appeareth 11 H. 7.9 34 H. 6.14 c. And in Bunting and Leppingwells Case in the part of my Reports And this is the usual form of all the Sentences in their Ecclesiastical Courts And this very Point Tr. 23 Reginae Eliz. in this Court between Cheyney and Frankwell all the matter being found as this Case is by speciall verdict was adjudged As to the fourth Objection videlicet That the said Queen had onely power by force of the said Act to nominate Commissioners for Ecclesiasticall causes and therefore the foresaid Nomination not pursuing the authority given unto her by that Act should be void Hereunto a threefold Answer was given and resolved by the whole Court 1. That they which were Commissioners and had places of Judicature over the King's subjects should be intended to be Subjects born and not Aliens But if in veritie they were Aliens yet in respect of the general intendment to the contrary it ought to be alledged and proved by the other party For Stabilitur praesumptum donec probetur in contrarium 2. The Jurors have found that the Queen by her said Letters Patents did authorize them secundum formam Statuti praedicti and therefore it doth by necessary consequence amount to as much as if they had found they had been Subjects born For if they were not Subjects born they could not be authorized secundum formam Statuti praedicti Vide 11 H. 4.4 13 Eliz. Dyer fol. And the rather for that this is found by special verdict 3. It was resolved That the said Act of the first year of the said Queen concerning Ecclesiastical Jurisdiction was not a Statute introductory of a new Law but declaratory of the old which appeareth as well by the Title of the said Act videlicet An Act restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and Spiritual c. as also by the body of the Act in divers parts thereof For that Act doth not annex any Jurisdiction to the Crown but that which in truth was or of right ought to be by the ancient Laws of the Realm parcell of the King's Jurisdiction and united to his Imperial Crown and which lawfully had been or might be exercised within the Realm The end of which Jurisdiction and of all the proceeding thereupon was that all things might be done in causes Ecclesiasticall to the pleasure of almighty God the increase of vertue and the conservation of the peace and unity of this Realm as by divers parts of the said Act appeareth And therefore as by that Act no pretended Jurisdiction exercised within this Realm being either ungodly or repugnant to the Prerogative or the ancient Law of the Crown of this Realm was or could be restored to the same Crown according to the ancient right and Law of the same So if that Act of the first year of the said Queen had never been made it was resolved by all the Judges that the King or Queen of England for the time being may make such an Ecclesiasticall Commission as is before mentioned by the ancient Prerogative and Law of England And therefore by the ancient Laws of this Realm this Kingdome of England is an absolute Empire and Monarchy consisting of one Head which is the King and of a Body politick compact and compounded of many and almost infinite severall and yet well-agreeing members All which the Law divideth into two several parts that is to say the Clergie and the Laietie both of them next and immediately under God subject and obedient to the Head Also the Kingly Head of this politick Body is instituted and furnished with plenary and entire power Prerogative and Jurisdiction to render Justice and right to every part and member of this Body of what estate degree or calling soever in all Causes Ecclesiasticall or Temporal otherwise he should not be a Head of the whole Body And as in Temporal causes the King by the mouth of the Judges in his Courts of Justice doth judge and determine the same by the temporal Laws of England so in causes Ecclesiasticall and Spiritual as namely Blasphemy Apostasie from Christianity Heresies Schisms Ordering Admissions Institutions of Clerks Celebration of Divine service Rights of Matrimony Divorces general Bastardy subtraction and right of Tithes Oblations Obventions Dilapidations Reparation of Churches Probate of Testaments Administrations and accounts upon the same Simony Incests Fornications Adulteries Solicitation of Chastity Pentions Procurations Appeals in Ecclesiasticall causes Commutation of penance and others the conusance whereof belong not to the Common Laws of England the same are to be determined and decided by Ecclesiasticall Judges according to the King 's Ecclesiastical Laws of this Realm For as the Romans fetching divers Laws from Athens yet being approved and allowed by the State there called them notwithstanding Jus Civile Romanorum and as the Normans borrowing all or most of their Laws from England yet baptized them by the name of the Laws or Customes of Normandy So albeit the Kings of England derived their Ecclesiasticall Laws from others yet so many as were proved approved and allowed here by and with a general consent are aptly and rightly called The King 's Ecclesiasticall Laws of England which whosoever shall deny he denieth that the King hath full and plenary power to deliver Justice in all causes to all his subjects or to punish all crimes and offences within his Kingdome for that as before it appeareth the deciding of matters so many and of so great importance are not within the conusance of the Common Laws and consequently that the King is no compleat Monarch nor Head of the whole and entire Body of the Realm But to confirm those that hold the truth to satisfy such as being not instructed know not the ancient and modern Laws and Customes of England every man being perswaded as he is taught these few demonstrative proofs out of the Laws of England in stead of many in order serie temporum are here added KEnulphus Rex c. per Literas suas patentes consilio consensu Episcoporum Senatorum gentis suae largitus fuit Monasterio de Abnidon in Comitatu Bark ac cuidam Ruchnio tune Abbati Monasterii c. quandam ruris sui portionem id est quindecim Mansias in loco qui à Ruricelis tunc nuncupabatur Culnam cum omnibus utilitatibus ad eandem pertinentibus tam in magnis quam in modicis rebus in aeternam haereditatem Et quod praedictus Ruchnius c. ab omni Episcopali Jure in sempiternum esse quietus ut inhabitatores ejus nullius Episcopi aut suorum officialium jugo inde deprimantur sed in cunctis rerum eventibus discussionibus causarum Abbatis Monasterii praedicti decreto subjiciantur Ità quòd c. As by the said Charter pleaded in 1 Henr. 7. and vouched by Stamford at large appeareth which Charter granted above 850 years fithence was after confirmed per Edwinum
