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realm again, and curse his rebels and enemies | strangers resident in that court, whose farmers in such sort, as he should be better established in his kingdom then he was before. In a word, this motion was presently embraced by that miserable king, so as with his own hands he gave up the crown to the pope's legate, and by an instrument or charter sealed with a bull or sea! of gold, he granted to God and the church of Rome, the apostles Peter and Paul, and to pope Innocent the third and his successors, the whole kingdom of England, and the whole kingdom of Ireland; and took back an estate thereof by an instrument sealed with lead, yielding yearly to the church of Rome over and above the Peter-pence 1,000 marks sterling, viz. 700 marks for England, and 300 marks for Ireland, with a flattering saving of all his liberties and royalties. The pope had no sooner gotten this conveyance, though it were void in law, but he excommunicateth the barons, and repcals the Great Charter, affirming that it contained libcrties too great for his subjects; calls the king his vassal, and these kingdoms St. Peter's patrimony; grants a general bull of provision for the bestowing of all ecclesiastical benefices, and takes upon him to be absolute and immediate lord of all. And thus, under colour of exercising jurisdiction within these kingdoms, the pope, by degrees, got the very kingdoms themselves. And so would he do at this day, if the king would give way to his jurisd.ction.

and factors in England took the profits, turned them into money, and returned the money to Rome. Secondly, by imposing continual taxes and tallages, worse then Irish cuttings, being sometimes the tenth, sometimes the fifteenth, sometimes the third, sometimes the moiety of all the goods both of the clergy and laiety, under colour of maintaining the pope's holy wars against the emperor and the Greek church, who were then said to be in rebellion against their lady and mistress the church of Rome. Besides, for the speedy levying and safe return of these moneys, the pope had his Lombards and other Italian bankers and usurers resident in London and other parts of the realm, who offered to lend and disburse the moneys taxed, and return the same by exchange to Rome, taking such penal bonds, the form whereof is set down by Matt. Paris, and such excessive usury, as the poor religious houses were fain to sell their chalices and copes, and the rest of the clergy and laięty had their backs howed and their estates broken under the burthen. Besides, the pope took for perquisites and casualties the goods of all clerks that died intestate, the goods of all usurers, and all goods given to charitable uses. Moreover he had a swarm of friars, the first corrupters of religion in England, who perswaded the nobility and gentry to put on the sign of the cross, and to vow themselves to the holy wars; which they had no sooner done, but they were again perswaded to receive dispensations of their vows, and to give money for the same to the church of Rome. I omit divers other policies then used by the pope's collectors to exhaust the wealth of the realm, which they affirmed they might take with as good a conscience as the Hebrews took the

But what use did the pope make of this grant and surrender of the crown unto him? What did he gain by it, if our kings retained the profits of their kingdoms to their own use? Judeed we do not find, that the fee-farm of a thousand marks was ever paid, but that it is all run in arrear till this present day, For the truth is, the court of Rome did scorn to accept so poor a revenue as a thou-jewels of the Egyptians. Briefly, whereas the sand marks per annum out of two kingdoms. king had scarce means to maintain his royal But after the death of king John, during all the family, they received out of England 70,000l. reign of Hen. 3, his son, the pope did not sterling at least yearly, which amounteth to claim a seigniory or a reat out of England and 210,000l. sterling of the monies current at this Ireland, but did endeavour to convert all the day. Besides, they exported 6,000 marks out profits of both lands to his own use, as if he of Ireland at one time, which the emperor had been seized of all in demesne. For who- Frederick intercepted. Lastly, the king himsoever will read Matt. Paris his story of the self was so much dejected, as at a royal feast time of king Hen. 3, will say these things spo- he placed the pope's legate in his own chair of ken of before were but the beginnings of evils. estate, himself sitting on his right hand, and For the e actions and oppressions of the court the bishop of York on his left, non sine mulof Rome were so continual and intolerable, as 'torum obliquantibus oculis,' saith Matt. Paris. that poor monk, who lived in those times, Thus we see the effect of the pope's pretendthough otherwise he adored the pope, doth called jurisdiction within the dominions of the England Balaam's ass loaden, beaten, and enforced to speak; doth call the court of Rome Charybdis and Barathrum avaritiæ, the pope's collectors harpys, and the pope himself a stepfather, and the church of Rome a stepmother. He sheweth, that two third parts of the land being then in the hands of church-men, the entire profits thereof were exported to enrich the pope and the court of Rome: which was done for the most part by these two ways and means. First, by conferring the best ecclesiastical benefices upon Italians, and other

