THE TWO JURISDICTIONS
The Reformation found men still occupied with questions as to the
limits of ecclesiastical and lay jurisdiction, which had troubled
their minds at various periods during the previous centuries. It is
impossible to read very deeply into the literature of the period
without seeing that, while on the one hand, all the fundamental
principles of the spiritual jurisdiction of the Church were fully
and freely recognised by all; on the other, a number of questions,
mainly in the broad borderland of debatable ground between the two,
were constantly being discussed, and not infrequently gave cause for
disagreements and misunderstandings. As in the history of earlier
times, so in the sixteenth century ecclesiastics clung, perhaps
not unnaturally, to what they regarded as their strict rights, and
looked on resistance to encroachment as a sacred duty. Laymen on
the other part, even when their absolute loyalty to the Church was
undoubted, were found in the ranks of those who claimed for the State
power to decide in matters not strictly pertaining to the spiritual
prerogatives, but which chiefly by custom had come to be regarded as
belonging to ecclesiastical domain. It is the more important that
attention should be directed in a special manner to these questions,
inasmuch as it will be found, speaking broadly, that the ultimate
success or ill-success of the strictly doctrinal changes raised in
the sixteenth century was determined by the issue of the discussions
raised on the question of mixed jurisdiction. This may not seem very
philosophical, but in the event it is proved to be roughly correct. The
reason is not very far to seek. In great measure at least, questions
of money and property, even of national interest and prosperity,
were intimately concerned in the matter in dispute. They touched the
people’s pocket; and whether rightly or wrongly, those who found the
money wished to have a say in its disposal. One thing cannot fail to
strike an inquirer into the literature of this period: the very small
number of people who were enthusiasts in the doctrinal matters with
which the more ardent reformers occupied themselves.
We are not here concerned with another and more delicate question as
to the papal prerogatives exercised in England. For clearness’ sake
in estimating the forces which made for change on the eve of the
Reformation, this subject must be examined in connection with the whole
attitude of England to Rome and the Pope in the sixteenth century. It
must, consequently, be understood that in trying here to illustrate the
attitude of men’s minds at this period to these important and practical
questions, a further point as to the claims of the Roman Pontiffs
in regard to some or all of them has yet to be considered. Even in
examining the questions at issue between the authorities--lay and
ecclesiastical--in the country, the present purpose is to record rather
than to criticise, to set forth the attitude of mind as it appears in
the literature of the period, rather than to weigh the reasons and
judge between the contending parties.
The lawyer, Christopher Saint-German, is a contemporary writer to
whom we naturally turn for information upon the points at issue. He,
of course, takes the layman’s side as to the right of the State to
interfere in all, or in most, questions which arise as to the dues
of clerics, and other temporalities, such as tithes, &c., which are
attached to the spiritual functions of the clergy. Moreover, beyond
claiming the right for the State so to interfere in the regulation of
all temporalities and kindred matters, Saint-German also held that in
some things in which custom had given sanction to the then practice,
it would be for the good of the State that it should do so. In his
_Dyalogue between a Student of Law and a Doctor of Divinity_,[68] his
views are put clearly; whilst the Doctor states, though somewhat lamely
perhaps, the position of the clergy.
