The Eve of the Reformation

We are not here concerned with another and more delicate question as to the papal prerogatives exercised in England. For clearness’ sake in estimating the forces which made for change on the eve of the Reformation, this subject must be examined in connection with the whole attitude of England to Rome and the Pope in the sixteenth century. It must, consequently, be understood that in trying here to illustrate the attitude of men’s minds at this period to these important and practical questions, a further point as to the claims of the Roman Pontiffs in regard to some or all of them has yet to be considered. Even in examining the questions at issue between the authorities – lay and ecclesiastical – in the country, the present purpose is to record rather than to criticise, to set forth the attitude of mind as it appears in the literature of the period, rather than to weigh the reasons and judge between the contending parties.

The lawyer, Christopher Saint-German, is a contemporary writer to whom we naturally turn for information upon the points at issue. He, of course, takes the layman’s side as to the right of the State to interfere in all, or in most, questions which arise as to the dues of clerics, and other temporalities, such as tithes, &c., which are attached to the spiritual functions of the clergy. Moreover, beyond claiming the right for the State so to interfere in the regulation of all temporalities and kindred matters, Saint-German also held that in some things in which custom had given sanction to the then practice, it would be for the good of the State that it should do so. In his Dyalogue between a Student of Law and a Doctor of Divinity,68 his views are put clearly; whilst the Doctor states, though somewhat lamely perhaps, the position of the clergy.

To take the example of “mortuaries,” upon which the Parliament had already legislated to the dismay of some of the ecclesiastical party, who, as it appears, on the plea that the law was unjust and beyond the competence of the State authority, tried in various ways to evade the provisions of the Act, which was intended to relieve the laity of exactions that, as they very generally believed, had grown into an abuse. Christopher Saint-German holds that Parliament was quite within its rights. The State could, and on occasion should, legislate as to dues payable to the clergy, and settle whether ecclesiastics, who claim articles in kind, or sums of money by prescriptive right, ought in fact to be allowed them. There is, he admits, a difficulty; he does not think that it would be competent for the State to prohibit specific gifts to God’s service, or to say that only “so many tapers shall be used at a funeral,” or that only so many priests may be bidden to the burial, or that only so much may be given in alms. In matters of this kind he does not think the State has jurisdiction to interfere. “But it has,” he says, “the plain right to make a law, that there shall not be given above so many black gowns, or that there shall be no herald of arms” present, unless it is the funeral of one “of such a degree,” or that “no black cloths should be hung in the streets from the house where the person died, to the church, as is used in many cities and good towns, or the prohibition of such other things as are but worldly pomps, and are rather consolations to the friends that are alive, than any relief to the departed soul.” In these and such like things, he says: “I think the Parliament has authority to pass laws, so as to protect the executors of wills, and relieve them from the necessity of spending so much of the inheritance of the deceased man’s heirs.”69

In like manner the lawyer holds that in all strictly temporal matters, whatever privilege and exemption the State may allow and has allowed the clergy, it still possesses the radical power to legislate where and when it sees fit. It does not in fact by lapse of time lose the ordinary authority it possesses over all subjects of the realm in these matters. Thus, for example, he holds that the State can and should prohibit all lands in mortmain passing to the Church; and that, should it appear to be a matter of public policy, Parliament might prohibit and indeed break the appropriations of benefices already made to monasteries, cathedrals, and colleges, and order that they should return to their original purposes. “The advowson,” he says, “is a temporal inheritance, and as such is under the Parliament to order it as it sees cause.” This principle, he points out, had been practically admitted when the Parliament, in the fourth year of Henry IV., cancelled all appropriations of vicarages which had been made from the beginning of Richard II.’s reign. It is indeed “good,” he adds, “that the authority of the Parliament in this should be known, and that it should cause them to observe such statutes as are already made, and to distribute some part of the fruits (of the benefices) among poor parishioners according to the statute of the twentieth year of King Richard II.”