times when both the Prince and people of England did for the most part acknowledge the Pope to be the thirteenth Apostle and onely oracle in matters of Religion and did follow his doctrine in most of those points wherein we now dissent from him 1. For the first Point we did purposely forbear to proceed against him upon any later Law to the end that such as were ignorant might be informed that long before King Henr. 8. was born divers Laws were made against the Usurpation of the Bishop of Rome upon the rights of the Crown of England well-nigh as sharp and as severe as any Statutes which have been made in later times and that therefore we made choice to proceed upon a Law made more then 200 years past when the King the Lords and Commons which made the Laws and the Judges which did interpret the Laws did for the most part follow the same opinions in Religion which were taught and held in the Court of Rome 2. For the second Point the causes that moved and almost enforced the English Nation to make this and other Statutes of the same nature were of the greatest importance that could possibly arise in any State For these Laws were made to uphold and maintain the Sovereignty of the King the Liberty of the people the Common Law and the Commonweal which otherwise had been undermined and utterly ruined by the Usurpation of the Bishop of Rome For albeit the Kings of England were absolute Emperours within their Dominions and had under them as learned a Prelacy and Clergy as valiant and prudent a Nobility as free and wealthy a Commonalty as any was then in Christendom yet if we look into the stories and records of these two Imperial Kingdoms we shall find that if these Laws of Provision and Praemunire had not been made they had lost the name of Imperial and of Kingdoms too and had been long since made Tributary Provinces to the Bishop of Rome or rather part of S. Peter's Patrimony in demesne Our Kings had had their Scepters wrested out of their hands their Crowns spurned off from their heads their necks trod upon they had been made Lacquays or Footmen to the Bishop of Rome as some of the Emperours and French Kings were our Prelates had been made his Chaplains and Clerks our Nobility his Vassals and Servants our Commons his Slaves and Villains if these Acts of manumission had not freed them In a word before the making of these Laws the flourishing Crown and Commonwealth of England was in extream danger to have been brought into most miserable servitude and slavery under colour of Religion and devotion to the See of Rome And this was not onely seen and felt by the King and much repined at and protested against by the Nobility but the Commons the general multitude of the Subjects did exclaim and cry out upon it For the Commons of England mâ—y be an example unto all other Subjects in the world in this that they have ever been tender and sensible of the wrongs and dishonours offered unto their Kings and have ever contended to uphold and maintain their honour and Sovereignty And their faith and loyaltie hath been generally such though every Age hath brought forth some particular monsters of disloyaltie as no pretence of zeal or religion could ever withdraw the greater part of the Subjects to submit themselves to a forrein yoke no not when Popery was in her height and exaltation whereof this Act and divers others of the same kind are clear and manifest testimonies For this Act of 16 Rich. 2. was made at the prayer of the Commons which prayer they make not for themselves neither shew they their own self love therein as in other Bills which contain their Grievances but their love and zeal to the King and his Crown When after the Norman Conquest they importuned their Kings for the Great Charter they sought their own Liberties and in other Bills preferred commonly by the Commons against Shriefs Escheators Purveyors or the like they seek their own profit and ease but here their Petition is to the King to make a Law for the defence and maintenance of his own honour They complain That by Bulls and Processes from Rome the King is deprived of that Jurisdiction which belongs of right to his Imperial Crown That the King doth lose the service and counsel of his Prelates and learned men by translations made by the Bishop of Rome That the King's Laws are defeated at his will the Treasure of the Realm is exhausted and exported to enrich his Court And that by those means the Crown of England which hath ever been free and subject unto none but immediately unto God should be submitted unto the Bishop of Rome to the utter destruction of the King and the whole Realm which God defend say they and thereupon out of their exceeding zeal and fervency they offer to live and die with the King in defence of the liberties of the Crown And lastly they pray and require the King by way of justice to examine all the Lords in Parliament what they thought of these manifest wrongs and usurpations and whether they would stand with the King in defence of his Royall liberties or no. Which the King did according to their Petition and the Lords Spiritual and Temporal did all answer that these Usurpations of the Bishop of Rome were against the liberties of the Crown and that they were all bound by their allegeance to stand with the King and to maintain his honour and Prerogative And thereupon it was enacted with a full consent of the three Estates That such as should purchase in the Court of Rome or elsewhere any Bulls or Processes or other things which might touch the King in his Crown and dignitie Royall and such as should bring them into the Realm and such as should receive them publish them or execute them they their Notaries Proctors Maintainors and Counsellors should be all out of the King's protection their lands and goods forfeited to the King their bodies attached if they might be found or else processe of Pramunire facias to be awarded against them Upon these motives and with this affection and zeal of the people was the Statute of 16 Rich. 2. made whereupon we have framed our Inditement Now let us look higher and see whether the former Laws made by King Edw. 1. and King Edw. 3. against the Usurpation of the Bishop of Rome were not grounded upon the like cause and reason The Statute of 38 Edw. 3. cap. 1. expressing the mischiefs that did arise by Breves of Citation which drew the bodies of the people and by Bulls of Provision and Reservation of Ecclesiasticall Benefices which drew the wealth of the Realm to the Court of Rome doth declare that by these means the ancient Laws Customes and Franchises of the Realm were confounded the Crown of our Sovereign Lord the King diminished and his person falsely defamed
