cated, and rendered incapable of absolution till he had given satisfaction for his fault. For these bold usurpations on the civil authority of the state, the Archbishop was summoned before Edward I. and his council, and made to retract and annul the whole of them.* Strange it is, and a striking proof how pertinacious the clergy were in maintaining claims they had once advanced, that these enactments, though abolished and annulled, were republished and commented on by Lindwood+ as ecclesiastical laws of England; and they are still to be found in the collections of Spelman and Wilkins, without note or animadversion. We are far from believing, or wishing to insinuate, that the whole, or even the greater part of the prohibitions issued in the times of Henry III. and Edward I., arose out of the efforts of the clergy to enforce and establish church rates. We know that the claims of the spiritual courts to try and decide questions of tithe were often impeded by prohibitions; on the ground, that under that pretence they interfered with rights of advowson. We know also, that when churchmen attempted to exact pecuniary penalties for adulteries and such like offences, and even when they gave costs in cases purely spiritual, they were met by prohibitions; and that the same obstacle was opposed to them, when they tried to bring questions of Contract before the spiritual courts, on the pretext of punishing breaches of promise and violations of oaths. But, from their own statements and admissions, we learn that the demand for church rates was one of the grounds for these prohibitions. Among the fifty articles of complaint prepared by the Bishops in 1257—among the grievances against the Curia Regis which they presented to Edward I. in 1285-we find it stated, that when laymen were called upon to repair churches, to enclose churchyards, or provide what was wanted for the use of the church, and on their refusal to comply were cited before the ordinary, the rich and malignant applied for and obtained prohibitions; which stayed the proceedings of the spiritual judges, and, if disobeyed, exposed them to attachment, amerciament, and imprisonment. By this interference, as they pathetically lament, the sinews of ecclesiastical discipline were relaxed; the honour and worship long rendered to the church impaired; and her censures brought into contempt, and feared by no one-et sic vilipenditur ecclesi'astica censura damnabiliter, et quasi a nemine timetur.' The proper business of the spiritual courts was to hold pleas * Prynne, Records, iii. 235. † Provinciale, 353. Wilkins' Conc. i. 723-730; ii. 115-119. of things spiritual, or of things annexed to the spirituality, to which were subsequently added questions relating to wills and marriages. But, not content with this ample domain, the Courts Christian were continually encroaching, as we have seen, on the jurisdiction of the temporal courts. In the time of Glanville, two writs had been devised to repress their usurpations ;-one prohibiting them from holding pleas of advowson, and the other from holding pleas of lay fees. Long before Bracton wrote his magnificent treatise on the law of England, a third writ had been contrived, more general in its expressions, and more extensive in its operation. By this writ the spiritual courts were prohibited from holding pleas de debitis et catallis quaæ non sunt 'de testamento vel matrimonio.' It must have been under this writ that, during the long reign of Henry III. and in the first years of Edward I., the clergy were checked in their attempts to exact church rates from their refractory parishioners. In the minute enumeration given by Bracton* of the cases where prohibitions did not lie—that is, where the Courts Christian might - proceed without molestation, notwithstanding a prohibition from the courts of common law-there is no mention of pleas for the inclosing of churchyards, the repairing of churches, or the finding of ornaments and other things necessary for the decent performance of religious worship. In the petition of the Bishops to Edward I., we are expressly told that, when the rich and powerful objected to the demands of the ordinary for the repair of churches and other parochial burdens, it was on the ground that these were claims which had no connexion with wills or marriages. Mr Goodet smiles at our simplicity in asking why suits for church rates, when stopped in the spiritual courts by prohibitions, were not prosecuted in the common law courts, if they were due at common law. He tells us that the permission given to churchmen to prosecute laymen before a lay judge, was granted with this limitation, nisi de re spirituali fuerit.' That such and many other illegal and extravagant orders were issued by some of the clergy, we do not deny; but so far were they from being obeyed, when' contrary to the laws of the land, that tenures in frank almoigne, the most spiritual of all tenures, were at that very time tried in the temporal courts, in questions not only between churchmen and laymen, but among churchmen themselves. To another very obvious answer, that though church * Lib. v. cap. 10, f. 407. † Reply, 21. Wilkins' Conc. i. 729, c. 36. men might be deterred by their laws from suing in the temporal courts for a spiritual matter, there was nothing to prevent those who had the care of the church and of its furniture from prosecuting such pleas, Mr Goode replies, that churches and their ornaments were under the care of their rectors' there being no 'churchwardens at that time.' He forgets that, among the decrees of the very synod* he quotes, there is mention of keepers or guardians of the instaurum' or furniture of the church, who might be laymen, though it was desirable they should be in orders. In the time of Lindwood, churchwardens were not only established, but they were known by their present appellation; and the question is asked, whether they can be compelled, by excommunication or other penalty, to repair the church when in want of it? Lindwood is of opinion, that if they have money in hand, or have been negligent in collecting the necessary funds, they may be compelled by ecclesiastical censures to repair the church,—' alioquin, si per eos non steterit, non esset contra eos sic 'procedendum;'-the same opinion which has been since delivered by Baron Bayley and by Lord Lyndhurst. There is no hint in Lindwood that the churchwardens could impose a rate by their own authority, in opposition to the determination of the vestry. The words si habeant in manibus, vel eorum diligentia suffi'cienter habere possint,' imply solicitation, and not compulsion. In the midst of these contests between the secular and the spiritual courts, came the writ of Circumspecte agatis, which gave a practical triumph to the clergy in some of their demands, while it restrained their pretensions in others. By this writ, the exclusive jurisdiction of the Courts Christian was confirmed in some cases where it had before been doubtful. The common law judges were forbidden to punish bishops or clergymen; if 'they do punish for leaving the churchyard unenclosed, or for 'that the church is uncovered or not sufficiently decked, in ⚫ which cases none other penance can be enjoined but pecuniary.' In these and other cases, it is declared that the spiritual judge shall have power to take cognisance, notwithstanding the king's prohibition is served upon him-'Regia prohibitione non obstante, ' licet porrigatur.' Laymen impleaded for these omissions were thenceforward taken out of the protection of the temporal courts, and when punished by their spiritual judges, they had no remedy but to submit to the penalties, or incur the censures of the Church. If a rate was voted in vestry, no individual parishioner Synod Exon. c. 30. Wilkins' Conc. ii. 148. † Provinciale, 53. VOL. LXX. NO. CXLI. E -none of the divites and malitiosi, as they were called by the clergy-could withhold or refuse to pay his assessment. It was in vain for him to apply for a prohibition to the common law courts, on the ground that he was impleaded de debitis et catallis ' quæ non sunt de testamento vel matrimonio.' That prohibition, though obtained, was no longer of avail to him in the spiritual court. He was left to the mercy of his ecclesiastical judgesto the censures they chose to inflict-to the excommunication they might launch against him. It is by no means clear that more was intended in this matter, by the writ of Circumspecte agatis, than to prevent the Courts Christian from being impeded by prohibitions, when they enforced by their ecclesiastical censures, the payment of rates legally granted-a power which they still enjoy, and which no one contests. The word 'punish' in the writ, is no doubt susceptible of a more extended interpretation; but no commentator has ever claimed for the spiritual courts the power of imposing, by their own authority, assessments on individual parishioners; and, though both John de Athon and Lindwood agree that parishioners may be compelled to repair their church, the latter expressly admits that, if they refuse, there cannot be a general sentence of excommunication or suspension fulminated against them; and that the threat of an interdict is the only measure that can be used to bring them to reason. It was not, therefore, by the direct exercise of any legal authority that the spiritual courts could enforce the reparation of churches. The vestry alone could impose the rate; and it was only by indirect means, not indicated, and probably not intended by the writ of Circumspecte agatis, that the spiritual courts could operate on the vestries. It was only by the threat of an interdict that parishioners, when reluctant to grant a rate, could be forced to compliance. When that menace had prevailed, and the rate was granted by the vestry, the writ of Circumspecte agatis enabled the spiritual court to enforce pay ment. The principle was still maintained, that the parishioners assembled in vestry were the only persons who could grant a rate; and that no rate was valid which had not been imposed with their consent. It might be from the dread of an interdict that their assent had been extorted; but it was only after it had been given that the Courts Christian could proceed against the refractory. All parties agree that the remedy by interdict has become impossible. If the parishioners in vestry grant a rate, the spiritual courts, and, by a late statute, even the justices of the peace, may enforce it. But, if it be refused by the vestry, the spiritual courts are powerless. The spiritual courts, though invested by the writ of Circum specte agatis, with jurisdiction in the collection of church rates, having lost the indirect means which they once possessed of inducing vestries to impose these rates, Mr Goode and others call on the common law courts to do for them what they can no longer do for themselves. But if the control over the laity, which the spiritual courts formerly exercised, has ceased in one instance to be efficacious, and, ceasing in that instance to be efficacious, if their authority is to be invigorated and enforced by the temporal courts, why is it not to be enforced in other instances, where it has become equally impotent. Let us put a case. Among other clauses in the writ of Circumspecte agatis, the common law judges are forbid to punish bishops or clergymen for holding pleas in Court Christian of penance enjoined by prelates for deadly sin, for which sometimes corporal penance, and sometimes pecuniary is enjoined.' We have no doubt that, in former times, many a sinner was made to fast or flog himself under the provisions of this writ. But would such fasting be submitted to, or such selfflagellation be inflicted at present, though the rector of St Antholin were to enjoin them? And if refused, does Mr Goode imagine that he could obtain a mandamus from the Queen's Bench to compel his erring and errant parishioners to fast and flog themselves, on the ground that the writ of Circumspecte agatis had imposed on them a common law liability to perform these acts of devotion, as often as they were enjoined to do so by their rector, and his sentence had been confirmed by the Court Christian, before which he had summoned them? It is not indeed easy to conceive how a spiritual court, instituted pro salute animæ, can ever create a common law liability; or on what pretence, if its injunctions are disregarded, it can claim a right to call on the courts of common law for assistance; except in cases where they are directed by statute, or bound by precedent to carry its decrees into effect. In addition to this objection, which seems to us fatal to the views taken by Mr Goode and his associates, the ecclesiastical courts, and the Court of Chancery, proceed on principles so very different from those that govern the common law courts, that even the Court of Chancery--though its objects be temporal, and have in view the good of society in this world, and not the amendment of sinners as a preparation for the next-would find it difficult, in certain cases, to obtain the co-operation of these courts, if its own resources were taken away. Nothing is more common, for instance, in the Court of Chancery, than to compel a defendant to answer on oath to the matters alleged against him by his adversary. But, though these bills of discovery are issued every day from Chancery, and enforced by writs of subpoena |