into the field became liable towards the end of the twelfth and during the thirteenth century to many exceptions, partial or complete immunity being granted in the course of time.15

4. In the matter of taxation.

Even in the Anglo-Saxon period ecclesiastical possessions were not free from the heavy civil burdens which fell on all landed property.16 But more extensive contributions to the national treasury began under the financial administration of the Normans, who well understood how to turn all the rights of suzerainty into means of extracting money.

The prelates were called on for auxilia and scutagia to the same extent as the other feudatories. These auxilia, or aids, were originally payments to the overlord on certain important occasions, whilst scutages 16a were regarded as a discharge of the obligation to military service deduced from the feudal relation. The old land tax (traced back to the Danegeld) which was raised from time to time was, under William II and afterwards, imposed on the holdings of the church.17 With these methods of taxation was fused in the course of the twelfth and thirteenth centuries a new tax, reckoned by fractions of the income. In the thirteenth century the king's power to impose such burdens arbitrarily was restricted and made dependent on the co-operation of the national assembly. The taxation of the prelates in respect of the incomes from their feuds and the taxation generally of the clergy in respect of their temporal possessions and of their income from temporal

nostrum. An example of the execution of a writ (1336) and the levying of the clergy of the diocese of York against the French and their allies will be found in Northern Registers (Rer. Brit. Ser. No. 61) 421. A similar writ of Henry IV, 27th Jan. 1400, upon occasion of a threatening French invasion, in Rymer, Foedera 3rd Ed. III, pt. IV p. 176. Similar writ of Henry V, 28th May, 1415, to the several bishops on his approaching departure for the French war, in Rymer, Foedera 3rd Ed. IV, pt. II p. 123. Writ per concilium, 6th July, 1418 (during the king's absence in France) to the two archbishops directing them to levy and arm the clergy of their provinces, in Rymer, Foedera 3rd Ed. IV, pt. III p. 57. Cf. from later times the order of the privy council (1588) mentioned in the letter of the archbishop of Canterbury in Wilkins, Concilia IV, 336. [Examples of the putting in the field of armed men by the clergy, not themselves called out, in Rymer, Foedera 4th Ed. I, 607 (20th May, 1282, for a war with Wales), II, 1072 (16th Feb. 1339, to repel the French).]

15 Gneist, Eng. Verfassungsgesch. § 25a, note 1, adduces the following examples: the bishop of Lincoln, who under Henry II had to put 60 knights in the field, was under Edward I reduced to 5; the bishop of Bath from 20 to 2. According to Round, l.c. Reprint pp. 18, 49, up to 1166 the thirty-nine bishops and abbots of more important monasteries had to furnish 784 knights, the secular vassals about 4000.-11 Henry VII (1495) c 8 and 19 Henry VII (1503/4) c 1, acts touching the service in war to be rendered to the king, are stated therein to be not applicable to 'spiritual persons.'

16 According to rule they too had to pay the trinoda necessitas (Brycgbote, Burhbote, Fyrd). Cf. Gneist, Eng. Verfassungsgesch. § 5 p. 63, note a.

16 The first known mention of scutage as a recurring tax is in a document of Henry I, 1127. Round, l.c. Reprint p. 33.

17 Compare § 4, note 21.

sources was thenceforth subject to the vote of the national assembly, at which the prelates and, for a time, the other clergy attended. The taxation of income from ecclesiastical sources was, at the end of the thirteenth century, opposed by the clergy. After that their resistance had been overcome by Edward I and after some further struggles under Edward II, the prelates and the lower clergy granted in their convocations state taxes, reckoned by fractions of their income from ecclesiastical sources.18

Besides these main sources of revenue the king had certain smaller means of supply which stand in some sort of relation to the constitution of the church,19 in especial the usufruct of bishoprics and abbacies during vacancy,20 as also dues from the effects of deceased bishops.21 Lastly it is to be mentioned that the king

18 Cf. § 4, near notes 72 ff. and § 54, near notes 57 ff.

19 E.g. a right to the tithes from extra-parochial places; recognized as early as Edward I. For more on this right see Phillimore, Eccles. Law 1487. 20 Cf. § 41.