To take the example of “mortuaries,” upon which the Parliament had
already legislated to the dismay of some of the ecclesiastical party,
who, as it appears, on the plea that the law was unjust and beyond
the competence of the State authority, tried in various ways to evade
the provisions of the Act, which was intended to relieve the laity of
exactions that, as they very generally believed, had grown into an
abuse. Christopher Saint-German holds that Parliament was quite within
its rights. The State could, and on occasion should, legislate as to
dues payable to the clergy, and settle whether ecclesiastics, who claim
articles in kind, or sums of money by prescriptive right, ought in
fact to be allowed them. There is, he admits, a difficulty; he does not
think that it would be competent for the State to prohibit specific
gifts to God’s service, or to say that only “so many tapers shall be
used at a funeral,” or that only so many priests may be bidden to the
burial, or that only so much may be given in alms. In matters of this
kind he does not think the State has jurisdiction to interfere. “But
it has,” he says, “the plain right to make a law, that there shall not
be given above so many black gowns, or that there shall be no herald
of arms” present, unless it is the funeral of one “of such a degree,”
or that “no black cloths should be hung in the streets from the house
where the person died, to the church, as is used in many cities and
good towns, or the prohibition of such other things as are but worldly
pomps, and are rather consolations to the friends that are alive, than
any relief to the departed soul.” In these and such like things, he
says: “I think the Parliament has authority to pass laws, so as to
protect the executors of wills, and relieve them from the necessity of
spending so much of the inheritance of the deceased man’s heirs.”[69]
In like manner the lawyer holds that in all strictly temporal matters,
whatever privilege and exemption the State may allow and has allowed
the clergy, it still possesses the radical power to legislate where
and when it sees fit. It does not in fact by lapse of time lose the
ordinary authority it possesses over all subjects of the realm in
these matters. Thus, for example, he holds that the State can and
should prohibit all lands in mortmain passing to the Church; and that,
should it appear to be a matter of public policy, Parliament might
prohibit and indeed break the appropriations of benefices already
made to monasteries, cathedrals, and colleges, and order that they
should return to their original purposes. “The advowson,” he says,
“is a temporal inheritance, and as such is under the Parliament to
order it as it sees cause.” This principle, he points out, had been
practically admitted when the Parliament, in the fourth year of Henry
IV., cancelled all appropriations of vicarages which had been made from
the beginning of Richard II.’s reign. It is indeed “good,” he adds,
“that the authority of the Parliament in this should be known, and that
it should cause them to observe such statutes as are already made, and
to distribute some part of the fruits (of the benefices) among poor
parishioners according to the statute of the twentieth year of King
Richard II.”
In the same way, and for similar reasons, Saint-German claims that the
State has full power to determine questions of “Sanctuary,” and to
legislate as to “benefit of clergy.” Such matters were, he contends,
only customs of the realm, and in no sense any point of purely
spiritual prerogative. Like every other custom of the realm, these
were subject to revision by the supreme secular authority. “The Pope
by himself,” he adds, “cannot make any Sanctuary in this realm.” This
question of “Sanctuary” rights was continually causing difficulties
between the lay and the ecclesiastical authorities. To the legal mind
the custom was certainly dangerous to the well-being of the State,
and made the administration of justice unnecessarily complicated,
especially when ecclesiastics pleaded their privileges, and strongly
resisted any attempt on the part of legal officials to ignore them.
Cases were by no means infrequent in the courts in the reigns of Henry
VII. and Henry VIII., which caused more or less friction between the
upholders of the two views.[70] To illustrate the state of conflict on
this, in itself a very minor matter, a trial which took place in London
in the year 1519 is here given in some detail. One John Savage in that
year was charged with murder. At the time of his arrest he was living
in St. John Street (Clerkenwell), and when brought to trial pleaded
that he had been wrongfully arrested in a place of Sanctuary belonging
to the Priory of St. John of Jerusalem. To justify his contention and
obtain his liberty, he called on the Prior of the Knights of St. John
to maintain his rights and privileges, and vindicate this claim of
Sanctuary. The prior appeared and produced the grant of Pope Urban
III., made by Bull dated in 1213, which had been ratified by King Henry
III. He also cited cases in which he alleged that in the reign of the
late King Henry VII. felons, who had been seized within the precincts,
had been restored to Sanctuary, and he therefore argued that this case
was an infringement of the rights of his priory.
Savage also declared that he was in St. John Street within the
precincts of the priory “pur amendement de son vie, durant son vie,”
when on the 8th of June an officer, William Rotte, and others took
him by force out of the place, and carried him away to the Tower. He
consequently claimed to be restored to the Sanctuary from which he had
been abducted. Chief-Justice Fineux, before whom the prisoner had been
brought, asked him whether he wished to “jeopardy” his case upon his
plea of Sanctuary, and, upon consultation, John Savage replied in the
negative, saying that he wished rather to throw himself upon the king’s
mercy. Fineux on this, said: “In this you are wise, for the privileges
of St. John’s will not aid you in the form in which you have pleaded
it. In reality it has no greater privilege of Sanctuary than every
parish church in the kingdom; that is, it has privileges for forty days
and no more, and in this it partakes merely of the common law of the
kingdom, and has no special privilege beyond this.”
Further, Fineux pointed out that even had St. John’s possessed the
Sanctuary the prior claimed, this right did not extend to the fields,
&c., but in the opinion of all the judges of the land, to which all the
bishops and clergy had assented, the bounds of any Sanctuary were the
church, cloister, and cemetery. Most certain it was that the _ambitus_
did not extend to gardens, barns, and stables, and in his (Fineux’s)
opinion, not even to the pantry and buttery. He quotes cases in support
of his opinion. In one instance a certain William Spencer claimed
the privilege of Sanctuary when in an orchard of the Grey Friars at
Coventry. In spite of the assertion of the guardian that the Pope had
extended the privilege to the whole enclosure, of which the place the
friars had to recreate themselves in was certainly a portion, the plea
was disallowed, and William Spencer was hanged.
