Название: Constitutional History of England, Henry VII to George II (Vol. 1-3)
Автор: Hallam Henry
Издательство: Bookwire
Жанр: Документальная литература
isbn: 4064066387778
isbn:
Doctrine of king's absolute power inculcated by clergy.—The Commons had reason for their apprehensions. This doctrine of the king's absolute power beyond the law had become current with all who sought his favour, and especially with the high church party. The convocation had in 1606 drawn up a set of canons, denouncing as erroneous a number of tenets hostile in their opinion to royal government. These canons, though never authentically published till a later age, could not have been secret. They consist of a series of propositions or paragraphs, to each of which an anathema of the opposite error is attached; deducing the origin of government from the patriarchal regimen of families, to the exclusion of any popular choice. In those golden days the functions both of king and priest were, as they term it, "the prerogatives of birthright;" till the wickedness of mankind brought in usurpation, and so confused the pure stream of the fountain with its muddy runnels, that we must now look to prescription for that right which we cannot assign to primogeniture. Passive obedience in all cases without exception to the established monarch is inculcated.530
It is not impossible that a man might adopt this theory of the original of government, unsatisfactory as it must appear on reflection, without deeming it incompatible with our mixed and limited monarchy. But its tendency was evidently in a contrary direction. The king's power was of God, that of the parliament only of man, obtained perhaps by rebellion; but out of rebellion what right could spring? Or were it even by voluntary concession, could a king alienate a divine gift, and infringe the order of Providence? Could his grants, if not in themselves null, avail against his posterity, heirs like himself under the great feoffment of creation? These consequences were at least plausible; and some would be found to draw them. And indeed if they were never explicitly laid down, the mere difference of respect with which mankind could not but contemplate a divine and human, a primitive or paramount, and a derivative authority, would operate as a prodigious advantage in favour of the Crown.
The real aim of the clergy in thus enormously enhancing the pretensions of the Crown was to gain its sanction and support for their own. Schemes of ecclesiastical jurisdiction, hardly less extensive than had warmed the imagination of Becket, now floated before the eyes of his successor Bancroft. He had fallen indeed upon evil days, and perfect independence on the temporal magistrate could no longer be attempted; but he acted upon the refined policy of making the royal supremacy over the church, which he was obliged to acknowledge, and professed to exaggerate, the very instrument of its independence upon the law. The favourite object of the bishops in this age was to render their ecclesiastical jurisdiction, no part of which had been curtailed in our hasty reformation, as unrestrained as possible by the courts of law. These had been wont, down from the reign of Henry II., to grant writs of prohibition, whenever the spiritual courts transgressed their proper limits; to the great benefit of the subject, who would otherwise have lost his birthright of the common law, and been exposed to the defective, not to say iniquitous and corrupt, procedure of the ecclesiastical tribunals. But the civilians, supported by the prelates, loudly complained of these prohibitions, which seem to have been much more frequent in the latter years of Elizabeth and the reign of James, than in any other period. Bancroft accordingly presented to the star-chamber, in 1605, a series of petitions in the name of the clergy, which Lord Coke has denominated Articuli Cleri, by analogy to some similar representations of that order under Edward II.531 In these it was complained that the courts of law interfered by continual prohibitions with a jurisdiction as established and as much derived from the king as their own, either in cases which were clearly within that jurisdiction's limits, or on the slightest suggestion of some matter belonging to the temporal court. It was hinted that the whole course of granting prohibitions was an encroachment of the king's bench and common pleas, and that they could regularly issue only out of chancery. To each of these articles of complaint, extending to twenty-five, the judges made separate answers, in a rough, and, some might say, a rude style, but pointed and much to the purpose; vindicating in every instance their right to take cognisance of every collateral matter springing out of an ecclesiastical suit, and repelling the attack upon their power to issue prohibitions, as a strange presumption. Nothing was done, nor, thanks to the firmness of the judges, could be done, by the council in this respect. For the clergy had begun by advancing that the king's authority was sufficient to reform what was amiss in any of his own courts, all jurisdiction spiritual and temporal being annexed to his Crown. But it was positively and repeatedly denied in reply, that anything less than an act of parliament could alter the course of justice established by law. This effectually silenced the archbishop, who knew how little he had to hope from the Commons. By the pretensions made for the church in this affair, he exasperated СКАЧАТЬ