rex non

21 According to the law of the church (cf. e.g. Gratian, Decretum II caus. XII quaest. V) bishops might not dispose by will of their property in so far as it was acquired from ecclesiastical sources; it reverted to the church.-The kings of England obtained the right of giving their assent to a testamentary disposal by the bishops of their effects. Cf. the charter of Stephen, 1136 (app. II): Si quis episcopus vel abbas vel alia ecclesiastica persona ante mortem suam rationabiliter sua distribuerit vel distribuenda statuerit, firmum manere concedo. Si vero morte praeoccupatus fuerit, pro salute animae ejus ecclesiae consilio eadem fiat distributio. According to Coke, Inst. IV, 338, many reports from the days of Henry III and Edward I show that the kings then exercised the right. Cf. also in Annal. Burton (Rer. Brit. Scr. No. 36; Annales Monastici) I, 254 the petition handed by the English clergy to legate Otho in 1237 that he might deliver it to the king: Item (petunt) ne testamentum episcoporum et aliorum impediatur. Resolution of the council of London, 1257 (Wilkins, Concilia I, 724): Item quod dominus rex non impediat testamenta episcoporum, nec extendat manum ad bladum, quod seminaverint, vel ad alia bona episcoporum defunctorum. Complaint of the clergy at the same council (Wilkins, Concilia I, 726) c 23: dominus permittit executores testamentorum eorundem episcoporum de bonis ipsorum administrare, quousque causa cognita ipsius facinoris, gratiam mereantur super his obtinere. According to Coke, l.C., who finds his oldest instance in the time of Edward II, but thinks that the usage is older (cf. e.g. the documents from the years 1227-33 in Rer. Brit. Ser. No. 21, VII, 230 f.), the king required as an equivalent for his consent certain dues from the estates of dead bishops: 1. the best horse with saddle and bridle; 2. a cloak with a cape; 3. goblet with lid; 4. basin and ewer; 5. golden ring; 6. the bishop's hounds. To obtain these dues, the exchequer issued on the death of the bishop an order to take possession of the effects.-A Spolienrecht (right of the king to all the personalty of a deceased bishop), such as existed in many countries of Europe already in the twelfth century, seems never to have been exercised in England proper. As to the king's rights in case a bishop died intestate cf. § 60, near notes 118 ff. In Scotland (see Robertson, Ecclesiae Scoticanae statuta I, 100, note 1) this Spolienrecht existed even before the middle of the twelfth century. The papal prohibition was recalled by the pope in 1282. Edward I, from his appearance in Scotland as suzerain, exercised this right there. (Cf. the answer of Edward I to the petition of the English clergy, 1279-85 [Rer. Brit. Scr. No. 61 p. 75] c 13: in Scotia episcopi non testantur, sed rex occupat omnia bona sua.) In 1367-71 David II with the consent of parliament renounced the right, as did his successor after him. In connexion herewith were issued corresponding papal bulls. Nevertheless the right was again exercised

22

claimed for himself and his officers free quarters, and rights of purveyance and prisage, and that he burdened spiritual corporations by granting pensions and corodies.23

5. As to rights of appointment.

A

The Norman kings derived from the Anglo-Saxon period an almost unlimited right of appointment in respect to the more important bishoprics and a large number of other high offices. certain number of the abbots were elected, as a consequence of special privileges, by the convent, and apparently the case was the same with some less important bishoprics.24 The investiture by the king with ring and staff was, owing to the opposition led by Anselm, surrendered by Henry I in 1107,25 the king's power of appointment at the latest by John in 1214.26 Even then the necessity of royal assent still survived, and the king retained considerable influence on all elections inasmuch as he had to be approached for leave to elect, and it was usual that in granting the leave he further designated the person acceptable to himself.27

Apart from this influence in filling the highest ecclesiastical offices the king enjoyed the right of investing prelates with the property appertaining to the see. Anselm had struggled for the dissolution of the feudal bond, but in vain.28 At the end of the twelfth century the bishops, it is true, did not do feudal homage after consecration, they only took the oath of fealty; they seem, however, for some time longer to have done homage after election but before consecration.29 At any rate, the prelates remained obliged to dis

and not finally surrendered until 1449-50 by renunciation of the king in parliament. For the continent of Europe see the authorities in Richter, Kirchenrecht § 316, note 12.-On the heriot which in Anglo-Saxon times even bishops paid the king, compare Gneist, Engl. Verfassungsgesch. § 2, note 4a.