In regard to the privilege of the forty days, Fineux declared that it
was so obviously against the common good and in derogation of justice,
that in his opinion it should not be suffered to continue, and he
quoted cases where it had been set aside. In several cases where
Papal privileges had been asserted, the judges had held “quant à les
Bulles du pape, le pape sans le Roy ne ad power de fayre sanctuarie.”
In other words, Fineux rejected the plea of the murderer Savage.
But the case did not stop here, both the prior and Savage, as we
should say, “appealed,” and the matter was heard in the presence of
Cardinal Wolsey, Fineux, Brudnell, and several members of the inner
Star Chamber. Dr. Potkyn, counsel for the Prior of St. John, pleaded
the “knowledge and allowance of the king” to prove the privilege. No
decision was arrived at, and a further sitting of the Star Chamber was
held on November 11, 1520, in the presence of the king, the cardinal,
all the judges, and divers bishops and canonists, as well as the
Prior of St. John and the Abbot of Westminster. Before the assembly
many examples of difficulties in the past were adduced by the judges.
These difficulties they declared increased so as to endanger the peace
and law of the country, by reason of the Sanctuaries of Westminster
and St. John’s. To effect a remedy was the chief reason of the royal
presence at the meeting. After long discussion it was declared that as
St. John’s Sanctuary was made, as it had been shown, by Papal Bull,
it was consequently void even if confirmed by the king’s patent, and
hence that the priory had no privilege at all except the common one of
forty days. The judges and all the canonists were quite clear that the
Pope’s right to make a Sanctuary had never been allowed in England, and
that every such privilege must come from the king. On the other hand,
the bishops present and all the clergy were equally satisfied that the
general forty days’ privilege belonged by right to every parish church.
The Abbot of Westminster then proved by the production of charters and
other indubitable evidence that the Sanctuary of Westminster had its
origin in the grants of various kings, and had only been blessed by the
Pope.
Fineux pointed out that Sanctuary grants had always been made to
monasteries and churches “to the laud and honour of God,” and that it
was not certainly likely to redound to God’s honour when men could
commit murder and felony, and trust to get into the safe precinct of
some Sanctuary; neither did he believe that to have bad houses in
Sanctuaries, and such like abuses, was either to the praise of God or
for the welfare of the kingdom. Further, that as regards Westminster,
the abbot had abused his privileges as to the _ambitus_ or precincts
which in law must be understood in the restricted sense. The cardinal
admitted that there had been abuses, and a Commission was proposed to
determine the reasonable bounds. Bishop Voysey, of Exeter, suggested
that if a Sanctuary man committed murder or felony outside, with
the hope of getting back again, the privilege of shelter should be
forfeited; but the majority were against this restriction. On the
whole, however, it was determined that for the good of the State the
uses of these Sanctuaries should be curtailed, and that none should be
allowed in law but such as could show a grant of the privilege from the
crown.[71]
In the opinion of many, of whom Saint-German was the spokesman, to go
to another matter, Parliament might assign “all the trees and grass in
churchyards either to the parson, to the vicar, or to the parish,” as
it thought fit; for although the ground was hallowed, the proceeds,
such as “trees and grass, are mere temporals, and as such must be
regulated by the power of the State.”
