me that under any form of government it is expedient, both for the state and the people, that the Church should possess due power; but that any degree of power or influence which would be injurious under the one form, must be equally so under the other. And when he proceeds to say, "where would Spain and Portugal be since the loss of their laws, without this power,.. which is the only check on arbitrary sway?"*... I perceive that Montesquieu would never have written thus if he had been well acquainted with the state of those countries, and had made their history his study. For to that power it is that the loss of their laws and liberties was owing: through the assistance of that power it was that the despotism was established; and then the degradation was induced, which, in spite of all the virtues of the

* L'Esprit des Loix, 1. ii. c. iv. I have used Mr. Butler's translation of the passage; ..but I must carry on the quotation here to the end of the paragraph, and show that Montesquieu speaks of this power as an evil becoming only incidentally good when it acts as a check upon something worse:... Où en seroient l'Espagne et le Portugal depuis la perte de leurs loix sans ce pouvoir qui arrête seul la puissance arbitraire? Barrière toujours bonne, lorsqu'il n'y en a point d'autre: car comme le despotisme cause à la nature humaine des maux effroyables, le mal même qui le limite est un bien.”

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national character, have made those countries what we see them!

"Now all history informs us," you say," "that long before the commencement of this celebrated contest, the immunities of the clergy had been established and become part of the law of England. Does not this decide the question? Must we not conclude, on the principles of Montesquieu, that the monarch's attack upon them was altogether wrong? that Becket, in defending them, was altogether right?"..What history informs us is, that these immunities began in William the Conqueror's time, about fourscore years before. And I am inclined to think, Sir, neither you nor Montesquieu would dissent from the principle, that when any thing becomes manifestly and notoriously an evil and a nuisance, it ought to be abated, whatever prescription may be pleaded for it.

It is even questionable whether any further prescription could be pleaded for this than a custom which had grown up among other abuses during the troubled reign of Stephen. For in the dispute which ensued, it was not Becket, but the King, who appealed to the law of the land.

* Page 82.

The Constitutions of Clarendon were declared in the preamble to be "a declaration* and recognition of certain customs, liberties, and dignities of the Kings his ancestors, to wit, Henry his grandfather, and others, which ought to be observed in the realm." It does not appear that Becket at any time rested his case upon that charter, by virtue of which alone it could be pretended that the immunities in question were part of the law of the land. They were defended, not as a grant from the Sovereign, but as a privilege belonging to the order; the real object being to render that order independent of the state, to exalt the mitre above the crown, and form the clergy throughout all Christendom into a compact body, acting upon one system, animated by one spirit, and directed by one head, and every where inde-.

"Anno ab Incarnatione Domini millesimo centesimo sexagesimo quarto, papatus Alexandri anno quarto, illustrissimi regis Anglorum Henrici II. anno decimo, in presentiâ ejusdem regis facta est ista recordatio vel recognitio cujusdam partis consuetudinum et libertatum et dignitatum antecessorum suorum, videlicet regis Henrici avi sui, et aliorum, quæ observari et teneri debent in regno. Et propter dissensiones et discordias, quæ emerserant inter clerum et justicios domini regis, et baronum regni, de consuetudinibus et dignitatibus regni, facta est ista RECOGNITIO coram Archiepiscopis et Episcopis et Clero, et Comitibus et Baronibus et Proceribus regni."-Lyttelton, iv. App. ii, p. 414,

pendent of the civil power. To have appealed to the charter, would have been taking lower ground than suited the pretensions of the Romish hierarchy; and the charter would hardly have borne them out. For the object which the Conqueror appears to have had in view, was to bring persons before an ecclesiastical court who thought it a degradation* to acknowledge any such authority. It was to protect the clergy from secular invasions, by enabling them to try causes, in which ecclesiastical affairs were concerned, before a tribunal of their own. This was consistent with the character and policy of William: it is not so to suppose that he would have granted the clergy an exemption from condign punishment for all offences whatThe tenour of the charter is to arm them with useful power for their own protection,.. to take from secular courts the cognizance of ecclesiastical matters,..not to transfer to the spiritual courts cases of common law, wherein an ecclesiastic should be concerned. If such a consequence may be inferred from

soever.

* Si vero aliquis per superbiam elatus ad justitiam Episcopalem venire noluerit, vocetur semel, secundo et tertio; quod si nec sic ad emendationem venerit, excommunicetur: et si opus fuerit ad hoc vindicandum fortitudo et justitia Regis sive Vicecomitis adhibeatur. Canciani, iv. 361.

*

the charter, it is not expressed there; though very possibly the deed may have been so drawn up by those who advised it as to bear an interpretation beyond the King's meaning. Be that as it may, it is certain that Henry, in the proceedings at Clarendon, professed only to restore the ancient custom,.. to correct an abuse which had grown up since his grandfather's days,... not to abrogate an existing law, nor to infringe upon the charter of the clergy.

Supposing, however, that what he intended had actually been an infringement upon the ecclesiastical privileges, let us see to what it amounts. He would have made the clergy amenable to the law of the land for secular offences. He required (and this too with the consent of the Bishops) that ecclesiastics who were found guilty of any heinous crime, should be first degraded, and then delivered over to

* ... mando et regiâ auctoritate præcipio, ut nullus Episcopus, vel Archidiaconus de Legibus Episcopalibus amplius in Hundret placita teneant, nec causam quæ ad regimen animarum pertinet, ad judicium secularium hominum adducant. Sed quicunque secundum Episcopales Leges de quâcumque causâ vel culpâ interpellatus fuerit, ad locum quem ad hoc Episcopus elegerit vel nominaverit, veniat, ibique de causâ suâ respondeat, et non secundum Hundret, sed secundum Canones et Episcopales Leges, rectum Deo et Episcopo suo faciat.-Canciani. iv. 361.