22 The undue extension of these rights was checked by 3 Ed. I (1275) Stat. of Westminster art. 1, 2 Ed. II (1309) De prisis injustis non capiendis a Viris Ecclesiasticis seu aliis, 9 Ed. II st. 1 (1315/6) Articuli Cleric 11, 10 Ed. II (1316) De statuto pro Clero inviolabiliter observando, 14 Ed. III (1340) st. 4 c 1 and by later enactments. Cf. also Vocke, Geschichte der Steuern des britischen Reichs, Leipzig, 1866, pp. 130 ff. Stubbs, Const. Hist. II, 564 ff. c 17 § 279.

23 For a restriction of the king in assigning pensions and corodies (it is a case of applying the preces regiae) cf. 9 Ed. II st. 1 (1315/6) Articuli Cleri c 11, also 1 Ed. III (1326/7) st. 2 c 10: Et por ce qe Ercevesqes, Evesqes, Abbees, Priours, Dames de religion et autres ount este avant ces houres grandement grevez par priers des Roys, qe lor unt prie par grandes manaces pur lour Clerks et autres lor servantz, por grosses empensions, provendes, Eglises et Corodies, issint qils ne poent rien doner ne faire a ceux qe lour avoient servi, ne a lor amys, a grant charge et damage de eux; Le Roi ne voet desore prier, mes la ou il devera.

24 This is the view of Stubbs, Const. Hist. I, 149 c 6 § 57. Cf. above, § 2, near motes 10 ff.

25 Cf. § 4, note 23.

27 By letters missive.

26 Cf. § 4, notes 53, 65.

28 Cf. § 4, note 24.

29 Const. Clarendon (append. IV) c 12: faciet electus homagium et fidelitatem domino regi, sicut ligio domino, de vita sua et de membris, et de honore suo terreno, salvo ordine suo, priusquam consecratus sit. Glanvilla,

charge all the duties arising from the feudal relation. The king as feudal lord continued to be the immediate superior of the bishops; he could, in particular, claim their services in affairs of state, and possessed in the right of confiscature for breach of fealty an exceedingly effective means of constraint.

Numerous offices in the cathedral chapters and among the inferior clergy were filled by the king as patron. The administration of the benefices of prelates during vacancy, like the administration of other fiefs during the minority of the heir and in other cases, placed temporarily at the king's disposal the fruits of benefices the right of presentation to which belonged to the owners of the land.30 Clerical corporations were also frequently compelled by 'royal request' to exercise their rights of presentation in favour of persons denoted by the king.31

Lastly, the king had been regarded from early times as 'patron paramount' of all benefices in England, in which capacity he had an implied right to present in various cases when for any reason no duly qualified patron was found.

6. As to the acquisition of property by the church.

The king interfered with the acquisition of property by the church in two ways: he restricted appropriations (the absorption of independent livings by the great ecclesiastical corporations), and the accumulation of landed property in mortua manu.

A royal permit for every appropriation seems to have been

Book IX c 1: Episcopi vero consecrati homagium facere non solent domino Regi etiam de baroniis suis, sed fidelitatem cum juramentis interpositis ipsi praestare solent. Electi vero in episcopos ante consecrationem suam homagia sua facere solent. Bracton (Rer. Brit. Scr. No. 70) I, 622: dum tamen electi in episcopos post consecrationem homagium non faciant, quicquid fecerint ante, sed tantum fidelitatem. Cf. Fleta, Book III c 16 S$ 11-13; further, above $ 20, note 22.

30 The so-called presentementz par le Roi en autri droit par auncien title which took place up to the end of the 15th century were abuses. They were prohibited and legal obstacles raised against them by 25 Ed. III (1351/2) st. 6 Ordinatio pro Clero cc 1 and 3; 13 Ric. II (1389/90) st. 1 c 4; 4 Hen. IV (1402) c 22. But the first of these acts contains a reservation not touched by later ones: sauvant au dit Roi et a ses heirs toutz tiels presentementz en autri droit de tout son temps et de temps avenir.

