Principum suorum confirmavit saith the Textus Roffensis He likewise confirmed Charters as the Saxons had done that to Battel Abby was Consilio Episcoporum Baronum meorum But the most considerable thing he did as to Ecclesiastical Jurisdiction was separating the Courts Ecclesiastical from the Hundred Courts by his Charter to Remigius and others which he saith was granted in a great Council and by the Advice of the Archbishops Bishops and all the Great Men of his Kingdom So that still extraordinary Acts relating to Church Matters were passed in Parliament by General consent And what now doth the Appropriation of a Church with a Cure of Souls signifie to prove his Ecclesiastical Jurisdiction When those things in his Time were not brought under such strict Rules as they were afterwards but Appropriation might have been made by any Lay Person that never pretended to the least Ecclesiastical Jurisdiction and he might as well have brought his demolishing so many Churches in the New Forest for an Instance of his Ecclesiastical Jurisdiction In the Reign of William the Second In William Rufus his time a great Heat arose between him and Anselm Archbishop of Canterbury about owning the Pope Whether the Archbishop could do it without the King's Consent the Business was referred to Parliament which the King called on purpose at Rockingham saith Eadmerus who was there present The Bishops declared they could not deprive him as the King would have had them to whom they had promised Obedience After which it was again referred to Parliament but Anselm not yielding he went out of the Land. In the Reign of King Henry the First In the Reign of Henry the First a new Controversie arose between the King and the same Archbishop about the Ancient Right of the Crown as to Investiture of Bishops the King calls a Parliament about it wherein the Bishops and Lords joyned with the King afterwards Anselm desired The Advice of the Bishops and Nobles might be heard at Easter which shews that both Sides referred it to the Parliament In his Time a Council was called and several Canons passed and the Archbishop desired of the King That the Primates Regni might sit with them that all things might pass utriusque Ordinis concordi cura with the Consent of both Estates The King afterwards takes the Advantage of these Canons and prosecutes the Breakers of them and raises Money upon Pretence of Forfeitures to the great Grievance of the Clergy Anselm although then in Disfavour writes to the King about it and tells him This was a new Method of Proceeding because it belonged to the Bishops in their Diocesses to call the Clergy to an Account or if they neglected to the Archbishop and Primate The King Answers That his Barons were to meet him on Ascension-day and by their Advice he would give an Answer but upon Anselms Return this Prosecution ceased Other Affairs of the Church were then referred to the Parliament at Easter from thence to Pentecost and by reason of Anselm's Sickness to August and then the Bishops Abbots and Lords of the Kingdom met in the King's Palace at London and by Consent of Parliament Investiture was turned into Homage In his time the Bishoprick of Ely was erected by the King's Consent in Parliament Regi Archiepiscopo caeterisque Principibus Regni visum fuit saith Eadmerus The Consecration of an elect Archbishop of York was transacted in Parliament the King advising with the Bishops and Nobles about it for Anselm before his Death had sent an Inhibition to the Bishops Not to consecrate him unless he made the Profession of Obedience to the Archbishop of Canterbury The Bishops resolved to adhere to Anselm's Inhibition and the King yielded After Anselm's Death the King advised with his Parliament at Windsor about a Successor to him and the Bishop of Rochester at the Request of the Bishops was agreed upon And the King filled the Abbies before he went into Normandy consisto Principum Episcoporum suorum In the latter End of Henry the First many Disputes hapned about Ecclesiastical Jurisdiction as between the Bishops of S. Davids and Glamorgan which were debated in magno Placito apud London saith Henry of Huntingdon And for such Causes saith he another Assembly was held in the beginning of Lent and again in Rogation Week In all this time when the Norman Kings asserted all the Rights of Sovereignty with great Zeal yet they never pretended to appoint any Commissioners for Ecclesiastical Causes but still referred them to Parliaments In the Reign of King Henry the Third The next Instance the Lord Coke brings falls as low as the Time of Henry the Third The first whereof is the King 's granting a Writ of Prohibition if any man sued in the Ecclesiastical Court for any thing of which by Allowance and Custom it had not lawful Cognizance But how doth the King's Power of granting Prohibitions prove his Ecclesiastical Jurisdiction It effectually proves the King 's Right to preserve his Crown and Dignity as the Prohibition implies but how doth it hence appear that the Ecclesiastical Jurisdiction comes from his Crown and Dignity The contrary seems rather to follow viz. That the Ecclesiastical Courts were held from another Power but all Matters of Temporal Cognizance did belong to the Crown There is no Question but since the Acts for restoring Jurisdiction to the Crown the supream Jurisdsction both in the Ecclesiastical and Civil Courts is derived from the Crown And in whose-soever Names the Courts are kept the Authority of keeping them is from the King. For it is declared by Act of Parliament 1 Eliz. 1. 17. That all Ecclesiastical Power is united and annexed to the Imperial Crown of this Realm which all Bishops do own in taking the Oath of Supremacy and therefore the old Form continuing can signifie nothing against the Law of this Realm and their own Oaths But as long as the main Points were secured by the Laws there was no necessity apprehended of altering the Forms for on the other side it was objected that since the Laws had placed all Jurisdiction in the Crown it seemed as unreasonable to continue the old Form of Prohibitions in laesionem Coronae Dignitatis Regiae how can this be say they when the Jurisdiction Ecclesiastical as well as Civil is owned to be from the Crown It is said in Answer That a Prohibition implies that the thing is drawn into aliud Examen than it ought to be and this is contra Coronam Dignitatem Regiam Why not then as well when an Ecclesiastical original Cause is brought into a Temporal Court for that is aliud Examen then by Confession on that side and if Ecclesiastical Jurisdiction be derived from the Crown the aliud Examen must relate only to the Court and not to the Crown All that I infer from hence is that the old Forms were thought fit to be continued both Parties reconciled them as well
