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"Were the object to give felons an immunity to commit "crime, and to provide a way for their escape from punish"ment, it seems to me that it would be difficult to devise "any mode more effectual to that end than the theory em"bodied in that proposition."*

Thus the conduct of the Roman church in the twelfth century and that of the U. S. government in the nineteenth strongly resemble each other; so strongly, indeed, that Judge Clifford's language may be applied to the conduct of both. Both endeavoured to secure what they claimed to be their own rights by usurping rights which they knew belonged to other jurisdictions. Both might have secured all rightful immunity for their innocent officials without wrongfully protecting the guilty. Both, however, insisted upon usurping immunity for their officials regardless of guilt or innocence. The Roman church abused its spiritual power to the extent of gravely violating the rights of the English state. The U. S. government abused its federal powers to the extent of gravely violating the rights of the states of the Union.

DIVISION C.

Of the case of the English statutes held void as against the church during the suppression of the Templars in England.

The second of the above-mentioned cases, in which the Canon law doctrine upon temporal statutes was received in England, is that of the statutes held void as against the church during the suppression of the Templars. This was done in the reign of Edward II. and pontificate of Clement V. It is difficult to imagine a greater case in the law of laws. Magna Charta itself was invalidated.

The suppression of the Templars in Europe has recently been investigated by an historian whose learning and authority are of the highest rank. What Mr. Lea has written upon it will be used without stint for the purposes of this *10 Otto, page 297, lines 8 et seq.

Essay. It is discussed in the fifth chapter of the third volume of his History of the Inquisition in the Middle Ages. Pages 298 et seq. relate especially to the suppression of the order in England.

The bull Pastoralis praeeminentiae was made by Pope Clement V., on November 22d, 1307.* It recites what Philip the Fair, king of France, had done, at the requisition of the papal inquisition for France, in order to bring the Templars in that country to the judgment of the church, and orders all other sovereigns to do likewise in their respective dominions. The bull was received the following month by Edward II, king of England. Although the commands of the bull conflicted with the king's previously expressed opinions, he proceeded at once to obey them. On December 15th, royal orders were sent to all the sheriffs in England, giving instruction to capture all Templars on January 18th, 1308,† together with directions for the sequestration and disposition of their property. These were followed by corresponding commands for Ireland, Scotland and Wales. The seizure was made accordingly. The Templars were kept in honourable durance, and not in prison, awaiting the action of the pope. Delays then occurred until the arrival of the papal inquisitors in England in September, 1309. Further instructions were then sent out to arrest all Templars not previously seized and to produce them at London, Lincoln or York. It apparently was not easy to obtain official obedience to these orders. In the following December it was necessary to instruct all the sheriffs to seize the Templars wandering abroad in secular habits, and the sheriff of York was at later dates twice taken to task for permitting those in his custody to be at large.

At length on October 20th, 1309, the papal inquisitors together with the Bishop of London sat judicially in the bishop's palace to examine the Templars collected in London. Interrogated singly on all the numerous articles of accusation, they all asserted the innocence of their order. Most of the outside witnesses declared their belief to the

* Lea, III. 278.

† Lea, III. 298.

same effect, although some gave expression to the vague popular rumours and scandalous stories suggested by the secrecy of the proceedings within the order. The inquisitorial process seemed a sterile one in England. "The inquis