31 Compare above, notes 23, 27. Complaint of the clergy in 1257 (Wilkins I, 726) c 3: Item cum electiones in ecclesiis cathedralibus seu conventualibus debeant esse liberae, tot et tales preces regales interveniunt, quibus electores perterriti, saepius divinae humanam praeferunt voluntatem. Eodem modo fit de ecclesiis vel praebendis, ad opus regalium clericorum, cum eas vacare contingit. Complaint in 1309 (Wilkins II, 321): Item si vacet aliqua dignitas, ubi electio est facienda, petitur, quod electores libere possint eligere absque incursione timoris a quacunque potestate seculari, et quod cessent preces et oppressiones in hac parte.

Esglise,

32 Cf. e.g. 25 Ed. III (1350/1) st. 4 Stat. de Provisoribus: . provende, ou autre benefice qe sont del avouerie des genz de seinte esglise, dont le Roi est avoue paramount inmediat 'Immediat' supplies the opposition to the case of lay patronage.

necessary from the end of the thirteenth century. By concerning himself to limit appropriations, the king worked in the same direction as the authorities of the church.

On the other hand, the restriction of the acquisition of land in mortua manu could only be effected by conflict with the church. The endeavours of the sovereign in this respect were aided by the circumstance that arbitrary gifts of land to the church involved a wrong to the private rights of the feudal lord, depriving him, for example, of the chance of an escheat, as also of a number of dues and services to which the clergy by the law of the land were not subject or from which they were able in practice to escape. Even as early as 1164 the constitutions of Clarendon contained the proviso that for gifts in perpetuity of the king's feud the royal consent was requisite. The generalization of this proviso and the elaboration of rules in regard to it took place in the enactments of the thirteenth century.34

§ 28.

B. THE SUPREMACY OF THE SOVEREIGN AS INTRODUCED BY THE REFORMATION.

From the end of the twelfth century, at latest, down to the reformation no claim was ever made by any king or in any resolution of parliament that England was in purely ecclesiastical matters independent of the pope. Such a contention would have been in too striking conflict with the actual circumstances of the case. Many of the resolutions frequently adduced as instances of such declarations of independence prove what they are not meant to prove, for they confine the independence claimed to temporal or royal rights; in others this limitation is to be supplied as being, beyond all doubt, intended. All these resolutions are merely in repudia

33 Conditions for the granting of the permit, apparently to be connected with mortmain legislation (cf. the king's licence [1291?] mentioned in Rer. Brit. Ser. No. 45 p. liii, note 3) are laid down in 15 Kic. II (1391) c 6 and 4 Hen, IV (1402) c 12.-15 Ric. II c 6 refers to the necessity of the licence as something already existing; 4 Hen. IV enacts, among other things, the nullity of all appropriations without licence since 1 Ric. II.

3 On the other regulations see § 4, note 68. Relevant also are 7 Ed. I (1279) de Religiosis; 13 Ed. I (1285) St. Westminster II c 32 and later acts.

Relevant especially are: Bracton (circ. 1230-57) Book V tract. 5 c 15 § 2 (Rer. Brit. Scr. No. 70; VI, 248) : sicut dominus papa in spiritualibus super omnibus habeat ordinariam jurisdictionem, ita habet rex in regno suo ordinariam in temporalibus. Similarly c 19 § 2 (VI, 296).-Letter of the barons assembled in the parliament of Lincoln, 1301, for themselves and tota communitas, to the pope (§ 4, note 69).-Resolution of parliament of 1366 against the pope's claim to tribute (§ 4, note 117).-16 Ric. II (1392/3) c 5 Stat. of Praemunire, preamble: . . et ensy la Corone Dengleterre qad este si frank de tout temps qe le nad hieu nully terrien soveraigne, mes immediate subgit a Dieu en toutes choses tuchantz la regalie de mesme la Corone et a nully autre, seroit submuys a Pape, -Articles of accusation before parliament at the deposition of Richard II, 1399 (Rot. Parl. III, 419) No. 10: Item quamvis Corona Regni Anglie et Jura ejusdem Corone, ip