24 Hen. VIII. c. 12. and nobles of England, and forbids the prevalent abuses of the pope's bestowing benefices upon aliens, benefices of England which be of the advowry of the people of Holy Church,' the reservation of first-fruits to the pope, and the provision or reservation of benefices to Rome. By 38 Edw. III. st. 2, c. 1 (a.D. 1363), persons receiving citations from Rome in courts pertaining to the king, &c., are liable to the penalty of 25 Edw. III. "The statute (A.D. 1392) 16 Rich. II. c. 5, renders the procuring of bulls from Rome liable to præmunire, and it recites a variety of papal aggressions upon the privileges of the crown; among other matters, as to the translation of bishops out of the realm; or from one bishopric to another within the realm; and the carrying of treasure out of the realm; and so the realm, destitute as well of counsel, as of substance, to the final destruction of the said realm, and so the crown of England, which hath been so free at all times that it hath been in no earthly subjection, but immediately subject to God in all things touching the regality (la regalie) of the same crown, and to none other, should be submitted to the pope, and the laws and statutes of the realm by him defeated and avoided at his will, in perpetual destruction of the sovereignty of the kingdom of the king and lord, his crown, his royalty, and of all his realm, which God defend. "This statute before the Reformation and the subsequent enactment of 24 Hen. VIII. c. 12, and the great case of Cawdry (c), as reported by Lord Coke and corrected by Bishop Stillingfleet, may be said to contain a treatise on constitutional law of England upon the subject of the usurpation of the papal see upon the liberties of the national church, and in regard to the authority and privilege of the English crown. It would be difficult to conceive a clearer or more dignified exposition of the law upon this subject than is contained in the prefatory part of the statute of Hen. VIII., Where by divers sundry old authentick histories and chronicles it is manifestly declared and expressed, that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king, having the dignity and royal estate of the imperial crown of the same; unto whom a body politic, compact of all sorts and degrees of people, divided in terms, and by names of spiritualty and temporalty, been bounden and owen to bear next to God a natural and humble obedience; he being also institute and furnished, by the goodness and sufferance of Almighty God, with plenary, whole and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folk, resiants or subjects within this his realm, in all causes, matters, debates, and contentions, happening to occur, insurge, or begin within the limits. (c) 5 Co. p. 1. Stillingfleet, Eccl. Cas., "Of the Foundation of Ecclesiastical Jurisdiction," vol. II., p. 49. thereof, without restraint or provocation to any foreign princes or potentates of the world; the body spiritual whereof having power, when any cause of the law divine happened to come in question, or of spiritual learning, then it was declared, interpreted, and showed by that part of the said body politic called the spiritualty, now being usually called the English Church, which always hath been reputed, and also found of that sort, that both for knowledge, integrity, and sufficiency of number, it hath been always thought, and is also at this hour sufficient, and meet of itself, without the intermeddling of any exterior person or persons, to declare and determine all such doubts, and to administer all such offices and duties as to their rooms spiritual doth appertain; for the due administration whereof, and to keep them from corruption and sinister affection, the king's most noble progenitors, and the antecessors of the nobles of this realm, have sufficiently endowed the said church both with honour and possessions; and the laws temporal for trial of property of lands and goods, and for the conservation of the people of this realm in unity and peace, without rapine or spoil, was and yet is administered, adjudged, and executed by sundry judges and ministers of the other part of the said body politic, called the temporalty; and both their authorities and jurisdictions do conjoin together in the due administration of justice, the one to help the other.' rity. "At the period of the Reformation the national church intro- Denial of duced an express denial of the authority of the pope,-henceforth Papal authocalled in all public acts and documents the Bishop of Rome,into her articles and canons, and an acknowledgment of the temporal supremacy of the crown over the ecclesiastical as well as the civil state. Henry VIII. was excommunicated, and in the bull his subjects were commanded to renounce their allegiance, and the nobles were ordered 'sub ejusdem excommunicationis ac perditionis bonorum suorum pœnis,' to unite with all christian princes in expelling Henry from England. Elizabeth was excommunicated in pretty similar terms, but not until twelve years after her accession. In answer to a request from the emperor and other Roman Catholic princes, that she would allow the Roman Catholic places of worship, she replied that she would not allow them to keep up a distinct communion, alleging her reasons in these remarkable words, for there was no new faith propagated in England; no religion set up but that which was commanded by our Saviour, practised by the primitive church, and unanimously approved by the fathers of the best antiquity.' The Roman Catholics, both in England and Ireland, appear to have outwardly conformed to the services of the church for about ten years. "The peculiar character of the English people and the English Church is also strongly shown in their determination not to admit the general body of the canon law into these realms, but only such portions of it as were consistent with the constitution, Provincial the common law and the peculiar usages of the Anglican church. The rules of the general canon law were principally introduced constitutions. into this country, and considerably modified in their introduction, through the medium of provincial constitutions passed by the authority of the metropolitans of England. It is true that the pope endeavoured to maintain his authority in this matter by sending legates from time to time, and by the device of creating the Archbishop of Canterbury 'legatus natus' of the holy see (d). But England possesses in her provincial constitutions, collected by Lyndewode, a body of domestic ecclesiastical law, upon which, before the Reformation, a national independent character was in many respects impressed. The common law was always disposed to recognize these constitutions, while to the general canon law it always manifested considerable averseness. Burder v. Sanders v. Head. "But it has always been the doctrine of the temporal and ecclesiastical courts since the Reformation that the constitutions contained in Lyndewode, and the general usages of the church, and certain portions of the canon law admitted by those usages, are still binding upon the church of this realm. "I will give