king of England. We see to what calamity and servitude it then reduced both the prince and people. Was it not therefore high time to meet and oppose those inconveniences? Assuredly if king Edward 1, who was the son and heir of IIcu. 3, had inherited the weakness of his father, and had not resisted this usurpation and insolency of the court of Rome, the pope had been proprietor of both these islands, and there had been no king of England at this day.

But king Edward 1, may well be stiled 'vin

void from time to time. This moved the king and the nobility to write to the pope to this effect. We and our ancestors have richly endowed the church of England, and have founded abbeys and other religious houses for the jurisdiction of our people, for maintenance of

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countrymen and kinsmen. Now you provide and place strangers in our benefices, that come not to keep residence thereupon; and if they come, understand not our language; and some of them are subjects to our mortal enemies; by reason whereof our people are not instructed, hospitality is not kept, our scholars are unpreferred, and the treasure of the realm is ex

The pope returneth answer, that the emperor had lately submitted himself to the church of Rome in all points, and was become the pope's great friend; and in menacing manner advised the king of England to do the like. The king replies, that if the emperor and French king both should take his part, he was ready to

dex Anglica libertatis,' the Moses that delivered his people from slavery and oppression: and as he was a brave and victorious prince, so was he the best pater patriæ that ever reigned in England since the Norman Conquest, till the coronation of our gracious sovereign. At the time of the death of his father he was ab-hospitality, and for the advancement of our sent in the war of the holy land, being a principal commander of the Christian army there, so as he returned not before the second year of his reign. But he was no sooner returned and crowned, but the first work he did was to shake off the yoke of the bishop of Rome. For the pope having then summoned a general council, before he would license his bishops to repair to it, he took of them a solemn oath,ported.' that they should not receive the pope's bless ing. Again, the pope forbids the Ling to war against Scotland; the king regards not his prohibition: He demands the first-fruits of ecclesiastical livings; the king forbids the payment thereof unto him. The pope sendeth forth a general bull prohibiting the clergy to pay sub-give battle to both in defence of the liberties of sidies or tributes to temporal princes: a tenth his crown. Hereupon the several statutes was granted to the king in parliament, the against Provisors before recited were put in exclergy refused to pay it: the king seizeth their ecution so severely, as the king and his subjects temporalties for their contempt, and got pay- enjoyed their right of patronage clearly and ment notwithstanding the pope's bull. After their exemption of clerks took no place at all; this he made the statute of Mortman, whereby for that the abbot of Waltham and bishop of he brake the pope's chief net, which within an Winchester were both attainted of high conage or two more would have drawn to the tempts, and the bishop of Ely of a capital of church all the temporal possessions of the king-fence, as appeareth in the records of this king's dom, &c. Again, one of the king's subjects brought a bull of excommunication against another: the king commandeth he should be executed as a traitor, according to the ancient law. But because that law had not of long time been put in execution, the chancellor and treasurer kneeled before the king and obtained grace for him, so as he was onely banished out of the realm. And as he judged it treason to bring in bulls of excommunication; so he held it a high contempt against the crown to bring in bulls of provision or briefs of citation; and accordingly the law was so declared in parlia ment 25 Ed. 1, which was the first statute made against Provisors: the execution of which | law, during the life of king Ed. 1, did well-nigh abolish the usurped jurisdiction of the court of Rome, and did revive and restore again the ancient and absolute sovereignty of the king and crown of England.