in the Civil Magistrate and so in right it remaineth at this day and though it be derived from him it remaineth in him as in the fountain For every Christian Monarch as well as the godly Kings of Juda is custos utriusque Tabulae and consequently hath power to punish not onely Treason Murther Theft and all manner of Force and Fraud but Incest Adultery Usury Perjury Simony Sorcery Idolatry Blasphemy Neither are these Causes in respect of their own quality and nature to be distinguished one from another by the names of Spirituall or Temporall For why is Adultery a Spirituall cause rather then Murther when they are both offences alike against the Second Table or Idolatry rather then Perjury being both offences likewise against the First Table And indeed if we consider the natures of these Causes it will seem somewhat absurd that they are distinguished by the name of Spirituall and Temporall for to speak properly that which is opposed to Spirituall should be termed Carnall and that which is opposed to Temporall should be called Eternall And therefore if things were called by their proper names Adultery should not be called a spirituall offence but a carnall But shall I expresse plainly and briefly why these Causes were first denominated some Spirituall or Ecclesiasticall and others Temporall and Civil Truly they were so called not from the nature of the Causes as I said before but from the quality of the persons whom the Prince had made Judges in those Causes The Clergie did study spirituall things and did professe to live secundum spiritum and were called spirituall men and therefore they called the Causes wherein Princes had given them jurisdiction spirituall causes after their own name and quality But because the Lay-magistrates were said to intend the things of this world which are temporall and transitory the Clergie called them secular or temporall men and the Causes wherein they were Judges temporall causes This distinction began first in the Court of Rome where the Clergie having by this Jurisdiction gotten great wealth their wealth begot pride their pride begot ingratitude towards Princes who first gave them their Jurisdiction and then according to the nature of all ungratefull persons they went about to extinguish the memory of the benefit for whereas their Jurisdiction was first derived from Caesar in the execution whereof they were Caesar's Judges so as both their Courts and Causes ought still to have born Caesar's image and superscription as belonging unto Caesar they blotted Caesar's name out of the style of their Courts and called them Courts Christian as if the Courts holden by other Magistrates had been in comparison but Courts of Ethnicks and the Causes which in their nature were meerly Civil they called Spirituall and Ecclesiasticall So as if the Emperour should challenge his Courts and Causes again and say Reddite Caesariquae sunt Caesaris they would all cry out on the contrary part and say Date Deo quae sunt Dei our Courts bear the name and title of Christ the superscription of Caesar is quite worn out and not to be found upon them And this point of their policy is worth the observing that when they found their jurisdiction in Matrimoniall causes to be the most sweet and gainfull of all other for of Matrimony they made matter of money indeed to the end that Caesar might never resume so rich a perquisite of their Spirituall jurisdiction they reduced Matrimony into the number of the 7 Sacraments after which time it had been Sacriledge if the Civil Magistrate had intermeddled with the least matter that had relation to Matrimonie or any dependencie thereupon So then it appeareth that all Causes whereof Ecclesiasticall or Spirituall persons have cognisance or jurisdiction by the grants or permission of Princes are called Ecclesiasticall or Spirituall causes And as all their Courts are called Spirituall Courts so all Causes determinable in those Courts are called Spirituall Causes And therefore where Mr. Lalor hath acknowledged the King's Majestie to be Supreme Governour in all Ecclesiasticall causes he hath therein acknowledged the King's Supremacie in all Spirituall causes wherein he hath but rendered to Caesar that which is Caesar's and hath given unto his Majestie no more then all the Bishops of England have yielded to his Predecessours not onely in this latter Age but also in former times both before and since the Conquest as hath been before at large expressed Here the day being far spent the Court demanded of the prisoner if he had any more to say for himself His answer was That he did willingly renounce his office of Vicar-generall and did humbly crave his Majestie 's grace and pardon And to that end he desired the Court to move the L. Deputy to be favourable unto him Then the Jury departed from the Bar and returning within half an hour found the prisoner guiltie of the Contempts whereof he was indicted Whereupon the Solicitor generall moved the Court to proceed to Judgement And Sir Dominick Sarsfield Knight one of the Justices of his Majestie 's chief place gave Judgement according to the form of the Statute whereupon the Indictment was framed OF THE KING' 's Ecclesiasticall Law IN the Term of S. Hillary in the 33. year of the Reign of Q. Elizabeth Rotulo 340. Robert Caudrey Clerk brought an action of Trespasse against George Atton for breaking of his Close at North-Luffenham in the County of Rutland the 7. day of August in the 31. year of the Reign of the said Queen The Defendant pleaded not guilty and the Jury returned and sworn for triall of this issue gave a speciall Verdict that is they found the truth of the Case at large referring the same for the Law to the judgment of the Court to this effect They found that the Plaintif before the Trespasse supposed to be done was Parson of the Rectory of South-Luffenham in the County aforesaid whereof the place wherein the Trespass is alledged was parcell and found the Statute made in the first year of the said Queen's Reign by which in effect it is enacted That such Jurisdiction Ecclesiasticall as by any Spirituall or Ecclesiasticall power hath heretofore been or may lawfully be exercised for the Visitation of the Ecclesiasticall estate and persons and for reformation order and correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities within this Realm should for ever be united and annexed to the Imperiall Crown of this Realm And that her Highnesse her Heirs and Successors should have full power and authority by virtue of that Act by Letters Patents under the great Seal of England to assign nominate and authorize such persons being natural-born Subjects as her Highness her Heirs or Successors should think meet to exercise and execute under her Highnesse her Heirs and Successors all and all manner of Jurisdiction Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within this
