such like. I doubt if it is the correct reading.* As far, however, as the reviewer is concerned, this is immaterial, because, whether it be cautum or some other word, there is a limitation expressed fatal to his hypothesis. The reviewer, having thus tampered with every important authority he has hitherto adduced, comes at last to one which it is not quite so easy to distort-viz., that of Archbishop Gray in 1250, which therefore, while he is constrained to admit as evidence of the liability of the parishioners to church-repair, he represents as introducing a new system, though its phraseology (which, as usual, he does not give) is a clear evidence of the contrary. After alluding in general terms to the provisions of this canon, he adds, "The example was contagious, and before the end of the century the provisions of Walter de Gray were extended to every part of the kingdom. In 1280, Archbishop Peckham introduced these innovations, in nearly the same words, into the province of Canterbury." (pp. 313, 314.) Now, if he had had but the "candour" to give a fair translation of this canon of Archbishop Gray, his readers would at once have seen, that, so far from its provisions being innovations, it was merely declaratory of the burthens which then belonged to the rectors and their parishioners respectively in the matter of church-repair and ornaments, and was made on account of some disputes between them, " concerning divers ornaments and things belonging to the church." The following is Johnson's translation of it : "Whereas great controversy often ariseth between the rectors or vicars of churches within the province of York and their parishioners, concerning divers ornaments and things belonging to the church, [the disputes were not, be it observed, on the general question of church-repair, but as to divers ornaments']; therefore, that it may be known what the rectors or vicars are concerned to uphold and repair, and what things and ornaments of the church are to be repaired by the parishioners, we ordain that all our parishioners be so well informed in the following particulars, as that they do all in every respect observe them; that is, the chalice. [here follows a long list of the articles required] . . . the repair of the body of the church and building of it ... AND EVERYTHING WHICH IS KNOWN TO BELONG TO THE PARISHIONERS. All other things shall belong to the rectors or vicars according to their several ordinations (or endowments)—that is, the principal chancel with the reparations thereof, as to the walls, and roofs, and glass windows, with desks, and benches, and other decent ornaments."† Is there anything here like innovation, or the introduction of a new system? Does not the phraseology of the canon shew that the system here recognised was anything but new? The MS. from which Wilkins copied these canons is in the library of University College, Oxford, and has been kindly inspected for me by a Fellow of that College, upon whose communications the following remarks are founded. The MS. is of course written with the usual contractions. The initial letter of the word in question has over it the contraction commonly used for u s-i. e., an o with a tail to it; but it is not easy to determine whether that initial letter is t or i ort. After it follows tum. But in another part of the MS. the word justam occurs, written precisely like this; so much so that "it would be difficult to draw a distinction" between them. The evidence of the MS., therefore, is strongly in favour of justum, the initial letter being, in that case, i. How it can be cautum I do not see. If it be justum, I suppose it means "justly due," referring to the ornaments due either by canon, endowment, custom, or otherwise. ↑ Johnson's Collection of Eccl. Laws, a. 1250. Wilk. i. 698. To say, also, that "in 1280, Archbishop Peckham introduced these innovations into the province of Canterbury," is still more unwarrantable, for we have the most incontrovertible testimony that the custom existed long before that time in the province of Canterbury. By a complaint made to the king by Archbishop Boniface and his suffragans in 1257 of the interference of the civil with the ecclesiastical courts, we find that parishioners who refused to pay the wax-scot, or the money required of them for roofing the church or inclosing the churchyard, were cited in the ecclesiastical courts as offenders. Again, in the 17th canon of the national council under Othobon in 1268, the liability of the rector to church-repair is limited to the chancel.+ Further, the testimony of King Edward's Book of Laws (published by Britton, and which cannot be of a later date than 1275, because in that year Britton died) to the power and privilege of the ecclesiastical courts in questions of "the repairs of churchyards and defects in churches," shews the liability of the laity at that time to that burthen, for otherwise there could have been no doubt as to their power; and the passage was quoted in proof of this by the Court of Queen's Bench in Jeffery's case, 31 and 32 Eliz. (Co. Rep. 5, 67.) The very words, indeed, of Peckham's canon shew that it introduced nothing new. The reviewer, having thus brought his readers to what he seems to consider a sort of epoch in the history of church-rates, gives us a paragraph containing a little review of these wicked doings of the clergy during the thirteenth century, by which they contrived, step by step, to introduce all these innovations. "In prosecuting these innovations [he says] the clergy are seen advancing