed a penalty of double their value, payable to the man to whom the tithes were due; and expressly ordered him to sue for this double value at ecclesiastical law. For carrying away the tithes, which he had separated, the Act gave, logically enough, a greater penalty than it had bestowed for the failure to separate-that is, treble instead of double value; but with the singular want of precision so often found in early English statutes, had omitted to name the party to receive this triple value or the court where he could recover it. Coke, seizing upon the omission, had argued with plausibility in sustaining his prohibitions, that, whereever in a statute no mention was made of the court where the suit should be brought, the case must be tried at common law. In this interpretation lurked great possibilities. By its aid, the Chief Justice was able to declare that the parson might recover double value for his lost tithes at ecclesiastical law and treble value at common law. Nor could it long be doubtful which side the clergyman's poverty would teach him to espouse.

Therefore, when Bacon rose to combat this position, more rested upon his argument than the demonstration of a small legal technicality. He said that it was clear that when a statute gave a new penalty for an offence of a nature not regularly impleaded at law in a particular court then no doubt the statute must be interpreted to mean that the trial should be at common law. Here, however the offence in question was old and had been of ecclesiastical cognisance for centuries; further proof, then, than an inference from an omission must be demanded before such suits could be heard out of the regular course. This proof was not forthcoming, and a careful reading of this Act and others made it per1A Breuiate of the selected proofes touchinge the Recouerie of the treble value in the spirituall Courtes."' Petyt

MSS. 538. 55, f. 2 b. and 511. 16, f. 161. Rawlinson MSS. B, 157, f. 12, and B, 202, f. 161, and C, 731, f. 56.