^{page 197 note 1} Calendar of the Manuscripts of the Most Hon. the Marquis of Salisbury, Part I (Historical Manuscript Commission, London 1883)Google Scholar (hereafter to be referred to as Hatfield MS.). This MS. is to be found in the volume entitled Gray's Papers and consists of 40 unnumbered leaves. The Historical Manuscript Commission mistakenly identified this MS. with Lambeth MS. 1107, fol. 1631 (Calendar, 10). See below, 209 n. 1 for the latter.

^{page 197 note 2} Short Title Catalogue of Books printed … 1475–1640, ed. A. W. Pollard and G. R. Redgrave, London 1926 (hereafter to be cited as S.T.C.), no. 24237. This is a small octavo volume, quires A8–D8, the text starting on A2^r. The title-page border has the engraved date 1534 but the colophon gives ‘Anno m.d. xxxviii.’ There are only two copies of this book known to be still extant, one in the Durham University Library (as S.T.C. states), the other at Lambeth Palace Library (unknown to the editors of S.T.C.). The information concerning the latter as well as the details of the Durham copy, I owe to Mr. A. L. Doyle of the University of Durham Library. The Lambeth copy contains, following the table of contents, a leaf of corrigenda, which, however, is non-essential, correcting two mistakes in the quotations.

^{page 197 note 3} ‘A treatise concernynge general counseilles’, which is to be found in the volume entitled Names of the Recusants at Hatfield House, fols. 33 in length, ends with the words: ‘Wherefore kinges and princes nowe in this daunngerous tyme are more bounden in conscyence to looke uppon suche matires thenne any other ys’ (fol. 33^r). This MS. is unnumbered, and the pagination given in the present paper is mine. The words cited above occur on D7^v of the printed text, i.e. the penultimate leaf: ‘Wherefore kinges and princis now in this daungerous tyme are bounded in conscience, to loke the more diligently uppon suche matters’. The printed version has some additions here and there, but there is no essential difference between the printed and MS. versions.

^{page 197 note 4} Burnet, G., History of the Reformation, i. (Oxford 1829) 353Google Scholar, cf. ii. (1865) 300, 351; Cox, J. E., Miscellaneous Writings and Letters of Thomas Cranmer, Cambridge 1846, 76–8Google Scholar. See below, 207 nn. 1–6.

^{page 197 note 5} Calendared by Gairdner in Letters and Papers … of the Reign of Henry VIII, (hereafter referred to as L. & P.) vii, no. 691 (2). Baumer referred to this MS. in his Early Tudor Theory of Kingship, New Haven 1940, 54–5Google Scholar, but apparently neither Gairdner nor Baumer knew that this MS. had been printed by Berthelet.

^{page 198 note 1} The introductory section, written in the form of an epistle (‘My Lorde, I haue don as ye comaunded &c.’), runs from fol. 1^r to fol. 4^v. The pagination 1^r–40^v, used in this paper, is mine.

^{page 198 note 2} Fols. 26^r; 17^v; 12^r; 22^r; 31^r; 19^v; 20^r; 21^v.

^{page 198 note 3} Fols. 4^v–7^r.

^{page 198 note 4} Tierney, B., Foundations of Conciliar Theory, Cambridge 1955, 47 ff.Google Scholar et passim.

^{page 198 note 5} Fols. 7^v–18^r.

^{page 199 note 1} The author enumerated four theories about the origin of papal primacy: (1) Peter was made primate by Christ (Analectus and others); (2) Peter was ‘chosen’ of the apostles to be the primate; (3) the Roman primacy was ordained by General Councils; (4) the primacy was made by Constantine the Great (fols. 9^v–10^r).

^{page 199 note 2} Fols. 18^r–23^r.

^{page 200 note 1} Fols. 22^r-v.

^{page 200 note 2} Fol. 22^v.

^{page 200 note 3} Fols. 23^r–28^r.

^{page 201 note 1} Fols. 28^r–35^v.

^{page 201 note 2} Fols. 29^r-v. The controversy concerning the time of Easter was given as an example of such light matter. See in this connexion Melanchton's Loci Communes (1535) in Corpus Reformatorum xxi. col. 510: ‘Saepe in Ecclesia exiterunt magni tumultus propter dissimilitudinem traditionum. Ut Romani pontifices excommunicarunt orientales, quia alio tempore celebrabant Pascha…’.

^{page 201 note 3} ‘I dearne not yet diffine what ought to be geuvn to the determination of general conciles … I woll not yet pronounce what credence ought to be geuen to general conciles. Ffor I tell you playnlly I can not bring meself oute of doute herein … ’ (fol. 31^r-v).

^{page 202 note 1} The exaltation of ‘consensus’ as a constitutional principle, which underlies the author's arguments, led him to declare ‘the lawe of nature amonges men to be that wherein all nations doo agree’ (fol. 34^v).