any Excommunication out of he Realm And therefore by the rule of the Court the Plaintif was not thereby disabled Reges sacro oleo uncti sunt Spiritualis Jurisdictionis capaces Where a Prior is the King's debtor and ought to have Tithes of another Spiritual person he may chuse either to sue for subtraction of his Tithes in the Ecclesiastical Court or in the Exchequer and yet the persons and matter also were Ecclesiastical For seeing the matter by a mean concerneth the King he may sue for them in the Exchequer as well as in the Ecclesiastical Court and there shall the right of Tithes be determined And Fitzherbert in his Nabre fol. 30. holdeth that before the Statute of 18 E. 3. cap. 7. right of Tithes were determinable at the Temporal Courts at the election of the party and by that Statute assigned to be determined in the Ecclesiastical Court and the Temporal Court excluded thereof And the Courts of divers Mannors of the King 's and of other Lords in ancient times had the Probates of last Wills and Testaments And it appeareth by 11 H. 7. fol. 12. that Probate of Testaments did not appertain to the Ecclesiasticall Court but that of late time they were determinable there So as of such Causes and in such manner as the Kings of the Realm by general consent and allowance have assigned to their Ecclesiasticall Courts they have Jurisdiction by force of such allowance The King did by his Charter translate Canons Secular into Regular and Religious persons which he did by his Ecclesiasticall Jurisdiction and could not doe it unlesse he had Jurisdiction Ecclesiasticall The Abbot of Waltham died in the 45. year of E. 3. and one Nicholas Morris was elected Abbot who for that the Abbey was exempt from ordinary Jurisdiction sent to Rome to be confirmed by the Pope And because the Pope by his Constitutions had reserved all such Collations to himself he did recite by his Bull that he having no regard to the Election of the said Nicholas gave to him the said Abbey and the Spiritualties and Temporalties belonging to the same of his spirituall grace and at the request as he feigned of the King of England This Bull was read and considered of in Councill that is before all the Judges of England and it was resolved by them all that this Bull was against the Laws of England and that the Abbot for obtaining the same was fallen into the King's mercy whereupon all his possessions were seised into the King's hands as more at large by the said Case appeareth Where the Abbot of Westminster had a Prior and Convent who were Regular and mort in law yet the King by his Charter did divide that Corporation and made the Prior and Convent a distinct and capable Body to sue and be sued by themselves At a Parliament holden in the 25. year of King Edward the Third it was enacted by consent of the whole Parliament That as well they that obtained Provisions from Rome as they that put them in execution should be out of the King's protection and that a man might doe with them as with the enemies of the King And he that offendeth against such Provisors in body goods or other possessions should be excused against all people and should never be impeached or grieved for the same By which Law every man might lawfully kill such an Offendor as a common enemy against the King and his Countrey so hainous were such offences then holden Afterwards in the same 25. year of King Edward the Third it was in open Parliament by the grievous complaints of all the Commons of this Realm shewed that the Grievances and Mischiefs aforesaid did daily abound to the great dammage and destruction of all this Realm more then ever before viz. That of late the Bishop of Rome by procurement of Clerks and otherwise had reserved and did daily reserve to his Collation generally and specially as well Archbishopricks Abbies and Priories as all other Dignities and other Benefices of England which were of the Advowrie of people of Holy Church and gave the same as well to Aliens as to Natives and did take of all such Benefices the First-fruits and many other Profits and a great part of the Treasure of the Realm was carried away and dispended out of the Realm by the purchasors of such graces and also by such privy Reservations many Clerks advanced in the Realm by their true Patrons which peaceably had holden their Advancements by long time were suddenly put out Whereupon the said Commons did pray their said Sovereign Lord the King that fithence the right of the Crown of England and the Law of the said Realm was such that upon the mischiefs and dammages which happened to his Realm he ought and was bound of the accord of his said people thereof to provide remedie and law for the avoiding the mischiefs and dammage which thereof came That it might please him thereupon to ordain remedy The said King Ed. the 3. seeing the mischiefs and dammage before named and having regard to the Statute made in the time of his Grandfather King Ed. 1. and to the causes contained in the same which Statute holdeth always his force and was never defeated nor adnulled in any point and forasmuch as he was bound by his Oath to see the same to be kept as a Law of this Realm though that by sufferance and negligence it had been fithence attempted to the contrary also having regard to the grievous complaints made to him by his people in divers his Parliaments holden heretofore willing to ordain remedy for the great dammage and mischiefs which had happened and daily did happen to the Church of England by the said cause by the assent of all the Great men and the Commonalty of the said Realm to the honour of God and profit of the said Church of England and of all his Realm did order and establish That the free Election of Archbishops Bishops and all other Dignities and Benefices electory in England should hold from thenceforth in the manner as they were granted by the King's Progenitors and founded by the Ancestors of other Lords And that all Prelates and other people of Holy Church which had Advowsons of any Benefices of the King's gift or of any of his Progenitors or of other Lords and Donors to doe Divine Service and other charges thereto pertaining should have their Collations and Presentments freely in the manner as they were infeoffed by their Donors And in case that Reservation Collation or Provision be made by the Court of Rome of any Archbishoprick Bishoprick Dignity or other Benefice in disturbance of the Elections Collations or Presentations afore named That at the time of the Avoidance that such Reservations Collations and Provisions ought to take effect the said King Edward the Third and his Heirs should have and enjoy the same Collations to the Archbishopricks and other Dignities