In the same way, and for similar reasons, Saint-German claims that the State has full power to determine questions of “Sanctuary,” and to legislate as to “benefit of clergy.” Such matters were, he contends, only customs of the realm, and in no sense any point of purely spiritual prerogative. Like every other custom of the realm, these were subject to revision by the supreme secular authority. “The Pope by himself,” he adds, “cannot make any Sanctuary in this realm.” This question of “Sanctuary” rights was continually causing difficulties between the lay and the ecclesiastical authorities. To the legal mind the custom was certainly dangerous to the well-being of the State, and made the administration of justice unnecessarily complicated, especially when ecclesiastics pleaded their privileges, and strongly resisted any attempt on the part of legal officials to ignore them. Cases were by no means infrequent in the courts in the reigns of Henry VII. and Henry VIII., which caused more or less friction between the upholders of the two views.70 To illustrate the state of conflict on this, in itself a very minor matter, a trial which took place in London in the year 1519 is here given in some detail. One John Savage in that year was charged with murder. At the time of his arrest he was living in St. John Street (Clerkenwell), and when brought to trial pleaded that he had been wrongfully arrested in a place of Sanctuary belonging to the Priory of St. John of Jerusalem. To justify his contention and obtain his liberty, he called on the Prior of the Knights of St. John to maintain his rights and privileges, and vindicate this claim of Sanctuary. The prior appeared and produced the grant of Pope Urban III., made by Bull dated in 1213, which had been ratified by King Henry III. He also cited cases in which he alleged that in the reign of the late King Henry VII. felons, who had been seized within the precincts, had been restored to Sanctuary, and he therefore argued that this case was an infringement of the rights of his priory.

Savage also declared that he was in St. John Street within the precincts of the priory “pur amendement de son vie, durant son vie,” when on the 8th of June an officer, William Rotte, and others took him by force out of the place, and carried him away to the Tower. He consequently claimed to be restored to the Sanctuary from which he had been abducted. Chief-Justice Fineux, before whom the prisoner had been brought, asked him whether he wished to “jeopardy” his case upon his plea of Sanctuary, and, upon consultation, John Savage replied in the negative, saying that he wished rather to throw himself upon the king’s mercy. Fineux on this, said: “In this you are wise, for the privileges of St. John’s will not aid you in the form in which you have pleaded it. In reality it has no greater privilege of Sanctuary than every parish church in the kingdom; that is, it has privileges for forty days and no more, and in this it partakes merely of the common law of the kingdom, and has no special privilege beyond this.”

Further, Fineux pointed out that even had St. John’s possessed the Sanctuary the prior claimed, this right did not extend to the fields, &c., but in the opinion of all the judges of the land, to which all the bishops and clergy had assented, the bounds of any Sanctuary were the church, cloister, and cemetery. Most certain it was that the ambitus did not extend to gardens, barns, and stables, and in his (Fineux’s) opinion, not even to the pantry and buttery. He quotes cases in support of his opinion. In one instance a certain William Spencer claimed the privilege of Sanctuary when in an orchard of the Grey Friars at Coventry. In spite of the assertion of the guardian that the Pope had extended the privilege to the whole enclosure, of which the place the friars had to recreate themselves in was certainly a portion, the plea was disallowed, and William Spencer was hanged.

In regard to the privilege of the forty days, Fineux declared that it was so obviously against the common good and in derogation of justice, that in his opinion it should not be suffered to continue, and he quoted cases where it had been set aside. In several cases where Papal privileges had been asserted, the judges had held “quant à les Bulles du pape, le pape sans le Roy ne ad power de fayre sanctuarie.” In other words, Fineux rejected the plea of the murderer Savage. But the case did not stop here, both the prior and Savage, as we should say, “appealed,” and the matter was heard in the presence of Cardinal Wolsey, Fineux, Brudnell, and several members of the inner Star Chamber. Dr. Potkyn, counsel for the Prior of St. John, pleaded the “knowledge and allowance of the king” to prove the privilege. No decision was arrived at, and a further sitting of the Star Chamber was held on November 11, 1520, in the presence of the king, the cardinal, all the judges, and divers bishops and canonists, as well as the Prior of St. John and the Abbot of Westminster. Before the assembly many examples of difficulties in the past were adduced by the judges. These difficulties they declared increased so as to endanger the peace and law of the country, by reason of the Sanctuaries of Westminster and St. John’s. To effect a remedy was the chief reason of the royal presence at the meeting. After long discussion it was declared that as St. John’s Sanctuary was made, as it had been shown, by Papal Bull, it was consequently void even if confirmed by the king’s patent, and hence that the priory had no privilege at all except the common one of forty days. The judges and all the canonists were quite clear that the Pope’s right to make 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.71

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, 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.72

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.”73

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.”74

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.”75

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.”76

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.).77

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 to determine 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 work78 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.79

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.80 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 (i. e. 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 Christian princes are in their own realms over all their subjects, spiritual and temporal.”81

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.”82

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.

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.