^{page 202 note 2} Fols. 35^v–4O^v.

^{page 202 note 3} Fol. 36^r-v. The author must have been thinking of Codex Iustinianus, 3, 5, 1 or Digest 5, 1, 17) or C.4 qu. 4 c. 1 (Nullus umquam) (prohibiting the index in re propria), and Dig. 42, 1, 39 (‘duo ex tribus iudicibus uno absente iudicare non possunt’). It was declared, furthermore, that to suffer an enemy of the defendant to sit as a judge was ‘moche the mor (jeopdiouse) in suche a place where is no appell to be heard, where the sentence geuen must so straictly be obeyed. The civil lawe is grounded upon good reason as me semeth, where it dicreeth that if a noble man sueth an action of wrong ageinst an other, he may not be present at this sute hymself but must make his attourney’ (fol. 37^r).

^{page 202 note 4} This Latin quotation must have been taken from Bartolus's gloss on Dig. 1, 14, 3, touching Barbarius: ‘… quod error communis facit ius propter publicam vtilitatem, & agitata coram iudice incompenti valet, et hoc propter publicam vtilitatem de aequitate iste liber fuit’: Bartoli opera omnia i., Venice 1590, fol. 32. I owe this reference to Bartolus to Prof. H. Vogt of Bonn.

^{page 202 note 5} Fol. 38^r. The law that was made with a certain finis politicus in view had to be repealed according to the legal maxim cessante causa legis, cessat lex. This sort of legal positivism had been preached earlier on fol. 12^r: ‘The people to be ruled it is the lawe of nature, by whom they be ruled or in what manner, this was never after oon fashion in any comunaltie. This is it that is often tymes changed and God doth suffer it as the case requireth. Ffor this is a general rule, whatsoever was ordeyned for a comon profit it may be undon agayn if more hurt cometh thereof then good. Yet every man may not be suffered to make this change but other the hole people muste do it as it was in Israel aforesaid, oe elles those who haue the power of the people, and of this opinion was Gerson, a divine of Paris, in his boke De Auferibilitate pape for he saith it is not necessary the bishop of Rome be he that shal rule as highest prest in Christendom.’

^{page 203 note 1} Here followed: ‘Ffor if we shal stande to all that is don alredy and serche no further therein, then nedeth no concil, but it were to confirme the olde. But if semeth mete to haue a concile to sett upon diverse matiers as newely as though they were not yet diffined or elles it wold be hard to knyt unto us agayn the parties that are brokn of from us’ (fol. 38^v).

^{page 203 note 2} Fol. 39^r. This dictum expresses a principle underlying many papal decisions in the Decretals of Gregory IX (Book III, title 34, De voto et voti redemptione) and is discussed in all the commentaries under that title. The particular formulation adopted by the author of this treatise has ‘the ring of coming not from a learned treatise but one of the countless margaritae, tabulae memoriales or other aids for memorising the contents of the Decretals’. This information I owe to Dr. Stephen Kuttner.

^{page 203 note 3} That the pope's headship had come from political and geographical causes was an idea commonly held by men like Tunstal and Starkey. Cf. Tunstal's letter to Pole, 13 July 1536 (S.P.I/105 fob. 33 ff.: L. & P. xi. no. 72), where Cusanus's De concordantia catholica was cited.

^{page 204 note 1} Ch. 1, Of the power of Kynges and prynces (A3^r–A6^r); Ch. 2, Of dyuers powers that the clergye hath by the law of God (A6^r–A7^r); Ch. 3, Of dyers mynystrations whiche the clergye hath used by custome and by lawes of man, and yet many of the lay people haue thought, that they haue used theym by the lawe of God (A7^r–B1^v); Ch. 4, Of dyuers thynges that the byshope of Rome and other byshops and prystes haue claimed under the color of the lawe of God, whiche it gyueth them not, ne that theyr pretence therein can not be affyrmed by custome, ne yet by assente of the people (B2^r–B4^r).

^{page 204 note 2} B3^v–B4^r.

^{page 204 note 3} B4^r–C3^v.

^{page 205 note 1} B7^r.

^{page 205 note 2} ‘Also yf the generall concille decreed, that the yongest sonne shuld enherite in this realm: or that all entayles made of landes, shulde by voide …’ (B8^v).

^{page 205 note 3} C3^v–C8^v.

^{page 205 note 4} C3^v.

^{page 205 note 5} C6^r. This passage occurs in ch. 6 (not ch. 7 as Baumer stated (op. cit., 54–5), on fol. 2O^r-v of the MS. version, where, however, the title of ‘ther book’ was not given. This passage illuminates the author's conciliarist understanding of the Church as universitas or civitas. To him the Church was the tota ecclesia, in which the plenitudo potestatis was diffused and not given to a single head.