Moreover, according to the same view, whilst it would be outside the
province of the secular law to determine the cut of a priest’s cassock
or the shape of his tonsure, it could clearly determine that no priest
should wear cloth made out of the country, or costing above a certain
price; and it might fix the amount of salary to be paid to a chaplain
or curate.[72]
There were circumstances, too, under which, in the opinion of
Saint-German, Parliament not only could interfere to legislate about
clerical duties, but would be bound to do so. At the time when he was
writing, the eve of the Reformation, many things seemed to point to
this necessity for State interference. There were signs of widespread
religious differences in the world. “Why then,” he asks, “may not
the king and his Parliament, as well to strengthen the faith and give
health to the souls of many of his subjects, as to save his realm
being noted for heresy, seek for the reason of the division now in
the realm by diversity of sects and opinions?… They shall have great
reward before God that set their hands to prevent the great danger
to many souls of men as well spiritual as temporal if this division
continue long. And as far as I have heard, all the articles that are
misliked (are aimed) either against the worldly honour, worldly power,
or worldly riches of spiritual men. To express these articles I hold it
not expedient, and indeed if what some have reported be true, many of
them be so far against the truth that no Christian man would hold them
to be true, and they that do so do it for some other consideration.”[73]
As an example, our author takes the question of Purgatory, which he
believes is attacked because men want to free themselves from the
money offerings which belief in the doctrine necessitates. And indeed,
“if it were ordained by law,” he continues, “that every curate at the
death of any of their parishioners should be bound to say publicly for
their souls _Placebo_, _Dirige_ and mass, without taking anything for
(the service): and further that at a certain time, to be assigned by
Parliament, as say, once a month, or as it shall be thought convenient,
they shall do the same and pray for the souls of their parishioners and
for all Christian souls and for the king and all the realm: and also
that religious houses do in like manner, I fancy in a short time there
would be few to say there was no purgatory.”[74]
In some matters Saint-German considered that the State might reasonably
interfere in regard to the religious life. The State, he thinks, would
have no right whatever to prohibit religious vows altogether; but it
would be competent for the secular authority to lay down conditions to
prevent abuses and generally protect society where such protection was
needed. “It would be good,” for example, he writes, “to make a law that
no religious house should receive any child below a certain age into
the habit, and that he should not be moved from the place into which he
had been received without the knowledge and assent of friends.” This
would not be to prohibit religious life, which would not be a just law,
but only the laying down of conditions. In the fourth year of Henry IV.
the four Orders of Friars had such a law made for them; “when the four
Provincials of the said four Orders were sworn by laying their hands
upon their breasts in open Parliament to observe the said statute.”[75]
In the same way the State may, Saint-German thinks, lay down the
conditions for matrimony, so long as there was no “interference with
the sacrament of marriage.” Also, “as I suppose,” he says, “the
Parliament may well enact that every man that makes profit of any
offerings (coming) by recourse of pilgrims shall be bound under a
certain penalty not only to set up certain tables to instruct the
people how they shall worship the saints, but also cause certain
sermons to be yearly preached there to instruct the people, so that
through ignorance they do not rather displease than please the
saints.”[76]
The State “may also prohibit any miracle being noised abroad on such
slight evidence as they have been in some places in times past; and
that they shall not be set up as miracles, under a certain penalty, nor
reported as miracles by any one till they have been proved such in such
a manner as shall be appointed by Parliament. And it is not unlikely
that many persons grudge more at the abuse of pilgrimages than at the
pilgrimages themselves.” Parliament, he points out, has from time to
time vindicated its right to act in matters such as these. For example:
“To the strengthening of the faith it has enacted that no man shall
presume to preach without leave of his diocesan except certain persons
exempted in the statute” (2 Henry IV.).[77]
There are, Saint-German notes, many cases where it is by no means
clear whether they are strictly belonging to spiritual jurisdiction
or not. Could the law, for example, prohibit a bishop from ordaining
any candidate to Holy Orders who was not sufficiently learned? Could
the law which exempted priests from serving on any inquest or jury
be abrogated? These, and such like matters in the borderland, are
debatable questions; but Saint-German makes it clear that, according
to his view, it is a mistake for clerics to claim more exemptions from
the common law than is absolutely necessary. That there must be every
protection for their purely spiritual functions, he fully and cordially
admits; but when all this is allowed, in his opinion, it is a grave
mistake for the clergy, even from their point of view, to try and
stretch their immunities and exemptions beyond the required limit. The
less the clergy were made a “caste,” and the more they fell in with the
nation at large, the better it would be for all parties in the State.
On the question of tithe, Saint-German took the laymen’s view. To the
ecclesiastics of the period tithes were spiritual matters, and all
questions arising out of them should be settled by archbishop or bishop
in spiritual courts. The lawyer, on the other hand, maintained that
though given to secure spiritual services, in themselves tithes were
temporal, and therefore should fall under the administration of the
State. Who, for example, was to determine what was payable on new land,
and to whom; say on land recovered from the sea? In the first place,
according to the lawyer, it should be the owner of the soil who should
apportion the payment, and failing him, the Parliament, and not the
spirituality.
