Forbes on Article XXXVII: Of the Civil Magistrates

THE subject of Article XXXVII. is the Civil Magis trates. First the supremacy of the Queen’s Majesty in the realm over all estates, in all causes, is asserted. Next the Fact and the Propriety of its subjection to any foreign jurisdiction is denied.

After this comes an explanation that the term ’ chief

government’ does not extend to the ministering either the Word or Sacraments, but does extend over all persons, “all estates and degrees,” and to restraining evil doers with the civil, not the spiritual sword.

The jurisdiction of the Pope in the realm is denied ; the right of capital punishment is asserted ; and the lawfulness of the use of arms and of war at the com mandment of the Magistrate is asserted. The Latin article imports the consideration that the war must

The question of Royal Supremacy is one as old as the State establishment in the time of Constantine. So long as the Christian Church was a persecuted community, it administered its own laws; its Bishops were its judges in secular things; and, according to the rule of St. Paul, men did not go to law before the heathens but before the saints. Externally the Chris- Jan aimed at being a good subject, prayed for the stability of the Empire, even for the heathen Emperor. He had no difficulty directly in serving in the im perial legions, though there existed an accidental diffi culty from the homage that was required from him to the Roman Eagles, or tutelary deities of the army, and to the person of the Emperor. How property was held, (for even at that early period the Church, espe cially that of Rome, did possess property,) we do not know. The Archdeacon of Rome had the care of the sacred vessels, which at a very early period were re markable for their costly material. The churches were apparently held in trust by the Bishop and clergy.

Even under the Pagan Emperors the Church pos sessed land, though without legal sanction. In the third century we have evidence of the possession of a see-house at Antiocb, which Paul of Samosata wished to retain after he had been deposed a. After the con fiscations of Diocletian, Constantine ordered the land to be restored, and by an edict of 321 he permitted the Church to receive bequests (bona) in real property. There is no contemporary record for any great grant of land by Constantine, the forged donation being first known to be in existence A.D. 860. By the time of St. Gregory the Church was very rich, and it is reason able to believe that, the Emperor having opened the door to such bequests, wealth flowed in from the de votions of the faithful. Indeed, Valentinian had to make a law checking the scandalous practices con nected with such gifts. If Anastasius is to be trusted, Constantine bestowed upon the Basilicas which he founded in Rome alone, property to the value of 235,527 gold crowns, of which 60,000 went to the in come of the Pope. The aggregate weight of the orna ments given to the Sanctuary was 1,880 Ibs. of gold, 19,513 of silver, and 7,420 of bronze.

It is needless to add, that the discipline as well as the doctrine of the Church was a purely internal matter, in which the State had no interest nor control. Beyond a growing suspicion of the existence of Chris tianity as a dangerous organization, and occasional fanatical outbursts, chiefly in the provinces, ending a Thcodoret, H. E., ii. 8; Euseb., H. E., 1. vii. c. 30.

in a temporary persecution, the attitude of the Em pire to the Church was a contemptuous suspicious toleration.

It was a wonderful thing that the community should govern itself by the help of one sanction. Excommu nication, or the power of ejecting an erring brother, was the ultima ratio of the Church, but then that bore fruit in the world to come. The power of binding and loosing was the charter of all Church discipline, for it relegated the sanction of the visible Church into the unseen world. If salvation depended, clave non errante, upon Church membership, and Church membership under certain laws was in the hands of the Hierarchy, it placed the control of the Church absolutely in their hands. And the power of discipline came with it, as we have seen when we have treated of the Church having authority in controversies of faith ; power with regard to doctrine also was included, for false doctrine being an excommunicable sin, the same absolute con^ trol which the Church had over morals extended to matters of belief.

The State establishment at once modified these con ditions. On the one hand the Episcopal jurisdiction which, in the way of arbitration, had been used to settle the disputes among the faithful, was turned into a coercive judicial power, the remains of which are found among most of the Romanesque races of Europe, and the shadow of which has remained in England till our own time. On the other hand, the Civil jurisprudence of the State had to modify itself

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to meet the requirements of the new faith ; Church and State here worked in harmonious alliance, and the world profited by the alliance. However, beside this mutual influence, the two systems, developing homo geneous codes of law, lived on in indifferent harmony with each other, ages after ages. The conflict between the Canon and the Civil laws in various countries was only the outcome of this state of things. In most countries the Civil law has generally superseded the other, as material interests have become greater and greater.

It was the same in Politics. The ecclesia docens, ’ the clergy,’ the Hierarchy, to a certain degree main tamed their authoritative position, after that the State became Christian. However great was the predomin ance of the Civil power, it generally recognised cer tain functions proper to the Spiritualty. It found that within its influence there was another power which it could not touch — the domain of conscience. In pro portion as dogmatic questions assumed a concrete form, that domain of conscience extended itself to many mixed questions, and collisions between the temporal and spiritual powers became the inevitable result.

The history of the world from the fourth century is a record of this collision. Sometimes fought out on the plain principle, as in the fight of the Inves titures, sometimes disguised under the appearance of factions, as the Guelphs and Ghibellines, the Bianchi and the Neri b ; the question profoundly agitated the

b Dante’s Inferno, xxxii. 6.

Church, and was asserted with different success till the Reformation. The Church, now represented )j the see of Rome, ever pushed its pretensions to the utmost limit. The State did all it could to protect itself against encroachments, by pragmatic sanctions. When supernatural ideas were strong, the Church pre dominated ; when they were weak, either from material progress, or the effect of the vices of the clergy, the Church became proportionately enfeebled. From the time of Hildebrand onward, there is a tradition of op position to sacerdotal claims. The treatise De Unitate Ecclesise conservanda (cir. A.D. 1092), the epistola Leo- diensium adversus Paschalem II. (A.D. 1099 — 1118), Benzo’s panegyricus in Henricum III. (cir. A.D. 1313,) the Dispute concerning the power of Popes, and Em perors by JEgidio Colonna (A.D. 1316), the tractate de Potestate Regia et Papali by John of Paris cognomento Surdi, or ” qui dort.” (A.D. 1304), Dante de Monarchia, William Occam’s several treatises, and, above all, the celebrated Songe du Yergier (Somnium Viridarii), are the chief works before the fifteenth century in which this spirit is manifested0. There was an element of Erastianismd in the Councils of Basle and Constance,

c Friedberg. de Finium, &c., p. 248.

d Hallam’s ” Middle Ages,” vol. ii. p. 363.

” Before the appearance of the early Reformers, a republican or aristo cratic spirit in ecclesiastical polity, strengthened by the decrees of the Councils of Constance and Basle, by the co-operation, in some instances, of the Church with the State in redressing or demanding the redress of abuses, and certainly also by the vices of the Court of Rome and its diversion to local politics, had fully counterbalanced, or even in a great

the aristocratic and episcopal and national element in the Church itself was worked in the interests of the State, against the Papacy or purely spiritual authority ; and one aspect of the Reformation was a resignation on the part of religion of the spiritual independence, and the laying at the feet of the Civil power many rights that had been contended for for many an age.

The loss of England at the Reformation led, if not to the institution of Concordats, at least to their fre quent employment. The relation between the Civil and Ecclesiastical power now became a matter of treaty in each State. Sovereigns made the best terms they could, and wrung from the occasional weakness of the Papacy what it could not help granting. Still the Curia Romana has never bated its theoretical rights, and while the State has managed in most cases to insist on the right of the placitum regium or Exequatur, the power of preventing bulls being published within its limits, and the institution of an appeal from the abuse of spiritual power in the Civil Courts, both that Exequatur and that appellatio ab dbusu have been con demned in the Encyclica of Dec. 8, 1864.

The principles of Nationalism had developed them-

measure silenced, the bold pretensions of the school of Hildebrand. In such a lax notion of Papal authority, prevalent in Cisalpine Europe, the Protestant Reformation had found one source of its success. But for this cause the theory itself lost ground in the Catholic Church. At the Council of Trent, the aristocratic or episcopal party, though it seemed to display itself in great strengih, comprising the representatives of the Spanish and Gallican Churches, was for the most part foiled in the question which touched the limitations of the Papal Supremacy. From this time the latter power became lord of the ascendant.”

selves two hundred years before the Reformation. England, not being a part of the Empire, had always maintained its insular character ; and, in spite of the moral effect of the death of St. Thomas of Canterbury, had always struggled to carry on the traditions of the Constitutions of Clarendon. In France the influ ence of the lawyers who, in opposition to the Councils, had developed the royal power by the inculcation of the Code of Justinian, had tended, in union with the gradual absorption of the great fiefs, to give increased power to the Crown, while the traditions of the Holy Roman Empire, especially in their Ghibelline em bodiment, had ever been in the direction of thwarting and opposing the theologico-political theories of the Church, as expressed by the Papacy. Dante’s language, where a submission to, and enlightened knowledge of, the profoundest doctrines of the mediaeval Church, are coupled with the keenest and most openly-expressed scorn for the vices of the individual Popes, serves as an illustration of the position taken up by many of the thinkers of Europe long before the Reformation. His beautiful dream of an Universal Monarchy, if hostile to the notion of an aggregate of nationalities, at least developed a theory of the self-sufficiency of the State, which in the presence of actual facts, i.e. of the im possibility of such universality, tended much to con solidate the notion of the autonomic existence of nations.

The Great Schism and the Convocation of the Coun cils of Constance and Basle helped in this direction.

The law}Ters became a new power in the world, and did what they could to consolidate the Civil State. When, in 1418, Martin Y. began to restore the Papacy after the Schism, we find him combating them in France, protesting against the Statute of Provisors in England, and dealing in no measured terms with the spirit of rebellion, which the previous degradation of the Spiri tualty had engendered6.