His successor, king Edward 2, being but a weak prince, the pope attempted to usurp upon him again but the peers and people withstood his usurpation. And when that unhappy king was to be deposed, amongst many articles framed against him by his enemies, this was one of the most heinous, that he had given allowance to the pope's bulls.

Again, during the minority of king Ed. 3. and after that in the heat of the wars in France, the pope sent many briefs and bulls into England; and at last presumed so far, as that he gave an Italian the title of a cardinal in England, and withal by his bull gave him power to bestow all ecclesiastical promotions as they should fall

reign. Yet during the nonage of Rich. 2. they began once again to encroach upon the crown, by sending legates and bulls and briefs into England, whereof the people were so sensible and impatient, as that at their special prayer, this law of 16 Rich, 2. (whereupon our indictment is framed) was enacted, being more sharp and penal than all the former statutes against provisors. And yet against this king, as against Ed. 2. it was objected at the time of his deprivation, that he had allowed the pope's bulls, to the enthralling of the crown.

After this in the weak time of king Hen. 6. they made one attempt more to revive their usurped jurisdiction by this policy. The commons had denied the king a subsidy when he stood in great want of moneys. The archbishop of Canterbury and the rest of the bishops offered the king a large supply of his wants, if he would consent that all the laws against provisors, and especially this law of 16 Rich. 2. might be repealed. But Humphry duke of Gloucester, who had lately before cast the pope's bull into the fire, did likewise cause this motion to be rejected. So as by special providence these laws have stood in force even till this day in both these kingdoms.

The EVIDENCE against LALOR. Then the Attorney General descended to the Evidence, whereby he proved fully all the parts of the Indictment. First, it was proved by Lalor's own confession, upon several examinations taken before the lord deputy and lord chancellor, and others, that he had accepted the

office and title of vicar general in the dioceses | the court caused it to be publickly read; and of Dublin, Kildare, and Fernes, by virtue of thereupon demanded of Lalor, if that were not the pope's bull. Secondly, it appeared by the his free and voluntary Confession signed with copies of sundry letters found among his papers his own hand, and confrmed by his oath before at his apprehension, that he stiled himself the the lord deputy and council. He was not a pope's vicar, in this form, Robertus Dublinien. little abashed at the publishing of this acknowet Kildaren, et Fernen. dioeces. vicarius apos- ledgment and confession in the hearing of so tolicus.' Thirdly, there were produced the many principal gentlemen, to whom he had copies of divers acts and instruments, written preached a contrary doctrine; therefore, said for the most part with Lalor's own hand, some he, the shewing forth of this confession is altoof institutions of popish priests to benefices, gether impertinent and besides the matter. others of dispensations with marriage within the Howsoever, he could not deny but that he made degrees, others of divorces, others of dispensa- it, and signed it, and swore it, as it was testified tions for non-payment of tithes. Whereby it by the lord deputy and the rest. was manifestly proved that he did execute the pope's bull, in usurping and exercising episcopal jurisdiction, as vicar general of the sce apostolick, within the dioceses before named.

To this evidence he made a three-fold answer. First, that he was no suiter for the office of vicar general, but it was imposed on him, and he accepted virtute obedientia, only to obey his superiors. Next, that he did exercise the office of vicar general in foro conscientiæ tantum, and not in foro judicii. And lastly, that those copies of institutions, dispensations and divorces, were many of them written with his man's hand, as precedents of such acts and instruments, without his privity or direction. Hereupon sir James Ley, chief justice, told him, that he could not well say, that he accepted that unlawful office virtute obedientiæ, for there was no virtue in that obedience; that he owed an obedience to the law and to the king, who is the true superior and sovereign over all his subjects, and hath no peer within his dominions; and that the superiors whom he meant and intended were but usurpers upon the king's jurisdiction, and therefore this excuse did aggravate his contempt, in that it appeared he had vowed obedience to those who were apparent enemies to the king and his crown. And though it were manifest that he exercised jurisdiction in foro judicii, (for every institution is a judgment, and so is every sentence of divorce) yet were his offence nothing diminished if he had executed his office of vicar general in foro conscientia tantùm; for the court of man's conscience is the highest tribunal, and wherein the power of the keys is exercised in the highest degree.