In another work[78] Saint-German puts his view more clearly. A tithe
that comes irregularly, say once in ten or twenty years, cannot be
considered necessary for the support of the clergy. That people were
bound to contribute to the just and reasonable maintenance of those
who serve the altar did not admit of doubt, but, he holds, a question
arises as to the justice of the amount in individual cases. “Though
the people be bound by the law of reason, and also the law of God,
to find their spiritual ministers a reasonable portion of goods to
live upon, yet that they shall pay precisely the tenth part to their
spiritual ministers in the name of that portion is but the law of man.”
If the tithe did not at any time suffice, “the people would be bound
to give more” in order to fulfil their Christian duty. Some authority
must determine, and in his opinion as a lawyer and a layman, the only
authority competent to deal with the matter, so far as the payment of
money was concerned, was the State; and consequently Parliament might,
and at times ought, to legislate about the payment of tithes.[79]
In a second _Treatise concerning the power of the clergy and the laws
of the realm_, Saint-German returns to this subject of the relation
between the two jurisdictions. This book, however, was published
after Henry VIII. had received his parliamentary title of Supreme
Head of the Church, and by that time the author’s views had naturally
become somewhat more advanced on the side of State power. In regard
to the king’s “Headship,” he declares that in reality it is nothing
new, but if properly understood would be recognised as implied in
the kingly power, and as having nothing whatever to do with the
spiritual prerogatives as such. He has been speaking of the writ, _de
excommunicato capiendo_, by which the State had been accustomed to
seize the person of one who had been excommunicated by the Church for
the purpose of punishment by the secular arm, and he argues that if the
Parliament were to abrogate the law, such a change would in no sense be
a derogation of the rights of the Church. Put briefly, the principle
upon which he bases this opinion is one which was made to apply to many
other cases besides this special one. It is this: that for a spiritual
offence no one ought in justice to be made to suffer in the temporal
order.[80] Whilst insisting on this, moreover, the lawyer maintained
that there were many things which had come to be regarded as spiritual,
which were, in reality, temporal, and that it would be better that
these should be altogether transferred to the secular arm of the State.
Such, for example, were, in his opinion, the proving and administration
of wills, the citation and consideration of cases of slander and libel
and other matters of this nature. “And there is no doubt,” he says,
“but that the Parliament may with a cause take that power from them
(_i.e._ the clergy), and might likewise have done so before it was
recognised by the Parliament and the clergy that the king was Head of
the Church of England; for he was so before the recognition was made,
just as all other Christian princes are in their own realms over all
their subjects, spiritual and temporal.”[81]
Moreover, as regards this, “it lieth in princes to appease all
variances and unquietness that shall arise among the people, by
whatsoever occasion it rise, spiritual or temporal. And the king’s
grace has now no new authority in that he is confessed by the clergy
and authorised by Parliament to be the Head of the Church of England.
For it is only a declaration of his first power committed by God to
kingly and regal authority and no new grant. Further, that, for all the
power that he has as Head of the Church, he has yet no authority to
minister any sacraments, nor to do any other spiritual thing whereof
our Lord gave power to His apostles and disciples only.… And there is
no doubt that such power as the clergy have by the immediate grant
of Christ, neither the king nor his Parliament can take from them,
although they may order the manner of the doing.”[82]
The question whether for grave offences the clergy could be tried by
the king’s judges was one which had long raised bitter feeling on the
one side and the other. In 1512, Parliament had done something to
vindicate the power of the secular arm by passing a law practically
confining the immunity of the clergy to those in sacred orders. It
ordained “that all persons hereafter committing murder or felony,
&c., should not be admitted to the benefit of clergy.” This act led to
a great dispute in the next Parliament, held in 1515. The clergy as
a body resented the statute as an infringement upon their rights and
privileges, and the Abbot of Winchcombe preached at St. Paul’s Cross to
this effect, declaring that the Lords Spiritual who had assented to the
measure had incurred ecclesiastical censures. He argued that all clerks
were in Holy Orders, and that they were consequently not amenable to
the secular tribunals.
The king, at the request of many of the Temporal Lords and several
of the Commons, ordered the case to be argued at a meeting held at
Blackfriars at which the judges were present. At this debate, Dr.
Henry Standish, a Friar Minor, defended the action of Parliament, and
maintained that it was a matter of public policy that clerks guilty of
such offences should be tried by the ordinary process of law. In reply
to the assertion that there was a decree or canon forbidding it, and
that all Christians were bound by the canons under pain of mortal sin,
Standish said: “God forbid; for there is a decree that all bishops
should be resident at their cathedrals upon every festival day, and yet
we see the greater part of the English bishops practise the contrary.”