Thus also in Scotland, ecclesiastical questions were discussed and determined in Parliament during the fourteenth century. A case of disputed election to a Benedictine house was appealed from the judgment of the Diocesan to the Conservator (the Bishop who presided in the Church before the establishment of the two Archbishoprics), but finally decided by the King in Parliament by the advice of the clergy then present in 1391. In 1401, any one, thinking him self unjustly excommunicated, might appeal from the Bishop to the Conservator, from the Conservator to the Provincial Council, where such questions should be de termined so long as the schism should last. To this ordinance the clergy consented during the schism, like the rest of the King’s lieges. In 1417, the question whether Martin Y. was to be acknowledged was de bated, not in a Provincial Council of the clergy, but in a General Council of the three estates of the realm. In 1425, the bishops are authorized to search for

e Vide Bull printed in Burnet’s ” Reformation.” Edit. Pocock, vol. iv. p. 148. Also Archbishop Chichele’s Appeal from the Pope to a General Council, ib., vol. v. p. 485.

heretics and Lollards by Parliament. In 1427, Parlia ment framed a measure for expediting the procedure in the secular cases in the Ecclesiastical Courts, and next year made rules about the treatment of leprosy by the clergy. This boldness in dealing with eccle siastical matters startled the Papal Court, and con tentions arose which were only silenced by the con fusions that sprung from the murder of James I.

But there was another aspect of the question beside the relations between the Regale and the Pontificale. That between sovereign and people was long unde termined. Against the traditions of the Empire in the Middle Ages, a host of communities, and sects, such as the Fraticelli, Beguards, &c., had sprung up, ad vancing the most extravagant views of Government : even the Franciscan Order itself had strong demo cratic tendencies. The Schoolmen had laid down a sound doctrine, that while the Hierarchy is imme diately from God through Christ, “As My Father sent Me, so send I you,” the civil power came from God mediately through the people. Without as suming the absurdities of an original compact, such as formed the base of the social theories at the be ginning of the century, they held that power was for the sake of the governed, not of the governors. But still the tendency of the weakening of the Papal power in the previous centuries, and of the breaking up of the feudal system, especially in France, by the absorption of the great fiefs into the Crown, had been to give very great power to the State. Although the

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Stuart theory of the divine right of kings was not yet formalized, one phase of the earlier Reformation was, as has been said, to give very great power to the Sove reign. But soon reaction followed. Calvinism was essentially democratic. It sprung up in a republic ; it became the dominant religion of the most successful republic of modern times ; and it has given a re publican tinge to every country that it has touched. Geneva, Holland, and Scotland, are witnesses of this. The conversation between Mary of Scotland and Knox, on that monarch’s first arrival in Scotland, turned on the assumption, that if princes became enemies of God (that is, did not support the Reformation), God’s servants owed them no allegiance. The formula was, if a father went mad and offered to kill his children, they might tie his hands, and take his weapon from him ; in like manner, if princes would murder the children of God, it was no disobedience to restrain them from their evil purpose.

The first proposition of the Article, therefore, is an assertion of the chief power of the Queen’s Majesty. That power claims such privileges as, inherited from pre-Christian times, had been derived into the Holy Roman Empire, which was emphatically the State, the successor of that Great Polity which ruled the earth at the time of the coming of our Lord. England had never been in a strict sense part of the Great Empire. The Romans had abandoned it; the northern Barbarians had invaded it: the Saxons, after growing from a heptarchy into one kingdom, had maintained

independent relation with the Empire ; the kingdom of England imitated the style and title of the emperors of New Rome ; the Bretwalda became the Basileus ; there was a great affectation of Grecian etiquettes ; but the whole theory of England was that it was a free and independent kingdom. This is the first proposi tion of the Article. But next to that, after certain explanations of the autonomic claim, there is a certain jurisdiction to be renounced.

The jurisdiction here renounced was that jurisdiction which, supported and strengthened by the false Decre tals, and formulized by individual theologians after the Council of Trent, had for nine hundred years been exercised over the Church of England. From the time of the mission of St. Augustine by Pope Gregory, reference had been made to Rome, although only very slightly from the time of Theodore to the Conquest 669 — 1066. The interference eventually extended to the most minute things. The documents lately pub lished from the stores of the Vatican, touching the interference of the Church of Rome with those of Ire land and Scotland, shew that nothing was too great or too small for its exercise. From a question of the regency of a kingdom down to the proper shape of a monk’s hat f, all came under its consideration. The confirmation of Bishops and Abbots, the dispensations in matrimonial cases, appeals from episcopal sentences, the concession of privileges to orders, made the Supre macy be felt in every county of the kingdom, while the f Theiner, Vetera Monumenta Scotorum et Hibernorum, p. 76.

higher politics of the realm were profoundly affected by it. Not the least remarkable point was the drain upon the resources of the country by the exaction of annates, first-fruits, Peter’s-pence, and the intrusion of Italian and other foreign personages into the bene fices of the Church of England. It is a question how far, even in the zenith of the Papal power, the Ita lian interference was on the side of righteousness and truth. In spite of the presumption that injured inno cence would find redress at the threshold of the apo stles, and that a cause, removed from local passions and prejudices, had the best chance of being settled equi tably at Rome, it is to be feared that the result was the paralysis of the ordinary jurisdiction of the Bishop. Even Hildebrand could not, as Innocent III., have en forced justice, in opposition to the vast machinery of the Roman Curia, and its us inertia. Appeals were made by the English Clergy on every occasion against their Bishop. They were seldom prosecuted ; the re suIt was the mere prostration of the Episcopal and Me tropolitan authority. The loudest complaints of the venality of Rome are of the thirteenth century, and some even in the twelfth. In the fourteenth and fif teenth centuries, the power of gold was still said to tell in the decision of appeals, and, rightly or wrongly, an abiding sense of the venality of the Roman Curia possessed the mind of Europe. Long before the Refer mation there was a strong anti-Italian party in the English Church, and it must never be forgotten that the actual breach was consummated by the Catholic

Convocation of the Church, by Gardiner, and Bonner, and Warham.

Yet that the mediaeval Papacy, with all its faults, had an office in God’s kingdom and in the history of the world, cannot be denied. As the strongest con crete form of the Episcopate, it was the preserver and dispenser of moral and religious tradition. It knit together in visible unity the various races which, as powers of this world, succeeded to the Roman Empire, and enlarged it. The Apostle of England had been sent and guided by that great Pontiff, who was so marvellously raised up at a time very critical for the history of Christianity, St. Gregory the Great. St. Augustine of Canterbury impressed on England an en thusiastic devotion to the see of Rome ; the Apostles of Germany, issuing from England, implanted it to gether with the Gospel itself among the people whom they converted. Christians, in whatever different lands, using whatever different languages, were one body. One was their faith ; one, their discipline ; one, their worship. And this unity was personified in him, who, throughout Western Christendom, was looked to as the common Father. The Pope, as the Head and Fa ther of Christians, was, in theory at least, the earthly refuge of the oppressed. He wielded an authority, before which kings, or a barbarian aristocracy, trem bled ; which could rebuke vice, or tyranny, or brute force upon the throne, with an authority greater than its own. Even the forged decretals (unhappy, in its consequences, as any fraud must be) were framed, not by Rome, nor with its cognizance, but as a protection

‘42 ARTICLE XXXVII.

against lawless civil power. In the miserable tenth century the Papal authority was still exercised in the name of Popes, who themselves have left their names only as a proverb of reproach. Strange, that the de cline of the Papal power began with one, who himself sustained its loftiest claims. Boniface VIII. found his authority at the zenith. His hermit predecessor had been reluctantly allowed to enact that he might him self abdicate. He himself acted nobly as the Pacifi cator of Europe. He commanded peace to such mon- archs as the English Edward I. and Philip the Fair, with their allies; he was (as Benedetto Gaetani) ac cepted as the arbiter ; an interdict was to lie on the infringement of some chief terms ; he received Scotland as a fief of the see of Rome ; he had given a king to Hungary ; and had conferred the Empire on Albert. Millions (it was said ” almost all Christen dom”) flowed to Rome to visit the shrines of St. Peter and St. Paul, at the Jubilee which he instituted; his Bull, Clericis laicos, exempted all Clergy everywhere from any tax, under excommunication ; and in the JTnam sanctam affirmed the absolute subjection of the civil to the Papal power. Yet he died accused of every imaginable or unimaginable sin, (many charges primd fade are utterly incredible,) required by the French king to defend himself before a General Council. His successor, Clement V., had to account it a gain that the French king abandoned the pro secution *. The Council of Vienne declared Boniface

£ He speaks of it as an inspiration of God, Diploma in Rayn. Ann. A. 1311, n. 30. Villani says that Clement V. promised to Philip ou

” a Catholic and undoubted PopeV But the fact that a Pope should, at the instigation not of the French king only, but of the States General, with all the eccle siastics present, and above seven hundred acts of adhe sion {, be tried, after death, before a General Council, for atheism, simony, incontinence, witchcraft, heresy, and unnamable crimes k, must have had a very profound effect upon the mind of Europe. The Bull, May 1311, pronounced that Philip, in all the proceedings against Boniface, was ” moved by a just zeal and fervour for the Catholic faith.” Everything which could reflect upon him was to be effaced from the Roman records. The Bull, Ckricis laicos, was cancelled as a source of scandal1 ; the other Bull, Uham Sanctam, was declared to make no change in the relations of France to the see of Romem. The precedent of an appeal to a General Council against a Pope for supposed heresy or immorality, was virtually admitted by the praise of Philip, and the fact of the Council. On this followed, what has been called the Babylonish captivity, the seventy years’ residence of the Popes at Avignon, sub jects of the king of France.

