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appeals, writs of error, or overruling of precedents; and, HENRY I. with all due regard to the bench, it may be said, the reve- K. of Eng. rend judges are no part of the legislature; their business, as my Lord Bacon observes, is jus dicere, not jus dare. To apply this,-the precedent mentioned by sir Edward Coke, goes upon a mistake, and is neither supported by statute nor common law. Statutes are not so much as pretended; and what is the notion of common law? Is it not general usage; practice beyond memory, and record without contradiction? But the exemptions of religious houses by the crown cannot be applied to this definition; for the papal and uncontested exemptions of Malmsbury, Westminster, and Bury, above mentioned, to say nothing of Battle, are all instances to the contrary. To which we may add, that when the abbey of Glassenbury was exempted from the jurisdiction of the ordinary in the reign of king Edgar, this privilege was granted by the consent of all the English bishops, and afterwards confirmed by the pope's bull, at the king's instance.
5. fol. 15.
To proceed in the place above cited, sir Edward Coke ports, part lays it down for a law, “That all religious or ecclesiastical Malmsb. de houses, whereof the king was founder, are, by the king, ex- Angl. 1. 2. empt from ordinary jurisdiction, and only visitable, and cor- c. 8. rigible by the king's ecclesiastical commission. And for this point he quotes Fitz-Herbert, De Natura Brevium. But Fitz-Herbert in this book mentions a case, which plainly confutes sir Edward Coke's opinion. The case is this: "If any chaplain, or priest, of a Frank chapel of the king's, shall keep a scandalous correspondence with any woman, the bishop may cite him into his courts, and punish him for his misbehaviour. And if such chaplain or priest shall bring a prohibition to stop the process, upon pretence that such exempted chapels are not visitable by the bishop ;" notwithstanding this plea, Fitz-Herbert affirms, the bishop shall have a consultation awarded, to proceed against the priest, and correct him by corporal punishment.
To return to the king's ambassadors: when these English Na. Br. fol. prelates had their audience of the pope, they entreated him de Consulto consider his interest, and not insist upon the rigours of Edit. 1588. his predecessor; that, unless this was done, things would be terribly embroiled. The pope replied, that he would rather
ANSELM, lose his life than comply with such an expedient; and that Abp. Cant. the menaces of a single person should never frighten him from his constancy, or prevail with him so far as to cancel the decrees of the holy fathers. Having given this positive denial, he delivered his letters to the respective agents.
His letter to the king begins with a great deal of smoothness and commendation. "He gives thanks to Almighty God for his accession to the throne, and prays for the prosperity of his reign. He commends him for avoiding the irreligious conduct of the late king his brother, for restoring the Churches to their liberty, and treating the clergy with regard, and that he was confident the king would go on in the same commendable administration, unless his highness should happen to be misled by some sinister advice:" and then proceeds to caution him against the poison and ill consequence of such suggestions: "That his being governed by the measures of some men's politics will certainly draw the divine displeasure upon him, and that then neither the assistance of his great council, the force of his armies, nor the good condition of his exchequer, could afford him any security; that if he maintained the Church in her liberty, and dropped the contest about investitures, he might depend upon the friendship of the see of Rome; but as for this matter, his holiness could by no means yield, having, by the direction of the Holy Ghost, forbidden all kings and laymen, whatsoever, from giving investitures: for it is by no means reasonable that the mother should be made a slave by her son, or have a husband forced upon her."
The pope's letter to Anselm is to this purpose: "He congratulates his being recalled to his see by the general desire of the English nation, and at the instance and invitation of the present king. He gives God thanks for Anselm's fortitude and resolution in supporting his character, and that neither interest nor fear could make him desist from the defence of truth. He desires him therefore to maintain his ground, and persist in his adherence to the cause, and that God would stand by him in the contest; that the late Lateran synod had confirmed that of Urban, his predecessor; that laymen's giving investitures to promotions in the Church was the chief cause of simony, and apt to make the clergy imprudent, and over-obsequious to get themselves
The pope refuses the king inves
The pope's letter to Anselm.
preferred." At the close of the letter the pope confirms the HENRY I. primacy of the see of Canterbury, and exempts Anselm from the jurisdiction of any Roman legate.
K. of Eng.
When the agents and ambassadors were returned, the P. 64. king convened the great men of the kingdom at London, and sent Anselm word, that now he must either comply with the usages of his father's reign, or quit the kingdom. Anselm desired a sight of the pope's letter, adding, withal, that he was ready to submit to the king's pleasure, as far as the regards to conscience and character, and his obligations to the holy see would give him leave. The king sent him word he might produce his own letter, for that which came to himself should not be known at present. Besides, he told him the business of letters was not the point; that which he expected, was an answer from him, whether he would obey his order without any more fencing and excuse.