Hereunto the Attorney General took occasion to add thus much, that Lalor had committed these high offences, not only against the law, but against his own conscience, and that he was already condemned in foro conscientia. For that he upon his second examination had voluntarily acknowledged himself not to be a lawful vicar general, and that he thought in his conscience he could not lawfully take upon him the said office. He hath also acknowledged our sovereign lord king James to be his lawful chief and supreme governor, in all causes, as well ecclesiasticall as civil; and that he is in conscience bound to obey him in all the said causes, &c. as it is contained in his Acknowledgment or Confession before set down; which being shewed forth by the Attorney General,

Then was it demanded of him, whether since the making of this confession he had not protested to divers of his friends, that he had not acknowledged the king's supremacy in ecclesiastical causes. His auswer was, that indeed he had said to some of his friends who visited him in the castle of Dublin, that he had not confessed or acknowledged that the king was his supreme governor in spiritual causes, for that the truth is, in the confession there is no mention made of spiritual causes, but of ecclesiastical.

This is a subtile evasion indeed, said the attorney-general; I pray you what difference do you make between ecclesiastical causes and spiritual causes? This question, said Lalor, is sudden and unexpected at this time, and therefore you shall do well to take another day to dispute this point. Nay, said the attorneygeneral, we can never speak of it in a better time or fitter place; and therefore, though you, that bear so reverend a title, and hold the reputation of so great a clerk, require a farther time, yet shall you hear that we laymen that serve his majesty, and by the duty of our places are to maintain the jurisdiction of the crown, are never so unprovided, but that we can say somewhat touching the nature and difference of these causes.

First then, let us see when this distinction of ecclesiastical or spiritual causes from civil and temporal causes did first begin in point of jurisdiction. Assuredly, for the space of three hundred years after Christ, this distinction was not known or heard of in the Christian world. For the causes of testaments, of matrimony, of bastardy and adultery, and the rest which are called ecclesiastical or spiritual causes, were merely civil, and determined by the rules of the civil law, and subject onely to the jurisdiction of the civil magistrates, as all civilians will testifie with me.

But after that the emperors had received the Christian faith out of a zeal and desire they had to grace and honour the learned and godly bishops of that time, they were pleased to single out certain special causes wherein they granted jurisdiction unto the bishops; namely, in causes of tithes, because they were paid to men of the church; in causes of matrimony, because marriages were for the most part solemnized in the church; in causes testamentary, because testaments were many times made in

