Seventeen lectures on the study of medieval and modern history and kindred subjects/The History of the Canon Law in England (2)
THE HISTORY OF THE CANON LAW IN ENGLAND.
(April 20, 1882.)
IN the first of these two public lectures I attempted to give a sketch of the growth of the Canon Law; its origin and materials, its introduction into England and the limits of authority which it attained here, its relation to the civil law of Rome, and the distinction between the scientific study of the Decretals in the Universities and the professional use of the Provinciale in the Ecclesiastical Courts. The second branch of the subject, as I proposed to treat it in opening the lecture, is the history of its working in competition with and in general relations to other systems of law: a branch of the discussion which compels us at once to go back to the very root of the subject. Canon law as a code, and the civil law of Rome as a treasury of procedure, working together in the hands of ecclesiastical lawyers, may be for the moment looked at together; and the first aspect which our subject then takes is the attitude of the system towards theology on the one side and to the national, or, as lawyers would perhaps call it, municipal law on the other. From the Conquest to the Reformation canon law, proceeding by civilian method, and being able to call on the municipal executive to put its sentences in force, is a strong link between theology and national discipline; but a link with so much intricate workmanship employed upon it as to be offensive in many ways both to theology and to the common law. The theologian saw the great commandments of God, and the statutes of the Church, and the voice of conscience, lowered by being made dependent for their cogency on an elaborate system of human invention which fettered freedom of action, and in some respects freedom of thought also; which reduced moral obligations to a system of penances, pecuniary commutations, monitions, and excommunications, and which made use of the sacraments of the Church as the mere means and appliances of a coercion to external good behaviour, which ought to be a free-will offering and the instinctive product of a sincere heart. Do not think that I am exaggerating the attitude of repulsion in which the pure theologian and the pure moralist stood to the ecclesiastical lawyer who was making money out of the practice of the Courts Christian. You remember how John of Salisbury had doubted whether an archdeacon could be saved: Roger Bacon declares that the study of the civil law, attracting the clever men among the clergy, threw the study of theology into a second place, and secularised the clerical character, making the priest as much a layman as the common lawyer; while Richard of Bury, the author of the Philobiblion, and Holcot the great scholastic, declared, the one that the civilian, although he gained the friendship of the world, was an enemy of God; the other, that under existing relations the handmaid Hagar, despising the true wife, was in apt analogy to the contempt under which neglected theology sank in the estimation of the world as compared with the law. It is true that these remarks have a primary reference to the civil law, but, as I showed, the civil law was learned chiefly as the executive of the canon law, and it was by its relations to the canon law that it became practical and remunerative. I need not go into much detail about this, but, if I am speaking to any who attended my lectures on Ockham and Marsilius, they will remember how not only those great writers, but a crowd of minor ones, attack the canon law and its professors as the great enemies, not only of civil government but of vital religion: an exaggeration no doubt, but founded on a true principle. 'Who,' says John of Salisbury, himself a canonist, 'ever rises pricked at heart from the reading of the laws, or even of the canons?' The practice of these studies stood to theology, stood to religion itself, in the relation in which the casuistry of the confessional stood to true moral teaching.
When however we turn, as we must do, to consider the attitude of the national law and the national lawyers, we see more distinctly how incompatible were the systems which, for four hundred years, from the Conquest to the Reformation, stood side by side, with rival bodies of administrators and rival or conflicting processes. Look first at the area of matters with which the canon law assumed to deal: it claimed jurisdiction over everything that had to do with the souls of men, and I think there is scarcely a region of social obligation into which, so defined, it would not claim to enter. It claimed authority over the clergy, in matters civil and criminal, in doctrine and practice, in morals and in manners, education and dress, in church and out. It claimed authority over all suits in which clergymen were parties, or in which ecclesiastical property was involved; I say, mark you, claimed, rather than exercised, for some of these are the points in which the struggle with the national law arises. It claimed authority over the belief and morals of the laity, in the most comprehensive way. The whole of the matrimonial jurisdiction, the whole of the testamentary jurisdiction was, we know, specially regarded as a branch of canon law; but by its jurisdiction for correction of life, 'pro salute animae,' it entered into every man's house; attempted to regulate his servants, to secure his attendance at church, to make him pay his debts, to make him observe his oaths, to make him by spiritual censures, which by the alliance with the State had coercive force, by the dread of a writ of capias excommunicatum, to keep all the weightier matters of the law, not only judgment, mercy, and truth, but faith, hope, and charity also. Now the common law of the land was quite competent to deal first with ecclesiastical property, temporalities, advowsons, and the right to tithes; the canon law dealt with the qualifications of presentees and the exaction of tithes: the common law was competent to deal with matters of debt or theft; the canon law claimed to deal with matters of credit or dishonesty in legal and moral as in spiritual obligations: the common law dealt with dower, the canon law with matrimony; the common law with succession to property, the canon law with legitimacy. So over great regions of property law, and over the whole domain of moral delinquency, the medieval world had two sets of courts at which they might sue, and two sets of lawyers to keep alive with fees and retainers. The canonists affirm that a suit may be brought in the ecclesiastical court for every matter which is not cognisable in the courts of secular law, and for a great many matters which are so cognisable. There is surely an ample claim. I do not want to go into detail, but I will just point out one particular; the commissary of the Bishop of London entertained suits exactly analogous to those of the trades unions of the present day, turning on the question how far it is a breach of oath for the sworn member of a guild to impart the arts and mysteries of his guild to outsiders.