recommendation unto the young King his Son then lately crowned who hearing of his coming commanded him to forbear to come to his presence untill he had absolved the Archbishop of York and others whom he had excommunicated for performing their duties at his Coronation The Archbishop returned answer that they had done him wrong in usurping his office yet if they would take a solemn oath to become obedient to the Pope's commandment in all things concerning the Church he would absolve them The Bishops understanding this protested they would never take that oath unless the King willed them so to doe King Henry the Father being hereof advertised into France did rise into great passion and choler and in the hearing of some of his servants uttered words to this effect Will no man revenge me of mine enemies Whereupon the 4 Gentlemen named in the Stories of that time passed into England and first moving the Archbishop to absolve the Bishops whom he had excommunicated for performing their Duties at the young King's Coronation and receiving a peremptory answer of deniall from the Archbishop they laid violent hands upon him and slew him for which the King was fain not onely to suffer corporal penance but in token of his humiliation to kisse the knee of the Pope's Legate And this is the abridgement of Becket's Troubles or rather Treasons for which he was celebrated for so famous a Martyr And thus you see by what degrees the Court of Rome did within the space of one hundred and odde years usurp upon the Crown of England four points of Jurisdiction Viz. First sending out of Legates into England Secondly drawing of Appeals to the Court of Rome Thirdly donation of Bishopricks and other Ecclesiasticall Benefices And fourthly exemption of Clerks from the Secular power And you see withall how our Kings and Parliaments have from time to time opposed and withstood this unjust Usurpation Now then the Bishop of Rome having claimed and welnigh recovered full and sole jurisdiction in all causes Ecclesiasticall and over all persons Ecclesiasticall with power to dispose of all Ecclesiasticall Benefices in England whereby he had upon the matter made an absolute conquest of more then half the Kingdome for every one that could read the Psalm of Miserere was a Clerk and the Clergie possessed the moietie of all temporall possessions there remained now nothing to make him owner and proprietor of all but to get a surrender of the Crown and to make the King his Farmer and the people his Villains which he fully accomplished and brought to passe in the times of King John and of Hen. 3. The quarrell between the Pope and King John which wrested the Scepter out of his hand and in the end brake his heart began about the Election of the Archbishop of Canterbury I call it Election and not Donation or Investiture for the manner of investing of Bishops by the Staffe and Ring after the time of King Hen. 1. was not any more used but by the King's licence they were Canonically elected and being elected the King gave his Royall assent to their election and by restitution of their Temporalties did fully invest them And though this course of election began to be in use in the time of Rich. 1. and Hen. 2. yet I find it not confirmed by any Constitution or Charter before the time of King John who by his Charter dated the fifteenth of January in the sixteenth year of his Reign granted this privilege to the Church of England in these words viz. Quod qualiscunque consuetudo temporibus praedecessorum nostrorum hactenus in Ecclesia Anglicana fuerit observata quidquid juris nobis hactenus vindicaverimus de caetero in universis singulis Ecclesiis Mâ—nasteriis Cathedralibus Conventualibus totius regni Angliae liberae sint in perpetuum electiones quorumcumque Praelatorum majorum minorum Salvâ nobis haeredibus nostris custodiâ Ecclesiarum Monasteriorum vacantium quae ad nos pertinent Promittimus etiam quod nec impediemus nec impediri permittemus per ministros nostros nec procurabimus quin in universis singulis Monasteriis Ecclesiis postquam vacuerint praelaturae quemcunque voluerint libere sibi praeficiant electores Pastorum petitâ tamen à nobis priùs haeredibus nostris licentiâ eligendis quam non denegabimus nec differemus Et similiter post celebratam electionem noster requiratur assensus quem non denegabimus nisi adversus eandem rationale proposuerimus legitimè probaverimus propter quod non debemus consentire c. But to return to the cause of his great quarrell with the Pope The See of Canterbury being void the Monks of Canterbury suddenly and secretly without the King's licence elected one Reignold their Subprior to be Archbishop who immediately posted away to be confirmed by the Pope But when he came there the Pope rejected him because he came not recommended from the King Hereupon the Monks made suit to the King to nominate some fit person to whose election they might proceed The King commends John Gray Bishop of Norwich his principall Counsellour who was afterward Lord Justice of this Kingdome who with a full consent was elected by them and afterwards admitted and fully invested by the King These two elections bred such a controversie as none might determine but the Pope who gave a short rule in the case for he pronounced both elections void and caused some of the Monks of Canterbury who were then present in the Court of Rome to proceed to the election of Stephen Langton lately made Cardinal at the motion and suit of the French King who being so elected was forthwith confirmed and consecrated by the Pope and recommended to the King of England with a flattering Letter and a present of four Rings set with precious stones which were of great value and estimation in those days Howbeit the King more esteeming this Jewell of the Crown namely the Patronage of Bishopricks returned a round and Kingly answer to the Pope That inconsiderately and rashly he had cassed and made void the election of the Bishop of Norwich and had caused one Langton a man to him unknown and bred up and nourished amongst his mortal enemies to be consecrated Archbishop without any due form of election and without his Royal assent which was most of all requisite by the ancient laws and customes of his Realm That he marvelled much that the Pope himself and the whole Court of Rome did not consider what a precious account they ought to make of the King of England's friendship in regard that his one Kingdome did yield them more profit and revenue then all the other countries on this side the Alpes To conclude he would maintain the liberties of his Crown to the death he would restrain all his subjects from going to Rome And since the Archbishops Bishops and other Prelates within his dominions were as learned and religious
