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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.1
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,
1 Robert Keilway, Relatione! quorundam casuum, f. 188, seqq.
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.1
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."'
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."1
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."2
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."1
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.).2
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 todetermine 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 work1 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.2
'A treatyse concerning the power of the clergie and the laws of the realme. London, J. Godfray.
- A treatyse, &c., ut supra, cap. 4.