Here then you see the elements of a pretty conflict; between the jurists as a matter of scientific or empiric lore, between the pracitising lawyers a conflict for practice and for profits; and you can see how degrading the practical part of the profession was to the theological student, or to the parish priest. Over and above this, there was the natural jealousy of the crown and the parliament. If the canon law had restricted itself to really spiritual questions, matters of belief or of morals for which the national code had no provision, it is not likely that the kings would have been jealous of papal or archiepiscopal enactments, or would have stood on their rights when the exact line was occasionally overstepped. But the extravagance of ecclesiastical claims provoked them to opposition and justified it. When the archbishops of Henry III's reign claimed exclusive jurisdiction in suits of advowsons, the right to exact personal tithes, and to try all questions of credit granted 'fide interposita,' even so gentle a worm as the king turned again; and we find among his letters, and still more among those of his son, constant cautions to the primates and their convocations not to attempt anything to the prejudice of the crown and customs of the land, as well as innumerable prohibitions to ecclesiastical judges against their trying other civil suits than those which, touch testamentary or matrimonial matters. Edward II had to prohibit the employment of imperial notaries. In the spiritual matters proper, the kings seldom interfered; only where a political motive was suspected, or where a servant of the crown was attacked, or where the spiritual judge had clearly gone beyond his discretion. The Church history of the thirteenth and fourteenth centuries is full of cautions and prohibitions, and of struggles between the officers who had thus to interfere with one another; and the definitions of the 'Articuli Cleri' under Edward II which prescribed the points on which prohibitions were to be granted, and the Statute of Præmunire under Edward III, which forbade the multiplication of appeals to Rome, did little to ameliorate relations. When however heresy became a matter of litigation, the two systems deliberately worked together; and, although there were many hitches, during the whole of the Lancastrian period there was more definite co-operation and less conflict. The common law was really becoming more a matter of scientific treatment, and the greatest judges were men who had had scientific education on both sides. Sometimes there was, as was natural, a little inconsistency and awkwardness; the bowsprit got mixed up with the rudder; as when Morton, at once archbishop and chancellor, allowed his judgment on a fraudulent executor to be modified by the reflexion that he would be 'damnée in hell.' But this may have been exceptional.
It must not however be supposed that the fault in this rivalry was altogether to be ascribed to the canonists. The English-trained lawyer was as infallible in that age as in this; and when we find him, and his brethren in the parliament, constantly hampering the legitimate work of the church, we see that there were two sides to the question; when in the fourteenth century the Commons petition that the clergy may not make in their convocation canons to bind the laity, it is rather a relief to find that the canons in question relate to tithe of underwood: but when in 1446 we find the clergy remonstrating that the professional lawyers 'pretended privilege, by what right,' they say, 'we know not, to interpret acts of parliament and explain the mind of the legislature, and by thus practising upon the statutes sometimes ground their opinion on mysterious and unintelligible reasons, and so wrest the laws contrary to the meaning and intention of parliament;' or petitioning that the judges who showed such strong bias should no longer issue prohibitions, but, when questions arose concerning the limits and jurisdiction of the rival courts, indifferent persons should be pitched upon to judge them; or the lawyers, on the other hand, striking at the root of all ecclesiastical jurisdiction. as if it were a transgression of the Statute of Prémunire,—well, when we look at these things, we shall see that there were questions unsettled even before the Council of Trent, and hear opinions and complaints that sound like echoes beforehand of voices with which in these days our ears are too familiar.
