ENGLISH ECCLESIASTICAL LAWS AND PRIVILEGES.

[This Essay upon the legal question of the origin and nature of ecclesiastical jurisdiction in temporal affairs, and of the rights and immunities of ecclesiastical persons, as these existed under the ancient laws of England, was occasioned by an accidental circumstance, foreign to their immediate subject. A writer in the Boston Patriot, it appears, made some remarks in that paper on the Royal Supremacy in the Church of England. These remarks, being copied into the Miscellany, met the eye of some zealous Episcopalian, who replied to the Protestant antagonist of his church by an attack on the See of Rome. In this he attempted to prove, that the crown of England, in taking to itself spiritual jurisdiction and supremacy, had simply resumed an authority over ecclesiastical persons and property in their civil relation, which the Pope had previously exercised unjustly, and by usurpation. To ward off the side-blow thus given, Bishop England wrote the following pieces, in which he commences giving the legal and historical proof of the fact, that the rights and privileges in question were part and parcel of the English Constitution. The original question, respecting the Royal Supremacy in the Church of England, is satisfactorily handled in a succinct manner in the first part of the essay; which was, unfortunately, left in an unfinished state. It is taken from the United States Catholic Miscellany, for 1827.]

SECTION I.

A subscriber to the Miscellany in Savannah has sent to us the Georgian newspaper, published in that city on the 7th inst., and drawn. our attention to an article which it contains. This article purports to be a letter from "A Subscriber" to the editor of the Georgian, and the subscriber to the Miscellany calls for our notice of this article.

We always feel obliged to those friends who transmit to us those articles which they think it becomes our duty, as editors of a Catholic paper, to notice; but we must also reserve to ourselves the full and unqualified right of exercising our own judgment upon the propriety or necessity of adverting to the articles thus sent.

We do think it properly our duty to correct the errors of the correspondent of the Georgian. His letter commences with the following paragraph:

"To the Editor of the Georgian.

"Sir:-In your paper of Tuesday last, I observe an article copied from the Boston Patriot, containing some very unfair and erroneous statements in relation to the established Church of England and Ireland. Unfair and erroneous state

ments can be made within a much smaller compass of words that will serve to correct and refute them. All I can hope, therefore, in relation to that article is, that you will indulge me in the publication of a few remarks upon some of the points which are most calculated to mislead the uninformed."'

The principle is then admitted, that if unfair or erroneous statements are made by a publisher, he ought to afford an opportunity for their correction. May we indulge the hope that the editor of the Georgian will, therefore, copy our remarks upon this letter?

The last paragraph of the letter is the following:

"After all, it may be inquired why any one in this country should evince so much interest in the vindication and defence of the Church of England; my answer is simply this. Besides my wish to see justice equally awarded to all,-there exists in this country a church nearly related to the Church of England, in its doctrines and mode of worship. Though these churches have no political connexion, yet they are frequently identified in character; and consequently every blow which, in this country, is aimed at the Church of England, falls more heavily upon her relative on this side of the Atlantic than upon herself. In this near relative of the Church of England, I do not hesitate to declare, I feel a deep and honest interest. To preserve unsullied the character of this offspring of that venerable establishment so unwarrantably assailed by the article to which I have attempted a reply, is my principle object in the remarks which I have here hastily thrown together. By giving to them the same publicity which you gave to the article from the Boston Patriot, you will oblige a SUBSCRIBER."

Now, it is pretty obvious that the article of the Boston Patriot was not written by a Roman Catholic, nor intended to subserve the Roman Catholic religion. We have no recollection of the article, but we believe it will be admitted that it was not an attack by Catholics upon the Church of England, nor upon her near relative or dear daughter the Protestant Episcopal Church of the United States of America, which we freely acknowledge has no political connexion with the Church of England: of course, if the Puritan of New England "unwarrantably assailed the character of this offspring of that venerable establishment, one would imagine that the retort be against that Puritan, and not against the Roman Catholic Church. Is it "according equal justice to all," to assail those who, to say the least, were quiescent? But let us see the correctness and defence, it proceeds thus:

"My first remarks are designed to explain and correct that writer's statement, respecting the constitution and officers of the Church of England and Ireland. He states that "the King is considered the Head of the Church." In a certain sense this is true, but in order rightly to understand the sense in which this assertion is to be admitted, a reference to some well-known historical facts will be necessary.

"Before the Reformation, in the sixteenth century, the Pope or Bishop of Rome had assumed and exercised the power of exempting from the civil jurisdiction of the kingdom all clergymen, ecclesiastics, and dependents upon the Church, residing in England; over all these the Pope, as head of the church, exercised

jurisdiction, by courts established under his authority in the kingdom. To such an extent had the jealousy of this pretended right advanced, that he would not allow a clergyman or ecclesiastic to be amenable to the civil authority, even for the blackest and most notorious of crimes. In the reformation of the church, this power of the Pope was resisted, and was thrown off; and the king was declared to be the head of the church, in such a sense, that clergymen, as well as laymen, should be subject to his authority, or in other words, should be amendable for their crimes and misdemeanors to the civil tribunals of the kingdom. This is the true meaning of head of the church, as applied to the King of England.

"It is true the king assumed and has constantly exercised some other powers, which, before the Reformation, had been exercised by the Pope,-such as the nomination of individuals to fill bishoprics becoming vacant by death or otherwise. But, though he nominates to those offices, he has not, nor did he ever pretend to have, authority to ordain or consecrate to the spiritual offices for which he nominates. It would be considered sacrilege by that very church of which he is called the head, for the king to exercise the spiritual functions of its ministers.''

