the judges of the King's Bench thirty-five years before, and Popham, the Chief Justice only just demised, had both sued in the ecclesiastical courts for the recovery of tithes under these Acts of Edward VI, and it might be presumed that men of such acknowledged legal standing would not have adopted that method of litigation, if they had believed such suits could rightly be impleaded at common law. Tired of the five or six hours' wrangling and orating, the King rose to end the debate. The modus decimandi was a subject large of extent, he said, and concerned the undoing of the clergy on the one hand, and the prejudicing of the laymen in their trial on the other. He would not now decide the matter.1 As for the three statutes of tithes, they neither helped nor hurt his position; and for the present therefore he commanded the judges to execute the Lord Coke's offer and issue no more prohibitions without proof of the surmise. The power of the Common Pleas was uncertain: the Lord Coke had alleged precedent to support one theory of its institution, while Sir Francis Bacon had upheld the contrary with an equal volume of precedent. Both could not be right. The Lord Chancellor should look into the question and report the truth to him before the Michaelmas Term. The High Commission had been "impeached many waies by unfitt and uniust prohibitions," for which he wished the Lord Coke to answer in writing before the next term; and, in the meantime, to stay all prohibitions to that court and complain to him, when he found his jurisdiction infringed. So with the other matters discussed: let all action on either side cease until he could settle the dispute. He had no intention, he went on, of altering any part of the common law, notwithstanding rumours to the contrary. That law consisted, he well knew, of Magna Carta and other statutes, the customs of the land, the year books, and the judgments of the judges of the land. Likewise, he meant to favour the Church, which he would have flourish as the green bay tree, so long as it grew neither popish nor puritan. Neither Church nor common law could stand in safety with 1 Bacon had prepared an elaborate argument on the point which was delivered to Coke in writing sometime in the vacation. See A Breuiate of the cheife proofes selected touching the modus decimandi." Tanner MSS. 280, f. 432; Petyt MSS. 511. 16, f. 165; Cotton MSS. Faustina, D, VI, f. 48 and Cleopatra, F, I, f. 185; Hargrave MSS. 278, f. 630 and 493, f. 201; Rawlinson MSS. B, 157, f. 1 and B, 202, f. 165 b, and C, 731, f. 63; Harleian MSS. 7161, f. 111 b. out the other's aid; and he wished therefore that there might henceforth be a forbearance of opprobrious speeches and libels, both spoken and written; and that they would "live together like brothers without emulation." The debates were over, and although the question was not definitely decided one way or the other, the Archbishop was, in everybody's eyes, the victor by a considerable margin. It had certainly been demonstrated to the entire satisfaction of the Privy Council, who had by no means unanimously favoured the Church, that he was right on the issue of law as well as upon the question of expediency. Upon the latter was his greatest triumph, for he had made perfectly apparent to every one the harm the judges were doing to the Church; and how effectually they were hindering that indirect and quiet reform which he had hoped to achieve. There was no doubt rejoicing at Lambeth and jubilation at Doctors' Commons, for could there be any doubt as to what the royal decision would be? But, while the civilians were still exchanging congratulations, and while Bancroft was planning a new campaign on the subject of ecclesiastical incomes for the next Parliament, an angry but determined man was busily turning the pages of black-letter law tomes, unrolling plea rolls, and preparing his answer to the statements of the Archbishop's advocates. Sometime during the fall of 1609 or spring of 1610, Coke presented to the King five treatises, knit into one, which contained his reply to the charges against him and his brethren. It was a noble monument of judicial learning, honesty, and integrity, and displayed that admirable courage in the maintenance of his convictions for which he deserves the unqualified respect of posterity. In some ways, this was the greatest of all his legal writings, for it turned probable defeat into virtual victory, and silenced the arguments of the Church.1 All five topics, he said, were concerned with "the exposicon of statutes concerninge Causes ecclesiasticall, viz. whether Acts of Parliament made by the Kinge, the Lords, and the Commons of the 1 The preface is most valuable for us, because he reviews the history of the controversy and gives us much information. "A Preface to the Answeres of the Judges of the Courte of Comon Pleas unto the obiections and Arguments made (on behalf of the Lorde Archbishop of Canterbury) against Prohibicons." Cotton MSS. Cleopatra, F, I, f. 116; Hargrave MSS. 237, f. 91; Petyt MSS. 511, 16, f. 106 and 538. 