^{page 205 note 6} C3^v.

^{page 206 note 1} C7^r-v. This passage (MS. fols. 21^v–22^r) no doubt referred to the calling of the Council of Manuta. The Bull of Summons Ad Dominis gregis curam was dated 2 June, and promulgated in Rome on 4 July. 28 Henry VIII c. 10 may well have been a measure to counter-act the summoning of the Mantuan Council (L. & P. xi. no. 80).

^{page 206 note 2} C8^v–D4^r.

^{page 206 note 3} Of dyuers lawes and decrees made by the byshops of Rome, and the clergie, whiche be not onely untrwe, but be also agaynste scripture (D4^r–D7^v).

^{page 206 note 4} D7^v–D8^v.

^{page 207 note 1} Op. cit., i. 353.

^{page 207 note 2} L. & P. vi. no. 1488.

^{page 207 note 3} L. & P. vii. no. 691 (1).

^{page 207 note 4} Op. cit., 76–8.

^{page 207 note 5} Remains of Thomas Cranmer, Oxford 1833, ii. 11.

^{page 207 note 6} E.g., Davies, E. T., Episcopacy and the Royal Supremacy in the Church of England, Oxford 1950, 118–19Google Scholar.

^{page 208 note 1} L. & P. vi. no. 1486; v. no. 760 (30 April 1536).

^{page 208 note 2} Spanish Calendar iv. no. 492 (November 1530).

^{page 208 note 3} Polman, P., L'element historique dans la controverse religieux du XVI^e siècle, Louvain 1932, 298 ffGoogle Scholar.

^{page 208 note 4} A memorandum ‘Thynges necessary as it semethe to be remembered before the brekyng up of the parliament’ (B.M. MS. Cleop. E. VI, fol. 330^r-v), written very probably at the beginning of the June–July session of the 1536 parliament (inferring from the internal evidence), perhaps by Granmer, suggested: ‘that it be secretly enquyred of the most notable lerned men in thys Realme who shuld haue auctorite to gather a generall counceill, for what cause it ought to be gathered, and who ought to have voyce in the generall counceill, and that their opynyons therin be only certefyed to the kyng and his counceill’ (fol. 33O^v). Apparently belonging to this time, comes a collection of documents whose arrangement seems to point to a juridical assumption that the‘Bishop of Rome’had neither theprimatus iurisdictionis nor the ius concilium convocandi: R. Sampson's notes (much mutilated) on conciliarism (P.R.O., S.P.I/105, fols 87 ff.; L. & P.xi.no. 124 (7));Cyprian's letter to the Council of Carthage, can. 6 of the Council of Nicaea, can. 26 of the 3rd Council of Carthage, the Council of Constance's sentence against pope John XXIII, an excerpt of the 34th session of the Council of Basel, can. 17 of the 6th Council of Constantinople (S.P.I/105, fols. 90–1: L. & P. xi. no. 124 (8)); cf. Mansi, Sacrorum Conciliorum … (Paris 1901 ff.)Google Scholar, i. cols. 868–72, 951–66, xxvii. cols. 719–26, 179 ff., ii. cols. 622–2; a note on Constance's damnation of Wyclif, which stated ‘that he was not condemnyd for callyng the Se of Rome the Synagoge of Sathan except he ment the unyuersall churche of Christ or generall councell nor he was not condemnyd by the sayd councell of errour because he denyed the superiorite of the churche of Rome to be above all others but because he dyd denye that was above none’ (S.P.I/105, fols. 92–3: L. & P. xi. no. 124 (9)).

^{page 209 note 1} ‘Ffor the general Counsaill’ in contemporary hand (Lambeth MS. 1107, fol 1631), which is a draft of the document ‘For the General Counsel’ (P.R.O., S.P.I/105, fol. 80, reprinted in S. P. i. 543 and J. E. Cox, op. cit., 467–8). The P.R.O. copy, written in modern hand, had once been wrongly calendared as L. & P. vii. no. 691 (1534), and then correctly as L. & P. xi. no. 124 (2). The Lambeth MS. lacks the latter half of the P.R.O. copy, which discussed the authority and power of the kings and bishops, quoting the biblical text Sicut misit me Pater &c. The text of this copy, which ended with the passage concerning the ancient councils, was written on fol. 163^r, and was signed by ‘T. Cantuarien. (Cranmer), Cuthbertus Dun. (Tunstal), John Bat. Welles. (Clerk), Thomas Elien. (Goodrich)’ on fol 163^v. Apparently this version without the latter half of the P.R.O. copy was still too moderate to meet the needs of the time. So, when the final version (P.R.O. copy) was composed and signed by nine more prelates and clerics, including such eminent reformers as Shaxton and Latimer, there was added another half exalting Christian princes over all. The editor of the L. & P. mistakenly referred to the Lambeth MS. as being another copy of the paper ‘Off the General Counsel’ (S.P.I/83, fols 86–7^r: L. & P. vii. no. 42). The statement by Cranmer and others was issued sometime between 31 May and 11 June (S. P. i. 543 n. 1, L. & P. xi, note to no. 124). Its argument was shared by the anonymous author of ‘By whatt authorite and law generall counsayles may bee callyd’ (B.M. MS. Cleop. E. VI, fol 331^r-v: L. & P. xi. no. 124 (5)), another copy of which in the Record Office (S.P.I/105, fol. 82^r-v: L. & P. xi. no. 124 (4) may well have been a draft of the B.M. copy).