The fiscal necessities of the impoverished Courts of Lyons and Avignon made the demand for money more and more peremptory. As the Papacy ceased to repre-

the Blessed Sacrament, as one condition of his elevation to the Papacy, to ” destroy and annul the memory of Pope Boniface.” Hist. Fior. viii. 80. He is followed hy St. Antoninus.

h Anton. 3. p. tit. 21, c. 3. ! Bulams, Hist. Univ. Par.,

iv. p. 46 sqq. k lb., p. 41 sqq.

[…]

sent a Christian want and idea, it became more and more rapacious. John XXII. imposed the tax of an- nates, or first-fruits, on all benefices, to be paid into the Papal Chancery ; he reserved to himself all the bi shoprics in Christendom. Benedict XII. assumed the right of disposing of all benefices vacant by cession, translation, or deprivation. After the return from Avignon, the Great Schism occurred. The shake to men’s convictions by this event cannot be exaggerated. That the organ devised for the unity of the Church, as the Papacy with more or less distinctness had been recognised to be for centuries, in development of the teaching of St. Cyprian, should give way under the pressure and increasing strength of the adolescent nationalities of Europe, was a mighty blow to the Western Church. Humanly speaking, but for that, the Reformation would never have taken the shape it did. Men’s minds for nearly a generation had got into the way of doubting who was Pope, and therefore the element of certainty, which had been so attractive a notion in dependence upon it, was lost ; lost not only to that generation, but with more perilous results to those who succeeded.

The fifteenth century accustomed men’s minds to a lowering of the Papal authority. It opened with the deprivation of the two rival Popes by the Council of Pisa n, and the broken oath of the new Pope, Alex-

n Sess. xv. Jur. 5. The ” Sententia definitiva et privativfl,” runs : “The holy and universal Synod, representing the universal Church, and to whom the cognizance and decision of this cause is known to

ander Y., to continue the Council, until it should have effected a reform °. On his decease, the Cardinals un happily chose one of notoriously disgraceful life, Bal- thassar Cossa (John XXIII.), to succeed him ; and no one could dispute the righteousness of the act of the Council of Constance, which, partly on the ground of those notorious sins, deposed him p. The necessities of the times supported the claim of the Council to have authority over ” any person, of whatever, even Papal, dignity.” Two Councils, Constance and Basle, claim ing to be General Councils, and to have ” their autho rity immediately from Christ,” declared ” the necessity of a general reformation of the Church of God in its head and members; claimed obedience herein and in things which appertain to faith, and asserted the sub jection of the Pope to a Council q. Specifically, the

appertain, pronounces, decrees, defines, and declares, that Angelas Co- rario and Peter di Luna, both and each, were notorious schismatics, and notorious heretics, departing from the faith, entangled with the notorious and enormous crimes of perjury and violation of vow, &c., that they are, ipso facto, rejected and deprived by God and the sacred canons ; but that, nevertheless, the Council deprives both and each, inhibiting them and each of them from presuming to act as Supreme Pontiff.”

0 The oath was, that ” if any of us shall be elected supreme Roman Pontiff, he will continue the present Council, and not dissolve it, nor allow it to be dissolved, as far as in him lies, until by him, with consent of this same Council there be made a due, reasonable, and sufficient reformation of the universal Church and its condition, both in its head and members.” Sess. xvi. Jur. 10.

P Sess. Gen. xii. May 29, 1415. Seventy Articles were established by evidence (v. d. Hardt., iv. p. 253), of which some were so offensive that they were not read publicly. Ibid., pp. 237, 247.

1 Cone. Const., Sess. Gen. v.; Cone. Bas., Sess. ii.

74G ARTICLE XXXVII.

Council of Basle removed many powers claimed by the Popes, as Papal reservation of benefices r ; it re sisted appeals and interdicts s, annulled annates *, as signed to Cardinals the duty of admonishing the Pope ; if he would not correct himself, they were to delate him to a General Council11. The Council of Basle, indeed, undid its own work by its extreme measures against Eugenius IV., when he removed the Council to Ferrara ; but the confidence, by which it was misled, is an evidence of its popularity, and the fact that such decisions were made by a Council of undisputed Ca tholicity at the time, must have left a lasting impres sion. France continued to receive even the decrees of its later sessions during its conflict with Eugenius IY. (as that of the Immaculate Conception of the Blessed Virgin), as decrees of a General Council. Martin V., indeed, declared in a Constitution (A.D. 1418) any appeal from the Apostolic see invalid ; Pius II. pro hibited themv. Yet they continued, when occasion arose w. Exactions disgraced even the energetic reign of Martin V. Even when the Turks threatened Hun gary, the attempts to promote a Crusade were regarded as mere occasions for succouring the Papal revenues. The purpose of Julius II. to lead a Crusade in person, which once would have roused all the religious en-

Decr. de elect, et confirm. Episc. et Prcel., Sess. xii. Sess. xx. Deer. 3, 4. * Sess. xxi. Deer. i.

Sess. xxiii. Deer. 4, de num. et qual. Cardinal. In. a Bull, Jan. 23, 1460, ” Execrabilis.”

On the part of the Elector, at Niimberg, A.D. 1460; of the Em. peror Sigismund, also 1460; by Charles VII. of France, also in 1460.

thusiasm of Europe, attracted a mere mob x. Had those who elected the three last Popes of the cen tury, Sixtus IV., Innocent VIII., Alexander VI., had for their object to degrade the Papacy as a spiritual power, they would have chosen well. Yet the claims made for Papal authority never ran higher. Flatter ers, on public occasions too, called the Pope ” another God upon earthy.” Alexander VI. dispensed with what was, or was accounted hitherto to be, Divine law. To his married daughter Lucretia he gave licence to marry, her husband still living z, (of which she twice availed herself, and her example was followed by Louis, Duke of Orleans) ; he dispensed with orders to his son Caesar Borgia, a Deacon and a Cardinal a, and he first allowed of marriage with a deceased wife’s sister, which had, to a recent predecessor, been pronounced beyond the power of the Pope b. His act was the pre cedent of that which furnished occasion for the breach of Henry VIII. of England. Indulgences given by Julius II. for the rebuilding of St. Peter’s, involved the loss of half of Germany ; it was the spark which kindled the inflammable material. The two last Popes of that unhappy century became proverbs throughout Europe, Innocent VIII. for his incontinence, and Alex-

y Mentioned by Gerson, Opp. ii. 424, “Tu denique alter Deus in terris,” said to Julius II. in Lat. Cone., Sess. iv. Dec. 10, 1512.

[…]

8 Burchard in Eccard ii. 2096.

b Card. Joh. de Turrecremata to Eugenius IV. See Dr. Pusey’s Evidence on the Law of Marriage, Qu. 464, p. 27, ed. 8.

under VI. for what in Popes was not allowed to be simony c.

To understand the position of England in reference to the Papal power, and the degree of its repudiation, it is necessary to go somewhat into detail concerning the historic relations of Church and State.

Till the Norman Conquest in England there was no distinction of jurisdictions. All matters, spiritual as well as temporal, were determined in the Sheriff’s tourn, the county court where the Bishop and Earl sat together d. As the legislative synods were mixed assemblies, so the executive was mixed also. The bishoprics being conterminous with the kingdoms, the archdeaconries with the counties, there was the closest connection between the civil and ecclesiastical laws: “The shyregemot shall be kept twice a year, and oftener if need require, whenever the Bishop and the Alderman of the shire shall be present; the one to teach the laws of God, the other the law of the land e.”

The separation of the Ecclesiastical from the Tem poral Courts was the act of William the Conqueror. No Bishop or Archdeacon was any longer to hold pleas of the laws episcopal in the Hundred, or draw a cause which belongs to the government of souls to the judg-

c That on Alexander VI. was, —

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It is said that it was sung in his time throughout the Christian world. Lud. Tub., 1. vi. § 7.

d Burn’s Eccl. Law, vol. ii. 81. c Laws of Canute.

ment of secular men. Whoever contumaciously re fused the episcopal jurisdiction was to be excommu nicated ; and that, if need be, was to be supported by the King or Sheriff f.

This was the reward of the support of the Pope, who sent two legates to England, with whom William held a synod when the Saxon Stigand was deposed, because he had no pall from Rome, and Normans were substi tuted for natives in many of the sees and abbeys. Yet, while the right to send legates was thus conceded, although not without royal licence in each case, no ecclesiastical decrees were passed without the royal assent, and William distinctly refused the oath of fealty to Gregory YII.

His successor, William Rufus, resisted the right of appeal.

In the reign of Henry I., the Pope obtained the patronage and donation of bishoprics and other bene fices, Urban having decreed that no lay person should give any ecclesiastical benefice ; and at the Synod of London, in 1107, the King yielded investiture per anmi- lum et bacutum, gaining the privilege that no foreign legates should be sent, but that the Archbishop of Canterbury was to be legatus natus. Both parties broke faith after St. Anselm’s death, but the law remained. The settlement of 1107 was a compromise, the king resigning the form of investiture, but enforcing the homage of each prelate before he received the tem poralities of his preferment.

[…]

A third point was gained in the reign of King Stephen. Appeals to the Pope were multiplied.

The power of the see of Rome still increased. In the reign of Henry II., clerks were exempted from the civil power. The Constitutions of Clarendon (1164), though for the time rendered inoperative by the moral effect of Becket’s death, were the first great normal resistance to the Roman Court 8.