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"itors were nonplussed. They had come to a country whose "laws did not recognize the use of torture, and without it "they were powerless to accomplish the work for which "they had been sent."* They finally applied to the king, and on December 15th obtained from him an order to the custodians of the prisoners to do with the bodies of the Templars what they pleased "in accordance with ecclesiastical "law," that term meaning the use of torture. Difficulties must have been interposed by those receiving the orders, for a second command was given on March 1st, 1310, and repeated on March 8th, with instructions to report the cause, if the first had not been obeyed. Little evidence of any importance was however obtained until May 24th, when three recaptured fugitive Templars made confessions such as were desired and which, it is easy to guess, were made under torture. Pope Clement "grew impatient at this lack of result. "On August 6th, he wrote to Edward that it was reported "that he had prohibited the use of torture as contrary to "the laws of the kingdom and that the inquisitors were thus "powerless to extract confessions. No law or usage, he said, "could be permitted to overrulethe canons provided for such cases, and Edward's counsellors and officials who were guilty of thus impeding the inquisition were liable to "the penalties provided for that serious offence, while the "king himself was warned to consider whether his posi"tion comported with his honour and safety, and was "offered remission of his sins if he would withdraw from "it." Similar letters were at the same time sent to all the English bishops, who were taken to task for not having already removed the impediment, as their ecclesiastical duty required them.‡ "Under this impulsion Edward, August "26, again ordered that the bishops and inquisitors should * Lea, III. 299.

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† Lea, III. 300. Lea, III. 300.

"be allowed to employ ecclesiastical law, and this was re"peated October 6 and 23, November 22, and April 28, 1311, "in the last instances the word torture being used, and in "all of them the king being careful to explain what he does "is through reverence for the Holy See. August 18, 1311, "similar instructions were sent to the sheriff of York. "Thus for once the papal inquisition found a foothold in "England, but apparently its methods were too repugnant "to the spirit of the nation to be rewarded with complete "success."*

There can be no doubt that the torturing of the Templars by the king's officials at his command on ecclesiastical requisition was then contrary to the law of the land of England. It was also certainly a violation of Magna Charta, which was an act of parliament that had been re-enacted over and over again. The pope writing officially to the king as aforesaid declared the binding and the ecclesiastical law to be that the temporal law and statutes of England forbidding the use of torture could not overrule the canons of the church to the contrary. That is to say, within the limitations of ecclesiastical right, the law of the church was binding on the king and his subjects and the law of the land was not binding. The temporal laws preventing trial by torture, including Magna Charta, were void in so far as contrary to the canons and because so contrary.

What the pope wrote to the king he repeated in official letters to the bishops. Like the king and other Englishmen concerned in the torture of the Templars, they were deficient in alacrity. The English bishops, proceeding as ecclesiastical judges, were unaccustomed to the practice of causing men to be tortured. Their courts were called courts Christian.

Thus the Templars' case was a clear case of conflict between the law of the land of England and the Canon law of the Roman church, which was settled upon the basis that the former was void in so far as contrary to the latter and because so contrary.

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To this. law of laws the king of England submitted and executed the Canon law. Thereby he refused to execute the 39th article of Magna Charta, which guarantees every freeman a trial according to the law of the land. He also refused to execute the various acts of parliament which reenacted Magna Charta. The tortured Templars did not receive a trial according to the law of the land but a trial according to the law of the church.

DIVISION D.

Of the English law before the Reformation concerning temporal legislation contrary to ecclesiastical right and liberty.

Of the case of the Prior of Castlaker v. the Dean of St. Stephens in the Year Book of 21 Henry VII.

In division A. of this chapter, it has been shown, on the authority of Lindwood, that the English Canonists held that the Canon law rule concerning temporal statutes was in vigour in Roman Catholic England. Lindwood held that an act ordained by the temporal power, affecting ecclesiastical right and liberty, would not be valid (non valeret), except in so far as made upon the previous requisition, or confirmed by the subsequent approbation, of the church. Important as such legal doctrine was, it was still more important that its application in actual practice can be proved to have been made by men who were not doctors of Canon law but Common law jurists. Language applying such doctrine is reported as used at the bar and on the bench of the Court of Common Pleas, the very home of the learning of the Common law. This will be seen from a case in that court, reported in the Year Book of 21 Henry VII., pp. 1 to 5.

In it a question arose whether a certain act of parliament, being an act of the temporal power, could make the king, being a temporal man, the parson of a certain church. If the act did so, it gave spiritual jurisdiction to a temporal man without the consent of the spiritual power.

The correct answer to this question is shown by the report to be in the negative. The discussion of the question,

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