In the days of
Bracton, the

Spiritual fupre

macy of the

uncertain, they would undoubtedly have been fpecified and ascertained in the charter. And if these rights and liberties were not holden and enjoyed by the grant, confent, or recognition of the nation, the legiflature would not have prefumed to sanction or confirm them to the church. That these rights and liberties conftituted the civil establishment of the church, and therefore proceeded wholly from the nation, or the legislative power of the ftate, is evident from the term church of England; for it is notorious, that this term did not import then, as it now does, a feparate religious fociety, differing in doctrine, government, and difcipline, from the Church of Rome; for in all real fpiritual matters it then was one with the church of Rome, in communion with her, and fubordinate to her, as to its fupreme head.. These rights and liberties therefore made no part of her doctrines, but confifted merely in the civil fanctions, with which the English nation thought proper to countenance and fupport that religion, by making the clergy of it a feparate and diftinct body from the laity.

Bracton, who lived in this very reign, but had written his book in the preceding reign. pope acknow- of King Henry II. and muft confequently have been converfant with the fpirit and

ledged by the

nation.

practice

practice of the conftitution and laws of his own times, confirms this general division of the people into clergy and laity, and immediately attributes the fpiritual. fupremacy, to which the nation was then fubject, not to the king, but to the pope. Amongst men there is a difference of perfons; because of men fome are diftinguished and preferred, and have a fuperiority over others. Our lord, the pope for inftance in fpiritual matters, which relate to the priesthood, and under him archbishops, bishops, and other inferior clergy." This authority will alone fuffice to expose the futile attempt of Sir Edward Coke to deduce Queen Elizabeth's title to the fpiritual fupremacy from the old constitution and common laws of the realm; for in a matter of this nature and of this date, nobody will, I believe, fet up the authority of Sir Edward Coke against that of Bracton. Sir Edward Coke pretends not to vest in the queen any other spiritual fupremacy, than what the ancient kings of England poffeffed: now Bracton exprefsly fays, that in his own

Apud homines verò eft diftinctio perfonarum; quia hominum quidam funt præcellentes & prælati, & aliis principantur. Dominus papa videlicet in rebus fpiritualibus, quæ pertinent ad facerdotium, & fub eo archiepifcopi, epifcopi, & alii prælati inferiores. Bracton de Leg, & Confuetud. Ang. 1. i. fol. 5.

and

No foreign law can have force,

tion of the nation.

and preceding times, the pope had that fuperiority, which Sir Edward Coke labours to prove was vested in Queen Elizabeth by the ancient conftitution of the realm.

As no law can be enacted in a state, with-bu by the adop- out the free affent of the people, which necesfarily attends the exercife of the legislative power, much lefs can any foreign law enacted by another ftate or community, acquire any binding or coercive effect without the voluntary adoption of the community, which admits or receives it. As therefore upon this ground, certain canon laws, decretals, and ecclefiaftical ordinances from the court of Rome had, for about one thoufand years, been received and fubmitted to in this country, the moment this confent of the nation was withdrawn, they immediately loft whatever energy, force, or binding effect, they had during that time acquired.

The whole camon law never

This nation.

It is very evident, that our ancestors never was adopted by did give a general unlimited fubmiffion to the whole canon law, as appears from the firm and heroic answer of the barons at Merton, in the reign of Hen. III. A. D. 1235. The question was moved in parliament, "Whether one being born before matri

20 Hen. III. c. 19.

mony

mony may inherit in like manner, as he that is born after matrimony? All the bishops replied, that they would not, nor could not answer to it, because this would be against the common form or ufage of the church; and all the prelates entreated the lords (magnates) that they would confent that all fuch, as were born before matrimony fhould be legitimate, as well as they that were born. after matrimony, as to the fucceffion of inheritance, forafmuch as the church made fuch for legitimate. And all the earls and barons with one voice answered, that they would not change the laws of the realm, which had hitherto been used and approved of." Here we see the bishops entreating the laity to adopt a part of the canon law, which they would certainly not have done, if, without their affent, it could have had any force in this nation; for the clergy have in no age used the deprecatory ftile of fupplication to enforce a duty of obligation.

One part of the cannon, law cannot, proprio vigore, have a more binding quality than

another; they therefore, who may reject a part of it, may reject the whole. I have dwelt on this tranfaction to prove, that whatever force or authority the canon law had acquired in this country, it was folely owing.

Every part of the canon law,

proprio vigore, equally binding,

to the free affent and adoption of it by the representatives of the nation. Had not this been fo univerfally understood at this early period, we never should have seen recorded a petition of the clergy rejected by the laity on a point, which to the glory of the nation is a law at this hour. The bishop of Worcefter attributes this anfwer of the barons (whom, in one breath, he very unaccountably calls both virtuous and licentious) * to their liberty and patriotifm. "They had nothing to object to the proposal itself; but they were afraid for the conftitution." I cannot help allowing fome credit to my ancestors for their judgment and experience, as well as for their love of liberty and the constitution. And if I am to pass any judgment upon the conduct of the legislative body of that day, I cannot do it impartially without commending, on one hand, the constitutional prudence of the clergy in asking the laity to adopt the canon law, and acquiefcing, without reply, in their refufal; and applauding, on the other hand, the heroic firmness of the

*Dr. Hurd's Dial. vol. ii. p. 190. "Yet the answer of the virtuous barons is as follows.". "These barons, as licentious as they were, preferred their liberty to their pleasure."

+ Ibid. p. 191.