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when a clerk is charged with being guilty of felony, and is de- EDmanded by the ordinary, he shall be delivered to him accord- K. of Eng. ing to the privilege of holy Church, on such peril, as belongs to The priviit after the custom aforetimes used. And the king admonishes leges of clerkship the prelates, and enjoins them upon the faith that they owe lessened. him, and for the common profit and peace of the realm, that they which be indicted of such offences by solemn inquest of lawful men in the king's court, in no manner shall be delivered without due purgation, so that the king shall not need to provide any other remedy therein.
3 E. I. c. 2.
From this statute, sir Edward Coke observes, that before this act, if any clerk had been arrested for the death of a man, or any other felony, and the ordinary did demand him before the secular judge, he was to be delivered without any inquisition to be made of the crime.
Coke's Institut. part
But after this statute, when any clerk was indicted of 1. 3. fol. 123 any felony, and refused to answer to the felony upon the score of his clerkship, and was demanded by his ordinary: in this case, before he was delivered to the ordinary, an inquisition was taken whether he were guilty of the fact or not: and if he were found guilty, his goods and chattels were forfeited, and his lands seized into the hands of the king. But then, as Fleta reports, and which sir Edward Coke 2. fol. 164. does but barely hint; when the clerk who was delivered to the ordinary, had stood the test of the spiritual court, and cleared himself by the customary forms of purgation; the king, then, at the information of the diocesan, was bound to restore him his goods, chattels, and lands. And thus this Fleta, 1. 1. statute leaves the last judgment of the offence to the ordinary which privilege continued with the spiritual courts till the reign of queen Elizabeth: when it was enacted, that no man, allowed his clergy, should be committed to his ordinary.
18 E. I. c. 7.
This year, John Britton, bishop of Hereford, departed this life. He was an eminent common lawyer, and wrote a book de Juribus Anglicanis. He was succeeded by Thomas de Cantelupe.
nast. ad An.
About Michaelmas, this year, according to the printed 1275. statutes, the statute of bigamy was passed. It sets forth, that men twice married, called bigami, were excluded from A. D. 1276. all clerk's privilege, by a constitution of the pope's, made at Bigamis.
ROBERT, the council of Lyons: whereupon, certain prelates (when Abp. Cant such persons have been attainted for felons) have prayed to have them delivered as clerks, which were made bigami before the same constitution. It is agreed and declared before the king and his council, that the same constitution shall be understood in this wise, that, whether they were bigami before the same constitution or after, they shall not, from henceforth, be delivered to the prelates, but justice shall be executed upon them as upon other lay people.
Thus we see, this parliament passed a canon of the council of Lyons into a law. Though, after all, they overruled the plea of the spiritual courts, and made themselves judges of the meaning of the constitution.
But this law, to deprive men that were bigami of the privilege of their clergy, was complained of in parliament, in 51 E. III.; and by king E. VI., wholly abrogated and taken away.
Coke's Instit. p. 2. fol. 274. 1 E. VI. c. 12.
See Records, num. 40.
tom. 2. p. 79.
This Llewellyn, continuing in his rebellion, was not long after excommunicated by the archbishop of Canterbury and other prelates. The king wrote to the archbishop to this purpose; and adds, in the close of the letter, that he hoped the spiritual sword might give a considerable assistance to that of the civil magistrate; and that the censures of the Church might make a serviceable impression, and prove effectual towards the suppressing the rebellion.
Pits de Il
Archbishop Kilwarby, upon his promotion to the cardinalate of Oporto, resigned the see of Canterbury, and went to Rome. To say something of him at parting: he was an Godwin in Archiepisc. Englishman by birth, studied in Oxford and Paris, and afCantuar. terwards entered into the order of the Minorites. In the first lustr. Angl. year of his consecration, he made some regulations for the Script. p. Court of Arches, and digested them into five articles. Not 357. long after, he made a provincial visitation, took the universities in his way, and distinguished himself very much by his disputations there. Upon his return, he founded a monastery for the Minorites at London, and another for the
The next year, Llewellyn, prince of Wales, revolted, and harassed the marches. To put a stop to these depredations, the king levied an army, and sent his writ to the bishops to make good the services of their tenure, and send their quota of men into the field.
Id. p. 188. Archbishop Kilwarby resigns his
Dominicans at Salisbury. To conclude with him: he was a prelate of eminent learning, and wrote a great many tracts. K. of Eng. Upon the vacancy, the monks of Canterbury chose Robert Burnell, bishop of Bath, who was in Gascony upon the king's business. Though this election was unanimously carried, the pope, by the plenitude of his power, thought fit to set it aside, and gave the see of Canterbury to John de Pecham, a Franciscan of eminent learning. He was consecrated at Rome, on Mid Lent Sunday, and came into Eng- Wikes, land not long after.
Chronic. p. 107, 108.