I must, however, now proceed to the Reformation, and endeavour to determine, as strongly and as clearly as I can, the bearing of that most critical era on our subject. Henry VIII had, as early as 1515, seen a struggle between the secular and ecclesiastical jurisdictions in Standish's case, in the course of which he is said to have expressed himself as determined to endure no division of sovereignty in his own realm. Whether that was really said or merely put into his mouth afterwards, I cannot say; but certainly no scheme of change in the relation between Church and State was set on foot for nearly seventeen years. Then the business of the divorce at Rome, and the discontent of the king with the half-hearted support of the clergy at home, completed his disgust, and he set out in the course of radical change. Having in 1531 compelled the clergy by the threat of præmunire to recognise him as supreme head 'quantum per Christi legem licet,' he induced the Commons in 1533 to present a petition or remonstrance against the whole theory and practice of the canon law. They attacked the power of the clergy to make canons in convocation, they protested against the exaction of fees and mortuaries, and deliberately impugned the honesty and purity of the episcopal courts in all their branches and with reference both to jurisdiction and to procedure. This petition had two results; the parliament passed bills to limit the benefit of clergy and forbid feoffments to the use of churches. An earlier session in 1529 had attempted to deal with probate and mortuaries; this, by the Statute of Citations, cut down the power of the Archbishop of Canterbury to entertain suits from other dioceses except by appeal or on request, and so struck at the root of the universal jurisdiction enjoyed by the Court of Arches and its advocates. The same term—the second result of the king's policy—the Convocation was compelled to surrender its right of meeting and legislating, and to consent to a revision of the canon law to be carried into execution by a mixed body of clergy and laity whom the king should appoint. This last concession sealed the fate of the old scientific study of the canon law, which, as we have seen, was a distinctly popish study; and, if it had not been accompanied by a limiting clause, allowing the old canons, so far as they were not opposed to the law of the land, to stand until the revision was published, there would have been an entire abolition of ecclesiastical jurisdiction of any kind. In 1535 Cromwell, as the king's vicegerent, visited the two Universities, and in both issued injunctions, that both the old scholastic teaching of the Sentences should cease, and that the teaching in the Decretals and the conferring of degrees in canon law should be abolished. What the exact legal force of Cromwell's legal injunctions was has never been determined; but in these points they were obeyed: the Universities ceased to teach the systematic theology of the Schools and the systematic jurisprudence of the Decretals; and the ancient degrees of bachelor and doctor of the canon law are known, except during the reign of Mary, no more. How did this affect the civil law? you ask: well, just as it might be expected; the scientific study was abolished, the old canons were in abeyance, but the courts continued to practise, the civil law procedure was as lively as ever; and students who intended to practise as advocates took degrees in civil law instead of in both. Oxford dropped the canon law degree altogether; Cambridge, by adopting a more general form, retained a shadowy presentment of the double honour.
And now we come again to an Act which shows the continuity of the inherent rivalry between two systems which, for the sake of mutual profit, had so long worked together. In 1541 a bill was introduced into parliament which enabled married D.C.L.'s to exercise ecclesiastical jurisdiction as chancellors and commissaries; it did not pass in that year, being withdrawn on the request of Convocation, but was reintroduced and passed in 1545. So long as the two degrees were granted together the D.C.L.'s were, as doctors of decrees, bound by the canon which forbade a married man to act as an ecclesiastical judge; but now the right of the D.C.L. simple, both to marry and to act as a judge, was secured: as the civil doctors of Bologna had done in the thirteenth century, their successors in England now married; before this they were probably, as a rule, in minor orders.
I must pass over the more important of Henry VIII's other acts, especially the Statutes of Appeals and Submission, except just to recall the fact that in the preamble to the former of those Acts passed in 1533 he had expressed himself confident that the realm of England would, as it always had done, provide a sufficient number of spiritual men to decide spiritual questions, and of secular men to decide secular questions, under his own supreme authority and to the exclusion of any foreign jurisdiction. The other matters in which those statutes affected ecclesiastical jurisdiction lie somewhat deeper than our present speculations.
