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7 “Hitherto you have been upheld by your birth, your education, your wealth, your connexions; should these secular advantages cease, on what must Christ's Ministers depend? Is not this a serious practical question? We know how miserable is the state of religious bodies not supported by the State. Look at the Dissenters on all sides of you, and you will see at once that their Ministers, depending simply upon the people, become the creatures of the people. Are you content that this should be your ease?” Newman, J. H., Tracts for the Times, I.Google Scholar

8 Stubbs, W., Select Charters (9th ed.) 40.Google Scholar The reference is to Justinian Cod. V, Tit. 59, 5 c. 3. Its use by Edward I may have been suggested by a decretal of Innocent III, in which it is cited; and in England during the thirteenth century, its associations are almost invariably ecclesiastical. (Clarke, M. V., Mediaeval Representation and Consent [London, 1936], 264ff.Google Scholar, for full references and discussion.)

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11 SirBlackstone, William, Commentaries on the Laws of England, III. 101 f.Google Scholar; the parties would be entitled, legally, to refuse to submit to the Ordinary's citation (v. Hardwicke's judgment, infra,). Access to Communion is protected by law. (Jenkins v. Cook, 45 L. J. P. C. 1; L. R. 1, P. D. 80) Dale, v. J. M., The Clergyman's Legal Handbook, 7th. ed. by Risley, J. S. (London, 1898), 203Google Scholar; Blunt, J. H., The Book of Church Law, ed. SirPhillimore, W. G. F. Bt. and Jones, G. E. (London, 1901), 103–104.Google Scholar

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14 For the Respublica Christiana and the organic unity of Church and State see Gierke, O., Political Theories of the Middle Ages, tr. Maitland, F. W., (Cambridge, 1913), viii–xii, xxx–xlv, 9–21, 30–37Google Scholar, etc.; Figgis, J. N., Churches in the Modern State, (London, 1913)Google Scholar, Appendix I: Respublica Christiana.

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20 For the analysis of the system of Pseudo-Isidore, Fournier, P., “Étude sur les Pausses Décrétales,” Rev. d'Hist. Eccl., VIII (1906), 38–51.Google Scholar

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27 Gibbs, M. and Lang, J., Bishops and Reform, 1215–1272 (Oxford, 1934)Google Scholar, give a useful account of this period. Miss Lang's summary (174–179), which is sympathetic to Innocent III, suggests an echo of Bishop Stubbs (177), disguised under the waywardness of individual bishops.

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29 Stubbs, , Select Charters, 450–2, 495–6Google Scholar; also for the Writ Circumspecte Agatis, 469f.; id., Constitntional History, II, 158–160; on the ultimate fate of Archbishop Winchelsea, 161; the Statute of Carlisle, 163; Cambridge Medieval History, VII, 410.Google Scholar

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40 The term Praemunire is so frequently used merely as a species of clerical bogey that it may be well to point out its real significance. The Acts of Praemunire “fortified” the King “ahead of time” against excommunication by the Pope by placing at his mercy (in misericordia sua) anyone who exercised, without the royal permission, the functions of the Pope, or the Pope's agent, within the Kingdom. In other words, anyone offending under the act was ipso actu already an outlaw, and therefore an excommunicated person. The obsequious conduct of the Clergy was due to the knowledge of the vulnerability of their position.

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55 Philip Yorke, 1st. Lord Hardwicke, (Lord Chancellor, 1737–1756). For particulars of his life Dictionary of Nationai Biography, lxiii, 346–353 (J. M. Rigg); Encyclopaedia Britannica (11th ed.), (B. J. MacNeill). Harris, G., Life of Lord Hardwicke, I, 292Google Scholar; II, 484ff., records his hostility to clandestine marriages, against which he was the author of the Act (26 Geo. II, c. 33) which bears his name.

56 John Middleton and his wife, v. Thomas Crofts, 1736, Str. 1056, 2 Atk. 650; confirmed, , Bishop of Exeter v. Marshall, 1866–1867–1868Google Scholar, L. R. 3 H. L. 17; followed R. v. Allen, 1872, L. R. 8 Q. B. 75; distinguished Jenkins v. Cook, 1875, L. R. 4 Ad. & Ecc. 489; see Mackonochie v. Lord Penrance 1881, 6 App. Cas. 445; followed R. v. Archbishop of York, 20 Q. B. D. 747. For the general setting of the controversy in 1603ff. v. supra n. 13.

57 On the process and writs of prohibition, v. Makower, , The Constitutional History, 238Google Scholar, nn. 7–8, 242, n. 4, 244 n. 10, 435, n. 153; SirPollock, Frederick and Maitland, F. W., The History of English Law 2nd ed., (Cambridge, 1911), I, 251, 479Google Scholar; II, 199–202, 596, 665; Holdsworth, W. W., History of English Law, (3rd ed., (1922), 553–559, 610–611Google Scholar; Adams, , “The Writ of Prohibition to Courts Christian ” (1936) 20. Minnesota Law Rev., 272.Google Scholar Writs of Prohibition have been abolished under the Administration of Justice (Miscellaneous Provisions) Act, 1938, 1 “the Court may make an order”… to “be called … an order of prohibition.” By sub-section (14) “No return shall be made to any such order and pleadings in prohibition shall be allowed, but the order shall be final, subject to any right to appeal therefrom.” I am indebted for the lust two references to the kindness of Professor E. N. Griswold of Harvard University; and to Dr. E. C. Wade for calling my attention to the change in the writ system contemplated under the statute.

