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fectly clear, he thought, that the intention of Parliament was the exact opposite. By this Act, that of 32 Henry VIII was confirmed in entirety, which expressly gave cognisance of all such cases without exception to the ecclesiastical court. Secondly, a succeeding clause of this very statute of Edward VI forbade bringing suit for such a detention of tithes before any but the ecclesiastical judges. Nor was there any inconsistency in awarding a penalty of double value of the tithes which the layman had failed to separate, and one of treble value for those which he carried away. From the uniform practice of sixty years in the ecclesiastical courts came added confirmation; and, by the confession of the judges themselves, no such contention as they now espoused had been heard of until thirty-five years after the passage of the Act.
With this argument, logical, coherent, and abounding in precedents and cogent evidence, the King was delighted; and, turning to Coke, remarked, that he wished from him “a sincere and plaine signification of the truth without substraction or addition;" and that, when he excused his want of preparation on the day previous he had declared himself ready to argue this topic. Coke replied authoritatively but succinctly that the proper interpretation of that clause required the vicar to sue at common law, if he wished to recover the treble value of his tithes, for at ecclesiastical law he might regain but double their value. James was vastly piqued, and made no pretense of concealment, for he evidently thought that he had Coke at last in a dilemma from which he could not extricate himself. It was “against the rule of all reason and law,” he declared in his oracular way, “that any Court of England or elsewhere should preiudicate truth by iudging in a cause of question of Iurisdiction between that Court and Others." This plethora of precedents, that poured like a river from the mouth of the Lord Chief Justice, seemed to him of small worth. “Not a multitude of allegations but the soundness of some few must prevail." He was sorry indeed that Coke was so ill-disposed to place confidence in the impartiality of his sovereign for the settlement of this difficulty. He need not fear: a King might be trusted to speak the truth. As for the Lord Chief Justice's denial of his right to decide the question, that was another matter; and there his Lordship was flagrantly in the wrong: he might sit as King Here Cæsar's Notes again become our authority. Lansdowne MSS. 160
“in every court, in common pleas as well as in King's Bench."
Taking their cue from the King, the ecclesiastics began to accuse the judges of issuing more prohibitions since the debates of the previous November than in all the years that had preceded. The judges, caught a little off their guard and somewhat surprised, answered with less than their usual assurance; but especially defended the prohibition which forbade any ecclesiastical judge at London to cite a man out of his diocese. In reply they were told that the statute of Henry VIII to which they referred' concerned only the bishops; that the Archbishop was metropolitan of his whole province and was not affected by that statute at all. The Common Pleas and the Lord Coke, interposed James, sought to be interpreter of both God and men, of laws of both human and divine, of laws civil and canon and of all other laws whatsoever.
When the assembly came to order again, after the royal joke, they listened to Hobart, the Attorney General, argue on behalf of the High Commission. He showed that to admit the truth of the first two of the judges' contentions would completely nullify the Commission's powers. Even if the statute of Henry VIII, which forbade citing a man out of his diocese, applied to the Archbishop as metropolitan, it certainly could not apply to the High Commission simply because the Archbishop was a member. At any rate, if the High Commission might not summon men from all parts of England, its power was gone. Similarly, if the Commission was limited to those cases with which the individual bishop might not deal, “it will follow that it must meddle with none at all, for there is noe case ecclesiastical in effect from the highest to the lowest over which the ordinary (i. e. the Bishop) hath not jurisdiction.” The rest of the judges' objections, continued Hobart, depended solely upon the construction of the Act of 1 Elizabeth c. 1. Their Lordships had taken it upon them to deliver opinions that the Commission might try only criminal cases ; and those only when of the most serious nature; and that it possessed no authority to use fine and imprisonment as penalties. The basis of their contention was that the Commission could not exceed the provisions of the statute which gave it birth, and that, in the clause 1 23 Henry VIII c. 9.
torney Generall,'' delivered July, 1609. 2 “The grounds of Prohibicons to Stowe MSS. 420, f. 18. Cotton MSS. the high Commission and the Answers Cleopatra, F, I, f. 128, Petyt MSS. unto them, by Sir Henry Hobart, At 511. 16, f. 117 and 518, f. 86.
of that statute which sanctioned the Commission, none of these powers were specifically enumerated. From this statement inevitably followed the conclusion, said the Attorney General, that all the Letters Patent hitherto issued for sixty years, three of which had been drawn by the Lord Coke himself, were illegal.
But the truth of the matter was, he showed, that the statute did not sanction a Commission to use the powers enumerated in the Act, but “to exercise, use and execute all the premisses according to the tenor and effect of the said Letters Patents: any matter or cause to the contrary in any wise notwithstanding." The Commission was to find the definition of its powers not in the Act, but in the Letters Patent. And, even if the judges' arguments were granted, that the Letters Patent were limited by the Act, where could be more general and inclusive phrases found than these: “to visit, reform, redress, order, correct, and amend, all such heresies, errors, schisms, abuses, offences, contempts and enormities whatsoever, which by any manner of spiritual or ecclesiastical power, authority, or jurisdiction, can or may lawfully be reformed, ordered," etc.? Was there here any limitation of the court to cases which the bishop might not hear, or to criminal cases only, or to enormous and serious crimes? The King broke in with a pun: “The Common pleas," said he, “have granted enormous and expensive prohibitions." The argument that the Commission might not employ fine and imprisonment, continued Hobart, was based upon the fact that the statute of 1 Elizabeth c. l. had restored to the Crown the ancient jurisdiction ecclesiastical. Under the old law, the judges had claimed that whatever were the powers of the King, the bishops had not had power to fine and imprison; and, therefore, could not possess it as High Commissioners under a new Act which, confessedly, only reinstated the old jurisdiction. The Act did not give them new powers, but merely confirmed the old; and the mere fact that they were now High Commissioners did not allow them to do thirgs which, as bishops, they could not do. But, objected Hobart, how can this be true, for “where the statute saies that they shall execute the premisses by virtue of this act according to their commission any matter or clause to the contrary notwithstanding, can there be a more expresse contradiction to the statute then to saie they shall not execute but by the former lawe?"