We are not however to suppose that, when the king practically abolished the canon law, he intended to hand the clergy over to the common lawyers. The procedure was, as we have seen, still kept in the hands of the civilians; but the theologians were a body of men whose functions had been to some extent usurped by the canonists, and who now for some years, under Tudor and Puritan and Laudian influences, were to come to the front. The theologians or divines divided with the canonico-civilians the authority of the ecclesiastical jurisdiction: the character of a bishop in itself was that of a divine, not of a lawyer, and we might almost say that whilst questions of application of law and procedure belonged to the lawyer, the interpretation was claimed for the divine. In cases of heresy, for instance, the theologians formulated the definition, whilst the canonists and civilians examined the teaching of the accused and determined how far he had contravened the definition. So in the question of Henry's divorce, the divines had been called on to define 'Can the pope dispense with a marriage with a deceased brother's wife?' the canonists had to determine whether the marriage between Arthur and Katharine was such a marriage as precluded the dispensation. This rule of combining theologians with canonists or civilians for commissions on ecclesiastical suits continued long after the Reformation, and ought never to have been disused.
These measures of change, sufficiently drastic one would think, had in this department satisfied Henry VIII; the scheme for revising the canon law hung fire; the powers granted to the king in 1534 were renewed for three years in 1536, and again for his life in 1544, but nothing was done in the matter during the remainder of the reign. But what had sufficed Henry VIII did not suffice Somerset or Northumberland, or the poor boy-king who succeeded him. The second statute of the first year of Edward VI went as near as possible to extinguish the episcopate; there were still to be bishops, but they were to be nominated by the king without any form of election; they were as a matter of fact appointed during good behaviour; and their jurisdiction was henceforth to be exercised in the king's name. In him all ecclesiastical authority was vested, they were to be his ministers, their writs were to be issued in his name, their seals were to bear the royal arms; and it was only to such of them as he pleased that even such authority was to be intrusted. It was proposed, though not passed, that a Court of Chancery should be erected for ecclesiastical causes. The revision of the canon law was to be urged on, and the Universities were to be further purged from the old leaven. All this was done: in vain the Protestant bishops pleaded in the House of Lords that their position was intolerable and their dignity a mere mockery, that the moral discipline of clergy and people was entirely broken down; no act for rehabilitating them was got through parliament; the dominant interests were opposed to it. The injunctions sent to the Universities prescribed some renewal of studies; the poor canonists of course were left out in the cold, although not treated as if they were illegal or irregular: the civilians were authorised to read the Institutes, and the D.C.L., when he had reached that dignity, was exhorted to devote himself more zealously to the study of the king's laws, both temporal and ecclesiastical. And work was to be found for him: bills were introduced to lodge ecclesiastical jurisdiction in the hands of students of the Universities, who were admitted by the archbishop. By these, however, all special privileges of the advocates were endangered and the bills dropped after passing most stages: four bills on this point were before the parliament of 1550. But again the revision of the canons was dragging behind. The king's power of nominating revisers was asserted by an act of 1550 to last for three years, and an abortive attempt was made in the session of 1552 to renew or enlarge i ; but whether it was that Cranmer found it impossible to obtain skilled assistants, or that the division of parties prevented a joint effort, it was not until near the end of the reign that the project was carried on: in 1551 and 1552 Edward issued two commissions of thirty- two, composed of equal numbers of bishops, divines, civilians, and common lawyers; the number thirty-two was reduced to eight; practically the work was done by Peter Martyr, the Oxford Professor of Divinity, under Cranmer's eye, and the result was the compilation known as the Reformatio Legum; a curious congeries of old and new material which really pleased no party; showing too much respect for antiquity and divine ordinance to please the Puritan, and too little to satisfy the men who had guided the Reformation under Henry VIII and those who were to do so under Elizabeth.
The legislation and policy of Mary were directed to uproot everything that Edward VI had originated; his bishops appointed 'quamdiu se bene gesserint,' were dispossessed without a struggle; his laws were repealed, many of them never to be revived; his advisers, where they would not comply, were exiled or burned: but the efforts to reinstate the old system were not successful; the monastic property could not be restored; the ranks of the lower clergy, reduced to a fraction by the abolition of chauntries and private masses, could not be recruited; and all the restored fabric hung on the life of a woman and a few worn-out old men. For the moment the canon lawyers lifted up their heads, and a few civilians took the doctorate of decrees at Oxford and Cambridge; but the complete extinction of reactionary forces, on Mary's death, showed that the Papal system, with all that was dangerous to national life contained in it, was, so far as England was concerned, practically extinct: six years of blood and fire, of tears and prayers, of cruel jealousies and heartbreaking divisions, wrought this; and Elizabeth for some years after her accession had before her a task, not certainly easy, but not encumbered with insuperable difficulties.
