Parliament and the spiritual jurisdiction

Doct. I pray thee let me know thy mind in this question, Whether laymen (as thee thinketh) have power to make any laws of mortuaries?

Stud. There was a law made of mortuaries in the parliament holden in the 21 Hen. VIII., c. 6, by the assent of the king, and of all the lords spiritual and temporal of the realm, and of all the commons, and I hold it not best to reason, or to make arguments, whether they had authority to do that they did or not. For I suppose, that no man would think that they would do anything that they had not power to do.

Doct. I mean not only of mortuaries, that that statute meaneth of, but I mean of such things as be brought to burials of dead persons; whereof some concern the service of God, or the relief of the soul, and some the worldly countenance: as in some places, the church claimeth to have the taper that standeth in the middle of the hearse over the heart of the corpse, and some claim to have all the tapers; some also claim to have one of the torches that is about the hearse, and some to have all the torches. And if the body be brought in a chariot, or with coat armour, or such other, then they claim all the horses and chariot, and the apparel, or part thereof; and the coat armours or other like, as sequeses to the body. And these rights and duties be called in some places mortuaries: and of these I mean most principally in this question. I pray thee let me know what thou thinkest therein.

Stud. I pray thee let me first know what is thy opinion in this question.

Doct. I think that of such of the said mortuaries as the church hath right in, in such manner as is before rehearsed by prescription or otherwise, and of such things as be ordained at such burials to the service of God, or to the relief of the soul, that the parliament hath no power to prohibit them; as to prohibit that the church should have no such mortuaries, or that there should not be bidden to the burial so many priests, or that there shall not be above so many tapers or torches; or that there shall not be given above such a certain sum in alms: I suppose that the parliament hath no power to these things, for they be annexed to the right spiritual whereof the temporal jurisdiction hath no power: for the inferior may not judge upon the superior. But to make a law, that there shall not be given above so many black gowns, or that there shall not be any herald of arms there, but he that is buried Were of such a degree; or that no black cloths shall be hanged in the streets from the house where he died to the church, as is used in many cities and good towns, or to prohibit such other things as be but wordly pomps, and be rather consolations to the friends that be alive than any relief to the soul that is departed, wherefore the church favoureth them not. I think the parliament hath good authority to make a law; I pray thee let me know thy mind what thou thinkest in these diversities.

Stud. Verily I think that in all the cases before rehearsed, the parliament with a cause, hath good authority to make laws; as if it were ordained by the parliament, that at such burials the church should neither have torch nor taper, horse nor chariot, nor none other thing like, but that they should always pertain to the executors to the use of the testator: it were a good statute, and ought to be observed, as well by spiritual men as by temporal; and this I take to be the reason why, for all goods, though they be in the hands of spiritual men, be temporal concerning the body, and nourishing the body, as they do to temporal men. And John Gerson holdeth the same opinion, as it appeareth in his treatise of the Spiritual Life of the Soul, the second lesson, and the third corollary, whereof mention is made more at large in the first dialogue in English, chap. 3. And all temporal things the king and his progenitors, as in the right of the crown, have in this realm alway ordered and judged by his laws: and therefore I suppose that the parliament may enact, that there shall not be laid upon a deceased person but such a cloth, or thus many tapers or candles set up about him. And here I would say farther in one thing, and that is this, that no prescription had by the authority of the spiritual law, may give no right within this realm to those mortuaries that we speak of now, nor to the said mortuaries that be put alway by the said statute, nor yet to any pension or annuity; but if any right shall be won therein by prescription, it must be by a prescription had after the course of the law of the realm; and the least prescription thereof is this, that is to say, that no man’s mind may remember the contrary thereof whereof the prescription is made. And if this be true, then have many mortuaries been claimed, and taken in time past, without title, whereby the takers have been bounded to restitution. And that is true that I have said of such prescriptions of mortuaries and pensions, methinketh it may appear thus: If there were a law made by the church, that at every burial the curate should have all the tapers and torches that were about the corpse, I suppose that it is clear, that that law bound not in this realm there, as no prescription was thereof before. And if a law made by the church should not in this case bind, how should then a prescription, grounded only upon. the laws of the church, bind? I cannot see how: but if it were in a country where the church hath sovereignty in temporal things,
it were a greater doubt. And in this case many say, that a prohibition ought of right to be granted to prohibit the spiritual judges, that they shall not give sentence against the prescription of the king’s law, whereby any temporal goods may be bound, as well as that they shall not hold plea of that that belongeth to the king’s law, but such a prohibition is not in use. But if it were enacted, that a prohibition should hereafter lay in that case, I suppose that it were a right good and a reasonable statute. And also whether such a prescription, after the law of the church, give title for tithes, is after some men the greater question: but I will no farther speak thereof at this time. And as to the coat armour, shield and sword and such other things as be sometime set up at the burial of noble men, some men say that they belong not to the church, but to the executors: and that they ought to remain there to the honour of the body, and to the memorial of the soul, as long as they will endure. For there was never gift thereof made to the curate, whereby any property might grow unto him. And a case much like to their sayings is in the 9 Edward IV., where an action of trespass was brought for taking away such a coat armour, etc. And there some were of opinion, that the action lay well, howbeit the case is not judged; but whatsoever the law be therein, I think it be no great doubt, but that if a statute be made that they should belong to the executors, that the interest of the curate, whatsoever he had thereto before by prescription, constitution, or otherways, were determined; and so methinketh that the parliament may as directly make a law concerning such mortuaries as it may do of. any other temporal goods within the realm; and then as to the number of priests and clerks, that should be bidden to such burials, I think that the parliament may well, upon a certain pain, prohibit, that none shall call to such a burial above a certain number of priests and clerks to be assigned by the parliament after the degree of him that is buried; and especially to prohibit, that none shall give any money, or other reward, to any above that number, though they come uncalled. For such statutes be for ordering of temporal things, and to force that the king’s subjects should not be charged but as the parliament should think expedient for the wealth of the realm, and therefore they are to be observed in law and conscience. And thus I have shewed the part of my conceit, what methinketh concerning the said mortuaries.

Doct. I thank thee for the pain thou hast taken therein and since thou hast somewhat touched what the parliament may do in these mortuaries, which concerneth somewhat the sprituality, I pray thee that thou wouldest shew me somewhat more of thy mind, what the parliament may do in other things concerning the spirituality; for I think it were good and necessary to be known for the good order of conscience of many persons, and the appeasing of many and great diversities of opinion in this realm.

Stud. To treat of this matter at length, it would ask a great time; but I shall with good-will briefly touch some articles thereof, and haply thou shalt by them know the better what the parliament may do concerning the spiritual jurisdiction in other cases like. But I pray thee take me not, that my meaning is, that I would that such statutes should be made as I shall speak of; for I do it not to that intent, but only to shew the power of the parliament what they may do if they list to execute their power.