Moreover, he maintained that the right of exemption of clerks from
secular jurisdiction had never been allowed in England. The bishops
were unanimously against the position of Standish, and there can be
little doubt that they had put forward the Abbot of Winchcombe to be
their spokesman at St. Paul’s Cross. Later on, Standish was charged
before Convocation with holding tenets derogatory to the privileges
and jurisdiction of ecclesiastics. He claimed the protection of the
king, and the Temporal Lords and judges urged the king at all costs to
maintain his right of royal jurisdiction in the matters at issue.
Again a meeting of judges, certain members of Parliament, and the
king’s council, spiritual and temporal, were assembled to deliberate on
the matter at the Blackfriars. Dr. Standish was supposed to have said
that the lesser Orders were not Holy, and that the exemption of clerks
was not _de jure divino_. These opinions he practically admitted,
saying with regard to the first that there was a great difference
between the greater Orders and the lesser; and in regard to the second,
“that the summoning of clerks before temporal judges implied no
repugnance to the positive law of God.” He further partially admitted
saying that “the study of canon law ought to be laid aside, because
being but ministerial to divinity it taught people to despise that
nobler science.” The judges decided generally against the contention
of the clergy, and they, with other lords, met the king at Baynard’s
Castle to tender their advice on the matter. Here Wolsey, kneeling
before the king, declared “that he believed none of the clergy had any
intention to disoblige the prerogative royal, that for his part he owed
all his promotion to his Highness’ favour, and therefore would never
assent to anything that should lessen the rights of the Crown.” But
“that this business of conventing clerks before temporal judges was,
in the opinion of the clergy, directly contrary to the laws of God and
the liberties of Holy Church, and that both himself and the rest of the
prelates were bound by their oath to maintain this exemption. For this
reason he entreated the king, in the name of the clergy, to refer the
matter for decision to the Pope.” Archbishop Warham added that in old
times some of the fathers of the Church had opposed the matter so far
as to suffer martyrdom in the quarrel. On the other hand, Judge Fineux
pointed out that spiritual judges had no right by any statute to judge
any clerk for felony, and for this reason many churchmen had admitted
the competence of the secular courts for this purpose.
The king finally replied on the whole case. “By the Providence of God,”
he said, “we are King of England, in which realm our predecessors
have never owned a superior, and I would have you (the clergy) take
notice that we are resolved to maintain the rights of our crown and
temporal jurisdiction in as ample manner as any of our progenitors.”
In conclusion, the Archbishop of Canterbury petitioned the king in the
name of the clergy for the matter to rest till such time as they could
lay the case before the See of Rome for advice, promising that if the
non-exemption of clerks was declared not to be against the law of God,
they would willingly conform to the usage of the country.
On this whole question, Saint-German maintained that the clergy had
been granted exemption from the civil law not as a right but as a
favour. There was, in his opinion, nothing whatever in the nature of
the clerical state to justify any claim to absolute exemption, nor was
it, he contended, against the law of God that the clergy should be
tried for felony and other crimes by civil judges. In all such things
they, like the rest of his people, were subject to their prince,
who, because he was a Christian, did not, for that reason, have any
diminished authority over his subjects. “Christ,” he remarks, “sent His
apostles,” as appears from the said words, “to be teachers in spiritual
matters, and not to be like princes, or to take from princes their
power.”[83] Some, indeed, he says, argue that since the coming of our
Lord “Christian princes have derived their temporal power from the
spiritual power,” established by Him in right of His full and complete
dominion over the world. But Saint-German not only holds that such a
claim has no foundation in itself, but that all manner of texts of Holy
Scripture which are adduced in proof of the contention are plainly
twisted from their true meaning by the spiritual authority. And many,
he says, talk as if the clergy were the Church, and the Church the
clergy, whereas they are only one portion, perhaps the most important,
and possessed of greater and special functions; but they were not the
whole, and were, indeed, endowed with these prerogatives for the use
and benefit of the lay portion of Christ’s Church.