The subject which we are treating now contracts its limits; for to attempt anything like circumstantial discussion of the legal history of a period into' which ecclesiastical quarrels so largely enter, would be to lose oneself at once in a wilderness of controversy. I must content myself with a few generalisations and a few significant facts. The Elizabethan settlement in Church and State was a compromise, satisfactory to no party, and very unsatisfactory indeed to the constitutional lawyer or historian; but, possibly, the best arrangement compatible with circumstances. She began her reign, of course, by a reversal of her sister's legislation; but she did not restore the Edwardian system; she did not revive the Act of Henry VIII which had asserted the king's headship of the Church, or the Act of Edward which deprived the bishops of all original jurisdiction: the doctrine of the headship was opposed both by the Puritans and by the Catholic party; the abolition of all the high functions of the episcopate which was aimed at by Edward's advisers was a measure which contemporary history was showing to be dangerous. But, whilst she minimised the definition of authority, she retained the virtual exercise of it: her explanation of her supreme governorship might have satisfied every one but the most Tridentine papist, but she re-enacted the most stringent part of her father's act of supremacy; and, whilst she allowed the continuance of the church jurisdiction, she kept all control over the religious discipline of clergy and laity under the hands of the Court of High Commission. The Court of High Commission, consisting of a large number of lawyers and laymen and a small number of bishops and divines, stands to the Church in much the same relation as the Court of Star Chamber stands to the Courts of Common Law, and the Court of Requests to Chancery, a legal but most unconstitutional relation, and one which, however long it might be tolerated, was sure in the long run to endanger the whole fabric. As for legislation, Elizabeth acted, as we know, on a high principle of supremacy; such measures of church discipline as required coercive authority she allowed the parliaments to pass, but she forbade any interference whatever where that authority was not necessary. As for the ecclesiastical legislation in Convocation, she exercised her veto, i. e. she granted or withheld the consent which would make it valid, according to her own views of high policy. The rulers of the Church, who were not free from the same humiliating bondage of adulation that influenced all around the great queen, tolerated a system which gave them the substance of power, although in an unpopular and unhistorical shape. Their legislative authority was paralysed, but they could exercise a real authority as the queen's advisers; and the jurisdiction, which they had difficulties in enforcing through their own courts, they could enforce as members of the High Commission Court. But the ecclesiastical law—how did it fare under the circumstances? In the first place the forms of the courts were maintained, and were enough to sustain the civilians who worked in them; the Prerogative Court and the consistory courts lived on the testamentary and matrimonial jurisdiction; and before the spiritual courts were tried the smaller cases of discipline which were not important enough for the High Commission Court. Doctors' Commons, which had dwelt before in Paternoster Row or at the Queen's Head, under the auspices of Dr. Henry Harvey, built itself a new home, with hall and library and plate and privileges for importing wine. Knowledge of canon and civil law was in parliament, as in 1585, regarded as a special qualification for service in the House of Commons on committees. In the parliaments of 1559 and 1563 were introduced bills to make a University degree necessary for ecclesiastical judges. And the canon law, as drawn up by Lyndwood, and the civilian procedure, subsisted, for the revision which had been completed by Edward's commissioners did not approve itself to Elizabeth or her advisers, and after an abortive attempt to carry it through the parliament of 1559, took its place on the shelf of broken projects. Even the Court of High Commission, novel as its functions were and unfettered as it was in the exercise of them, condescended to borrow from the canonical jurisprudence some of its most offensive details, its ex officio oath and the censures by which it would enforce its sentences.
It was a strange composite system, perhaps the only one possible consistently with the retention of historic continuity, but obviously and most certainly tolerable only for a time. What was the attitude of theologians, of common lawyers, and of canonists towards this critically-balanced structure? To the true theologians, whether Catholic or Puritan, the whole was repulsive: we see this in the half-hearted, almost despairing adhesion of Archbishop Parker, and in the strong and justifiable protests of the Puritans; and I mention them with respect here, because this opposition to unconstitutional tyranny is the only point in which I have any sympathy with them; their tenets I hold to be untenable, and their methods of promoting them by calumny, detraction, and coarse ribaldry I think entirely detestable; but I do think they were right in denouncing the Court of High Commission and all its works. Even conservative churchmen like Hooker, in their defence of the ecclesiastical system, are hampered by the consciousness that much of what existed was indefensible. The bishops saw their position as bishops ignored, and the Puritans saw the power which they thought should be exercised by their own ministers exercised through a royal commission: the bishops however had the power and endured the ignominy, the Puritans suffered and waited for their turn to persecute.