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extremis, when church-men were present, giving | diction was first derived from Cæsar, in the spiritual comfort to the testator, and therefore execution whereof they were Cæsar's judges, so they were thought the fittest persons to take the as both their courts and causes ought still to probates of such testaments. Howbeit these have born Cæsar's image and superscription, as bishops did not proceed in these causes accord- belonging unto Cæsar; they blotted Cæsar's ing to the canons and decrees of the church, name out of the stile of their courts, and called (for the canon law was not then hatched or them courts Christian, as if the courts holden dreamed of) but according to the rules of the by other magistrates had been in comparison imperial law, as the civil magistrate did proceed but courts of Ethnicks; and the causes which in other causes; neither did the emperors, in in their nature were merely civil, they called giving this jurisdiction unto them, give away spiritual and ecclesiastical. So as if the empetheir own supreme and absolute power, to cor- ror should challenge his courts and causes rect and punish these judges as well as others, again, and say, reddite Casati quæ sunt Cæif they performed not their several duties. This saris,' they would all cry out on the contrary then is most certain, that the primitive jurisdic-part, and say, date Deo quæ sunt Dei,' our tion in all these causes was in the civil magis-courts bear the name and title of Christ, the strate, and so in right it remains at this day; superscription of Cæsar is quite worn out, and and though it be derived from him, it remaineth not to be found upon them. And this point of in him as in the fountain. For every Christian their policy is worth the observing, that when monarch (as well as the godly kings of Juda) is they found their jurisdiction in matrimonial custos utriusque tabulæ ; and consequently hath causes to be the most sweet and gainful of all power to punish not only treason, murder, theft, other, (for of matrimony they made matter of and all manner of force and fraud, but incest, money indeed) to the end that Cæsar might adultery, usury, perjury, simony, sorcery, ido- never resume so rich a perquisite of their latry, blasphemy. Neither are these causes in spiritual jurisdiction, they reduced matrimony respect of their own quality and nature to be into the number of the seven sacraments: after distinguished one from another by the names which time it had been sacrilege, if the civil of spiritual or temporal: for why is adultery a magistrate had intermeddled with the least matspiritual canse, rather than murder, when they ter that had relation to matrimony, or any deare both offences alike against the second table; pendency thereupon. So then it appeareth, or idolatry rather than perjury, being both of that all causes, whereof ecclesiastical or spiritual fences likewise against the first table? And in-persons have cognizance or jurisdiction by deed if we consider the natures of these causes, it will seem somewhat absurd, that they are distinguished by the name of spiritual and temporal; for, to speak properly, that which is opposed to spiritual should be termed carnal; and that which is opposed to temporal should be called eternal. And therefore if things were called by their proper names, adultery should not be called a spiritual offence, but a carnal. But shall I express plainly and briefly why these causes were first denominated, some spiritual or ecclesiastical, and others temporal and civil?

Truly, they were so called, not from the nature of the causes, as I said before, but from the quality of the persons whom the prince had made judges in those causes. The clergy did study spiritual things, and did profess to live secundum spiritum, and were called spiritual men; and therefore they called the causes wherein princes had given them jurisdiction, spiritual causes, after their own name and quality. But because the lay-magistrates were said to intend the things of this world, which are temporal and transitory, the clergy called them secular or temporal men, and the causes wherein they were judges temporal causes. This distinction began first in the court of Rome, where the clergy having by this jurisdiction gotten great wealth, their wealth begot pride, their pride begot ingratitude towards princes, who first gave them their jurisdiction; and then, according to the nature of all ungrateful persons, they went about to extinguish the memory of the benefit. For whereas their juris

the grants or permission of princes, are called ecclesiastical or spiritual causes. And as all their courts are called spiritual courts, so all causes determinable in those courts are called spiritual causes. And therefore where M. Lalor hath acknowledged the king's majesty to be supreme governor in all ecclesiastical causes, he hath therein acknowledged the king's supremacy in all spiritual causes; wherein he hath but rendered to Cæsar that which is Cæsar's, and hath given unto his majesty no more than ali the bishops of England have yielded to his predecessors, not only in this latter age, but also in former times both before and since the conquest, as hath been before at large expressed.

Here the day being far spent, the court demanded of the prisoner if he had any more to say for himself. His answer was, that he did willingly renounce his office of vicar-general, and did humbly crave his majesty's grace and pardon. And to that end, he desired the court to move the lord-deputy to be favourable unto him. Then the jury departed from the bar, and returning within half an hour, found the prisoner Guilty of the contempts whereof he was indicted, Whereupon the solicitor-general moved the court to proceed to judgment. And sir Dominick Sarsfield, knight, one of the justices of his majesty's chief place, gave judgment according to the form of the statute whereupon the indictment was framed.

