vantage of possessing their incomes free from the exactions to which the feudal tenants were subject. It was not, however, long before the rapacity of the crown invaded this valuable immunity. At first attempts were made to extend the aids granted by the bishops for themselves, to all the clergy of their respective dioceses: but these were effectually resisted, probably on the ground that the prelates had no authority to dispose of the property of others.146 John, in the year 1206, surmounted the difficulty. He called all the abbots and priors to parliament, and obtained from them the vote of a thirteenth and then wrote to the archdeacons and clergy of each diocese, exhorting them to imitate so laudable an example, and to let him know by a certain day the amount of the aid which each individual was willing to grant.147 His son trod in the footsteps of the father: at one time he commissioned the bishops to collect a voluntary contribution from the clergy: 148 at another he ordered the sheriffs to summon to parliament the abbots and priors “who did not hold of the crown," in order to grant him a subsidy :149 at last it became customary to issue writs, not only to them, but CHAP. II. 146 See an instance in the annals of Waverley, p. 169. 147 See the original writ, dated at York, May 26, ann. viiio. in Hody, 270. 148 Dunst. 98.268. 149 Abbates et priores de comitatu qui non tenent de rege in capite. Cl. 19 Hen. III. apud Hody, 313. II. CHAP. also to the deans, and archdeacons, and to order the latter to come furnished with letters of procuration from the collegiate bodies, and those portions of the inferior clergy over which they presided. 150 The exactions of Innocent IV. suggested a new practice. The grants to that pontiff had been voted in convocation: and Edward I. conceived that the wants of the crown might be relieved in the same manner. During the whole of his reign we find him demanding aids of the clergy, sometimes in parliament, sometimes in convocation. In the first case all the. minor dignitaries of the church were summoned to attend personally: while the parochial clergy of each diocese, like the freeholders of each county, sent representatives.151 In the second the king notified his wish to the archbishop; who immediately convoked the clergy of his province to take into consideration the message which they should receive from the king.152. Of the 150 In 1254, Henry III. requested each bishop to call before him the chapter, archdeacons, monks, and clergy of his diocese, induce them to grant an aid, and order them to send deputies to inform him of their proceedings in the next parliament. Cl. 38 Henry III. apud Hody, 340. See also Annal. Burton, 355—857. 151 Decanos ecclesiarum cathedralium et archidiacones in propriis personis, clerumque uniuscujusque diocesis per duos procuratores.. Knyght, 2501. 152 Thus archbishop Peckham calls a convocation of the bishops, abbots, priors, superiors of religious houses, exempt and not exempt, deans of cathedral and collegiate churches, and the archdeacons, to before him super his, quæ ex parte domini regis in congregatione prædicta exposita fuerint, tractaturi: and moreover orders appear II. two methods the clergy preferred the latter: CHAP attendance in parliament they deemed a burden rather than an honour: and in convocation they enjoyed greater freedom of debate, uninfluenced by the presence or the menaces of others. Gradually the crown condescended to their wishes. Provided they granted their money, it was of little consequence whether they met in convocation or parliament: and though to maintain his. right, the king was careful to include in the summons to the bishop the usual clause respecting the clergy of his diocese, it was mutually understood to be a mere matter of form, and not meant to be carried into execution. II. The reader has witnessed the repeated at- Decision tempts of the legislature to enforce the execu- respecting the question of the great charter. Its provisions now tion of bastardy. became the chief object of the people in every struggle with the crown: and each succeeding confirmation, though a proof of the impunity with which the former had been evaded or broken, yet added something to its subsequent stability. As new cases arose, additional enactments were made. In a great council at Merton in 1235 the rights of widows were more accurately defined: remedies were provided against the artifices by which lords had been deprived of two procurators to be chosen by the clergy of each diocese, and one by each chapter of collegiate churches, with full powers to treat on the same subjects. Ex Reg. Peckham apud Hody, 138. II. CHAP. the wardships of heirs, and against the injuries which wards might suffer from the rapacity of their guardians; and with a due attention to the interests of the lord and his tenants, the former was empowered to cultivate the waste land on his estate, but at the same time forbidden to encroach on the common pasturage necessary for the accomodation of the latter.153 In this assembly was also decided the great question of the bastardy of children born before the marriage of their parents. By the custom of England they were deprived of all title to the inheritance: by the civil and canon laws they were equally legitimate with the children born in matrimony. Hence as the cognizance of bastardy belonged to the spiritual courts, which followed the latter, and the right of inheritance was determined by the secular courts, which followed the former, opinion, the two judicatures were frequently brought into collision: and the bishops requested that the king's writs should no longer direct them to inquire specially whether the individual in question were born before or after marriage, but generally whether he were legitimate or not. They objected to the practice of the other courts: 1o That it was contrary to the Roman and canon law; 2o That it was unjust; because it deprived of the right of inheritance the issue of clandestine marriages, though such marriages were not 153 St. 23 Hen. III, II. annulled by any law; and 3o That it was incon- CHAP. sistent with itself; because, while it bastardized the child born, it legitimated the child that was only conceived, before marriage, though in both cases the moral guilt of the parents was exactly the same. But their arguments were fruitless. 154 The earls and barons unanimously returned the answer, which has been so often repeated and applauded: "We will not change the old and "approved laws of England." 155 of the or deal. But if the clergy failed in this instance, they Abolition had previously succeeded in procuring the abolition of a very ancient but indefensible custom. Though the trial by ordeal was consecrated with religious ceremonies, the popes had always condemned it as an unwarranted appeal to the judgment of the Almighty: and by Gratian the condemnation had been inserted in the canon law. On this account, it was abolished, probably by the influence of Gualo, in the beginning of the king's reign: but to devise a new form of trial, which might be substituted in its stead, perplexed and confounded the wisdom both of 154 See a letter from the celebrated Grosseteste, bishop of Lincoln, to sir William Raleger, one of the judges, apud Brown, App. ad Fascic. Rer. p. 316. From it we learn that during the performance of the marriage ceremony, the illegitimate children were placed by the side of their parents, and under the same canopy, to shew that they partook of the benefits arising from a legitimate marriage. 155 Nolunt leges Angliæ mutare, quæ usitatæ sunt et approbatæ. St. 23 Hen. III. c. 9. |