gradually, with hesitating and uncertain steps, as if fearful to provoke resistance to their encroachments." Cunning rogues, truly, these clergy must have been; but then, happily for the present age, the reviewer has found them out, and convicted them upon the testimony of-not indeed their own canons, but what will pass equally well with many of his readers-his interpretation of their canons. "In 1246, we meet with the first ordinance that enjoins parishioners to fence and inclose their churchyards." Does this afford any proof that the clergy were bound to do it before? Does the first canon that can be found enjoining the observance of the Lord's day, in the English Church, shew that that day had not been observed here before that canon was passed? "But the same statute declares that . if rectors leave their churches unfurnished, the deficiencies are to be supplied from their effects.' The statute declares no such thing, for it expressly limits the defi O Wilk. i. 728. Hist. of Church Rates, p. 47. + See Const. Othob. "Improbam." with John Acton's Comment upon it. Hist. of Church Rates, pp. 40, 41. See Hist. of Church Rates, pp. 46, 47. ciencies to be supplied from the effects of the rector to those that are "secundum quod cautum (or justum) fuerit." "In 1255, the rectors and vicars in the diocese of Durham are directed to attend to the fabric and ornaments of their churches, quantum ad eos pertinet; leaving it undetermined what belonged to them, and what belonged to others." Undetermined? Was there any need, after the clear and full canon of Walter de Gray, archbishop of the province, in 1250, to give any further direction in 1255 than quantum ad eos pertinet, when every item chargeable upon the parishioners and rectors respectively had been fixed and determined by authority? "In 1256, the regulations of Walter de Gray were partially adopted in the diocese of Salisbury. The parishioners were charged with the nave," &c. What authority has he for stating that these canons were taken from that of Walter de Gray? Nay, the contrary appears from the very document from which he has quoted them, the title of which is, "These are THE CUSTOMS used and observed in the diocese of Salisbury."* . "To former lists of linen clothes, vestments, books. . Peter de Quivil MADE CONSIDERABLE ADDITIONS, leaving little or nothing besides the repair of the chancel and parsonage to be done by the rector." Now let poor Bishop de Quivil speak for himself. In the very passage to which the reviewer here refers, the bishop says,-" Onera omnium ornamentorum prædictorum parochiani SICUT HACTENUS SIC DE CÆTERO supportabunt;"-" the burthen of all the aforesaid ornaments, the parishioners, as they have HITHERTO had, so shall have HEREAFTER to support." Such are the careless misrepresentations upon which the conclusions of the reviewer are founded. Hardly one authority is fairly quoted by him, hardly one passage even translated, but almost all given by means of a loose and partial paraphrase suited to his own views; with, in almost all cases, a mere reference in a note below to books which he well knew not one in five hundred of his readers would or could consult. After presenting us with this imaginary picture of a state of things which had no existence, he proceeds to draw further upon his imagination for "the causes that instigated the clergy to this course of systematic encroachment," in which interesting field of inquiry we will leave him at full liberty to expatiate. He then proceeds to found another argument in favour of his conclusions upon the prohibitions issued to the ecclesiastical courts during the thirteenth century, previous to the act of Circumspecte agatis, in causes relating to church-repair. The reader is probably aware, that from the period of the first separation of the ecclesiastical from the civil courts in the time of William I., there was for many centuries a constant jealousy between them one of the other, each striving to stretch its own jurisdiction to the furthest limit. The consequence was, that by the thirteenth century the ecclesiastical courts, being, of * Wilk. i. 714. Hist. of Church Rates, p. 51. course, the weaker of the two, felt strongly the effects of the encroachments made upon their jurisdiction by the civil courts, which (as appears from the complaints of the bishops at that period) had attempted to confine the jurisdiction of the ecclesiastical courts to causes relating to wills and matrimony alone, and to bring all other pleas (not excepting even those relating to tithes) under their own sole cognizance. Of course, therefore, when a cause relating to church repair was brought into the spiritual court, the party cited could at once, if he pleased, obtain a prohibition from the civil courts, on the ground that the spiritual court had no jurisdiction in the matter; and when the cause was thus brought into a civil court, it was prosecuted no further; the reason for which we shall notice presently. On this part of the subject, then, the reviewer makes the following remarks: "The effect of these prohibitions was to stop the proceedings that had been instituted in the ecclesiastical courts; and the object of the laity in applying for them was doubtless to save their money without exposing themselves to the spiritual censures which would otherwise have followed their disobedience The attorney general has accordingly described them as interpositions of the courts of common law 'for the protection of refractory parishioners.' Dr. Nicholl finds fault with this expression, and maintains they were issued by the courts of law, not for the protection of refractory parishioners, but for the assertion and vindication of their own jurisdiction.' What were the motives of the judges for their interference is a question as unimportant as it is incapable of solution."