The Doctor and Student (1518)

Christopher St. Germain

Whether the parliament may enact that no priest shall wear any cloth made out of the realm, and whether it may order the salary of chaplains

Stud. If it were ordained by statute, that no priest should wear any cloth made out of the realm, nor above such a price, upon a certain pain, or that chaplains shall not take above so much for their salary, I suppose that these statutes were good, because they concern the ordering of temporal things; but to appoint the fashion of their garments, or their tonsure, it is more doubt whether the parliament may set pain upon it or not.

Doct. It hath not been seen, that any penal statutes have been made by parliament concerning apparel of the clergy in this realm, for that hath always been ordered by the convocation. And also it appeareth in the statute made in the .36 Edw. III., c. 8, that when default was found by the commons for excessive wages of chaplains, that the parliament did not order the wages, but the king and his lords, at the petition of the commons, moved the archbishop of Canterbury thereof; and thereupon he and other bishops afterward informed the parliament, that they had set the wages in certain, and that no chaplain should take more than they had appointed, upon a pain by them limited; and if any spiritual men gave more, etc., they to forfeit the double to certain uses by the convocation appointed. And that no chaplain should remove from one diocese to another without letters of the ordinary, from whose diocese they removed. And it was then ordained by the parliament, that no temporal man should give more wages than the bishops had assigned, upon pain to forfeit as much to the king, as in the said statute appeareth. And also the statute willeth farther, that he that findeth him grieved against that ordinance, shall have his remedy in the chancery; but it appeareth not, that there should be any remedy thereupon at the common law.

Stud. The virtue of spiritual men, and the favour of the realm to them, and their wisdom, policy, and high authority be and have been great in this realm, whereby many things have been forborne, that might lawfully have been done, as I suppose. And in the statute made in the 3 Hen. V. wages of chaplains were set in certain by the parliament and truth it is, that by the said statute of 36 Edw. III., ch. 9; it is enacted, That whosoever findeth him grieved against the said ordinance, made of the said wages, shall have remedy in the chancery, as thou sayest; and therefore it followeth thereupon, that if chaplains may by authority of the parliament be lawfully put to answer in the chancery before the chancellor, which sitteth there only by the king’s, authority, that they may as well upon a reasonable cause be put to answer by authority of the parliament after the process of the common law.

Doct. By subpoena, which is the process used in chancery, the person shall not be arrested, but be only warned to appear. And it is directly against the canons, that a priest should be arrested, and peradventure at the making of the said statute, the parliament had respect thereto, and thought it reasonable, that they should rather be put to answer in chancery, where their bodies should not be arrested, than at the common law, where they might be arrested.

Stud. Though the person shall not be arrested by a subpoena, yet if he appear not in the end he shall be proclaimed rebel, and then thereupon his body shall be arrested. And also if the party will not perform the judgment given upon the subpoena, there is none other execution in the Chancery, but to commit him to prison till he have performed it; and therefore (as it seemeth) the parliament regarded not that point. Wherefore I suppose rather, that the statute was made as to that article upon this consideration, that because upon a decree made by the convocation, there lieth no action at the Common law, but at the Spiritual law, and because this matter concerned giving of wages, which were things temporal, it was thought reasonable that the offenders against the decree made in the convocation, should be put to answer in the Chancery, which is the king’s court: but it might as well have been enacted, that they should have been put to answer at the Common law as in the Chancery, if the parliament would, as I suppose. But to that point, that thou hast spoken of before, that it is against the canons of the church, that a priest should in any cases be arrested. The Common law pretendeth, that the king, as in the right of his crown, and by his Common laws, hath that authority, and so it is daily put in execution. And if the Common law be so already, then there needeth no statute to be made of it. Nevertheless, because our intent now at this time is to speak only, what the parliament may do concerning the spirituality, and what not, therefore I will no farther speak of that matter but only this, that if there be offence in them, that execute the Common law therein, that it is a great marvel, that spiritual men have clone no more to reform it, than they have done; and if there, be no offence therein, then were it good, that it were so openly known, that all scrupulosity of conscience might be avoided. For as it standeth now, there resteth in some persons, that execute the law therein, a doubt in conscience and by reason of that doubt they offend, that should not offend, if the matter were plainly declared. For then would they either clearly cease, or else proceed according to the law with good authority.