A writer who complains of unfair treatment onght not to be himself dishonest and uncandid; nor ought a writer who undertakes to correct the errors of others be himself a personification of gross ignorance. We know not who is the correspondent of the Georgian; but we assert, that if he believes his own statement of "historical facts" to be true, he is grossly deluded, or if he is correctly informed, he is extremely dishonest.

1. It is untrue, that, in the sixteenth century, the Pope or Bishop of Rome had assumed or exercised the power of exempting any person who was a subject of the King of England from the civil jurisdiction of the king of the kingdom.

By the ancient laws of England, and not by the laws of the Pope, clergymen and the dependents of the church were amenable to particular courts held by authority of the constitution, and not the church; and which courts were established by virtue of charters and compacts with the supreme civil power of England, from which their jurisdiction was derived; just as the officers and dependents of barons were, by the feudal system, amenable to the court of those barons within the realm of England. Tyrants frequently sought to oppress the officers and servants of the church, as also those of the barons; but the courts of each, which were made the constitutional protectors as well as judges of the officers or dependents, interposed, and were on that account detested and reviled by those tyrants, and by their parasites. Those courts then existed not by Papal, but by constitutional creation; they were not Roman, but British institutions; their civil and criminal jurisdiction emanated from the charters of the British crown, not from the Papal bulls. In America we recognise, as an old principle of sound British constitutional law,

the validity of charters, the stability of chartered rights, the duty of all the members of the corporation, and protectors of a corporation to vindicate those rights, and their obligation to resist any tyrannical attempts which might be made by king, or by Pope, or by reformer, to violate the contract by which those rights were legally and constitutionally secured. Thus, the exemptions of the clergy were made by British charters, and not by Papal authority.

2. It is untrue, that the Pope, as head of the church, exercised civil authority in the realm of England, over all those exempt persons, by courts established by his authority in the kingdom.

No such court was established by the authority of the Pope, as head of the church. He neither had, nor claimed, nor exercised any civil jurisdiction within the realm.

3. It is untrue, that the Pope would not allow a clergyman or ecclesiastic to be amenable to the civil authority, even for the blackest and most notorious crimes.

The Pope, who was head of the church, was protector of its rights, whether original or acquired; and also was generally made arbiter of the differences which arose in feudal times between princes who entered into the great confederation of Christian Europe,-but this last was by concession, not as a consequence of his spiritual headship: so, too, he was frequently and indeed generally admitted as the arbiter between the contending parties, as to the true meaning and spirit of their written contracts his tribunal formed a sort of chancery for the feudal body; and when, in like manner, kings and their subjects contended, the one for power and the other for liberty, he was the usual arbiter, as being independent of either, and most likely to give an impartial judgment: and in several instances, the stipulation of the contract specially designated him as the interpreter of its meaning, the arbiter of the differences, and the judge of the construction of the instrument. So it was in some of the charters by which ecclesiastical courts were invested with civil and criminal jurisdiction, as might be yet seen in several of the copies of the grants by which they were created. It became his duty frequently on this account, to interfere in the same manner that a court of chancery would at present, and he frequently decided against the tyrannical attempts of the king, or his officers, to violate the chartered rights of those courts to which, by the British law, the clergy and other dependents upon the church were amenable.

Be the policy of creating such courts good or bad, it matters not for the historical critic; the "historical fact" is all which it is his business to discover; and it is a fact that the Savannah subscriber to the

Georgian has either ignorantly or wittingly made, in one short paragraph, three egregious misstatements, highly injurious to the Roman Catholic religion. We shall also show that he is equally incorrect in his statement of the original meaning of head of the church, as applied to King Henry VIII., who first assumed the appellation in the statute which confirmed the title.

1. It is not true, that the meaning of the king is the head of the church was intended by King Henry VIII., who first assumed it, and his courtiers who first bestowed it, to be confined to asserting that clergymen, as well as laymen, should be amenable for their crimes and misdemeanors to the civil tribunals of the kingdom.

In November of the year 1534, the act (xxv. Henry VIII), was passed, declaring the King of England, his heirs and successors, should be taken and reputed the only supreme heads on earth of the Church of England,-with full power to visit, reform and correct all such errors, heresies, abuses, contempts and enormities, which by any manner of spiritual authority ought to be reformed and corrected. Previously to this, viz., in 1529, the act which deprived the clergy of their immunities had passed, though unconstitutionally, and with the protest of the lower house of convocation, as may be seen in Collier, ii. Records xxviii. There was an act then passed in 1529, depriving the clergy of several of those immunities given to them by British, not by Papal law; and in 1534, that is five years afterwards, an act passed, making King Henry VIII., his heirs and successors, heads of the church, with, amongst a variety of others, the powers enumerated above. Thus, the true meaning of the king being head of the Church of England, is not that clergymen, as well as laymen, are subject and amenable to the civil tribunal; and in point of fact, the ecclesiastical courts do as yet exist, and the clergy still do possess nearly all the immunities not taken away by the act of xxi. Henry VIII. in 1529.

2. It is not true, that the King of England had, before the Reformation, the power and right to appoint to vacant bishoprics.

In England this right and power was generally vested in the chapters, subject to the confirmation of the Pope. John and other tyrants, who sought to oppress the people by nominating their favourites to the bishoprics, were foiled in their attempts by fraud and force, to obtain this power; and the principal disputes they had with Rome were caused by their violence in opposing bishops who, like Langton, taught the people the nature of their civil and political rights, and made the barons swear to vindicate their liberties against the despotism of the monarch. It was by bishops the barons were taught to obtain and to defend