-(p. 319.) .... In Now, under the reviewer's favour, this question is neither "unimportant," nor "incapable of solution." "Our will is," says King Edward's Book of Laws, (as published by Britton between 1270 and 1275,) that holy church retain her privileges unblemished; viz., that she have cognizance of judging . . . . . of the repairs of churchyards and defects in churches," (ch. iv. § 9, Kelham's transl.) The question, then, was not as to the liability of the laity for the supply of these repairs and defects, but as to who should have "the cognizance of judging" in such matters. Nay, the very document which the reviewer has quoted in the same page (giving us as usual one of his slippery paraphrases instead of a fair translation)-viz., the complaint of the bishops to the king in 1285, shews what was the real state of the case. this complaint,-after stating that "the church from time immemorial had been allowed the cognizance of all spiritual causes and many civil, until a royal prohibition was issued to the judge or prelate, yet that now the king's officers prohibit the ordinaries by a general edict from taking cognizance of any causes affecting laymen excepting only matrimonial and testamentary, and so the church is despoiled of her antient liberty" they mention as the eighth grievance arising therefrom that, "From this new edict it comes to pass, that when ordinaries wish to compel the rich and powerful to contribute to the fabric of the church, or to the support of other accustomed parochial burthens, the evil-disposed and powerful refuse to obey the church in such things, BECAUSE such things do not belong to a will or matrimony."* The prohibitions, Wilk. ii. 117, 118. Hist. of Church Rates, p. 45. therefore, were issued by the civil courts "for the assertion and vindication of their own jurisdiction" in the matter; and to say that they interfered for "the protection of refractory parishioners," implying that the rate required by the ecclesiastical courts was not sanctioned by the law of the land, is a mere gratuitous assertion, made without the slightest foundation for it. These prohibitions were granted also in tithe-causes. Were they granted for the protection of parishioners who would not pay their tithes ? ...... Law But, proceeds the reviewer, "the real point for consideration is, what was the effect of the prohibitions they granted? If the courts of common law, after prohibiting the spiritual courts from going on, had claimed for themselves, and exercised a right of compelling refractory parishioners to repair their churches and churchyards, there must have remained some evidence of the fact, some traces of the law. Cases, we presume, there are none, as Dr. Nicholl has not referred to any. authorities there are none. In Bracton we find nothing on the subject," &c.; from which he infers that there is "neither precedent nor authority for the supposition, that after a prohibition, which stopped proceedings in the spiritual court, the defendant was still liable to prosecution in the courts of common law," and that the payments demanded could not be obtained at common law. (pp. 319, 320.) Now all this is really marvellous. The reviewer is quite aware that these prohibitions arose from disputes respecting "the limits of the temporal and spiritual jurisdiction," for he tells us so in the same page; and yet, with astonishing simplicity, he assures us that they must be taken as proofs that the courts of common law could do nothing in the matter; for he has searched everywhere, and cannot find any cases in which, after such prohibitions, the clergy of the thirteenth century carried on their suit in the courts of common law. Had he really the simplicity to look for them? Did he really suppose that the clergy, in the midst of their protestations against the interference of the courts of common law in such cases, would quietly follow up their suits in those very courts whose jurisdiction they disowned in the matter? To say nothing of their extreme reluctance at that time to have recourse to those courts under any circumstances, the supposition of their resorting to them under such circumstances as these is absurd. Had they even been willing to do so, they would have subjected themselves at once, by that act, to the censures of their own courts, for the permission given to them to prosecute a layman before a lay judge was given with the limitation, "nisi de re spirituali fuerit."+ Of this reluctance on the part of the clergy to prosecute such matters before a lay judge the laity availed themselves, and by obtaining a prohibition, which took the matter into the court of a lay judge, secured themselves at once from all further trouble in the matter, by having brought it into what the clergy considered a "forum vetitum." The consequence was an appeal, and that a successful appeal, to the king, to prevent such interference on the part of the civil courts. This reluctance of the clergy to follow an offender into the common law courts, even in a question of property, is noticed in a decretal epistle of Pope Alexander III., inserted in the common canon law, which says Wilk. i. 728. Hist. of Church Rates, pp. 47, 48. + Synod. Exon. c. 30. VOL. XIII.-May, 1838. Wilk. ii. 148. 3 R |