55, f. 26; Rawlinson MSS. B, 20, f. 113 b, and C, 731, f. 26. Realme concerninge ecclesiasticall matters should be interpreted by the judges of the Lawes of England or by the ecclesiasticall judges. The true and cleare discussion of this point would end the whole controuersie. Full and firm came his decision. "Acts of Parliament made by Kinge, the Lords and Comons, are parte of the Lawes of England and are to be interpreted by the judges of the laws of England, and not by any Cannonist or ecclesiastical judge. And this is expressly proved by many authorities and judgmentes reported in our bookes of Lawe that no ecclesiasticall Judge ought or euer pretended to interprete any act of Parliament. If an act of Parliament do authorize the ecclesiasticall judge that which before he could not doe, the judges of the Common Lawe shall judge and determine whether the ecclesiasticall Judge haue pursued his aucthoritie given by the statute, or by Color of that statute hath done wrong to any of the Kinges subiectes or no. "The breach or not performance of that statute is temporall and is punishable by the temporall lawe and thereupon a prohibition lieth. And therefore the exposicon of such a statute doeth belong to the temporall judges. So as if the aucthoritie of our bookes in all ages, the continuall practice and experience of former tymes unto this day, and the resolucion of all the Judges of England may giue satisfaction in a question of Lawe (there being no one opinion in all our bookes or euer motion before this tyme made to the contrary) then we hope the Lo: Archbishop (being now truly informed hereof) will herewith rest satisfied." In regard to the High Commission, he declared, as had Hobart, that the whole issue hung upon the rendering of the statute of 1 Elizabeth c. 1. The first clause was, he said, general, granting 1The second question propounded on the behalfe of the Lord Archb: of Canterbury touchinge the Exposition of Statutes concerning Ecclesiasticall causes; whether the same belong to the Judges of the Realme or to th' interpretation of the Civilians and Canonists. A question neuer made in any of our bookes, nor moved by any in any tyme heretofore." Tanner MSS. 120, f. 180; Exeter College, Oxon, MSS. 154, f. 79 and 157, f. 9; Cotton MSS. Cleopatra, F, I, f. 159 and Faustina, D, VI, f. 118; Hargrave MSS. 278, f. 780 and 493, f. 313; Rawlinson MSS. B, 202, f. 147 b, and C, 731, f. 51; Petyt MSS. 511. 16, f. 143 and 518, f. 9 and 538. 55, f. 17. Harleian MSS. 827, f. 28 and 1299, f. 128. 2A declaration of the true grounds of Prohibitions to the High Commission and the authority and reasons approving the same with Answeres to the observations made to the contrarie wherein amongst other thinges it is mayntayned and proved that the high Commission may in diuers cases Lawfully fine and .ymprison and particularly what those cases be, so as neither of those propositions be true: The Commission them power to exercise ecclesiastical jurisdiction in the broad sense and to act generally in such matters as should be specified in the following clauses. The second clause contained the particular points of the general authority of the Queen with which Parliament meant to give the Commission power to deal, that is to say, with all "heresies, errors, schisms, abuses, offences, contempts, and enormities whatsoever." The particularly of this clause was a restraint upon the generality of the former, for the last word "enormities" was meant to describe and expound all those that preceded it, and to give the Commission jurisdiction not of all “offences," for there was indeed nothing which could not be included under that head, but of the above-specified subjects when of an "enormous" degree. The Act did not mean to erect a Commission which should supplant the ordinary ecclesiastical authority, but to give the bishops some extraordinary power for dealing with the popish priests for whom the censures of the English Church had no fears. The Letters Patent should include only those powers enumerated in the Act, for the statute meant not that the Commission should derive its authority from any Letters Patent the Queen might see fit to issue, but from such Letters Patent as conformed to the restrictions imposed on the Commission by Parliament. The Commission, therefore, might fine and imprison only in serious criminal cases.1 As to the statute of Edward VI upon tithes, Coke declared that "for the treble value of Prediall tithes not set out or divided according to the said statute, the partie grieved ought to sue in the Kinge's Courtes and cannot sue for it in any ecclesiasticall courte." 