some instances: "So late as the year 1848 (e) criminal articles were preferred against a clerk in holy orders for accepting a benefice with cure of souls whilst in possession of another benefice with a cure of souls without dispensation. The articles alleged that by the 29th canon of the 24th Council of Lateran, A.D. 1215, he was ipso jure deprived of the first living. Sir H. Jenner Fust observed (f), 'The first of the articles sets forth the law, namely, that by a decree of the Council of Lateran, when any person in possession of a benefice with cure of souls shall accept another like benefice, the former becomes void, that is, he loses that benefice, and that is the law of this country at this time. The Statute of Henry VIII. does not affect this law, except that it makes the other living voidable; that is, by sentence, or void by presentation of the patron.' . "Under these circumstances, the facts being proved, the court is bound to sign a sentence, declaring the perpetual curacy of Forest Hill void by Mr. Mavor's acceptance of another benefice with cure of souls." "In the case of Sanders v. Head (g), Sir Herbert Jenner Fust said, 'It has been made a subject of complaint, on behalf of Mr. Head, that the articles do not contain any specification of (d) "Thus much is evident, as Gervasius, in the life of William, at this time (anno 1125) Archbishop of Canterbury, well observes, that the legatine power was looked upon as a breach of the law of England, and an invasion of the ancient liberties of the English Church and nation, as well as the rights of the sees of Canterbury and York in particular, and that the minds of men were scandalized and offended at it." Inett, Origines Anglicanæ," vol. II., p. 223. 66 (e) Burder v. Mavor, 1 Roberts. p. 614; 6 N. C. p. 1. (f) Ibid. at (g) 3 Curt. P. 3. p. 577. the law relied on to establish them; that the first article is merely general, and that, under such general pleading, it is difficult for a defendant to know how to address himself to the question of law applicable to his case; that the canon law has been referred to generally without particular specification.'. . . . "Now the objection taken in this case is not taken for the first time, it has been frequently taken in this court, and, as often, overruled. The answer always given to the objection is, that where the general law ecclesiastical is relied on, it is not necessary to plead specifically; that where the offence is one generally cognizable in the ecclesiastical court it is not necessary to point out the particular canon or statute on which the proceedings are founded.' "In the case of Kemp v. Wickes (h), Sir John Nicholl said, Kemp v. 'The law of the Church of England and its history are to be Wickes. deduced from the ancient general canon law, from the particular constitutions made in this country to regulate the English church, from our own canons, from the rubric, and from any acts of parliament that may have passed upon the subject; and the whole may be illustrated also by the writings of eminent persons." "In the year 1866 a royal licence was granted to Convocation to alter certain canons of 1603; the licence recited the 25th of Hen. VIII. c. 19, restraining the meeting of Convocation, and continued as follows: "And further, by the said act it is provided that no canons, constitutions, or ordinance should be made or put in execution within this realm, by authority of the convocation of the clergy, which shall be contrariant or repugnant to the king's prerogative royal, or the customs, laws, or statutes of this realm, anything in the said act to the contrary thereof notwithstanding; and lastly, it is also provided by the said act that such canons, constitutions, ordinances, and synodals provincial which then were already made, and which were not contrary or repugnant to the laws, statutes, and customs of this realm, nor to the damage or hurt of the king's prerogative royal, should then still be used and executed as they were upon making of the said act, till such time as they should be viewed, searched, or otherwise ordered and determined by the persons mentioned in the said act, or the more part of them, according to the tenor or form and effect of the said act, as by the said act amongst divers other things more fully and at large it doth and may appear.' Chief Justice Hale says, "I conceive that, when christianity Canon law. was first introduced into this land, it came not without some form of external ecclesiastical discipline or coercion, though at first it entered into the world without it, but that external discipline could not bind any man to submit to it, but either by force of the supreme civil power, where the governors received (h) 3 Phillim. p. 276. Reg. v. Millis. Sources of the law. .it, or by the voluntary submission of the particular persons that did receive it; if the former, then it was the civil power of the kingdom which gave that form of ecclesiastical discipline its life: if the latter, it was but a voluntary pact or submission which could not give it power longer than the party submitting pleased, and then the king allowed, connived at, and not prohibited it; and this, by degrees, introduced a custom whereby it became equal to other customs or usages" (i). Justice Whitlock, in Ever v. Owen (k), observes: "There is a common law ecclesiastical, as well as our common law, jus commune ecclesiasticum, as well as jus commune laicum." "I know of no authority," observes Hoffman (7), “in which the rule upon this subject is stated with more precision and accuracy than in the opinion of Chief Justice Tindal, in the Queen v. Millis" (m). "I proceed in the last place to endeavour to show that the law by which the spiritual courts of this kingdom have from the earliest time been governed and regulated, is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King's Ecclesiastical Law. But that the canon law of Europe does not, and never did, as a body of laws, form part of the law of England has been long settled and established law." So Lord Abinger in the same case (n), "The learned judges have, I think, satisfactorily derived it" (i. e., the ecclesiastical law of England)" from the constitutions of the ecclesiastical synods and councils in England, before the authority of the pope was acknowledged in this country. I take that part only of the foreign law to be the ecclesiastical law of England, which has been adopted by parliament or the courts of this country "(o). The law of the Church of England is, then, derived from the leading general councils of the undivided church, from a practice and usage incorporating portions of the general canonical jurisprudence, from provincial constitutions, from canons passed by her clergy and confirmed by the crown in convocation, and from statutes enacted by parliament, that is, the crown, the spiritualty and the temporalty of the realm. (i) MS. quoted by Lord Hardwicke in Middleton v. Crofts, 2 Atk. (3rd ed.) p. 668. (k) Godb. p. 432. (1) On the Law of the Protestant Episcopal Church in the United States, p. 45. New York, 1850. (o) See Lord Cottenham to the same effect. Ibid. p. 876. |