At last, in the reign of King John, the ecclesiastical power was in its zenith.

Henry III. owed his establishment in the kingdom to Pope Honorius ; and the reigns of Edward I. and Edward II., — with the exception of one Act in the thirty-fifth year of the first of these monarchs, pro hibiting foreigners from holding benefices, — shewed no open resistance to the foreign power.

The accomplished Grossteste, Bishop of Lincoln, from 1235 to 1253, whose fame has hitherto mainly rested on a letter in which he resisted Innocent the Fourth’s nomination of his nephew, Frederico di Lavagna, to a canonry at Lincoln, according to that evil practice of beneficing foreign, and especially Italian clerks, which was pursued till their incomes amounted in value to 70,000 marks h, yet did what he could to support the Pope in obtaining the tax for the Crusades, the payment of which Henry III. had resisted1. Though

h Luard’s Preface to Grossteste’s Works, p. Ixxix. 1 Ibid., p. xvii.

his sense of episcopal responsibility induced him, at the risk of the anger of the Italians, to resist any improper nominations to benefices, ” no one can exceed Grossteste in his reverence for the Papal power, and for Innocent IV. in particular •>.” He did much to pro mote the interest of the Friars, especially the Minorites. He was present at a Council at Lyons in 1245.

The foreign power of the Popes meanwhile had been making itself felt in many obnoxious ways, and the result was a passionate opposition, which found a legal expression in the Statutes of Prsemunire.

The first of these, in 27 Edw. III., proceeds upon ” the grievous and clamorous complaints of the great men and commons of the realm, how that divers of the people are drawn out of the realm to answer of things pertaining to the King’s Court; and also that the judgements given in the said court are impeached in another court. Offenders shall have a day to ap pear to answer in their proper persons of the contempt done on this behalf. If they come not, they are put out of the King’s protection, their lands are forfeit, and their persons subject to imprisonment.”

No names are mentioned in this Statute, though it

’ O

is plain what is pointed at ; but in 16 Richard II., the language is more plain spoken. “Any one purchasing or procuring in the Court of Eome or elsewhere any translations of prelates, processes, sentences of excom munication, bulls, instruments, or any other things whatsoever, which touch the King ; and they which J Luard’s Pref., p. xx.

bring within the realm or them receive, or make thereof notification, or any other execution whatsoever within the said realm or without, shall incur penal ties of prsemunire.”

Meanwhile the secession to Avignon had weakened the Pope’s authority. The pecuniary necessities of his Court, exiled from Italy, and domiciled first at Lyons and then at Avignon, made the exactions of money more peremptory ; nay, it is to be feared that the needy ecclesiastics got into the habit of selling justice; at any rate, such was the abiding conviction of all Europe. All through the fourteenth century the influence of the French lawyers told in a very hostile way upon the working of the Papal Court, and at last the Great Schism brought matters to a crisis. In the reign of Henry IY. Acts were passed prohibiting licences being given by the King for the infringement of the Statutes of Pro visors, or for compositions with himk. The Council of Constance, in 1418, tended to heal the schism, and there is nothing in the history of Institutions more striking than the way in which Martin Y. did what he could to restore the influence of the Papacy. His

k ” Pecock, dr. 1445, whose ideas on the subject of Papal Supremacy were not at all in advance of his age, conceived that the Pope, as lord paramount of the Universal Church and of all things thereunto per taining, had a right, strictly speaking, to the entire proceeds of all benefices, and that those whom he placed therein to enjoy them did no sin in giving him (annates) of that which was his own, any more than a bailiff does when he pays anything to the landlord of the soil.” — (Churchill Babington’s Introd. to Pecock’s Represser, p. xvi.; cf. Re- prtssor, pp. 436 — 444.)

relations with the English Church are well worthy of study. The schism in the Papacy did more for the Reformation , from an ecclesiastical point of view, than later writers have recognised *.

1 I am indebted to a learned friend for the accompanying exhaus tive analysis of the Papal interferences in the mediaeval Church of England : —

1. Metropolitans. 2. Suffragans. 3. Inferior Benefices.

2. Metropolitans. (Most of the cases will be found in the first volume

of the Anglia Sacra.)

(a.) The gift of the pall, (1) originally recognising, (2) later confirm ing, (3) and finally conferring Metropolitan powers; coeval with the establishment of Christianity in England, and as early as the time of Egbert, Archbishop of York, 735, understood as necessary for the completeness of the Metropolitan character.

(/3.) The right of refusing the pall to a new Archbishop, in case his character or mode of election is not entirely satisfactory ; exercised by Nicholas II. in 1061, in the case of Ealdred, Archbishop of York ; to whom, however, it was given by the same Pope almost immediately after. (Flor. Wig., 1061.)

(7.) The right of consecrating an elect Archbishop contrary to the will of the King and of the Archbishop of Canterbury ; exercised by Calixtus II. in the case of Thurstan, Archbishop of York, in 1119. (Orderic. V., 1119, and Sim. Dun., 1119.)

(5.) Right of determining an appeal carried before the Pope in a disputed election of two Archbishops, although previously decided by the legate ; exercised by Eugenius III. in case of Archbishop Murdac, of York, the election of S. William, already consecrated, being quashed. (John of Hexham, and William of Newburgh.)

(e.) A disputed election referred by appeal for confirmation to the Pope, who rejects both candidates, and prevails on the proxies of the electors to elect his own nominee; Stephen Langton. (M. Paris.)

(£.) A disputed election coming before him, he rejects both candi dates, and in collusion with the English prelates, appoints a third person, mero motu suo : in 1229. (M. Paris.)

(77.) A disputed election coming before him, he persuades the candi-

From the period of the conclusion of the Wars of the Hoses, the Papal power declined in England. It

dates to resign, and in opposition to all parties provides his own nominee; as in the case of Robert Kilwardby, Archbishop of Can terbury in 1272. (Anglia Sacra.)

(0.) An election coming before him for confirmation, he quashes it, and appoints his own nominee ; case of John Peckham, Archbishop of Canterbury in 1278.

(j.) An election coming before him for confirmation, he rejects the candidate, and in collusion with the King appoints the royal nominee ; as in the case of Archbishop Reynolds in 1314.

Later cases are affected by the Statute of Provisors. (See below.) 2. Case of Suffragans.

(a.) Right of suffering and confirming translations; acknowledged from the time of the Conquest in the very few cases which occurred down to the end of the thirteenth century.

(/8.) Right of nominating to a see vacant by translation, made by John XXII. (Parker’s Antiq., p. 328.)

(7.) The gradual aggression on the rights of the chapters proceeded much as in the case of the Archbishops; (1) by hearing appeals; (2) by deciding against both candidates, and persuading the proxies to elect the papal nominee; (3) by persuading the candidate or candidates to resign, and appointing a new man tnero motu ; (4) by persuading the proxies of all parties to leave the nomination to the Pope; (5) by providing absolutely, without regard to the wishes of King or Chapter.

(5.) Claim to fill up all benefices, vacated by the death of the Incum bent, at the Court of Rome.

(e.) Claim to provide for all bishoprics, either vacant or to be vacated: made early in the fourteenth century, and actually exercised in collusion with the King down to the time of the Reformation; during which time the right of the Chapters to elect, and of the Metropolitan to confirm was altogether in abeyance; the Statute of Provisors being systematically transgressed.

(Concordat of 1373. See Rymer, ad ann. Adam Murimuth, p. 214, &c.

Statute of Provisors, 25 Edw. III.) 3. Inferior benefices.

Provisions to these, whether in private or public presentation, are simply an usurpation without pretext, and as such resisted from the

was a period of great agricultural and industrial ad vancement. The old “Wiltshire manor-houses of the

beginning. They begin by the demand of a prebend in each cathe dral and collegiate church, and a portion in each monastery in the reign of Henry III., and may be traced in Matthew Paris almost to the end of the reign. These were made first for the purpose of maintaining the Papal Court, but very early became purchase- able. Forbidden by Statute of Carlisle and Statute of Provisors, 25 Edw. III.; and, owing to the opposition of private patrons, actually defeated in such cases from the time of the passing of the Statute.

1. Simply missionary expeditions

2. Embassies to obtain national recognition for the enactments of particular councils; e.g. mission of John the Chanter, Bede iv. 17, 18, and the Legatine Council of 787. (See Wilkins, ad ann.)

3. Embassies to consult the nation or the King, e.g. that of Armen. fred in 1062. (See Flor. Wig., ad ann.}

4. The Archbishop of Canterbury himself accepts the office of legate in 1126, and thus helps to confound the metropolitan with the legatine authority.

5. Appointment of a Suffragan Bishop as legate, virtually super seding the Archbishop, e.g. Henry of Blois, Bishop of Winches ter in 1139. A plan worked by Alexander III. during the Becket controversy.

6. From the time of Hubert Walter, 1193, the Archbishop is regu larly legatus natus ; and almost as regularly has a legatine com mission.

7. Legate a latere — with powers to supersede the regular Legate, as the Legate had formerly superseded the Metropolitan ; cases of Gualo and Pandulf, Otto and Ottobon, (see M. Paris) ; of a piece

period testify to its civilization. There was great languor in religion ; even Lollardism did not make itself sensibly felt. ” Henry YII. possessed the un disputed right of nominating candidates to the Epi scopal Sees. He was not satisfied with bestowing all

with the usurped provisions and taxes for false Crusades of the same period.

9. Archbishops of York occasionally made legates in the fourteenth and fifteenth centuries, to the disparagement of Canterbury.