2 He said it was absurd to suppose that any statute would cannot fine and ymprison in any case Majesty and the dispatch thereof 1 The twelve judges had expressed opinions directly contrary in 1577. Attorney General to Burghley, Lansdowne MSS. 27, f. 46. Holograph. 2The thirde Question that hath bene made on the behalf of the Lo: Archb: of Canterbury is whether if tithes in kinde be not divided and set furth, an action may be brought in any of the Kings Courts at Westminster by the partie grieved for treble damages grounded upon the statute of 2 E. 6. Cap. 13." Cotton MSS. Cleopatra, F, I, f. 173 and Faustina D, VI, f. 134; Hargrave MSS. 278, f. 813 and 493, f. 333; Harleian MSS. 1299, f. 143; Tanner MSS. 120 grant a penalty of double or treble value in one and the same case; and here he totally ignored the point on which Bacon had laid so much stress, that the double and treble forfeiture was not provided for the same case. "If any person or vicar, etc.," concluded Coke from these premises, "will sue for the double value, he may and ought to sue for the same in the Ecclesiasticall Courte by the expresse wordes and purvieu of the statute: but if he will sue for the treble value, he must sue for the same in the Kings Courtes at Westminster.1 So as seeing this matter to be in statu Judiciali hath bene so iudicially and so often determined for lawe by all the judges of the Lawe, we persuade ourselves it will this case giue satisfaction to the Lord Archbishop himself." Next followed a very long and bulky defence of the jurisdiction of the Court of Common Pleas, in the matter of Prohibitions,2 upon which Bacon had thrust home Bancroft's contentions. The subject was vastly important to Coke and received his most careful attention, but it need not detain us. Last of all, the Chief Justice proceeded to answer the objections to the common law attitude upon suits de modo decimandi.3 f. 197; Exeter College, Oxon. 154, f. 110; Petyt MSS. 511. 16, f. 153 and 518, f. 15 and 538. 55, f. 34; Rawlinson MSS. B, 202, f. 155 b; Lansdowne MSS. 161, f. 258. 1 This position, although technically sustained was afterward tacitly abandoned in the law courts. They decided that inasmuch as the suitor ought to sue in the ecclesiastical court for the recovery of his tithes which had been detained, and could not have them in the temporal court, he could receive at common law merely treble value of the tithes, but could not recover the actual tithes. On the other hand, he might sue at écclesiastical law for the tithes, and recover them plus double their value. So that the suitor would receive the same in both courts. See II, Croke, 70; III, Croke, 560; Moore, 873, 915. 2In what Cases the Kings Court of Comon Pleas may graunt Prohibicons by Lawe and Many Presidents of former tymes and in what not." Cotton MSS. Cleopatra, F, I, f. 215 and Faustina, D, VI, f. 12; Tanner MSS. 247; Harleian MSS. 1299, f. 1; Hargrave MSS. 278, f. 545 and 493, f. 133; Rawlinson MSS. B, 202, f. 227 and C, 731, f. 169. Tanner MSS. 120, f. 15. 3An Aunswere to the Chiefe points selected touchinge the modus decimandi, wherein the question is whether upon a suyte in the spiritual courte (for tithes in specie) and a prescription of Custome de modo decimandi pleaded a Prohibicon may be brought in the temporall Courts, or whether the spiritual courte may not trie that Issue and so sentence the entire Cause." Cotton MSS. Cleopatra, F, I, f. 185 and Faustina, D, VI, f. 58; Hargrave MSS. 278, f. 653 and 493, f. 216; Harleian MSS. 1279, f. 55; Rawlinson MSS. B, 202. f. 172 b and C, 731, f. 73; Petyt MSS. 511. 16, f. 174 and 518, f. 37 b; Additional MSS. 25270, f. 4; Tanner MSS. 120, f. 90: Exeter College MSS. Oxon. 154, f. 132 b. See also the Case of Modus Decimandi. Michaelmas, 6 Jac. I, 1608, XIII Reports, 12. If the date is right (which is doubtful) this decision was delivered before or during the debates of November, 1608. |