Realm of England and Ireland and to visit reform redresse order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical power authority or jurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the pleasure of Almighty God the encrease of vertue and the conservation of the peace and unity of this Realm And that such persons so to be named assigned and authorized should have full power and authority by virtue of that Act and of such Letters Patents under her Highnesse her Heirs and Successors to exercise use and execute all the premisses according to the tenour and effect of the said Letters Patents any matter or cause to the contrary notwithstanding And afterwards the said Queen by her Letters Patents under the great Seal of England bearing date the ninth day of December in the six and twentieth year of her Reign according to the tenour of the said Act did authorize the Archbishop of Canterbury the Bishop of London and divers others or any three or more of them to enquire amongst others of the Statute of the first year of her Reign concerning the Book of Common Prayer with this Clause also contained in the said Letters Patents videlicet Also we give and grant full power and authority to reform redresse order correct and amend in all places of this Realm all Errors Heresies Schisms Abuses Contempts and Enormities Spirituall or Ecclesiasticall whatsoever which by any Spirituall or Ecclesiasticall power authority or jurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended by Censure Ecclesiasticall Deprivation or otherwise c. And upon proof thereof had and the offences aforesaid or any of them sufficiently proved against any person or persons by Confession lawful witness or by any due manner c. That then you or three of you shall have full power and authority to order and award such punishment to every such offendor by Fine Imprisonment Censure of the Church or otherwise or by all or any of the said ways and to take such order for the redresse of the same as by your wisedomes and discretions shall be thought meer and convenient as by the said Letters Patents more at large appeareth And further they found the Statute of the first year of the Reign of the said Queen by which it is enacted That the offendor against that Act concerning the Uniformity of Common Prayer being thereof lawfully convicted according to the Laws of the Realm by Verdict of twelve men or by his Confession or by the notorious Evidence of the fact should forfeit for the first offence the value of his Spirituall living for one whole year and should suffer six months Imprisonment for the second offence to be committed after such Conviction he should be deprived ipso facto of all his Spiritual livings and for the third offence to be committed after two Convictions as is aforesaid he should be deprived of all his Ecclesiasticall livings and be imprisoned during his life And that the said Robert Caudrey before the time of the trespass supposed was deprived of his said Benefice before the said High Commissioners as well for that he had preached against the said Book of Common Prayer as also for that he refused to celebrate Divine Service according to the said Book and shewed particularly wherein Which said Sentence of Deprivation was given by the Bishop of London cum assensu A. B. C. D. c. collegarum suorum And the Jury concluded their Verdict That if the said Deprivation were not warranted by Law but void then they found the Defendant guilty of the trespass And if the Deprivation were not void in Law then they found the Defendant not guilty And this Case was solemnly and oftentimes debated at Barre by the Counsel of either party and at the Bench by the Judges and after great and long deliberation and consultation had with the rest of the Judges was in the Term of S. Hillary in the 37. year of the said Queen adjudged And it was argued by the Counsel of the Plaintif that the said Deprivation was void for 4 causes First The said Book of Common Prayer being authorized and commanded to be observed by the said Act of the first year of the Queen upon the forfeitures and punishments therein comprised the offence of the Plaintif is against that Act for that Act onely doth command the observation of the said Book and inflicteth punishments in severall degrees for depraving or not observing of the same and consequently if the offence be against that Act the Plaintif ought to have been proceeded withall and punished according to the same And it was said that the said Act was an Act of great moderation and equity for the offendor for his first offence should not be ipso facto deprived but should onely lose the profits of his Ecclesiasticall livings for one year and suffer Imprisonment for six months to the end that such as were froward might have a time to repent and the well-minded a time to consent And such care had the Act of the offendors in this behalf as if they committed one offence and then another and after the second many more yet should not the offendor be deprived for any of the latter offences unless he had been first judicially convicted of record by verdict of 12 men or by confession or notorious evidence of the fact So as the second offence for which he must be deprived by the said Act must be done and committed after such a judiciall and solemn Conviction and punishment according to the said Act And then if such an open punishment and infliction should not give him understanding and open his heart to repent then upon a like Conviction for a second offence to be committed after such a Conviction Deprivation should follow But in the case now in question Caudrey the Plaintif was deprived from his said Parsonage of South-Luffenham for his said first offence being never convented or convicted for any such offence before And therefore it was concluded for this first point That the said High Commissioners had not pursued the form and order prescribed by the said Act non observata forma infertur adnullatio Actus and consequently the Deprivation of the Plaintif is void and therefore Judgement ought to be given for him And it was said by the Plaintif's Counsell by way of anticipation That albeit there was a Proviso in the same Act for Archbishops Bishops and their Chancellors Commissaries Archdeacons and other Ordinaries having peculiar Jurisdiction yet that did not give any strength to the said Deprivation for two causes First that the Commissioners by force of the said Act of 1 Eliz. and of the said Letters Patents are not within the said Proviso but onely Archbishops and Bishops their Chancellors Commissaries c. in respect of their ordinary Jurisdiction 2. Admitting it should