10. Martin V. threatens to take away Chichele’s legatine coimnission, if he will not procure the abolition of the Statutes of Provisors and Prsemunire. (Wilkins’ Cone, ii., sub Chichele.)

11. Legation a latere of Wolsey, with unprecedented powers ; con nived at by the King, and afterwards made by him a plea for the oppression of the Church. (See Bulls in Ryiner.)

Case before the Conquest in marriage question. (See Hook’s Life of Dunstan.)

After the Conquest, appeals in disputed elections. (See above.)

After the establishment of legates (1139), suits carried more fre quently to Rome. Forbidden by Constitutions of Clarend jn, 1164; but suffered after Henry the Second’s abjuration in 1 173 ; and constantly carried there down to the Statute of Prteinunire, temp. Edsv. III.

Throughout the whole of this time the administration in private suits at Rome was flagrantly mercenary; but the pi-ocesses were analogous to those of ordinary courts of law.

1. Ancient Romescot or Peter’s pence.

2. Sums raised by taxation for Crusades (false or pretended ones, as that against Frederick II.)

3. Sums raised as procurations for the legates, in the thirteenth cen tury, which were very heavy, and were the great caute of popular discontent.

4. Sale of benefices or provisions (indirect).

the clerical promotions, he also appropriated to him self the half of the annates m.” The see of Rome, oc cupied by Alexander VI. and Julius II., was ripe for attack, though the actual onslaught was postponed for a few years.

The question now comes, How far did the Statutes of the English Eeformation affect the Church of England, as guardian of the faith, and as member of the great Christian polity ? To estimate rightly the position, we must see what actually took place in Parliament and Convocation.

In 1536, both Houses of Convocation acknowledged Henry VIII., ” Ecclesiae et cleri Anglicani singularem protectorem, unicum et supremurn dominum, et quan tum per Christi legem licet, etiam supremurn caput ipsius majestatem recognoscimus n.” They promised never to attempt to allege claim or put in ure any new canons without the King’s licence ; or to enact them without his assent ; and lastly, they petitioned for a commission of thirty-two persons to revise the Church laws, to annul what was faulty, and to present the remainder to the Crown for fresh confirmation.

These enactments never took final effect, nor en tered into the constitution of the Church. They are evidences of the temper of the Catholic clergy at

ra Ranke, i. 20.

n Iii the preamble to 25 Hen. VIII., c. 19, it is stated ” the Clergy of this realm of England, have not only knowledged according to the truth, that the Convocations of the same Clergy are, always have been, and ought to be assembled by the king’s writ,” &c., which is a distinct falsehood. See the history in Atterbury on Convocation, pp. 82 sqq.

the time. While they do not acknowledge that the power of Church legislation resides in the Crown, they place the exercise of it under Crown restraints. All corrective jurisdiction is definitely annexed to the Crown, though nothing is said of directive juris diction.

This Act was repealed by 1 and 2 Ph. and M., c. 8, and when the repealing Act was itself repealed, the repealing parts of it were saved in 1 Eliz., c. 1, except as to certain of the rescinded acts.

The 1 Eliz., c. i. sect. 17, provides “that such juris dictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, as hy any spiritual or eccle siastical power or authority hath heretofore been, and may lawfully be, exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same, and of all manner of errors, heresies, schisms, abuses, offences, contempt, and enormities, shall for ever by authority of this pre sent Parliament, be united and annexed to the imperial Crown of the realm.”

In the nineteenth section it provides that all Bishops and ecclesiastical persons shall take the oath of the Queen’s Supremacy, as the only Supreme Governor of this realm, and of all other Her Highness’s dominions and countries, as well in all spiritual and ecclesiastical things or causes as temporal. The clergy at ordination subscribe a clause similar to this oath, which in terms was repealed by 1 Gr. and M., c. 8.

It will be observed that neither the words of the

Article, nor those of any of the documents still in force, make the Sovereign the source or fountain-head of ecclesiastical jurisdiction. The powers given are corrective not directive powers; for reformation of abuse, not for the ordinary administration of the of fices of the Church.

One could not have said this in the days of Henry VIII. and Edward VI. in view of Cromwell’s Vicar- Generalship, of the episcopal commissions taken out by the Bishops, of the title Head assumed by the monarch. But these statutes and practices were repealed. One cannot exaggerate the importance of Elizabeth’s change of style from Head to Governor. So much resides in a name, that although the actual power claimed by Henry VIII. under the title Head, was no greater than that of Elizabeth, the name Head might have been developed into the claim of any amount of power. The position then assumed was that certain ancient jurisdictions which had belonged to the Crown had been usurped by the Curia of Rome, and that this must be remedied. The title, therefore, of the law of 1 Eliz. is, “An Act to restore to the Crown the ancient jurisdiction over the Estate Ecclesiastical and Spiritual, and abolishing all foreign powers repugnant to the same.” This was afterwards explained in the Queen’s Injunction of 1559, that the Queen should have sovereignty and rule over all manner of persons ; so that no other foreign power should have any autho rity over them, thus limiting the refusal of jurisdiction to what was repugnant to ancient law. The 5 Eliz.,

c. i. sect. 14, refers to this as fixing the legal con struction of the oath above alluded to. The ideal was to restore such a state of things as existed in the times of Constantine, Justinian, or Charlemagne.

What Elizabeth meant, or rather what she desired people to believe that she meant, has been made very clear in a remarkable document recently disinterred by the industry of Mr.Froude from the recesses of the State Paper Office, and it is the more germane to the present matter that it bears the date of 1570, and in fact preceded only by a few months the enforcement of the Thirty- nine Articles0. The northern rebellion had just been subdued, and the unhappy agents in it had been hanged in hundreds. The Roman Catholics were subdued for the moment, but embittered and exasperated beyond imagination. The Regent Murray had been murdered by Hamilton of Bothwellhaugh, and the terror of assas sination, a too commonly employed political weapon in the sixteenth century, menaced Queen Elizabeth. It will be seen in the document : 1. that she only claimed the authority that had from immemorial time attached to the English Crown ; 2. that she challenged no supe riority to define faith or change ceremony ; 3. that the Royal Supremacy extended only to persons ; 4. that she has to provide that the Church be orderly governed and established; 5. that she was so far tolerant that she did not mean her subjects to be molested in mat ters of faith, so long as they did not gainsay Scripture or the Creeds, and that they might retain their own o Froude, vol. x. p. 5, Domestic MSS., 1569—1579.

opinions so long as they were outwardly quiet and resorted to Church ; 6. she appealed to a free General Council, promising to abide by its award, so as the truth were not obtruded on her by threats of war and rebellion, by fulminations, or other worldly tyrannous violences or cruel practices p.

“February, 1570. So much as to the general management of the country. There remained to be considered religion, on which her rule, ’ specially from abroad, had been most frequently and maliciously im pugned.’ It was true, Elizabeth admitted, that ’ the external ecclesiastical policy of England differed in some respects from that which was established in other countries, and occasions had been sought to trouble weak consciences on this ground. Simply, however, she declared that she had neither claimed nor exerted any other authority in the Church than had attached

P Henry VIII. was excommunicated, and in the Bull his subjects were commanded to renounce their allegiance, and the nobles were or dered “sub ejusdem excommunicationis ac perditionis bonorum suorum poems,” 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 Eoman Catholic princes, that she would allow the Koman 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 Koman Catholics, both in England and Ireland, outwardly conformed to the services of the Church Jor about ten years. (Phillimore’s International Law, vol. ii. p. 417, 1855.)

from immemorial time to the English Crown, although that authority had been recognised with greater or less distinctness at different times. The Crown challenged no superiority to define, decide, or determine any article or point of the Christian faith or religion ; or to change any rite or ceremony before received and observed in the Catholic Church. The Royal Supremacy in matters Spiritual means no more than this, that she being by lawful succession Queen of England, all persons born in the realm were subjects to her and to no other earthly ruler. She was bound in duty to provide that her people should live in the faith, obedience, and ob servance of the Christian religion ; that consequently there should be a Church orderly governed and esta blished ; and that the ecclesiastical ministers should be supported by the civil powers, that her subjects might live in the fear of God to the salvation of their souls. In this; Christian princes differed from Pagan princes, who, when they did best, took but a worldly care of their subjects’ bodies and earthly lives. And yet/ she said, ’ to answer further to some malicious untruths, she never had any meaning or intent that any of her subjects should be troubled or molested by examina tions or inquisitions in any matter of their faith, as long as they should not gainsay the authority of the Holy Scriptures, or deny the articles of faith con tamed in any of the Creeds received and used in the Church ; they might retain their own opinions in any rites or ceremonies appertaining to religion, as long as they should in their outward conversations shew

themselves quiet and conformable, and not manifestly repugnant to the laws for resorting to their ordinary churches.

” ’ So far and no farther the Crown of England claimed authority over the Church ; and if any poten tate in Christendom, challenging universal and sole superiority, should condemn the English princes for refusing to recognise that superiority, Elizabeth said she would be readj7, in any free and general assembly, where such potentate should not be only judge in his own cause, to make such an answer in her defence as should in reason satisfy the university of good and faithful Christians; or, if she failed to satisfy them, as the humble servant and handmaid of Christ, she would be willing to conform herself and her policy to that which truth should guide her into for the advance ment of the Christian faith and concord of Christendom ; she would admit as truth, however, only that which Almighty God should please to reveal by ordinary means in peaceable manner, and not that which should be obtruded upon her by threatenings of bloodshed and motions of war and rebellion, or by curses, fulmi- nations, or other worldly tyrannous violences or cruel practices.

