Right of the community to increase the prerogative. tainly warranted in attributing these effects to this tranflation of fpiritual power from the pope to the king; but no individual is warranted to revile or traduce the community, much lefs to rife up against it, because at any particular time, they thought proper to increase the proportion of prerogative or power, which the conftitution had formerly annexed to the executive branch of the legiflature. Bleffed is the nation at this day in a monarch, to whom this extenfion of prerogative is but an increase of his people's happinefs. The conflitution formerly did, and still does, admit of this general divifion of the people into clergy and laity; and the ecclefiaftical or fpiritual rights and liberties of the former feem anciently to have been more generally understood and admitted, than the civil or temporal rights and liberties of the latter. Thus, in the firft legislative act of the community, that has been handed down to us the church in writing, which is called Magna Charta, the great charter of our liberties, and which was paffed in the 19th year of Hen. III. about the year of our Lord 1225, we find the first care and fecurity is had of the church, viz. that the church of England fhall be free, and fhall have all her whole rights and liberties inviclable. Had thefe been either dubious or uncertain, The liberties of granted by the nation. In the days of fpiritual fupre macy of the pope acknow ledged by the nation. uncertain, they would undoubtedly have been specified 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 legislature would not have prefumed to fanction or confirm them to the church. That thefe rights and liberties constituted the civil eftablishment 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 discipline, 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 of King Henry II. and muft confequently have been converfant with the spirit and practice practice of the conftitution and laws of his own times, confirms this general divifion 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 instance 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, set up the authority of Sir Edward Coke against that of Bracton. Sir Edward Coke pretends not to veft in the queen any other fpiritual fupremacy, than what the ancient kings of England poffeffed: now Bracton exprefsly says, that in his own Apud homines verò eft diftinétio 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 na tion. had that fupe and preceding times, the pope As no law can be enacted in a ftate, with bu by the adop- out the free affent of the people, which neceffarily attends the exercise of the legislative power, much lefs can any foreign law enacted by another state 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 eanon 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 anfwer 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 usage 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 ufed the deprecatory ftile of fupplication to enforce a duty of obligation. One of the cannon law cannot, propart prio 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 to Every part of the canon law, proprio vigore, equally binding. |