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. 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 (ie., 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 : 1 A treatyse, &c., ut supra, cap. xii. Christian princes are in their own realms over all their subjects, spiritual and temporal." 1 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."2 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. 1 A treatyse, &c., ut supra, cap. xii. 2 Ibid., cap. xiii. 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. 1 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." 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 1 Ibid., cap. vi. |