rights, liberties, franchises, and privileges, were granted to the church, or, more properly speaking, to the clergy of England. So, whether the head-ship or supremacy of this civil establishment were by the will of the nation committed, in some instances, to the pope, and in others to the king, its subsistence necessarily depended upon the continuance of that will of the nation, which alone gave it birth.

It was fully competent for the nation, if they chose it, to allow such rights to the pope and whilst that will of the nation lasted, he had a just, but only human right unto them: from the moment that the nation chose to allow them no longer, the papal claim unto them became, properly speaking, an encroachment upon the regality of the crown, and civil rights of the nation.

66

It is unfortunate for the christian church, that a divine claim was ever set up to rights, which evidently could only have been acquired by human title. So says Parsons *; "The bishop "of Rome had general authority over England in his (Edw. II.) "daies, not only in meere spiritual jurisdiction (which all the bishops of England professed to receive from him) but also "in external disposing, when he would, of bishopricks and other "prelacies, notwithstanding all the complaints made in his fa"ther's and grandfather's times about that matter, may be made "evident by many examples." The first of which example is that of pope Clement V. suppressing the knights templars, and appointing their lands to the knights hospitalers. This was certainly an act of civil or temporal power, and the learned divine observes, "That the decree was obeyed in England without resis "tance." This may indeed prove the acquiescence of the nation, not their obligation to obey it: And if this decree of the pope had been looked upon as absolutely binding and compulsory, it would have been useless for parliament to have confirmed it, as Father Parsons assures us, after Walsingham it did. The next example is of the same pope's rejecting Thomas Cobham, chosen by congé d'elire to the see of Canterbury, who went to Avignon according to the custom of those days to be confirmed and invested by the pope; and his holiness appointing at his own motion and discretion Thomas Reynolds to that see, to whom he sent both the investiture and pall; at which the king and queen were greatly contented. Whoever admitted the collation of spiritual jurisdiction to be made by the bishop of Rome by confirmation, &c. must also have admitted his right of appointing in the first instance. We do not Answer to Coke, p. 279.

find the parliament confirming the appointment of archbishop Reynolds. Had he been appointed by the king, the confirmation must have been made from Rome. For confirmation imports the supremacy or transcendancy of that very power, by virtue of which the original act is done.

case.

The whole of Caudrey's case, which was an action of trespass Caudrey's for breaking his close, he having been deprived of his living by a sentence of certain ecclesiastical commissioners appointed under 1st Eliz. c. 1. immediately concerned the civil establishment of religion, which was the possession of lands in England, which could be neither regulated nor affected otherwise, than by the laws. of England. Had indeed the civil power proceeded against Caudrey for administering the sacraments or preaching the word of God to his parishioners, he retaining the jurisdiction, which he had received from his lawful bishop by institution, then indeed would the civil power have exceeded their limits, and encroached upon the spiritual government of the church, which must by its nature, within the range of its proper objects, be for ever independent of the state. No power upon earth, but that which gave it, could deprive him of the spiritual jurisdiction, which he received from his bishop, whose attorney or delegate he was, for though by law after institution he acquired by induction a freehold or life estate in the land, glebe or tithes belonging to his parsonage, yet his spiritual faculties, mission or jurisdiction, by virtue of which he was authorized to minister the gospel to his parishioners, and they bounden to obey him could only be revoked, suspended, or annulled, exclusively by the bishop, who instituted him.

In the year 1275 (3 Edw. I.) the parliament complaining, that the state both of the realm, and of holy church, had been ill kept, par ce que l'estat de son royaulme et de seynte eglise ad este mal menez, they confirmed and settled the points, in which the nation complained abuses had existed. The first complaint was of the abuse of the hospitality of religious houses, by which they were so impoverished, that they could neither maintain their own religi ous nor give the charities, for which they were instituted; this was remedied by the act. The next abuse complained of was, that clergymen, who by the privileges of the church of England were exempted from trial and punishment by the lay courts, were not delivered over to their ordinaries: the act therefore confirmed the privileges, and enacted, "that they, which be indicted of such offences by solemn inquest of lawful men in the king's court, in no manner shall be delivered without due purgation,

Parliament

remedies a

buses in the civil esta

blishment.

Statute of mortmain.

Parliament directs the disposition

of trees in churchyards.

so that the king shall not need to provide any other remedy therein." Hence it clearly appears, that the privilege, which the English clergy enjoyed of not being tried and punished by the lay courts, was originally granted to them by the state: it also appears that in these times, clergymen were indictable for offences in the kings' courts, and although their punishments were referred to the ordinary, yet were they so referred by the civil power, which also provided, in case due purgation were not made, that the civil executive power should provide a further remedy; which it certainly could not do, if the delinquent, by virtue of his order or otherwise, were not subject or liable to the civil power or jurisdiction of the state.

Four years after the passing of this act, (7 Edw. I.) the English parliament gave the most unequivocal proof of their possessing the supreme dominion of all the property in the kingdom, in passing the statute of Mortmain, which act prohibits the appropriation of lands to the church. But if the church can possess lands jure divino, or by any title paramount to, or independent of the civil power, then could not the civil power, by any act whatsoever, prevent, or hinder the church from taking them and although it might be questioned, whether the power of hindering a specific appropriation of property, imported the altum dominium of it in the prohibiting power, yet when that power goes the length of forfeiting the property to its own use, for the very attempt of appropriating (even to God or the church,) there can be no room for doubting, whether the supreme dominion over the property vest in the civil supreme of the state. In fact this altum and power supremum dominium can not vest elsewhere: it is not in its nature transferable or extinguishable, and is incompatible with the like claim, or title of any subordinate individual or corporation.

