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insult to injury, complained Bancroft, for the supposition was completely false;' and rested upon “a quirk and false supposition in Edward Fourth his time, made by some serjeants.” (art. xv.) Every modus decimandi, which was properly proved, received as much deference in the ecclesiastical court as it could at common law. Closely akin to this grievance, was the granting of prohibitions on the surmise that the case at ecclesiastical law was neither matrimonial nor testamentary, (art. xiii) an excellent point from the common law view, because the old precedents, which had come down from the Middle Ages, were unanimous that cases of real property, which were neither matrimonial nor testamentary, belonged to the common law courts. Of the prima facie justice of the prohibition, upon such a suggestion or surmise, there could be no doubt; the difficulty now arose because the judges no longer insisted that the case should be one of real property, but, arguing that the modus decimandi or right of tithes concerned the increment from land and was neither matrimonial nor testamentary, readily concluded that it was to be heard solely at common law. In a similar fashion, complained the clergy, by proper quibbles even heresy and schism, and all matters of ecclesiastical discipline, might be made subjects of temporal jurisdiction.
From all these abuses, the clerics drew the conclusion that the judges were determined to interfere with their courts whatever the law and justice of the question might be, and they regarded as strong corroborative evidence the prohibitions granted upon "frivolous suggestions." “Upon a suit of tithes brought by a minister against his parishioner a prohibition flieth out upon suggestion
1 The common law judges asserted Probably in many instances, the comagain and again that the ecclesiasti mon law asseveration was true, that cal judges would not receive any plea the ecclesiastical courts refused to of a modus decimandi however sub accept as valid and conclusive a mostantiated. Coke took his stand upon dus decimandi which the common law this point in 1609. See also 2 Re courts thought valid and conclusive. ports, 43, 44 b; and Ridley's Viewe In perhaps an equal number of inof the Civile and Ecclesiasticall Law, stances, the ecclesiastical holding was 180; and other tracts. The Court of true, though a common lawyer would King's Bench Tryor v. Bestney point out that the common law judges Betts, (36 Eliz.) Croke, I. 317 and after all simply refused to allow the 318, said “the Spiritual court will defendant on a prohibition to traverse not allow a plea of modus decimandi the declaration as something prima but only of payment of tithes in kind facie wrong. It is impossible con
and therefore the common law clusively to demonstrate by any evishall aid him.'' The ecclesiastical dence now accessible, where lay the judges and lawyers denied it stoutly. preponderance.
that in regard of a special receipt, called a cup of buttered beer, made by the great skill of the said parishioner, to cure a grievous disease called a cold, which sorely troubled the said minister, all his tithes were discharged.” (art. ix.)
The sum and substance of the Articuli Cleri and of the judges' answers may be given in three words, complaint and denial, and for the time, the dispute-if such it deserved to be called, where neither side vouchsafed to argue came to no conclusion at all. There is plenty of evidence, it must be confessed, to prove that the contentions of the clergy were in the main true, and that there were many abuses in the manner in which the judges exercised their legal authority. The champions of the common law seemed, moreover, very ready to ride rough-shod over the manifest intention of the Edwardian statutes for the payment of tithes, which stated that they had been passed in order to give laymen rights at ecclesiastical law, because they were already without remedy at common law for the unlawful detention of such dues, and as laymen could not sue in the ecclesiastical courts. To assert, then, as the judges did, that the common law, independent of the statutes, allowed laymen to sue at common law in cases of tithes in preference to suing at ecclesiastical law, was going pretty far. Was no deference due to a plain statutory declaration of what Parliament understood the law to be? Was no importance to be attached to the customary procedure of the ecclesiastical courts? Were ecclesiastical precedents of no validity at all in deciding a dispute between the two jurisdictions ?
Yet, on the whole, there had been very little said in either the complaint or the answer about what the law was: each assumed that the law was in itself equitable and just, although it began to be evident that the disputants by no means agreed as to where that law was to be found. The Churchmen had not denied that the judges might legally issue prohibitions, and the judges had conceded tacitly that there was a limit to their interference with the ecclesiastical courts. The whole contention on the one side had been that the judges had not observed the forms and spirit of their own law, and on the other, that the technicalities of common law procedure might work evil in some instances but that there could be no question of the legality of those forms nor of the essential consonance of their administration with truth and justice.
