336
ConstiMimal History.
[chap.
instances of convocation, or by the pope and his legates, to bind the laity
by*the dergy by legislative enactment, must he looked for in those regions of
foɪ the laity. eccjegjag|.jca| jurisprudence where the state had placed in the
hands of the church, or the church had acquired by prescription,
an ill-defined amount of judicial authority ; or in other words,
in those departments of judicature in which, according to the
charter of William the Conqueror, the ministers of the common
law undertook to compel the execution of ecclesiastical sen-
Inmatrimo- tences. The most important of these departments during the
niai testa- t i-∣.∙τ∙ ɪ . . ..
mentary and early middle ages were the jurisdiction by which matrimonial
tiens. suits were regulated, by which testamentary causes were
decided, and by which the payment of tithes and ecclesiastical
fees was enforced ; from the beginning of the fifteenth century
the jurisdiction in cases of heresy was another field for co-
operation between the two powers, and there were besides such
cases of slander, usury, and other minor offences, as could be
tried in the spiritual courts. In each of these points, the
baronage first, and the parliament afterwards, showed some
jealousy of ecclesiastical legislation; the barons at the council
Illustra- of Merton, in 1236, rejected the proposition, to which the
prelates had agreed, that illegitimate children are made
legitimate by the subsequent marriage of their parents ; the
excessive charges made on the probate of wills are a frequent
subject of complaint in parliament ; and the constitution framed
by archbishop Stratford in 1343 against those who refused to
pay tithe of underwood called forth a petition from the com-
mons, in 1344, that no petition made by the clergy to the
injury of the laity might be granted without examination
before the king and the lords1. Almost all the examples
Judicial however, in which the clergy went beyond their recognised
morecoιp- rights in regulating the conduct of the laity, come under the
fegfaiati™ head of judicial rather than of legislative action ; in that de-
assnnlPtlon- partment the common law had its own safeguards, and could
ignore and quash proceedings founded on any canonical enact-
ment that ran counter to it. Petitions in parliament against
the encroachments of spiritual courts were frequent, any direct
1 See above, vol. ii. p. 415, and § 293.
XIX.]
Church Legislation.
337
conflict between the two legislatures is extremely rare. In the The posi-
normal state of English politics the prelates, who were the real bishops pre-
legislators in convocation and also formed the majority in the difficulty17
house of lords, acted in close alliance with the crown, and, cfcs⅛st⅛ai
under any circumstances, would be strong enough to prevent j⅛ution.
any awkward collision ; if their class-sympathies were with the
clergy, their great temporal estates and offices gave them many
points of interest in common with the laity. Thus, although,
as the judicial history shows, the lines between spiritual and
temporal judicature were very indistinctly drawn, England was
spared during the greatest part of the middle ages any war of
theories on the relations of the church to the state. Even
when the great question of heresy arose, few disputes of im-
portance found a hearing in parliament ; and, if contemporary
history testifies to some amount of popular disaffection caused
by ecclesiastical laws, the records of parliament show that such
disaffection found little sympathy in the great council of the
nation. All attempts of the popes or general councils to legis-
late in matters affecting the laity were limited in their applica-
tion, on the one hand by the common law, and on the other
hand by the statute of praemunire. The subject of heresy may
be reserved for a separate section.
391. The enactments made by the king in parliament to Legisiatiou
regulate, restrict, or promote the action of the spiritualty are ment touch-
very numerous, as might indeed be expected from the general ci<⅛j∖
teneur of a history in which the clerical estate played so great
a part. Under this head it would be possible to range nearly
everything that has here been classified under all the other
departments of administration. Most points of importance,
however, occur in the history of taxation and judicature, and
these will be noticed separately ; as so much has been said on
the topic in the earlier chapters of this work, a very brief
recapitulation will be sufficient. The claim of William the Tho king's
Conqueror and his sons to determine, by their recognition, to re∞gnfee
which of the competitors for the papacy the obedience of the ^p‰wful
English Church was due may stand first in the series of these
acts. In 1378 the English parliament following the same idea
vol. ш. z