In the 35th of Edw. I. (A. D. 1307) the parliament in directing by whom and on what occasions trees might be felled in churchyards, gravely and solemnly declared, that "Trees which be grow"ing in church-yards, are to be reckoned amongst the goods of "the church, the which laymen have no authority to dispose, "but as the holy scripture doth testify, the charge of them is com

mitted only to priests to be disposed of." And yet this same legislature consisting of laymen (whatever clegymen were there acted in a lay capacity) after this declaration, make this singular law, and for this singular reason, "Yet seeing those trees be often planted "to defend the force of the wind from hurting of the church, we "do prohibit the parsons of the church, that they do presume to "fell them unadvisedly, but when the chancel of the church doth

"want necessary reparations, &c." Now what effect the use of the trees in defending the church from the winds could have in authorizing laymen to dispose of church goods, which they declare can only be disposed of by priests, I cannot discover. However the operative part of the statute, which, being still unrepealed, is as binding upon the nation at this hour, as if it had been passed in the last session of parliament, is what must direct our judgment and conduct upon the question and by the operation of this act of parliament, which has operated for nearly 500 years upon the English nation, we are bounden to believe, that the civil legislative body did on this occasion exercise their supreme controul and dominion over church property: for to prohibit the incumbent, for the time being, to enjoy, profit, or dispose of these trees, and to direct and enjoin their particular and exclusive appropriation, is evidently to dispose of them to all intents and purposes. And thus on all occasions may laymen or the supreme civil power lawfully act, because in them alone such supreme controul and dominion over the temporalities of the church exist.

als app ies the revenues

houses.

In the same year the English parliament in regulating the appli- Parliament cation of the revenues of religious houses exercised the full and supreme controul and dominion over them: first, by enjoining, that of religious no part of them should be diverted from the laudable purposes to which the royal and other founders had intended and been enabled by the state to appropriate them: and then by specially prohibiting the application of any part of them to any foreign purposes, or to the order of any alien superior: though the act, which expressly forbids such spiritual superiors of the different religious orders to export or appropriate any part of the temporalities of their religious subjects, as expressly and unequivocally admits and acknowledges their spiritual jurisdiction, by which they are constituted the spiritual superiors, and by which their spiritual subjects owe them an obedience and submission neither liable to, nor dependent upon the civil power. "Moreover our foresaid lord "the king doth inhibit all and singular abbots, priors, masters, "and governors of religious houses and places, being aliens, to "whose authority, subjection, and obedience, the houses of the "same orders in his kingdóm and dominion be subject, that they "do not at any time hereafter impose, or by any means assess any "talliages, payments, charges, or other burdens whatsoever upon "the monasteries, priories, or other religious houses in subjec"tion unto them (as is aforesaid) and that upon pain of all they "haye or may forfeit." Can any thing. more clearly demon,

Ecclesiasti

cal immuni

mano.

strate, that in the judgment of our ancestors, the spiritual power or jurisdiction gave no right or dominion over the temporal possessions of their spiritual subjects? And therefore the same legis. lators explicitly declared, that though they denied all right, power, or authority in these alien superiors over the temporalities of their spiritual subjects in England, "It is not the meaning of our "lord the king to exclude the abbots, priors, and other religious "aliens by the ordinances and statutes aforesaid, from executing

their office of visitation in his kingdom and dominion; but "they may visit at their pleasure by themselves or others the mo"nasteries and other places in this kingdom and dominion, in

subjection to them, according to the duty of their office "in those things only, that belong to regular observation, and "the discipline of their order." A notable instance this of our ancestors' discrimination between the spiritual jurisdiction of the see of Rome, from which they allowed these alien superiors to derive their power, and their right and duty to resist any papal claims, pretensions, or assumptions of temporal and civil power within the realm of England.

Some controversial writers, and they are seldom unprejudiced ties jure bu- even upon facts, have attributed all the ecclesiastical immunities and privileges to a divine right, or at least to a grant from the pope, which they held to be paramount to the civil or any human claim or title whatever. The fifteenth article of the articuli cleri expresses the true and real ground, upon which these liberties of the church of England were enjoyed. Gaudebit ecclesiasticâ libertate juxta laudabilem consuetudinem regni hactenus usitatam: that is by the common law of the land: but the statute law may alter the common law: therefore must these liberties be liable to the controul of the legislature, which they would not be, if they were holden jure divino, by divine institution. Upon this same ground or prin ciple by the fourteenth of Edw. III.( A. D. 1 340.) spiritual persons' goods were not to be taken in purveyance, without the owners' consent: and their temporalities were not to be seized, "without good cause according to the law of the land and judg"ment thereupon given."

Statute of provisers.

The grand assertion of the national rights over the civil esta blishment of the Roman Catholic religion was the twenty-fifth of Edw. III. commonly called the law of provision and præmunire, which put all purchasers of provisions from Rome for abbies and priories out of the king's protection. Of this law Polydore Virgil speaks thus: (lib. 19.) King Edward the Third, of all