Contrary to what might have been supposed, the difficulty between
the clergy and laity about the exemption of clerics from all lay
jurisdiction did not apparently reach any very acute stage. Sir Thomas
More says that “as for the conventing of priests before secular
judges, the truth is that at one time the occasion of a sermon made the
matter come to a discussion before the king’s Highness. But neither at
any time since, nor many years before, I never heard that there was any
difficulty about it, and, moreover, that matter ceased long before any
word sprang up about this great general division.”[84]
One question, theoretical indeed, but sufficiently practical to
indicate the current of thought and feeling prevalent at the time, was
as to the multiplication of holidays on which no work was allowed to be
done by ecclesiastical law. Saint-German, in common with other laymen
of the period, maintained that the king, or Parliament, as representing
the supreme will of the State, could refuse to allow the spiritual
authority to make new holidays. About the Sunday he is doubtful, though
he inclines to the opinion that so long as there was one day in the
week set apart for rest and prayer, the actual day could be determined
by the State. The Sunday, he says, is partly by the law of God, partly
by the law of man. “But as for the other holidays, these are but
ceremonies, introduced by the devotion of the people through the good
example of their bishops and priests.” And “if the multitude of the
holidays is thought hurtful to the commonwealth, and tending rather to
increase vice than virtue, or to give occasion of pride rather than
meekness, as peradventure the synod ales and particular holidays have
done in some places, then Parliament has good authority to reform
it. But as for the holidays that are kept in honour of Our Lady, the
Apostles and other ancient Saints, these seem right necessary and
expedient.”[85]
In his work, _Salem and Bizance_, which appeared in 1533 as a reply
to Sir Thomas More’s _Apology_, Saint-German takes up the same ground
as in his more strictly legal tracts. He holds that a distinction
between the purely spiritual functions of the clergy and their position
as individuals in the State ought to be allowed and recognised. The
attitude of ecclesiastics generally to such a view was, perhaps not
unnaturally, one of opposition, and where the State had already stepped
in and legislated, as for instance in the case of “mortuaries,” their
action in trying to evade the prescription of the law, Saint-German
declared was doing much harm, in emphasising a needless conflict
between the ecclesiastical and secular jurisdiction. “As long,” he
writes, “as spiritual rulers will pretend that their authority is so
high and so immediately derived from God that people are bound to
obey them and to accept all that they do and teach without argument,
resistance, or murmuring against them” there will be discord and
difficulty.[86]
Christopher Saint-German’s position was not by any means that of one
who would attack the clergy all along the line, and deprive them of
all power and influence, like so many of the foreign sectaries of the
time. He admitted, and indeed insisted on, the fact that they had
received great and undoubted powers by their high vocation, having
their spiritual jurisdiction immediately from God. Their temporalities,
however, he maintained they received from the secular power, and were
protected by the State in their possession. He fully agreed “that such
things as the whole clergy of Christendom teach and order in spiritual
things, and which of long time have been by long custom and usage in
the whole body of Christendom ratified, agreed, and confirmed, by the
spirituality and temporality, ought to be received with reverence.”[87]
To this part of Saint-German’s book Sir Thomas More takes exception
in his _Apology_. The former had said, that as long as the spiritual
rulers will pretend that their authority is so high and so immediately
derived from God that the people are bound to obey them and accept
all that they do and teach “there would certainly be divisions and
dissensions.” “If he mean,” replies More, “that they speak thus of all
their whole authority that they may now lawfully do and say at this
time: I answer that they neither pretend, nor never did, that all their
authority is given them immediately by God. They have authority now
to do divers things by the grant of kings and princes, just as many
temporal men also have, and by such grants they have such rights in
such things as temporal men have in theirs.”[88]
Some authority and power they certainly have from God, he says, “For
the greatest and highest and most excellent authority that they
have, either God has Himself given it to them, or else they are very
presumptuous and usurp many things far above all reason. For I have
never read, or at least I do not remember to have read, that any king
granted them the authority that now not only prelates but other poor
plain priests daily take on them in ministering the sacraments and
consecrating the Blessed Body of Christ.”[89]
Another popular book of the period, published by Berthelet, just on the
eve of the Reformation, is the anonymous _Dialogue between a Knight
and a Clerk concerning the power spiritual and temporal_. We are not
here concerned with the author’s views as to the power of the Popes,
but only with what he states about the attitude of men’s minds to the
difficulties consequent upon the confusion of the two jurisdictions.
_Miles_ (the Knight), who, of course, took the part of the upholder of
the secular power, clearly distinguished, like Saint-German, between
directly spiritual prerogatives and the authority and position assured
to the clergy by the State. “God forbid,” he says, “that I should deny
the right of Holy Church to know and correct men for their sins. Not
to hold this would be to deny the sacrament of Penance and Confession
altogether.”[90] Moreover, like Saint-German, this author, in the
person of _Miles_, insists that the temporality “are bound to find the
spirituality that worship and serve God all that is necessary for them.
