"Where there is a modus decimandi," said he, "we are of opinion that the parson, vicar, etc., sueing for tithes in kinde and thereby seeking to infringe the custome of Modus decimandi claymed by the parishioners, that this custom ought to be tryed by the Comon Lawe and not in the Ecclesiasticall Courtes." Here, however, as in the matter of treble value, he rested his whole case upon the assumption of the very thing which the civilians so hotly contested. He premised throughout that the modus decimandi pleaded by the parishioner was indubitable and of long standing; and that the parson was unjustifiably trying to break it. He therefore put the ecclesiasical judges in the wrong, from the start. The latter however, declared again and again that where the parson was really seeking to encroach on an established custom, he received small sympathy, and that they upheld the modus decimandi themselves. What they insisted upon was that the common law courts should not censure them for refusing a modus decimandi which the parishioner could not satisfactorily prove. This much established to Coke's satisfaction, he next alleged that commutation was paid in money; that it was therefore custom, hence a temporal matter, triable solely at common law. The pages of the treatise fairly bristled with precedents and statutes, which Coke produced from the stores of a vast erudition. The immediate and visible results of the controversy were slight: the judges continued to grant prohibitions, and no royal decree was issued of any sort. Technically, the questions raised by Bancroft never were decided; but certainly by common agreement victory was at the time tacitly acknowledged to rest with Coke and the common law. Nevertheless, with some exceptions, we find no more such radical prohibitions put forth as had caused such trouble in the earlier years of Bancroft's archiepiscopate; and after Coke had been removed from the Bench in 1616, the aggressions of the common law courts against the ecclesiastical courts practically came to an end, although the judges, even under Charles and Laud, were ready enough to speak boldly when the occasion seemed to warrant it. In fact, once their claims had been accepted, the judges were willing to recognise how serious the literal enforcement. was to the administration of the Church, and in practice ceased in 1610 to issue prohibitions, except in the proper and normal course which the ecclesiastical courts readily countenanced. CHAPTER XI THE PARLIAMENT OF 1610 AND THE AUGMENTATION OF ECCLESIASTICAL INCOMES The conflict with the common law was tacitly closed: the Archbishop accepted Coke's precedents and maxims, and [the Chief Justice agreed that he would not enforce his legal rights to the detriment of the Church The High Commission, therefore, continued till 1640 to fine, imprison, and cite men out of their dioceses; on the other hand cases of treble value and of the modus decimandi were still prohibited when the decision in the ecclesiastical courts had been neither just nor equitable. The new phase resembled strongly the early period, 1586-1603, before the strife had become keen. Scarcely had this danger been warded off, than the Puritans in the House of Commons delivered another determined assault upon the Established Church. The Archbishop met them with a scheme for the increase of ecclesiastical incomes which was even more detailed and comprehensive than his plan of 1604. Then, at the critical juncture, when the secular priests needed all possible liberty to gather signatures to their petition to the Pope for Catholie bishops, Parliament renewed its demand for the strict enforcement of the penal laws. Last, and by no means least, Episcopacy in Scotland was established in the form it maintained for twentyfive years. But Bancroft was undaunted at the difficulties before him: "I could not but condemn myself, being Archbishop of Canterbury, if I should not with all my strength and for the preventinge of future mischiefs stand up in the gap, which is sought to be made in the very form and frame of the Church.” 1 The Puritan leaders in the House of Commons wasted no time in opening the battle. Their policy and the bills in which it was 1 Dalrymple's Memorials, I, 23. 2 Detailed references to the Journals have been given in only a few cases because it is as easy to trace a reference by the date as by the page. In the State Papers, and in the report on the Lords' Manuscripts, Hist. MSS. Commissioners Report, III, a number of bills are referred to which may concern this session. It is impossible to arrive at any conclusive decision about their dates. comprised had by dint of repetition attained definite form; and, within a month, they had pushed most of them through the House with vigour and precision. At the second sitting for business, February 15, Nicholas Fuller, not one whit abashed or humbled by his recent imprisonment, appeared with the bills against nonresidence and pluralities; and within a fortnight had the satisfaction of seeing them passed by the House and sent to the Lords. with a special commendation. On March 12, he brought in two more bills, one abolishing the subscription required from ministers, and the other making illegal the bishops' use of their own seals in judicial proceedings.1 Both were duly read and committed. Other time-worn measures again saw the light: the bill to settle a preaching minister in all parsonages appropriate; the bill against scandalous ministers; one for the reform of the Prerogative Court; and the one upon which so much stress had been laid in the preceding session, the bill for the restraint of canons not confirmed by Parliament.2 Since 1607, however, the leaders had seen that the condition of ecclesiastical incomes was a fact which must be recognised; and that, unless they made some advances in the direction of the augmentation of tithes, it was idle to expect to win the royal assent to other measures. The new bill on pluralities, therefore, contemplated the increase of the value of benefices; and, on the strength of it, the House by another clause forbade pluralities. Even Bancroft admitted that the House was at last animated by a sincere desire to make every benefice in England able to provide adequate support for a learned preacher. The difficulty, now as 1 This is a good example of the difficulty of dating these bills. The editor of the Calendar dates this March 26, 1606, (S. P. Dom, Jac, I, XIX, no. 85.) but another copy in Lansdowne MSS. 172, f. 246, is dated in Sir Julius Cæsar's hand, March 9, 1609-10. 