The judges in fact did not answer at all the point raised by Bancroft. They assumed that the law and their declarations and practices were one and the same, but as yet they did not say so.
As Bancroft had read the grievances of the clergy before the Privy Council in the Presence Chamber at Whitehall, no doubt the Answer of the Judges was presented in the spring of 1606 in no less dignified a fashion. Then came conferences of both clergy and judges with the Council, and, doubtless, some acrimonious speeches passed between the Archbishop and the Chief Justice, which would be interesting reading if we had them. Convocation, then in session, presented to the King a petition in which they complained that “they haue bene very much of late years defrauded of their Tithes, and debarred from obteyning their right due unto them by the ecclesiasticall Lawes of the Church through Prohibitions procured by those which wronge them out of your Majesty's Temporall Courtes to your Suppliantes great hindrance molestacon and utter impoverishinge in time if remedy bee not provided, besides the stoppinge of Justice, occasion of periury, and further wronge and overthrowe of your Ecclesiastical Jurisdiccon as though it were an unjust usurpacon of forraigne power against your Majesty and Crowne, and not the due execucon of your Majesty's owne rightfull power and iust Jurisdiccon in Causes Ecclesias
A temporary truce was patched up, which the King as well as Salisbury believed at the time, would be more than ephemeral in its results. “I am commanded expressly by his Majesty to signifie to your lo:" wrote Secretary Lake to Salisbury, "how much he is pleased with the discourse your lo: hath written of the conferences, which though he acknowledge to have been very painfull to your lo: after so many laborious sittings and other dispatches of his affaires His Majesty seemeth to hop by the successe of that dayes worke that all the controuersies about these Church courtes will ether dye or be weakly pursued." 2
About a month later, James elevated to the Chief Justiceship of the Common Pleas, a man who was prepared to devote the powers of a mighty intellect, the diligence of an inexhaustible energy, the resources of a legal acumen which has probably never been rivalled
1 Harleian MSS. 827, f. 1 b.
in England, and the learning acquired by years of delving in the authorities of the law, to demonstrating and enforcing the common law contentions, which the King believed to have been set so completely at rest. Coke very soon infused into the common lawyers that same feeling of institutional strength and that same belief that all must stand together for the good of the law as an institution, which Bancroft had so successfully roused in the clergy.
The renewal of the strife was, however, afar off, and we must leave the Archbishop and the Chief Justice planning their campaigns, to follow the fortunes of the English Catholics and their attempts at organisation.
THE GUNPOWDER PLOT AND THE OATH OF ALLEGIANCE
The death of Elizabeth had, for the time being, put an end to the eagerness of the secular priests to come to terms with Bancroft, and had even caused them to lay aside their grievances against the Jesuits and to draw closer to the Society than they had for fifteen years. In truth, while the two had been seriously estranged because of a difference of opinion as to which was the best method of promoting the welfare of the Catholic faith in England-a secret understanding with the State or an aggressive proselytism supported at the right moment by a foreign army-neither was so blinded as to lose sight of the long-cherished hope that the son of Mary Stuart would reinstate Catholicism. Neither was foolish enough to sacrifice that hope in order to dispute which should control the organisation under the new Catholic king, and each saw that, when something had actually been accomplished, there would be time enough to wrangle over the leadership. Much to Bancroft's chagrin, then, the secular leaders met the Archpriest and the leading Jesuits in London some time in April, 1603, to concert measures "for restoring religion or obtaining toleration."1 After a month of discussion, the seculars and their titular head came to a definite agreement at a meeting of May 13, to bury all past quarrels. They drew up and signed a memorandum to the effect that there shal be no strangeness amongest us nor exception taken one against the other but that we live in union and mutuall love and frendly offices one towardes the other as Catholique priestes ought, to be as thoughe the Controuersy neuer had bene. That the Popes last briefe
1 Watson's Examination, August effect that Watson was set on by 18, 1603. Tierney's Dodd's Church Cecil and Bancroft “to betray all History of England from the Com. Catholics and bring them within commencement of the 16th Century to pass of treason." Watson's Confesthe Revolution of 1688, with notes, sion, (Tierney. IV, xxxiii). This is additions and a Continuation. (Lon. interesting in view of Fr. Gerard's don, 1841) (Cited in these volumes similar charge against them in regard
Tierney.'') IV, xxiv, note. Jeg to the Gunpowder Plot. uit reports were also spread to the