58 4 Inst. 322.

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60 The reference is to the tests of legitimacy, v. supra, n. 28.

61 25 H. 8. c. 19, continued in 27 H. 8. c. 15, 35 H. 8. c. 16, 3 & 4 E. 6. e. 11.

62 Compare the statement up to this point with Jefferson's views, R. J. Mott, “Jefferson's Ecclesiastical Views,” n. 44.

63 A Consultation, is “a writ in the nature of a procedendo, whereby a cause, having been removed by prohibition from the Ecclesiastical Court to the King's Court, is returned thither again; for if the judges of the King's Court, upon comparing the Libel with the suggestion of the party, find the suggestion false or not proved, and therefore the cause to be wrongfully removed from the Ecclesiastical Court, then upon this consultation or deliberation they decree it to be returned, whereupon the writ in this ease obtained is called a consultation.” Wharton's Law Lexicon (14th ed. 1938), 243.

64 Hooker's Ecclesiastical Polity Book, VIII, with an introduction by B. A. Honk (New York, 1931), 68–70, 73–76, 80, 153–167Google Scholar; Calvin's view of the relations of Church and State, v. Mackinnon, J., Calvin and the Reformation (London, 1936), 251–261, 265–270.Google Scholar The reference to Calvin's debt to Civil Law recalls a remark made by Figgis: “What I have tried to show is that this error is not of modern origin, that it did not come into our world at the Renaissance, though it may have been accentuated then, but that it is part of the damnosa hereditas from the Civil Law of the Roman Empire, of whieh Stubbs once said that, whenever it had been dominant, it destroyed any real idea of civil and religious freedom.” Churches in the Modern State, 226.

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71 Cf. Adair, E. R., “Laud and the Church of England,” Church History: Studies in Christianity and Culture V (1936), 129, 131f.Google Scholar

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74 v. Church and State, 1935, 13, 15–17, for a modern statement of the “Act of Toleration” in terms of disadvantage to the Church. Gwatkin points out the attempts of the Tories to take the virtue out of the Act (Church and State to the Death of Queen Anne, 378f., 385f., 390; Cambridge Modern History, V, 336f.Google Scholar). Henson, H. Hensley, Anglicanism (London, 1921), 97.Google Scholar Even Catholic Emancipation was a stumbling block; Stewart, H. L., A Century of Anglo- Catholicism (New York, 1929), 83.Google Scholar The best criticism yet written on the Report is by ProfessorSykes, Norman: “The fundamental weakness of the Report lies precisely in the lack of any evidence of appreciation of the responsihility and duty of the Church of England towards the Nation.” The Church and the Twentieth Century (London, 1936), 45.Google Scholar

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77 v. Brilioth, Y., The Anglican Revival (London, 1933), 96–97.Google Scholar

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79 Henson, H. Hensley, Anglicanism, 228–230.Google Scholar For a fuller account of succeeding events v. Buckler, F. W., “Church and State in England since the war 1919–1935,” The Episcopal Pulpit, I 1936, 77–85.Google Scholar

80 The Church and Marriage, 1935, 24. The sectarian character of this document is revealed by the paragraph “The Church and its own members” (italics mine) 17f., and the appeal to Canon Law, which precedes it. For a sketch of English opinion on divorce by a lawyer, v. Kitchin, S. B., A History of Divorce (London, 1912), 171–208Google Scholar; for the Pre-Reformation position, 59–88. This may be the proper place to point out that, mutatis mutanilis, Mr. A. P. Herbert's Holy Deadlock is the masculine counterpart of Mt. V. 32, which appears to be, likewise, a reductio ad absurdum of the “one cause.”

81 The Matrimonial Causes Act, 1937 [1 Edw. 8 ]

82 Ibid., sec. 12.

83 Drs. Forse and Hayward.

84 “The Times” (London, 11 20, 1937)Google Scholar. Contrast with the views expressed by Archbishop Lang the late Professor J. M. Creed's review of the Report on Church and State, 1935, J. T. S., xxxvii, (1936), 302–3.Google Scholar As an instance of the opportunities of a “free ehurch” to violate its own constitutional limitations with apparent impunity, owing to the impotence of the lower clergy to act in face of probable penalization, I might quote the action of the House of Bishops in the Church of England in Canada. I have been credibly informed by a layman that the House resolved that the marriage of a party to divorce proceedings during the lifetime of the other party, should not be permitted to be celebrated in an Anglican Church, or by an Anglican clergyman. The Lower House was not consulted. A more flagrant instance of hyper-Pseudo-Isidorian episcopocratic usurpation it is hard to find outside the annals of Rome or Laudian England.

85 Quoted from Angoff, Charles, A Litcrary History of the American People (New York, 1935), I, 320–1.Google Scholar