For so do all nations.”[91] But the direction of such temporalities
must, he contends, be in the hands of the State. “What,” asks the
conservative cleric, in the person of _Clericus_, “What have princes
and kings to do with the governance of our temporalities? Let them take
their own and order their own, and suffer us to be in peace with ours.”
“Sir,” replies _Miles_, “the princes must in any wise have to do
therewith. I pray you, ought not men above all things to mind the
health of our souls? Ought not we to see the wills of our forefathers
fulfilled? Falleth it not to you to pray for our forefathers that
are passed out of this life? And did not our fathers give you our
temporalities right plentifully, to the intent that you should pray
for them and spend it all to the honour of God? And ye do nothing so;
but ye spend your temporalities in sinful deeds and vanities, which
temporalities ye should spend in works of charity, and in alms-deeds to
the poor and needy. For to this purpose our forefathers gave ‘great and
huge dominions.’ You have received them ‘to the intent to have clothes
and food … and all overplus besides these you ought to spend on deeds
of mercy and pity, as on poor people that are in need, and on such as
are sick and diseased and oppressed with misery.’”[92]
Further, _Miles_ hints that there are many at that time who were
casting hungry eyes upon the riches of the Church, and that were it
not for the protecting power of the State, the clergy would soon find
that they were in worse plight than they think themselves to be. And,
in answer to the complaints of _Clericus_ that ecclesiastics are taxed
too hardly for money to be spent on soldiers, ships, and engines of
war, he tells him that there is no reason in the nature of things why
ecclesiastical property should not bear the burden of national works
as well as every other kind of wealth. “I pray you hold your noise,”
he exclaims somewhat rudely; “stop your grudging and grumbling, and
listen patiently. Look at your many neighbours round about you in the
land, who, wanting the wherewith to support life, gape still after your
goods. If the king’s power failed, what rest should you have? Would not
the gentlemen such as be needy, and such as have spent their substance
prodigally, when they have consumed their own, turn to yours, and waste
and destroy all you have? Therefore, the king’s strength is to you
instead of a strong wall, and you wot well that the king’s peace is
your peace, and the king’s safeguard is your safeguard.”[93]
The foregoing pages represent some of the practical difficulties
which were being experienced on the eve of the Reformation between
the ecclesiastical and lay portion of the State in the question of
jurisdiction. Everything points to the fact that the chief difficulty
was certainly not religious. The ecclesiastical jurisdiction in
matters spiritual was cordially admitted by all but a few fanatics.
What even many churchmen objected to, were the claims for exemption
put forward by ecclesiastics in the name of religion, which they
felt to be a stretching of spiritual prerogatives into the domain of
the temporal sovereign. History has shown that most of these claims
have in practice been disallowed, not only without detriment to the
spiritual work of the Church, but in some instances at least it was the
frank recognition of the State rights, which, under Providence, saved
nations from the general defection which seemed to threaten the old
ecclesiastical system. Most of the difficulties which were, as we have
seen, experienced and debated in England were unfelt in Spain, where
the sovereign from the first made his position as to the temporalities
of the Church clearly understood by all. In Naples, in like manner, the
right of State patronage, however objectionable to the ecclesiastical
legists, was strictly maintained. In France, the danger which at one
time threatened an overthrow of religion similar to that which had
fallen on Germany, and which at the time was looming dark over England,
was averted by the celebrated Concordat between Leo X. and Francis
I. By this settlement of outstanding difficulties between the two
jurisdictions, all rights of election to ecclesiastical dignities
was swept away with the full and express sanction of the Pope. The
nomination of all bishops and other dignitaries was vested in the king,
subject, of course, to Papal confirmation. All appeals were, in the
first place, to be carried in ordinary cases to immediate superiors
acting in the fixed tribunals of the country, and then only to the Holy
See. The Papal power of appointment to benefices was by this agreement
strictly limited; and the policy of the document was generally directed
to securing the most important ecclesiastical positions, including even
parish churches in towns, to educated men. It is to this settlement of
outstanding difficulties, the constant causes of friction--a settlement
of difficulties which must be regarded as economic and administrative
rather than as religious--that so good a judge as M. Hanotaux, the
statesman and historian, attributes nothing less than the maintenance
of the old religion in France. In his opinion, this Concordat did in
fact remove, to a great extent, the genuine grievances which had long
been felt by the people at large, which elsewhere the Reformers of the
sixteenth century skilfully seized upon, as likely to afford them the
most plausible means for furthering their schemes of change in matters
strictly religious.