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lation of all temporalities and kindred matters, SaintGerman 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,1 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
1 Saint-German was born 1460. He was employed by Thomas Cramwell on some business of the State, and died in 1540. The Dyalogue was printed apparently first in Latin, but subsequently in English. It consisted of three parts (1) published by Robert Wyer, (2) by Peter Treveris, 1531, and (3) by Thomas Berthalet, also in 1531.
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."1
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 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."
1 Dyalogue, ut sup., 3rd part, f. 2.
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.1 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
1 One of the first acts of King Henry VII. on his accession, was tu obtain from the Pope a Bull agreeing to some changes in the Sanctuary customs. Prior Selling of Canterbury was despatched as King's Orator to Rome with others to Pope Innocent VIII. in 1487, and brought back the Pope's approval of three points in which the king proposed to change these laws. First, that if any person in Sanctuary went out at night and committed mischief and trespass, and then got back again, he should forfeit his privilege of Sanctuary. Secondly, that though the person of a debtor might be protected in Sanctuary, yet his goods out of the precincts were not so protected from his creditors. Thirdly, that where a person took Sanctuary for treason, the king might appoint him keepers within the Sanctuary.
U. OF M. FLINT COLLEGE LIBRARY 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 a 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 n, 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