“‘With this general statement her subjects ought to be contented. She had done nothing which could justly offend them, and she intended to do nothing. Inasmuch, however, as some kinds of her people had been encouraged in disobedience by an opinion evil conceived of her lenity, she must and would, for the

future, make use of the sword of justice against the obstinately disaffected. There should be no inquisition, no examination, no violence done to conscience in matters of faith ; and that who would outwardly con form should enjoy the fruits of her former accustomed mildness : but sedition and rebellion should be speedily and promptly repressed V ”

Such was the view of the Supremacy, which Eliza beth, in terror of foreign invasion and intestine com motion, probably also in entire conformity with her own real opinions, propounded to her subjects. She does not claim so much as Henry VIII. had acquired. !No thing is said as to any right absolutely to designate the person to be elected to any vacant see, or of the prohibition to enact any canons without the leave of the sovereign, which Henry VIII. had forced upon the Clergy. These had been made part of the law of the land ; but Elizabeth does not claim them as part of her prerogative. They might, accordingly, be aban cloned at any time, without touching on the preroga tive claimed for the Crown. She claims only a personal authority over all her subjects. Henry VIII., in his wily ” Letter to the Clergy of the province of York, A.D. 1533, touching his title of supreme head of the

i Fronde’s History of England, from Fall of Wolsey to death of Elizabeth, vol. x. pp. 6—8. Lond., 1866. The above address of the Queen was sent to every parish, and “hung up in some public place where every one could see it, and read aloud in service time from the pulpit.” The original MS. is in the Rolls’ House. (Domestic MSS. 1569—1579.)

Church of England T” pointed out that the meaning of the words, caput Ecclesia, were limited by those united with them, et cleri Anglicani. “It were too absurd/’ he says, ” for us to be called Head of the Church, re presenting the mystical body of Christ. And there fore, although Ecclesia is spoken of in these words touched in the proeme, yet there is added, et cleri Anglicani, which words conjoined restrain, by way of interpretation, the word Eccksiam, and is as much as to say, the Church i.e. the clergy of England. Which manner of speaking in the law ye have professed ye many times find, and likewise in many other places/’ And of the Clergy also, he claims only that their “persons, acts, and deeds should be under the power of the prince by God assigned, whom they should ac knowledge as their head.” And for this he thought it to suffice, that they were governed by ordinances, made in convocations assembled by authority of kings. ” If you take spiritualibus for spiritual men, that is to say, priests, clerks, their good acts and deeds worldly, in all this both we and all other princes be at this day chiefs and heads, after whose ordinance, whether in general or particular, they be ordered and governed. For leaving old stories and considering the state of the world in our time, is there any Convocation, where laws be made for the order of our Clergy, but such as by our authority is assembled ? And why should we not say, as Justinian saith, ’ Omnia nostra facimup, quibus a nobis impartitur auctoritas ?’ ” where Jus-

• In Wilkins’ Cone., iii. 763.

tinian means, that ” the Sovereign makes, or adopts, as his own, all things to which he gives civil autho rity.” In regard to judicial authority, he says, ” some notable offences we reserve to our correction, some we remit by our sufferance to the judges of the Clergy ; as, murder, felony, and treason, and such like enor mities we reserve to our examination ; other crimes we leave to be ordered by the Clergy, not because we may not intermeddle with them, for there is no doubt but as well might we punish adultery and insolence in priests, as Emperors have done, and other princes at this time do, which ye know well enough ; so as in all these articles, concerning the persons of priests, their laws, their acts, and order of living, forasmuch as they be indeed temporal and concerning this present life only, in those we (as we are called) be indeed in this realm caput, and because there is no man above us here, we be indeed supremum caput” Henry VIII. then pro ceeded to disclaim authority in things spiritual. ” As to spiritual things, meaning by them the Sacraments, being by God ordained as instruments of efficacy and strength, whereby grace is of His infinite goodness conferred upon His people, forasmuch as they be no worldly nor temporal things, they have no worldl}’ nor temporal head, but only Christ that did institute them, by whose ordinance they be ministered here by mortal men elect, chosen, and ordered as God hath willed for that purpose, who be the Clergy ; who for the time they do that, and in that respect, ‘tanquam ministri versantur in his, quse hominum potestati non subjici- untur ; in quibus si male versantur sine scandalo, Deum

ultorem habent ; si cum scandalo, hominum cognitio et vindicta est.’ ” Here lie asserts, again, the distinction of cases in which ” the prince is the chief doer/’ and those “when by sufferance or priviledge the prelates intromit themselves therein s.” On judgment as to heretical teaching, he does not speak ; but he adds, “We be not in deed nor in name, to him that would sincerely understand it, head of such things, being not spiritual, as they be not temporal, and yet to these words spoken of us, ad evitandam illam calumniam, there is added, quantum per kgem Christi licet” Henry VIII. did not claim to interfere in things spiritual. In the Act “for restraint of appeals V’ which lay as the foun dation of the rest, and wrhich is still part of the law of the land, while claiming for himself to be ” furnished, by the goodness and sufferance of Almighty God, with plenary, whole and entire power, pre-eminence, autho rity, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folks, resiants, or subjects within this his realm, in all causes, matters, debates, and contentions, happening to occur, insurge, or begin within the limits thereof, without re straint, or provocation to any foreign princes or poten tates of the world,” yet claims no direct jurisdiction herein. He only claims to be head of the whole body politic, spiritualty and temporal ty, ” the body spiri tual 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 shewed by that part of the said body politic, called the spiri tualty, now being usually called the English Church, which always hath been reputed and also found of that sort that both for knowedge, integrity, and suf ficiency of number, it hath always been thought, and is also at this hour, sufficient and meet of itself, with out the intermeddling of any exterior person or per sons, to declare and determine all such doubts, and to administer all such offices and duties as to their rooms spiritual doth appertain.”

The Act of Parliament, which is still in force, stated that it belonged to the spiritualty to “declare, and interpret, and shew any cause of the law divine which might come in question.” Elizabeth, following Henry VIII. both in what he claimed and in what he dis claimed, (except the title of “Head,”) disclaimed “all superiority to define, decide, or determine any Article or point of the Christian faith.”

And yet it is on this very point that imminent peril to the faith lies. It is now a principle of English jus tice that one charged with any offence is to be pro tected against criminating himself; it is also a prin ciple that any doubt is to be given in his favour. On a doctrinal subject doubt might, in a given case, be raised as to the force either of the theological terms used by the Church, or of those in which a Clerk incriminated is alleged to have contravened them. In the former case, according to the 24th Henry, c. 12, it was clearly

presupposed that the spiritualty would define, ” declare, interpret, and shew” such point of doctrine. Elizabeth expressly denied that the Crown had any such power. And yet this power is practically exercised by lawyers by authority of the Crown, and this with the avowed principle that doctrinal statements, by which the case is to be determined, are to be ruled to mean as little as they can anyhow be made to mean, and this by judges unfamiliar with the terms of theology. The result has been, that vital doctrines have been succes sively made open questions. Discipline is utterly pros trate. Formerly, one with cure of souls, if suspected of teaching error for truth, of poisoning instead of feeding his sheep, had to clear himself of the charge. Now, the object (according to the principle of acquit ting one criminated if possible) is to evacuate the mean ing of terms, whereby the Church has defined and guarded the faith. This power, inspired by lawyers, exercised in the direction of the casting down of all dogmatic truth, threatens the existence of Christianity in England, and it remains to be seen what power can cope with it. If not resisted, there seems no guarantee for the preservation of any one distinctive doctrine of the Christian religion.

The first great blow to the theory of the personal headship over the Church of England was given by the latitudinarian William. The establishment of Presby- tcrianism in Scotland introduced many difficult ele ments into the polity of England, which, in view of the strong political feelings of the time, were not appre-

“70 ARTICLE XXXVII.

ciated. Among other things, it necessarily gave the coup de grace to the personal headship. The Crown is now no more head of the Church in England than of the kirk in Scotland. It retains in each the power of giving redress to any subjects in things temporal, as it has also in other religious bodies. It has whatever power Acts of Parliament have given her, but the Queen is “in all causes supreme,” within the Church of Eng land, in the same sense as she is in bodies external to it, and in no other.

Having premised these facts, it becomes us to see exactly what the literal and grammatical sense of the Article implies.

1. ” The Queen’s Majesty hath the chief power in the realm of England and other her dominions.” This im plies an assertion of civil supremacy, such as was wielded by the Emperors in Germany, and a repudia tion of vassalage to the Pope. King John had con sented to receive back his crown as a gift, and his kingdom as a fief of the Holy See. The Pope was no longer to be the Suzerain of England.

In the early draft of the Article, “Ireland,” which was specially claimed by the Popes, so that the King was only called Lord of Ireland, is mentioned. In the Elizabethan draft the word is made general, ” other her dominions.” As Queen Mary had lost Calais, the last English possession on French ground, the wider expression may have reference, either by a mere re cognition of the popular style which attributed the kingdom of France to the Sovereign of England; or to

Scotland, over which the English sovereigns had always aimed to rule, and into which she was at the time ex ceedingly anxious to introduce the Anglican Polity.