["The encroachments of the church of Rome,

on the king's ecclesiastical jurisdiction, are the

subject of other cases besides the preceding one of Præmunire. In particular they are historically discussed in lord Coke's Case of the king's Ecclesiastical Law, in the 5th Report. The publication of this latter case, with the active zeal of lord Coke as attorneygeneral, in the prosecution of the conspirators in the Gunpowder-plot, gave occasion to a volume of animadversions by the famous Jesuit father Parsons, which was published in 1606, by the title of an Answer to lord Coke's 5th Report, by a Catholick divine. But the asperity with which lord Coke was treated, did not provoke a reply. All that it drew from him was a short notice of the work in the preface to his 6th report, in which he represents the author as a calumniator, and as such disdained to answer him. But the controversy was afterwards continued by Mr. Prynne, who asserted the cause of the crown against the see of Rome, in a work of prodigious extent in the plan, for though the part published consists of three large volumes, of more than 1000 pages each, yet it reaches only to the end of the

reign of Edward the first. The work we allude to, is Mr. Prynne's Chronological Vindication of the King's Supreme Ecclesiastical Jurisdiction, the publication of which commenced four or five years after the Restoration. The first volume extends to the Conquest. The second, which was published first, concludes with the reign of Henry the third. The third, being in part a supplement to the second, is occupied with the reigns of Henry the third, John, and our first Edward. When the author had advanced thus far, death interposed, and prevented the completion of the undertaking. What he lived to publish is become so extremely scarce, that 20 guineas are the common price of a compleat copy. The cause is the small remnant of copies of the first volume, most of them having been burnt in the great fire of London. Such as are curious to see an account of the Jesuit Parsons, may consult Cambden's Annals of Elizabeth. See the translated edition in 2. Kenn. Compl. Hist. 2d ed. p. 477, 576." Hargrave.]

85. The Case of the POSTNATI, or of the UNION of the Realm of Scotland with England; Trin.

"From the meeting of the crowns of England | and Scotland in the person of the first James, grew one of the most important questions of state, which ever engaged the attention of either country. It was, whether the POSTNATI, or those born in Scotland after the accession of James to the crown of England, were in the latter country to be deemed aliens or natives. As to the Ante-nati, all ,seem to have agreed, that they remained aliens. But there was a great difference of opinion about the condition of the Postnati. The king, anxious for every thing which tended to consolidate the island into one kingdom, was eager to have it declared as law, that the Union of the crowns cffected a mutual naturalization of the Postati in the two countries. His wishes were soon made known by the Proclamation, in which he as

* Some of the law laid down in the following case was discussed in the case of Hall v. Campbell, infra, A. D. 1774. It was much relied on by lord Mansfield in his argument (on a point on which the judgment of the court did not turn) in that case, and is very perspicuously stated and carefully considered by Mr. Baron Maseres in his most learned and elaborate analysis and examination of the whole of lord Mansfield's argument on that occasion. See "The Canadian Freeholder," Dialogue 2d. As to the topics of Allegiance agitated in the case of the Postnati, see more in the duke of Hamilton's case, infra. A. D. 1648. See also East's Pl. Cr. ch. ii. § 3, 41. and the cases and other authorities there cited.

6 JAMES I. A. D. 1608.*

sumed the stile of King of Great Britain, with an exception however in favor of legal process, instruments, and assurances; and words were introduced, importing, that his succession to the crown of England had made a great change in the law of Naturalzation. Rym. Ford. v. 16. p. 603. 2 Bac. last 4to. ed. 144. The Commissioners, ap pointed by the respective Parliaments of the two countries to treat for an Union of government and laws, followed the king in this language; for they resolved to propound to both parliaments a declaration of the law to that effect. But when the proposition was made, the English house of commons were found averse to it, notwithstanding the countenance given by the lords, and an opinion delivered to them by ten out of eleven judges. It was therefore determined to settle the point out of parliament in the regular way, by resorting to the English courts of justice. For this purpose, two suits were instituted in the name of Robert Calvin, a Postnatus of Scotland and an infant; one in the King'sbench for the freehold of some land; and the other in Chancery for detainer of writings concerning the title to the freehold of the same estate: aud in both it was pleaded by the defendants in abatement, that the plaintiff was an alien born in Scotland at a time which by the pleading appeared to be since the king's accession to the crown of England. A demurrer to this plea necessarily brought forward the intended question about the Postnati; for if Calvin was an alien, he could not maintain either suit,

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