such Bulls so purchased or any such Balls to be purchased in time to come upon the pain of a Premunire as by the said Act appeareth In the Reign of King Henry the Fifth IN an Act of Parliament made in the third year of King H. 5. it is declared That whereas in the time of King H. 4. Father to the said King in the 7. year of his Reign to eschew many discords and debates and divers other mischiefs which were likely to arise and happen because of many Provisions then made or to be made by the Pope and also of Licence thereupon granted by the said late King amongst other things it was ordained and established That no such Licence or Pardon so granted before the same Ordinance or afterwards to be granted should be available to any Benefice full of any Incumbent at the day of the date of such Licence or Pardon granted Nevertheless divers persons having Provisions of the Pope of divers Benefices in England and elsewhere and Licences Royall to execute the same Provisions have by colour of the same Provisions Licences and Acceptations of the said Benefices subtilly excluded divers persons of their Benefices in which they had been Incumbents by a long season of the collation of the very Patrons Spiritual to them duely made to their intent to the final destruction and enervation of the states of the same Incumbents The King willing to void such mischiefs hath ordained and established That all the Incumbents of every Benefice of Holy Church of the Patronage Collation or Presentation of Spirituall Patrons might quietly and peaceably enjoy their said Benefices without being inquieted molested or any ways grieved by any colour of such Provisions Licences abd Acceptations And that all the Licences and Pardons upon and by such Provisions made in any manner should be void and of no value And if any feel himself grieved molested or inquieted in any wise from thenceforth by any by colour of such Provisions Licences Pardons or Acceptations that the same molestors grievors or inquietors and every of them have and incurre the pains and punishments contained in the Statutes of Provisors before that time made as by the said Act appeareth A Statute was made for extirpation of Heresie and Lollardry whereby full power and authority was given to the Justices of Peace and Justices of Assise to inquire of those that hold Errours Heresies or Lollardry and of their maintainers c. And that the Sheriffe or other Officer c. may arrest and apprehend them The King by consent of Parliament giveth power to Ordinaries to enquire of the foundation erection and governance of Hospitals other then such as be of the King's foundation and thereupon to make correction and reformation according to the Ecclesiasticall Law In the Reign of King Henry the Sixth EXcommunication made and certified by the Pope is of no force to disable any man within England And this is by the ancient Common Laws before any Statute was made concerning forrein Jurisdiction The King onely may grant or licence to found a Spiritual Incorporation In the Reign of King Henry the 6. the Pope writ Letters in derogation of the King and his Regalty and the Church-men durst not speak against them But Humfrey Duke of Gloucester for their safe keeping put them into the fire In the Reign of King Edward the Fourth IN the Reign of King Edward the Fourth the Pope granted to the Prior of Saint Johns to have Sanctuary within his Priory and this was pleaded and claimed by the Prior But it was resolved by the Judges that the Pope had no power to grant any Sanctuary within this Realm and therefore by judgement of the Law the same was disallowed There it appeareth that the opinion of the King's Bench had been oftentimes that if one Spiritual person sue another Spiritual man in the Court of Rome for a matter spiritual where he might have remedy before his Ordinary that is the Bishop of that Diocese within the Realm quia trahit ipsum in placitum extra regnum incurreth the danger of a Premunire a hainous offence it being contra legiantiae suae debitum in contemptum Domini Regis contra Coronam dignitatem suas By which it appeareth how grievous an offence it was against the King his Crown and Dignity if any subject although both the persons and cause were Spirituall did seek for justice out of the Realm as though either there wanted Jurisdiction or Justice was not executed in the Ecclesiastical Courts within the same which as it hath been said was an high offence contra Regem Coronam dignitatem suas In the King's Courts of Record where Felonies are determined the Bishop or his Deputy ought to give his attendance to the end that if any that is indicted and arraigned for Felony do demand the benefit of his Clergy that the Ordinary may inform the Court of his sufficiency or insufficiency that is whether he can reade as a Clerk or not whereof notwithstanding the Ordinary is not to judge but is a minister to the King's Court and the Judges of that Court are to judge of the sufficiency or insufficiency of the party whatsoever the Ordinary doth inform them and upon due examination of the party may give judgement against the Ordinarie's information for the King's Judges are Judges of the cause The Pope's Excommunication is of no force within the Realm of England In the Reign of King Edward the Fourth a Legate from the Pope came to Calice to have come into England but the King and his Council would not suffer him to come within England until he had taken an oath that he should attempt nothing against the King or his Crown and so the like was done in his Reign to another of the Pope's Legates And this is so reported in 1 Henrici 7. fol. 10. In the Reign of King Richard the Third IT is resolved by the Judges That a Judgement or Excommunication in the Court of Rome should not bind or prejudice any man within England at the Common Law In the Reign of King Henry the Seventh IN the Reign of King Henry the 7. the Pope had excommunicated all such persons whatsoever as had bought Allum of the Florentines And it was resolved by all the Judges of England that the Pope's Excommunication ought not to be obeyed or to be put in execution within the Realm of England In a Parliament holden in the first year of King Henry the Seventh for the more sure and likely reformation of Priests Clerks and Religious men culpable or by their demerits openly noised of incontinent living in their bodies contrary to their Order it was enacted ordained and established by the advice and assent of the Lords Spiritual and Temporal and the Commons in the said Parliament assembled and by authority of the same That it be lawful to all Archbishops and Bishops