The next assertion is that to the Queen ” the chief government of all estates of this realm, whether they be ecclesiastical or civil, in all causes doth appertain.” This first strikes at the mediooval laws whereby clerks were exempted from the civil courts. It was a re-asser tion of one of the Constitutions of Clarendon. The bad effect of these exemptions had been found. It was for the good of the clergy themselves that they were brought within the power of the civil law. The diffi culty lies “in all causes.” As the subject under con sideration is, ” the civil magistrate,” it must refer to property. In all causes where a question of property comes in (as we have seen in the earliest times in the instance of Aurelian and Paul of Samosata), the civil magistrate must interfere. No subject may divest himself of his right as a subject of claiming the pro tection of the law of the land. Any civil court may interfere in the disputes of a religious body, in the way of interpreting the condition of Church membership, the meaning of trust deeds, &c. It will be seen, as we proceed in the Article, that the expression “in all causes,” is interpreted and limited by a subsequent clause. It is also interpreted by the words that the Queen’s Majesty “is not nor ought to be subject to any foreign jurisdiction.” Now the word ’ jurisdic tion’ is a technical one ; it implies the enforcement of a system of law by means of courts.

Jurisdiction is defined as the faculty of any one having public authority and pre-eminence over others for their guidance and government. It is derived a jure dicendo, according to justice, and the rules of law, which is one of the principal offices of public power.

1. It is divided into civil and ecclesiastical. The first is that which is concerned with secular causes and the temporal rule of the State. The second is concerned with causes pertaining to the worship of God and the spiritual care of souls, and this jurisdiction is exer cised, 1. in ihe forum externiim of the courts; and 2. in the forum intermim of conscience and the sacraments.

2. It is divided further into 1. voluntary, that ex ercised over willing subjects, such as manumission am adoption in things civil; or ordination, consecration absolution, dispensation, institution in things sacred 2. contentious, that exercised against unwilling sub jects, such as summoning and punishing. The first in some cases, may be exercised outside its proper terri tory, validly and licitly ; the second not so.

3. It is divided also into 1. ordinary, that which belongs to any one by reason of his office or dignity by law, canon, or custom ; and 2. delegated, that which a man has, not by his own right, but solely by com mission from another, for whom he acts.

jurisdiction is that which is exercised by the officium mercenarium of the judge, when he proceeds to try at the instance of the agent.

Imperium is divided into jiirisdictio alta, or imperium merum; and 2. jurisdictio inferior, or imperium mixtum. The first respects public utility only, as the punishment of malefactors ; the second respects private utility, as appointing tutors.

Under imperium comes the right of inflicting every kind of punishment.

Ordinary jurisdiction may be acquired in three ways : 1. either by the privilege of the sovereign conceded to the dignity or person ; 2. or by law or canon ; 3. or by custom legitimately prescribed.

Ordinary jurisdiction does not expire with the death of him who grants it, but delegated jurisdiction does so.

Jurisdiction is necessarily required in hearing confes sion, and absolution given by a priest without jurisdic tion is null ; yet, even according to the strictest Roman rules, simple priests in the article of death may ab solve not only from venial sins, and mortal sins else where confessed, but even in reserved cases, for in such cases the Church gives jurisdiction to all priests, even degraded and excommunicated ; and this is extended to cases where there is a probable danger of death u. ” It will be seen from this that whatever irregularities as to form have resulted as a consequence of the acts of the sixteenth century, given the validity of Anglican orders, even allowing (which we do not concede,) a

n Ferraris, Billiotheca ad verb. Jurisdictio.

formal defect of jurisdiction, in article of necessity, any person soever may be absolved from any sins whatso ever by any priest whomsoever.” Before the Council of Trent, jurisdiction was given in very various ways v ; the direct licence or approval of the Bishop was not required for receiving confessions previously to that Council. One of the most remarkable extensions of jurisdiction was that of ” tacit consent” of the Superior, which dispensed even with positive prohibitions.

In Waterworks ” Council of Trent” it is stated that at the Council a discussion took place as to the source of jurisdiction. The Pope wished it to declare that jurisdiction came from the Chair of St. Peter. The answer was; it was a question whether it was not given in Holy Orders, and on that ground they refused to affirm it.

By the code of the Universal Church, all jurisdiction in the provinces is given by the Metropolitan, but the Metropolitan himself receives his j urisdiction from the Provincial Bishops. The Pope, if Universal Bishop, must receive his jurisdiction from all the bishops of Christendom j for, stripped of his patriarchal and uni versal powers, he is only an ordinary bishop. This militates against the Ultramontane theory, which main- tains that the Pope is as much above a bishop, as a bishop is above a presbyter. Such a position would imply a direct ordination from Jesus Christ, which, though a logical consequence of the premiss, has never yet be^n claimed.

v See in Dr. Pusey’s Letter to Mr. Richards, pp. 30—81.

As the Queen of England was Suzerain and not vassal, so was she not subject to the Papal courts ; not only is the law of the land declared paramount, but the Queen’s Canon law comes to be substituted for the Pope’s Canon law. The whole expensive foreign procedure, which had been so long the complaint of the English, was by the Church abolished. The Article gives ecclesiastical sanctions to the different Acts of Parliament in which this Reformation was carried out.

But now came an important modification, imported into the Article at the last revision, in view of the political situation of the Queen, and of the intellectual progress of the controversies of the Reformation. These two reservations are that the Church, ” we” the spiri tualty, in whom the power of definition lies, ” give not to our princes the ministering either of God’s word or of the Sacraments ;” that is, neither the right to define doctrine, nor the discipline of the forum inter ins of the Sacraments. Not only is the right to preach and teach reserved, but the highest form of that teaching, dog matic definition, as in councils, must be included in the expression of ministering God’s word. None ever ministered God’s word so efficaciously as the fathers of the Church in Council assembled. And so the inner jurisdiction of the Sacraments, the power of the keys, excommunication and its consequences, are by the letter of the Article withheld from princes.

Having stated negatively the abatement to the juris diction in all causes, the Article proceeds positively to state what prerogative the Church gives to them, viz.

that given to all godly princes in Holy Scripture by God Himself. The ideal is the relation of the good kings of Judah to the Israelitish hierarchy, for the term ’ godly’ precludes the idea being extended to the relations between the early Christians and the heathen emperors.

But we are not left in doubt what is meant. The princes are, 1. to rule all states and degrees committed to their charge by God, whether they be ecclesiastical or temporal; and 2. to restrain with the civil sword (observe the distinction implied between the two swords and the indorsement of the mediseval interpretation of the text x, Ecce duo gladii) the stubborn and evil doers ; that is, to exercise over all a certain corrective juris diction.

The next proposition is that the Bishop of Rome — Pontifex Romanus — hath no jurisdiction in this realm of England, — not in this Church of England, but in this realm. The jurisdiction which has just been claimed for the Queen’s Majesty cannot of course, by the force of the term, belong to the Apostolic See. The jurisdiction that is given to the one has been taken away from the other. They are correlative. It is a civil question,

[…]

the subject of the whole article is the civil magistrate, therefore it must be a civil jurisdiction. It must be so ; for plainly both the word and the Sacraments have been excepted, and therefore it touches the question between Pope and Queen, not between Pope and Bishop, except so far as the bishop is an English subject. It has to deal with the temporal side of spiritual things, not with the spiritual things themselves. So far as the article is concerned, it does not affect the question of the Scriptural Trpwrela of St. Peter, or even that vrpecr- (Beia granted by the early Councils to his successors in the see of Rome r.

We saw just now that the right of punishment was included in imperium. There are four theories on which the right of punishment is grounded, and these theories have distinguished the progress of human society. All have an element of truth in them : no one by itself is adequate to meet all the circumstances of the case. The first theory on which the right of punishment is grounded is that of ex piation. The crime against society is here looked upon in its primary light, as an offence against God.

y Hallam speaking of the action of King Henry VIII. takes exactly the line adopted in the text, and says, ” As for the Pope’s merely spiri tual primacy and authority in matters of faith, which are, or at least were, defended by Catholics of the Galilean or Cisalpine school on quite different grounds from his jurisdiction or his legislatorial power in points of discipline, they seem to have attracted little peculiar attention at the time, and to have dropped off as a dead branch, when the axe had lopped the fibres that gave it nourishment.” (Hallam’s Const. Risi., vol. i. p. 67, ed. 1846.)

This is the view of theocracies, and more or less of early society generally. God is a God of order. Civil society is His work. Every wrong, therefore, done to civil society is a wrong against Him. Again, human life is one of the most wonderful creations of God, and His special care ; an attempt on human life, therefore, comes very closely into contact with Him. He has surrounded human life with special hedges and sane tions. Blood crieth from the ground. A Nemesis in this life dogs the heels of the murderer, in a way and degree that it dogs no other sin. Lastly, in early society crime, vice, and sin are not clearly distin guished, and the two first are referred to the last, of which they are indeed the species. Even mala prohibita, things not wrong in themselves, but only wrong be cause against lawful enactments, are sins, so that the element of expiation comes in in the case of every punishment.

The next aspect of punishment is that of retaliation. An eye for an eye, and a tooth for a tooth. This is the principle of what is termed vindictive justice. The divine relation to man is here not so directly marked as in the former case, though in the abstract, God being Justice Himself, He really is considered under this theory. However, mainly, the question turns on the relations between man and man. So much injury in flicted must be compensated by so much suffering undergone ; for so much property taken or destroyed, so much restitution made. An extreme form of this is tho right of vendetta, namely, that when the retalia-

tion has not taken place in the person of the offender, his heirs are still liable. In proportion as law is established, and provisions are made therein for the redress of individual wrongs, in that proportion an individual abdicates in favour of society his right to private vengeance.