2 See Dalrymple's Memorials, 247, for what purports to be a copy of this bill, dated May 12, 1610. It is at least a revised copy, if the date is correct. 3 A paper in S. P. Dom. Jac. I. XXVII, no. 21, seems to belong here. "Som observacons upon the Statutes of 27 Hen 8, and 32 H. 8, and 2 E. 6. for the paiement of Tythes. 4It is true that now there is a fair overture, of an earnest, to make every parsonage and vicarage a competent living for a learned preacher, but the issue thereof I do greatly suspect, that it will only tend (through the undervaluing of men's deserts) to the tying of particular preachers to one parsonage or vicarage of the better sort, and so rather to deprive them all indeed of sufficient living, than to make the lesser benefices able to maintain men so qualified, as now it is with such earnestness desired." ever, was to agree upon the manner by which that most desirable result should be effected. As might be anticipated, the parties were widely sundered: Bancroft advocated a return to tithing in kind, while the House of Commons wished to increase the value of the poorest vicarages and curacies by diminishing the revenues of the bishoprics, of the cathedrals, and of the richest rectories. "They meant to rob Peter to pay Paul," said the clergy bitterly. In fact, the scheme which found most favour with the laity merely redistributed the income which the Church already possessed, on the supposition that some men had too little because others had too much; and thus tacitly denied Bancroft's chief complaint, that the revenues of the Church as a whole were insufficient, and that the equal division of the present income would diminish what was now adequate without properly relieving what was inadequate. While the House and the Archbishop were disagreeing over the subject of ecclesiastical incomes, the House was censuring the Archiepiscopal policy upon another point. Cowell's Interpreter, a book published in 1607 as a part of the literary defence of the Church, had been read with scorn and rage by the common lawyers and their friends; and now they found themselves at last in a position effectively to express their disapproval. It was, said the irate lawyers, a book written to attack the common law, part of a conspiracy against the law of the land.1 A committee had been appointed to read the book and reported that it was "a Book very unadvised and indiscreet tending to the Disreputation of the Honour and Power of the Common Laws," but found it extremely difficult to agree upon any vote of censure which the House would accept. Finally, the Attorney General was called upon, who suggested at a conference of the two Houses, that the definitions given. for the words "parliament," "prerogative," and "subsidy," offered the Commons the only legal pretext for proceeding against the author, inasmuch as they could punish only for contempt or breach of privilege. The Commons accepted his advice with ill 1 Commons Journals, I, 399, 400. February 23, 24, 1609-10. "Preaching against prohibitions. Books in print against the Common Law. Mr. Martin. Because the Common Law vouched false-suppress our liberties consult with Civilians-with the Council-with the Judges-con sider what is to be done. . . . Mr. Hoskins. Produceth many other Treatises containing as much as Dr. Cowell... Sir Anthony Cope. But there are Confederates. Whether from beyond the Sea or here. A matter of great consequence.'' grace, for apparently they had set their hearts upon censuring the views expressed in the book in regard to the common law, which they felt had been attacked. In the end, Cowell was reprimanded by the King and his book suppressed by proclamation.1 With the bills on pluralities already sent up to the Lords, with Cowell censured and his book suppressed, the Commons turned their attention to the re-drafting of the petitions and grievances which had already been mooted in earlier sessions. The King was in dire need of money; his debts were large, and the present receipts did not meet the current expenditures; so that the Puritans, who held the balance in the House, confidently expected to buy his consent to the "reform" of the Church by some concessions on the Great Contract; and thought that, inasmuch as the latter was already being discussed, it was high time they came to some conclusion upon the grievances. On March 22, "upon the King's motion," a committee had been appointed for religious grievances, the members of it to be "any that will come." After a month of discussion, Sir Edwin Sandys reported to the House four grievances: the failure to execute the penal laws against the recusants, the silenced ministers, pluralities, and the abuse of excommunication. Mr. Brook voiced the old contention that the ministers had been illegally deprived because they had been proceeded against under the Thirty-Sixth Canon, for matters for which they were not liable under the statute of 13 Elizabeth. c. 12. Sir William Cope declared that, since the present Book of Common Prayer had not been confirmed by Parliament as the Book of Edward VI had been in 1559, no clergyman or layman could be punished for offences against it. Let us not treat these questions as grievances, interposed Mr. May. Let us petition, but let us not mention the word grievance. Before he could carry the point, the debate closed for the day. On the morrow, Sir Dudley Diggs attempted to take up the issue where Mr. May had left it; and said that, if the names of the ministers whom the House wished to relieve could be secured, a petition in their favour might be offered, without making a general 1 Commons Journals, I, 404, 415. Lansdowne MSS. 513, f. 81-92. The Printed Proclamation, March 25, 1610, original edition, is in the British Museum. 2 Commons Journals, April 23, 1610. A copy is in S. P. Dom. Jac. I, 53, no. 123, endorsed "Grievances, 1609,' but there is nothing to show which one of the many drafts this is. Dated by the editor April 25 (?) which could not by any possibility fit the date "1609" even if it meant 1609-10. |