The lawyers were not all of one mind; Coke the great lawyer was himself of two minds; he liked the crown better than the episcopate, but he loved the common law better than the crown; and his inconsistency produces some curious results on his teaching. This leads us to two or three facts. From 1587 to 1591 the famous Cawdrey's case drew its grievous length along. The High Commission had deprived Cawdrey for nonconformity; the question arose, had the Commission under the terms of the Act of the queen's first year exceeded its authority? The resolution finally adopted by all the judges, and recorded and approved by Coke, affirmed that the ecclesiastical prerogative of the crown was such that the powers of a commission issued by it were not limited by that statute, but covered the whole range of ecclesiastical jurisdiction; and therefore the sentence was good. The judgment in Cawdrey's case, full of bad law and worse history, is often referred to even now by lawyers with a respect which it does not merit; here it is useful as showing to what lengths the common lawyers under Elizabeth would go in support of the authority of the crown over things ecclesiastical. It stimulated the Puritans in and out of the Church to bitterer action, and disabled the hands of the bishops who, like Andrewes, would rather have taken the responsibility of their own acts. Twenty years later Coke himself declared against the constitutional character of the Court of High Commission, and, by refusing to act upon it, paved the way for its downfall. But Coke was then in opposition to the king's advisers, and made it his account to be an independent judge. But I am anticipating.
The change of Elizabeth for James I was a critical event in English Church history. James's dealings with the Church are not among the strongest, but are perhaps among the least reprehensible parts of his administration. He willingly confirmed the canons of 1604, which make a substantive addition to the canonical lore of the clergy. He failed to secure co-operation between the House of Commons and the Convocation, or between the bishops and the Puritan divines. But this is no wonder. A House of Commons which could listen to Sir Herbert Crofts declaring that the Church had declined ever since doctors began to wear boots; or could expel Mr. Sheppard, M.P. for Shaftesbury, for explaining that 'dies Sabbati' meant not the Sabaoth as they called it, but Saturday, and suggesting that as David danced before the ark, the legality of dancing was a question on which the bishops might decide before it was altogether forbidden,—such a House of Commons was not likely to impress men like Hooker or Andrewes with respect, or King James either. It is clear I think that, if the Puritan party had been well represented at the Hampton Court Conference, James would have seen justice done to them; but he saw their intolerance and their frivolity, and the balance remained unredressed. One of their minor complaints, against the issuing of ecclesiastical sentences by lay chancellors, touches directly on our subject: their idea was to give all the disciplinary power to the clergy, but to their own clergy: the prelates of the time chose to maintain the status quo which left the power where it was. On this point the civilians were peremptory. Some of the 'prelates, either wishful to promote their sons or willing to lodge Church discipline in clerical hands, appointed clergymen to be chancellors. The doctors took umbrage at this, petitioned King Charles I in 1625, and obtained from him an order to remove the intruding officials and to substitute qualified civilians.
Another interesting point arises at James's accession. In the hurry of his first parliament the Act of Mary which repealed the 1 Edw. VI. c. 2, by which the conge d'eslire and the independent jurisdiction of the bishops were abolished, was itself repealed; and the lawyers, or some of them, held that the Edwardian law was revived, that the whole episcopate was intrusive, and the whole of the Church courts illegal. This was long in controversy, and it was only in 1637 that the judges finally resolved that the law of Edward, as contravening a law of Henry VIII which had been formally re-enacted, was not revived by the repeal of the Marian statute. If that resolution had not been accepted, the whole existing fabric of the Church must, so far as secular interests were concerned, have fallen to the ground.