Soon after his arrival, he held a provincial synod at A. D. 1279. Reading. Here the canons of the general council of Lyons 4 synod at Reading. were renewed with reference to pluralities; all rectors of 1a. Spel. parishes being confined to one living with cure of souls; 2. p. 320. and all persons that had any Church preferment were obliged to take priests' orders within a year. The rest of the constitutions are mostly repetitions of former synods. However, some part of the provisions bearing hard upon the prerogative, and reaching too far into the civil state, the archbishop was obliged to retract them. The revocation recorded in the close rolls in the Tower runs in the form following:
"Memorandum quod venerabilis pater J. Cantuar, archiepiscopus venit coram rege et concilio suo in parliamento regis in festo sancti Michaelis, anno regni regis septimo, apud Westm. et confitebatur et concessit quoddam, de statutis, provisionibus, et declarationibus eorundem, quæ per ipsum promulgatæ fuerunt apud Rading. Mense Augusti anno eodem, inter quasdam sententias excommunicationis quas idem archiepiscopus ibidem promulgavit; primo, deleatur et Concil. Rading. pro non pronunciata habeatur illa clausula in prima sententia can. 1. excommunicationis, quæ facit mentionem, de impetrantibus literas regias ad impediendum processum in causis quæ per sacros canones ad forum ecclesiasticum pertinere noscuntur.
"Secundo. Quod non excommunicentur ministri regis, Id. can. 7. licet ipsi non pareant mandato regis, in non capiendo excommunicatos.
"Tertio. De illis qui invadunt maneria clericorum, ut ibi Id. can. 9. sufficiat pœna per regem posita.
"Quarto. Quod non interdicat vendere victualia Ebora
censi archiepiscopo, vel alii venienti ad regem.
"Quinto. Quod tollatur Magna Charta de foribus eccleAbp. Cant. siarum; confitetur etiam et concessit; quod nec regi, nec Id. can. 11. heredibus suis, nec regno suo Angliæ, ratione aliorum articulorum in consilio Rading, contentorum, nullum prejudiClaus. 7. E. cium generetur in futurum."
1. M. Dor
Prinn's Records, vol. 3. fol. 236.
The statute of mortmain.
By this record, Mr. Prinn pretends that the bishops could neither summon any provincial council, or make any canons or constitutions to bind the king and subject without the king's special license and the assent of parliament.
To this it may be answered, first, that if by binding the king and kingdom he means the binding of property, stopping the course of the common law, or laying restraints upon the civil jurisdiction, it is granted that the Church has no authority from our Saviour to overrule these matters: and therefore, since the archbishop and his suffragans had gone too far in the council of Reading, and exceeded their commission by interposing in cases of property; considering this, I say, the archbishop's renouncing this stretch of jurisdiction was no more than his duty. Now all the articles retracted in this record are wholly of this kind, as is manifestly evident; but secondly, if Prinn's assertion goes any farther, if he affirms, as he seems to do, that the bishops had no authority to meet in synods, or make any canons in matters purely spiritual, without the consent of the state, nothing can be more repugnant to the practice of the ancient Church, and of that part of it in England, than such an affirmation. That the case stands thus, I have made good from several proofs already, both in instance and argument.
This year, or as some historians place it, the next, the statute of mortmain was passed. The reasons for making this law will best appear by the recital of the statute, which runs thus:
Whereas, of late, it was provided that religious men should not enter into the fees of any, without the license and will of the chief lords of whom such fees be holden immediately and, notwithstanding, such religious men have entered as well into their own fees, as into the fees of other men, appropriating and buying them, and sometimes receiving them of the gift of others, whereby the services that are due of such fees, and which at the beginning were provided for defence of the realm, are wrongfully withdrawn,
take the be.
and the chief lords do lease their escheats of the same. We, EDtherefore, to the profit of our realm, intending to provide K. of Eng. convenient remedy, by the advice of our prelates, earls, barons, and other our subjects being of our council, have provided, made, and ordained, that no person, religious or other, whatsoever he be, that will buy or sell any lands or tenements; or under the colour of gift or lease; or that will receive by reason of any other title, whatsoever it be, lands or tenements; or by any other craft or engine will presume to appropriate to himself, under pain of forfeiture of the same, whereby such lands or tenements may any wise come into mortmain. We have provided also, that if any person, A. D. 1279. religious or other, do presume, either by craft or force, to No land to offend against this statute, it shall be lawful to us and other in mortmain chief lords of the fee, immediately to enter into the lands so penalty of the foralienated within a year from the time of the alienation, and to feiture hold it in fee, and as inheritance. And if the chief lord im- thereof. mediate be negligent, and will not enter into such fee within Who shall the year, then it shall be lawful to the next chief lord im-nefit of the forfeiture. mediate of the same fee, to enter into the same land within half a year next following, and to hold it as before is said; and so every lord immediate may enter into such land, if the next lord be negligent in entering into the same fee as is aforesaid; and if all the chief lords of such fees, being of full age, within the four seas, and out of prison, be negligent or slack in this behalf, we, immediately after the year accomplished from the time that such purchases, gifts, or appropriations happen to be made, shall take such lands and tenements into our hand, and shall enfeoff other therein by certain services to be done to us for the defence of our realm, saving to the chief lords of the same fees, their wards and escheats, and other services thereunto due and accustomed. And therefore we command you that you cause the aforesaid statute to be read before you, and from henceforth to be kept firmly, and observed. Witness myself, at Westminster, the fourteenth day of November, the seventh year of our reign.
The design of this law, as we may see, was to check the growth of the abbeys, to prevent the excessive wealth of the Church, and keep it from being over-proportioned to that of the state: for when estates were given to the Church, рр
7 Ed. I.