11 Elizabeth c. 1. s. viii.
Coke was taken by surprise, and to that indefatigable note-taker Cæsar, seemed “somewhat inclinable to allow of all that,” but he requested time to answer in writing. To prove the care with which the Commission was administered, the Bishop of London remarked that no case was considered by that court until it had been scrutinised by the Archbishop's chief judges. The King was triumphant, Bancroft complacent, Bacon and Hobart elated, and the judges somewhat crestfallen. In the full flush of anticipated victory, the onslaught was continued by Hobart with a speech upon the sole right of the judges to interpret the statutes of the realm.
This was by far the most important point of all the issues and upon it rested the validity of nearly all the other arguments, for the cases of the High Commission, of the modus decimandi, and of the treble value depended almost entirely upon the interpretation of a statute or statutes. Here, at last, the contestants were approaching the real constitutional issue: who was to prevail among the interpreters? Were the common law judges to have the sole right to expound any and every statute of the realm, whatever its subject matter might be; and was this prerogative of theirs so firmly established by custom and law, that the King's residual right of judgment had merged with it, precluding his personal exercise of it any longer? Such was the real question which neither Coke nor Hobart phrased exactly, but which may be easily traced in their utterances. From the claim of the judges that they alone could interpret statutes, declared Hobart, flowed various “inconveniences.” Cases, which a statute had been expressly passed to give to the ecclesiastical jurisdiction, were prohibited on the ground that the common law judges alone could construe that statute. However indirectly a statute might come under consideration, its existence became at once a pretext for a claim that the whole question ought to be tried at common law. Wherever, too, a statute had allotted to a purely spiritual offence a temporal penalty, to be executed by the Chancery and sheriff, the existence of that provision was used as an excuse to insist that the nature of the offence, although admittedly ecclesiastical, must be decided by the common law. In his opinion, said the Attorney General, the statute,
1 “Prohibicions grounded upon the Stowe MSS. 420, f. 24 b. Cotton MSS. posicon that the interpretacon of stat Cleopatra, F, I, f. 132 b. Petyt MSS. utes belonge to the judges of the tem 158, f. 90 b. and 511. 16, f. 140, and poral Cortes." (by Henry Hobart.) 538. f. 1.
once passed by Parliament, to modify or amend some part of the ecclesiastical law, became as much a part of the King's ecclesiastical law as if it had been enacted by Convocation and was to be interpreted solely by the ecclesiastical courts. If the statutes concerning temporal questions were to be interpreted by the common law judges, on the ground that they alone possessed the requisite learning to comprehend them, pari passu, the statutes concerning spiritual things should be construed by the ecclesiastical judges. Let each system of courts hold plea of all matters under all the statutes which concerned those subjects over which it had peculiar jurisdiction.
Salisbury, the Lord Treasurer, approved this position. Those who must execute a statute should interpret it. He thought the action of the common law judges had had serious results by freeing the guilty from the consequences of their crimes, besides the dire effect of robbing the Treasury of the fines they would otherwise have paid. Let the judges stick to the common law and statute law, but let them not ask to expound all statutes “bycause some of them concerne other learninge whereof they cannot judge.” To turn the debate from these dangerous subjects, Coke began again the offers with which he had commenced two days earlier, to grant no prohibitions except on proof of the surmise. As for these precedents of Hobart's the exchequer cases “in matters of the increase of their own jurisdiction” were not to be treated as “infallible troths,” though they were otherwise deserving of every credit. When he came to consider the increase of his own jurisdiction as judge of the Common Pleas, however, he was ready enough to insist that only the records of the Common Pleas were of any value. No one, however, seems to have thus answered him. Instead several at once retorted that there was plenty of other precedent to maintain their conclusions. Sutcoth, one of
1 At some time during these days' XIII; Lansdowne MSS. 211, f. 148debates, an argument was delivered 236; Tanner MSS. 120, f. 141; Harentitled “The Arguments contra for leian MSS. 4892, No. 2; Petyt MSS. the Archbishop of Canterbury. That 518, f. 51; Cotton MSS. Faustina, the King hath power in his owne D, VI, f. 93; and Cleopatra, F, II, person to heare and determine all f. 287; Hargrave MSS. 278, f. 726kinds of Causes, when it shall please 780 and 493, f. 272-383; Rawlinson his Majesty as appeareth by these MSS. B, 202, f. 193 b, and C, 738, reasons following. Additional MSS. f. 107. This may have been written 25270, f. 29; Exeter College, Oxon. by Cowell or Ridley or by Bancroft MSS. 154, f. 71; Royal MSS. 18, B, himself.