But the opening of James I's reign is important for a third critical question. In 1605 Archbishop Bancroft presented from Convocation a series of articles against the proceedings of the common law judges in issuing prohibitions and claiming the exclusive right to interpret acts of parliament touching the Church. The long argument on this subject, which is to Coke's Second Institute what Cawdrey's case is to the Reports, is of considerably greater weight; no doubt there was much to be said on both sides, and the voice of the Convocation of 1605 was in harmony with that of 1559 and 1446, where the claims of the theologians to interpret acts that touched theology were fairly stated; but Coke embellishes the report with words that have an amusing cogency even in the present day; 'for judges expounding of statutes that concern the ecclesiastical government or proceedings, it belongeth unto the temporal judges, and we think they have been expounded as much to the clergy's advantage as either the letter or intention of laws would or could allow of: and when they have been expounded to their liking then they could approve of it, but if the exposition be not for their purpose then they will say as now they do that it appertaineth not unto us to determine of them.' Anyhow the judges agreed that they were the proper interpreters of the acts of parliament; and as the whole liturgy, and indeed the Bible also, might be brought under those terms, there was practically no limit to their assumption of infallibility; for the common law judges could not, like theologians, afford to leave any question unsolved.
Well, Coke was right as to the bishops, as was proved in 1612, when the common lawyers allowed bishops King and Neill to burn two heretics under a common law writ, for which Coke's authority might be pleaded, although all the earlier legislation against heretical pravity had been abrogated. The invulnerability of the common law which had maintained the High Commission in Cawdrey's case, now treated the issue of the writ 'de heretico comburendo' as a matter of its own, and brought equal shame on theology and jurisprudence. The heretics who were burned were men whom the Puritans did not care to defend; they would have burned them as willingly as they would have done the bishops.
And here let me say by the way, great as the horrors of religious persecution are, they cannot be properly estimated without some consideration of the value set upon human life both at the period in which they occur and at other times: I believe that I could show that all the executions for religious causes in England, by all sides and during all time, are not so many as were the sentences of death passed in one year of the reign of George III for one single sort of crime, the forging of bank-notes.
But I must pass on, leaving the Laudian period altogether out of sight: and indeed it is not, for our purpose, so important as the earlier portion: Laud and Charles were, neither of them, men who were satisfied with such things as the High Commission Court, and the sinking of ecclesiastical discipline in the state administration; but they did not make their way to any better system, and supported that which was to them for the time the only possible system. With the opening of the struggle in 1641 the Court of High Commission fell to the ground, and at the Restoration its abolition was confirmed by the first parliament of Charles II.
During the Elizabethan and Jacobean period the study of church law had not been neglected; for it had shared the benefit of the great historical and antiquarian revival of which Parker was the first leader, to which Spelman belonged, and which reached its climax in Selden and Prynne. Both of these eminent writers studied canon law from antagonistic grounds: Selden regarded it as a philosopher ardent for liberty; Prynne as an enthusiast, who had his own persecution to avenge and the thesis of royal prerogative to defend with all the zeal and learning of a convert. Selden was a real jurist; Prynne an indefatigable searcher of records. But, when at the Restoration the removal of the incubus of the High Commission, and the political education which the Caroline divines had gone through, enabled them to restore the old ecclesiastical jurisdiction with some hope of honest and successful issue, the canonists and civilians showed that life was still in them. The old black-letter Lyndwood was taken down from the shelf, rebound, and annotated. Dr. Sharrock in 1664 abridged the Provincial for the use of students, and in 1679 the Oxford edition, which rapidly displaced the black-letter, was published with all Lyndwood's commentaries and Ayton's work on the Constitutions. The study of the civil law needed no revival; it had been kept up by the antiquaries and admiralty in the worst times; and, in the Universities, the faculty fellowships secured at least a languid succession of law degrees. The D.C.L. of Oxford too had achieved the dignity which now belongs to the honorary degrees at Commemoration; and in 1649, at what Antony Wood calls the Fairfaxian Creation, both Fairfax and Cromwell were made doctors of the civil law. According to Wood, in 1659 Nicolas Staughton, of Exeter College, was admitted doctor both of civil and canon law; and it is not impossible that there were other attempts to revive the canon law doctorate as an adjunct to the degree in civil law. Cambridge had always retained the shadow of the double degree, for the Leges or LL. to which she admits her doctors are a possible survival of the 'Utrumque Jus' of the old University system; and in 1669, Richard Pearson, brother of Bishop Pearson the commentator on the Creed, claimed to be admitted in distinct terms to both faculties. The Archbishop of Canterbury also, under the Dispensation Act, has the unquestioned right to make a doctor of canon law, although I am not sure that it has ever been exercised. But at Oxford the designation of the degree had latterly come to be restricted to civil law; and when in 1715, or thereabouts, Mr. Charles Browne of Balliol College applied to the Vice-Chancellor, Dr. Gardiner, for leave to proceed as bachelor and doctor of the canon law, he was told that he could not be prevented from doing so if he wished it, but that it would give the University a great deal of trouble; and the poor man died before he achieved the object of his ambition.