^{page 209 note 2} Wilkins, Concilia, iii. 808–9; Cox, op. cit., App. IV. 463–4. This judgment is stronger in tone than the statement ‘For the General Council’ because of the notion and definition it brought of imperium merum. This may explain the conspicuous absence in the list of subscribers of the name of Tunstal, who had subscribed to the earlier statement on the General Council. Convocation proposed the following problems inherent in the holding of a council: whether the causes which allegedly necessitated a council now were really weighty and worthy of handling by a council; who would be judges in the council? what procedure was to be adopted in the council? and what doctrine was to be allowed or to be defended at the council? But if the General Council summoned by the pope were unlawful, it was hardly necessary for Convocation to ponder these matters. In fact, Convocation decided only the ius convocandi.

^{page 209 note 3} S.T.C., no. 1308, reprinted in the Concilium Tridentinum (hereafter referred to as C.T.) xii. Freiburg i. Br., 1930, 757–74. Cf. Sawada, P. A., ‘The Abortive Council of Mantua and Henry VIII's Sententia de Concilio’, Academia, Nanzan University, Nagoya, Japan, No. 27 (March 1960), 1–15Google Scholar.

^{page 209 note 4} S.T.C., no. 13080, reprinted in C.T., xii. 810–13.

^{page 209 note 5} According to the emperor's discerning ambassador Chapuys, the General Council was ‘celle du monde que trouble plus ledict roy’ (Sp. Cal. V (2), no. 223).

^{page 210 note 1} L. & P. xiii (1), no. 695 (1); ibid, (ii): S. P., viii. 23 ff.

^{page 210 note 2} L. & P. xii (2), no. 40 (Cole to Knight).

^{page 210 note 3} Fols. 22^r, 31^r, 12^r.

^{page 210 note 4} L. & P. xii (2), no. 40.

^{page 210 note 5} L. & P. xii (2), no. 45.

^{page 211 note 1} For Alesius, see Dictionary of National Biography, i. 254–9; Neue Deutsche Biographie, Berlin 1952 ff., i. 191Google Scholar. On his disputations in parliament, see his Of the auctorite of the word of god agaynst the bysshop of london, Leipzig? 1537? (S.T.C., 292); also Rupp, E. G., Studies in the Making of the English Protestant Tradition, Cambridge 1949, 135 ffGoogle Scholar.

^{page 211 note 2} Fol. 2O^v (ch. vi).

^{page 211 note 3} Rupp, op. cit., 137–8.

^{page 211 note 4} L. & P. xii (2), nos. 703 and 818.

^{page 211 note 5} C6^r.

^{page 211 note 6} Fol. 21^v.

^{page 211 note 7} Schenk, W., Cardinal Pole, London 1950, 75Google Scholar ff.

^{page 212 note 1} Cox, op. cit., 464. This idea of imperium merum is in consonance with the spirit of MS. No. 46 but not that of MS. No. 47, which emphasises the charismatic power residing in a truly Christian Council of bringing concord and unity without coercion. The imperium merum was the sovereign coercive jurisdictional power, and the potestas indicium concilii exequendi must have naturally belonged to this power.

^{page 212 note 2} The idea of translatio imperii was more explicitly stated in the statement ‘For the General Counsel’. It argued: the ius concilium convocandi which had originally belonged to the Roman emperor, was later usurped by the bishop of Rome. Now that the empire had perished and the Christian princes have ‘absolute power in their own realmes, and an hole and entire monarchy’, the General Council could lawfully be convoked only by their free consent (S.P.I/105, fol. 80^r-v; S. P., i. 543). The latest study on the idea of translatio imperii by Werner Goez, Translatio Imperii: ein Beitrag des Geschichtsdenkens und der politischen Theorien im Mittelalter und in der frühen Neuzeit, Tübingen 1958, completely ignores the English side of the story.

^{page 213 note 1} Chapuys to Mary of Hungary, 13 April 1537: Sp. Cal. v (2), no. 223: L. & P. xiii (1), no. 756.