The third theory of punishment is that which finds most acceptance with modern thought. It is that which bases its right to inflict such pain as punish ment necessarily implies, on the ground of prevention of crime. Here the idea of God is to a degree further eliminated, and the matter is based upon a theory of utility. This theory in its degree is perfectly legiti mate, resting as it does on that self-love which God has implanted in man, but it may be exercised in a way that self-love may degenerate into selfishness, and so defeat its own end. Applied to the question at issue, utility holds that the whole principle of punishment rests on the right which society has, by all means to prevent or repress whatsoever injures or weakens it. Now every crime by so much injures society, and there fore society, in the instinct of self-preservation, may pre vent it. So strongly is this theory held now, that the measure of suffering is now everywhere reduced to a fancied maximum of prevention, as where the severe penalties against forgery have been remitted, to secure, in all cases, the offender being brought to justice. Abnormal sins, which were formerly treated as crimes, are in the process of ceasing to be so, publicity having been found to have the effect not of prevention, but

of turning public attention to such faults in the way of imitation.

A fourth theory is the emendation of the offender. The education of children supplies an analogy to the treatment of men as members of the republic. Judi cial punishment is one of the ways in which families are governed, and the same is a necessary evil on the larger scale. Public attention being now turned to the great mass of criminal population, which in the midst of our boasted civilization has grown up at our doors, moved, partly by humanity, and partly by fear, the state is doing all it can to abate the fearful nuisance. Among the remedies, education, refuges, criminal colonies, and the like, punishment is now in flicted in such way as will tend to benefit the criminal, especially in the case of the young offenders ; this forms an important element in the nature and degree of the award inflicted.

All these four theories are distinctly recognised in Holy Scripture : — the theory of expiation in those striking rites which were to be practised in the case of barbarous slaughter ; that of retaliation in many of the awards of the Mosaic dispensation, only that the retaliation was taken out of the hands of the indivi dual injured, and was inflicted by the judge, as the re presentative of God. It was an embodying in written luw, the rule of the Divine justice, “As I have done, so God hath requited mez;” that of prevention and

• Jud. i. 7.

that of amendment in the theories of government put forth by St. Paul in his Epistle to the Romans.

Having laid down these principles, it remains for us to test the question of capital punishment by each of them. It is a tremendous thing that any class of men may judicially and in cold blood take the life of a fel low-creature, deprive him of that which they cannot restore, and abridge the term of probation and instruc tion which the life of each man is. A thoughtful school in the present day has greatly doubted, and in some cases absolutely denied, the lawfulness of this. Life, they say, is something so sacred that it is inviolable. Any punishment short of that is permissible, but on any account to violate the sanctuary of life is wrong. Moreover, it is maintained that society fares best by minimizing the measure of punishment in all cases, and that, if society can go on equally well without capital punishment, it is plainly the duty of society to do without it.

It will be seen that on every one of the four theories just mentioned, death-punishment is defensible. On the theory of expiation, we have the distinct recog nition of Holy Scripture, ” lest the land be defiled with blood;” on that of retaliation, blood must wash out blood. On that of prevention, it is clear that there are temptations to some crimes so strong, and the reward of others so great, that nothing but the fear of hanging for them will deter men. The greatest advocates for the abolition of capital sentences are significantly silent in the presence of a great State

necessity, or in the chronic predominance of some brutal form of murder. Even the theory of the emen dation of the criminal is in favour of death-sentences. A man who has committed a great crime has a better chance of a true repentance, if when condemned to pay the penalty of his crimes with his life, he knows that he has a fixed term only to live. He betakes himself to religion ; he is attended by its ministers, and he has the four last things brought before him so forcibly, that there is every chance of his becoming really penitent. On the other hand, in the case of those tremendous imprisonments, sometimes for life, which society exacts where capital punishment is forbidden, to shut up a bad man with his own bad thoughts for a lifetime, is to do one’s best to turn him into an incarnation of everything that is foul, lustful, and malignant.

The Article on the Civil Magistrate concludes by asserting the lawfulness of wearing arms and of war. Both these are permitted, on the ground that under certain circumstances man may take the life of his fellow. Individually he may protect life or property, even to the destruction of the life of his assailant. Hence the permissibility of arms, not only of defence but of offence. Our Lord sanctions the use of the sword. It is a terrible necessity, still it is a necessity. Of course as the civil government becomes stronger, and interferes more promptly and efficaciously in the redress of wrongs, that necessity diminishes, and there is perhaps no such test of the real civilization of

a country as the non-necessity of the use of weapons for personal protection. From the time that the court- sword went out as a fashion, there was a marked ad vance in civilization. It is a degeneracy when men have to adopt the revolver and the bowie knife.

The last point treated of is War.

Cicero a describes war as a striving by force (cer- tationem per urn), but custom has established that it is not an action but a condition, which is indicated by the word, so that it comes to mean the state of those who are striving by force. This applies both to public wars, wherein nations are concerned, and also to pri vate wars, as where a traveller contends with a robber, and which are the first form of wars, for the word itself, helium, is derived from duelhim, ’ a combat be tween two.’

There is nothing against natural law in war, for the end of war is the preservation of life and members, and the retention or acquisition of the things which are useful for life. Society only forbids that violence which injures it. The force that does not injure the right of another is not unjust.

So there is nothing against the jus gentium in war. ISTay, necessity and use have trained nations so that cer tain forms of war have been introduced, and hence we have the distinction of the belhim solemne, in which is a certain order and method along with justice; and the bellum non solemne, which retaining still the same

element of justice, may be tumultuary, sudden, and informal (incondita).

Neither is there anything against the divine law, in spite of the Noachic precept against bloodshed, and the sixth commandment of the Decalogue. For, not to speak of the example of Abram and the kings of Canaan, the principle of death-punishment so clearly taught in the Bible, implies that it may be inflicted on a large scale, in defence of life, honour, matrimonial honour, or the stability of the state. Even under the Gospel the same principle may be admitted ; for

I. The right of the sword is recognised b in the Prayers for the Civil Government, and its recognition as bearing not the sword in vain c.

II. St. John the Baptist does not forbid the arpa- T€v6jj,evot,, the militia against A ret as, to fight, but urges them not to maraud, and to be content with their pay.

III. War hangs on the same principle as capital punishment. Our Lord has forbidden neither the one nor the other.

IY. The early Christians followed the Jewish cus toms where they were not forbidden by our Lord, therefore war is lawful to Christian men.

Y. The examples of Cornelius and of the various pious centurions in the Gospels, are evidences that there is no sin in bearing arms. Add the number of saints who have been soldiers.

YL St. Paul had no hesitation in using the services of the soldiers, the four quaternions of men who con-

b 1 Tim. ii. 1. c Rom. xiii. 4

ducted him from Jerusalem to Philippi. Also he re fused not to die if guilty of breach of the law.

VII. Wars are predicted in the 18th chapter of the Apocalypse, with the manifest approbation of the saints.

VIII. Our Lord abrogated only the ceremonial law of Moses, by which the Gentiles were separated from the chosen people, but He left the natural law and what was deemed right and lawful by well-conditioned and well-moralled states.

In short, while we must deplore the necessity of war, its existence is a necessity of the present state of the world. A large army is the best guarantee for peace. The possibility of war, coupled with the know ledge of its misery, waste, and expense, acts as a paci ficatory element on earth. Nay, actual war, though in one sense deplorable, is not wholly bad. It braces up the nerves of a nation, it developes heroism, and prevents men from resting too exclusively on a mate rialistic money-getting civilization.

It need hardly be said that, while on the one hand the providence of God emplo}7s war to scourge and amend men’s corrupt ways, yet the necessity of war is a token of decayed Christian love. The Christian must mourn even over “just wars.” At the Incarna tion the herald-song was, ” On earth peace, good will towards man.” Ambitious wars, ” What are they but a vast brigandage d ?” ” Christians who originate an unjust war from lust of power or wealth, or from envy

d Grande lalrocinium, S. Aug. de Civ. D., iv. 6. 3E

lest a neighbouring prince become too great or power ful, are not so much Christians as Pagans/’ But, says St. Augustine, ” if war is waged out of the cupidity of man, this hurts not the saints. For there is no power but of God, either commanding or permitting. A just man, then, if perchance he be in military service under a king who is even a sacrilegious man, may rightly war at his command, keeping the due order of internal peace, (to which what is commanded is either certain that it is not against the command of God, or not cer tain whether it be,) so that perchance the injustice of the command may make the king guilty, but the due order of obeying may prove the soldier innocent6.”

e S. Aug. c. Faust., xxii. 74, 75. On the opinions of the early Fathers, see Dr. Pusey’s Note E on Tertullian against Gibbon’s taunt : c. 15, n. 4.

Notes

• Vita Pii II., (in Murat. Scriptt. Her. Ital., iii. ii., p. 990) ; Card. Papiens., Comm , 1. i.
• See Johnson’s English Canons, vol. ii. § 2. Anglo-Cath. Lih., Oxf. ed.
• . After the Norman Conquest ; on the Hildebrandine theory, the Legate claims jurisdiction as the Papal Lieutenant. This is re-isted (amongst others) by St. Anselm, who objects to the legation of the Archbishop of Vienne (Ep. iv. 2) ; by Henry I., who concludes an agreement with the Pope that no legate is to be sent to England without royal consent. In 1125, John of Crema is suffered to hold a legatine visitation, but
• . Money levied on appeals, privileges, &c., purchased at Rome.
• . First fruits, &c. (See Gibson’s Codex.)
• Something seems to have dropped out. It stands, “either the prince,” &c., without any corresponding “or.” 1 24 Henry VIII., c. 12.
• . Again, it is divided into impermm and simple jurisdiction. Imperium is that which is exercised by the officiwn nobile of the judge, which acts motu proprio from its own power in punishing crimes, &c. Simple
• Grotius, lib. i. cap. 11, vol. i. p. 2. ed. Lausanne, 1751.