These notes are, however, of little importance, except as illustrating the revival of the ancient study, and the attention which the ecclesiastical questions of the day were calling to ancient practice. In point of fact, the whole of the second and last act of the Stewart dynasty was full of ecclesiastical questionings and excitements, which, though they did not directly touch our subject, stimulated the studies most closely connected with it. The struggle under James II, the position of the Nonjurors, the relation of Convocation to Parliament, the Whistonian and Bangorian controversies, all drew in lively partisans to the investigation of legal and ecclesiastical problems. The names of Hody, Kennet, Atterbury, Wake, and Gibson, all leading Oxford men, and men of deep research and minute if not accurate reading, are conspicuous in this regard; and, as for constitutional purposes it may be said that the very dust of their writings is gold, it would be ungrateful indeed to speak of their earnestness in the main object as misplaced. Gibson stands out more distinctly than any of the others as a great canonist, and his Codex or Collection of English Church Statutes is still the standard work and treasury of all sorts of such lore. There were too Johnson, Wilkins, and many other honest and subordinate workers on the theological as well as on the legal side. But the history of this department of law draws quickly to an end. The Hanoverian policy with regard to the Church and Convocation fell on all politico-ecclesiastical life as a blight. The Nonjurors were left out of the pale of the recognised laity, the common lawyers edged the theologians out of the court of delegates, the Convocations were silenced, and the bishops, almost as much as in Elizabeth's time, made their position in the House of Lords the fulcrum of all the force they ventured to exercise. Except for testamentary causes, and rare occasions of matrimonial and slanderous causes, the Church jurisdiction ceased to exist, and so continued dormant until in our times, in 1849 and in 1850, the Gorham case roused the attention of both lawyers and clergymen to the fact that without knowing it they had let the centre of ecclesiastical gravity become seriously misplaced. Into this region of discussion, for many reasons, I must not attempt now to make my way.
A few years after the Gorham controversy, a change or series of changes set in from another quarter: the matrimonial jurisdiction was remodelled when the facilities for divorce were increased, and the whole testamentary jurisdiction was withdrawn from the nominal superintendence of the archbishops. The Courts, the profits and privileges of which had so long maintained the close corporation of Doctors' Commons, and had caused the study of canon law in some at least of its branches to be languidly pursued, were radically and fundamentally changed; and, although it was difficult at once to improvise new forms and rules of procedure to take the place of the ancient forms and those which had grown out of them, these forms also were doomed. In the still more recent remodelling of the whole judicial system further changes have forced themselves in; and where the lawyers could find it their policy to acquiesce in the consolidation of the common law and chancery, they could without the slightest reluctance throw the ecclesiastical and admiralty law into the same cauldron. Out of that cauldron arises a new supreme judicature, which requires, every two or three years, to be amended and strengthened. It is supposed that thereby justice is quickened and law made so cheap, that any man, poor or rich, may ruin himself with a light heart. It yet remains to be seen whether this amended system, easier and less intricate than the old, supplies as good material for training or provides as sound schools of lawyers. It is no doubt philosophically more capable of perfection. The lore of Coke and Selden, like the lore of Eldon and Stowell, is for the present at a discount. Of course looking on all this with a historical eye, one is apt to be a little disconsolate; but time will avenge them, and the neo-legal jurisprudence will soon have an array of reports and decisions that will outweigh, physically at least, the Year-books and Institutes. As for the ecclesiastical law, which by its very nature, if it loses continuity, loses identity, in the present changing aspect of the world's politics, I for my part do not intend to prophesy. No one can investigate the letter and working of the canon law without being struck by the marvellous mixture of lofty and eternal principles of right, with arbitrary and disingenuous evasions of obligation: it reads as if the jurists, finding that the Church could not be ruled by the true principles, were determined to rule by special pleadings and artful circumventions. For the future the theologians must look to the true principles, and let the canonists and civilians pass with their evasions and circumventions into the twilight of archæology. Whether that will be so or not, or how soon, we may some of us live to see.
- Joh. Salisb. i. 196, epist. 138.
- Wilkins, iii. 555 (1447); Parker's Antiquitates, 429.