and other Ordinaries having Episcopal Jurisdiction to punish and chastise Priests Clerks and Religious men being within the bounds of their Jurisdiction as shall be convicted afore them by examination and lawfull proof requisite by the law of the Church of Advoutrie Fornication Incest or any other fleshly Incontinency by committing them to ward and prison there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their trespass And that none of the said Archbishops Bishops or Ordinaries aforesaid be thereof chargeable of to or upon any action of false or wrongfull imprisonment but that they be utterly thereof discharged in any of the cases aforesaid by virtue of this Act. Rex est persona mixta because he hath both Ecclesiastical and Temporal Jurisdiction By the Ecclesiastical Laws allowed within this Realm a Priest cannot have two Benefices nor can a Bastard be a Priest but the King may by his Ecclesiasticall power and Jurisdiction dispense with both of these because they be mala prohibita and not mala per se In the Reign of King Henry the Eighth BY an Act of Parliament made in the 24. year of King Henry the 8. that is to say by the King 24 Bishops 29 Abbots and Priors for so many were then Lords of Parliament by all the Lords Temporal and the Commons in that Parliament assembled it is declared That where by divers sundry old authentick Histories and Chronicles it was manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the world governed by one Supreme Head and King having the Dignity and Royal estate of the Imperial Crown of the same unto whom a Body politick compact of all sorts and degrees of people divided in terms and by names of Spiritualty and Temporalty been bound and ought to bear next to God a natural and humble obedience he being also institute and furnished by the goodness and furtherance of Almighty God with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction to render and yield Justice and final determination to all manner of folk resiants or subjects within this his Realm in all causes matters debates and contentions happening to occur insurge or begin within the limits thereof without restraint or provocation to any forrein Princes or Potentates of the world The Body Spiritual whereof having power when any cause of the Law Divine happened to come in question or of Spiritual learning that it was declared interpreted and shewed by that part of the said Body politick called the Spiritualty then being usually called the English Church which alwaies had been reputed and also found of that sort that both for knowledge integrity and sufficiency of number it had been always thought and was also at that hour sufficient and meet of it self without the intermeddling of any exteriour person or persons to declare and determine all such doubts and to administer all such offices and duties as to the rank spiritual did appertain For the due administration whereof and to keep them from corruption and sinister affection the King 's most noble Progenitors and the antecessors of the Nobles of this Realm did sufficiently indow the said Church both with honour and possessions And the Laws Temporal for trial of property of lands and goods and for the conservation of the people of this Realm in unity and peace without ravine or spoil was administred adjudged and executed by sundry Judges and Ministers of the other part of the said Body politick called the Temporaltie And both their Authorities and Jurisdictions did conjoyn together in the due administration of Justice the one to help the other And whereas the King his most noble Progenitors and the Nobility and Commons of the said Realm at divers and sundry Parliaments as well in the time King Edward the 1. Edward the 3. Richard the 2. Henry the 4. and other noble Kings of this Realm made sundry Ordinances Laws Statutes and Provisions for the entire and sure conservation of the Prerogatives Liberties and Preheminences of the said Imperial Crown of this Realm and of the Jurisdiction Spiritual and Temporal of the same to keep it from the annoiance as well of the See of Rome as from the authority of other forrein Potentates attempting the diminution or violation thereof as often and from time to time as any such annoiance or attempt might be known or espied And notwithstanding the said good Statutes and Ordinances made in the time of the King 's most noble Progenitors in preservation of the Authority and Prerogative of the said Imperiall Crown as is aforesaid yet nevertheless fithence the making of the said good Statutes and Ordinances divers and sundry inconveniences and dangers not provided for plainly by the said former Acts Statutes and Ordinances have risen and sprung by reason of Appeals sued out of this Realm to the See of Rome in causes Testamentary causes of Matrimony and Divorces right of Tithes Oblations and Obventions not onely to the great inquietation vexation trouble costs and charges of the King's Highness and many of his subjects and resiants in this his Realm but also to the great delay and lett to the true and speedy determination of the said causes forasmuch as the parties appealing to the said Court of Rome most commonly did the same for delay of Justice and forasmuch as the great distance of way was so far out of this Realm that neither the necessary proofs nor the true knowledge of the cause could be so well known or the witnesses there so well examined as within this Realm so that the parties grieved by means of the said Appeals were most times without remedy In consideration thereof the King his Nobles and Commons considering the great enormities dammages long delaies and hurts that as well to his Highness as to his said Noble subjects Commons and resiants of this his Realm in the said causes Testamentary causes of Matrimony and Divorces Tithes Oblations and Obventions did daily ensue did therefore by his Royall assent and by the assent of the Lords Spiritual and Temporal and the Commons in that Parliament assembled and by Authority of the same enact establish and ordain That all causes Testamentary causes of Matrimony and Divorces rights of Tithes Oblations and Obventions the knowledge whereof by the goodness of Princes of this Realm and by the Laws and Customes of the same appertained to the Spiritual Jurisdiction of this Realm then already commenced moved depending being happening or hereafter coming in contention debate or question within this Realm or within any of the King's dominions or Marches of the same or elsewhere whether they concern the King his Heirs or Successors or any other subjects or resiants within this Realm of what degree soever they be should be from thenceforth heard examined discussed clearly finally and definitively adjudged and determined within the King's Jurisdiction and