The king's refusing to produce the pope's letter made people suspect he was not pleased with the contents; which conjecture was right enough, as appeared in a little time after. In the meanwhile, when Anselm's letter from the pope was publickly read, the bishops, who were the king's agents, declared the answer they received of the pope, by The agents word of mouth, amounted to a revocation of what was ex- the report of pressed in the letters. That his holiness, at a private audi- their negoence, gave them an assurance, that, provided the king managed to satisfaction in other points, he would indulge his highness the liberty of investitures, and not excommunicate him for giving bishops or abbots the pastoral staff; that the reason why this favour was not expressed in the bull, was to prevent its coming to the notice of other princes, who would be apt to insist upon the same privilege. On the other side, Anselm's agents protested, the pope gave no orders by word of mouth in contradiction to his own letters. To this the king's ambassadors replied, that this matter was secretly concerted, and that the others were not present at the grant of the dispensation. The agents thus disagreeing with one another occasioned a division among the great men: some of them maintained the monks' testimony ought to be received, and that the pope's hand and seal was not to be questioned; others were of opinion, that the asseveration
ANSELM, of three bishops ought to be believed before a scroll of Abp. Cant. sheepskin blacked over with ink, with a piece of lead at the end of it. And as for the monks, there was little credit to be given to their evidence upon the comparison; for when those recluses renounced the world, they seemed to renounce their understanding in some measure, and part with their capacity for secular business. To this, Baldwin and his party replied, that this was no secular business; that the Gospel was engrossed in parchment, and written upon sheepskin, and yet they hoped it would not be urged to the disadvantage of the canon.
Eadmer, 1. 3. p. 65.
As for Anselm, this counter-evidence put him something to a stand: he thought it very undesirable on the one side, to act as if he questioned the pope's letters; and, on the other hand, to slight the solemn affirmation of three prelates, would give great occasion of disgust; he thought it, therefore, most advisable to suspend his assent till farther information.
The dispute The king, being thus fortified by the report of his amrespited till the pope is bassadors, insisted more earnestly upon Anselm's homage, farther con- and that the archbishop should give his highness a promise to consecrate those promoted by him. And here most of the bishops and barons concurred with the king's demand. Anselm replied, that in case the agents had been unanimous in their report, he might probably have done what was required; but now he thought it necessary not to precipitate matters till the pope was farther consulted. And when the king's ambassadors offered to appeal to the pope for the truth of what they delivered, Anselm told them, that he would avoid singularity and giving dissatisfaction as much as was possible, that therefore he would go the utmost lengths of conscience in his compliance; and that, since he understood the great men desired it, he should not refuse to communicate with those that received investitures from the crown before the pope's mind was farther known; but then he would not be obliged to consecrate any person so promoted, or so much as to consent to his consecration. And thus upon these terms both parties agreed, and the controEadmer, ib. versy slept for the present.
The king, being somewhat at liberty, gave the pastoral
staff immediately to two court clergymen; Roger, his chan- HENRY I. cellor, was preferred to the see of Salisbury, and another K. of Eng. Roger, his larderer, to that of Hereford.
The next year there was a national synod held under A. D. 1102. Anselm at St. Peter's, Westminster. It was summoned council at with the king's consent; and, that the constitutions might London. be the more unanimously received, Anselm desired the king that the temporal nobility might be present, which was granted accordingly. Not that the laity were to vote in this ecclesiastical meeting, but only to have the satisfaction of being witnesses of their proceedings.
I. The first thing done in this council, was to declare against simony. And here several abbots were deprived upon this score. To go on to the rest of the canons, which are remarkable.
II. Archdeaconries were not to be let out to farm.
III. Archdeacons were to be deacons.
IV. No archdeacon, priest, deacon, or canon, was allowed to marry, or to live with his wife already married. This liberty, as Huntington observes, was not denied the English priests till this synod. People, as the historian goes on, were divided in their opinion about this canon; some thought it a most angelical provision, but others looked upon it as a dangerous expedient: that by straining the matter thus high, and reaching at a perfection out of their power, was more likely to make way for debauchery, and prove scandalous to the last degree.
V. To proceed: a married priest was to be thrown out fol. 217. of the privilege of his order, not allowed to say mass, and if he presumed to officiate, the people were not to hear him.
VI. Sons of priests were not to succeed, by way of inheritance, to their father's churches.
VII. No clergymen were to be proctors or attorneys, or sit as judges in causes of life and death.
VIII. That monks and clergymen who had discarded their order, should either return or be excommunicated.
IX. That clergymen should have open crowns, that the tonsure might be the better apparent.
X. That tithes should be given to none but churches.