Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/290

 276 77. FROM THE llOO'S TO THE 1800'S and to the exclusion of any foreign jurisdiction. The other matters in which those statutes affected ecclesiastical juris- diction lie somewhat deeper than our present speculations. We are not however to suppose that, when the king prac- tically abolished the canon law, he intended to hand the clergy over to the common lawyers. The procedure was, as we have seen, still kept in the hands of the civilians ; but the theo- logians were a body of men whose functions had been to some extent usurped by the canonists, and who nowuExir-soHft years, under Tudor and Puritan «nd Laud4an__iiiflue,nces, were to come to the front. The theologians or divines di- vided with the canonico-civilians the authority of the eccle- siastical jurisdiction: the character of a bishop in itself was that of a divine, not of a lawyer, and we might almost say that whilst questions of application of law and pro- cedure belonged to the lawyer, the interpretation was claimed for the divine. In cases of heresy, for instance, the theo- logians formulated the definition, whilst the canonists and civilians examined the teaching of the accused and deter- mined how far he had contravened the definition. So in the question of Henry's divorce, the divines had been called on to define ' Can the pope dispense with a marriage with a deceased brother's wife.'' ' the canonists had to determine whether the marriage between Arthur and Katharine was such a marriage as precluded the dispensation. This rule of combining theologians with canonists or civilians for com- missions on ecclesiastical suits continued long after the Ref- ormation, and ought never to have been disused. These measures of change, sufficiently drastic one would think, had in this department satisfied Henry VHI; the scheme for revising the canon law hung fire; the powers granted to the king in 1534 were renewed for three years in 1536, and again for his life in 1544, but nothing was done in the matter during the remainder of the reign. But what had sufficed Henry VIII did not suffice Somerset or North- umberland, or the poor boy-king who succeeded him. The second statute of the first year of Edward VI went as near as possible to extinguish the episcopate; there were still to be bishops, but they were to be nominated by the king with-