deprived by it whereas in Fact there were but Fourteen deprived and that for not doing what they had done before in Henry the 8th's Time viz. for refusing to take the Oath of Supremacy which they had all taken in the time of H. 8. And as far as I can learn they were not deprived by the High Commission but by a particular Commission for that purpose as appears by the best Account we have of it in the Historians who lived nearest the time In the Month of July says Stow the old Bishops of England then living were called and examined by certain of the Queens Majesties Council where the Bishops of York Ely and London with others to the Number of Thirteen or Fourteen for refusing to take the Oath touching the Queens Supremacy and other Articles were deprived from their Bishopricks What he means by the other Articles I know not for there seem to be no other at that time for which they could be deprived by Law but refusing the Oath of Supremacy and so much Saunders himself owns for the other faults were not punishable with deprivation The Bishops being deprived by a special Commission of the Council then saith Stow Commissioners were appointed for all England For London Sir Richard Sackvile Dr. Horn Dr. Huick and Mr. Savage who called before them divers Persons of every Parish and swore them to enquire and present upon certain Injunctions With him Hollingshead agrees only adding that these Commissioners were sent according to an Act passed and confirmed last Parliament This was the Act for the High-Commission which then extended to particular Parishes with such such Powers of the Common Law as are already mentioned but are not of the Essence of the Commission according to the Act of Parliament and therefore the taking away those additional Powers doth not destroy the High Commission but the Repealing the Act of Parliament on which it was built takes away any such Court-Proceeding by Ecclesiastical Censures To make this more plain by a Parallel Instance The Court of Star-Chamber was taken away at the same time the High-Commission was and both determined the same day 17 Car. 1. Aug. 1. This Court was erected for extraordinary Civil Jurisdiction as the High Commission was for Spiritual but by the Act 17 Car. 1. c. 10. it was taken away much in the same manner with the Court of High-Commission For there is a Recital of the Statutes on which it was grounded 3 Hen. 7. c. 1. 21 Hen. 8. c. 20. And then it is alledged That they had exceeded the Bounds which the Law had given them in these Words But the said Judges have not kept themselves to the Points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to inflict heavier punishments than by any Law is warranted And so by this very same way of Reasoning which the Vindicator uses another Court of Star-Chamber may be set up if it keeps it self within the Bounds of the Statutes But we are not to judge of the force of a Law by the particular Reason assigned but by the Enacting Clause Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdictions Power and Authority belonging unto or exercised in the same Court c. be from the first of August 1641. clearly and absolutely dissolved taken away and determined If another Star-Chamber cannot be set up with some Limitations for Extraordinary Civil Jurisdictions how can another Ecclesiastical Court for extraordinary Spiritual Jurisdiction which is taken away after the same manner Only the Act against the High Commission is more express in the Conclusion against Setting up any other Court with like Power Jurisdiction or Authority for it was then foreseen that some other Court might be set up with some Alterations and to prevent any thing of that Nature the last Clause was annexed 2. The prohibiting Clause 17 Car. 1. c. 11. is very considerable to the purpose For the Force of the former Act was taken away by the Repealing Clause but that was not thought sufficient to prevent another Court rising up which might be like to it A Court may be like although not altogether the same It may be like in Jurisdiction although not in a Power to Fine and imprison But the Act saith That no new Court shall be Erected which shall or may have the like Power Jurisdiction or Authority as the said High-Commission now hath or pretendeth to have but that all and every such Letters Patents made or to be made by his Majesty or Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby ana all Asts Sentences and Decrees to be made by vertue or colour thereof shall be utterly void and of none effect Was all this meant only of such a Court as should proceed to Fine and Imprison Why was not this set down in as plain a manner as such a Law required But we are to observe 1. It not only voids the Letters Patents but declares the Constitution of the Court it self to be illegal but that doth not depend upon the Power to Fine and Imprison If it had been said No New Court shall be erected with a Power to Fine and Imprison the Matter had been clear for a New Court might have been erected proceeding by Ecclesiastical Censures without a Power to Fine and Imprison But the Act takes no notice here of any such Power but absolutely forbids any Court with the like Power Jurisdiction or Authority Had the High-Commission no Power Jurisdiction or Authority but only to Fine and Imprison Their Power and Authority by Act of Parliament was general to reform Abuses c. In case there had been no such Clause as Fining and Imprisoning in the Letters Patents had there been no Court no Power Jurisdiction or Authority belonging to it If then there be a Power Jurisdiction or Authority of a High Commission Court without a Power to Fine and Imprison then all such Power and Authority is taken away by the Prohibiting Clause 2. It forbids the Jurisdiction of such a Court But Jurisdiction is quite another thing from a Power to Fine and Imprison Jurisdictio saith Bracton is Authoritas judicandi sive juris dicendi inter partes and to the same purpose Fleta They both distinguish two kinds of Jurisdiction Ecclesiastical and Civil Ecclesiastical saith Bracton is that which belongs to Ecclesiastical Causes Which shews That they looked on Ecclesiastical Proceedings by Censures as part of the Ecclesiastical Jurisdiction The first General Exception saith Fleta is against the Jurisdiction of a Court which is allowed to be made to those quibus deficit autoritas judicandi From hence it appears That the Power and Authority of medling in Ecclesiastical Causes is that which is implied in the Jurisdiction of the Court if it
and to bring an Account next Parliament ad quod praedictum Episcopum adjornavimus are the Words of the Writ And that the Business was heard in Parliament appears by the Records 31 E 1. The King seized on the Temporalities of the Bishop of Durham upon a Judgment given against him in Parliament for extending his Spiritual Jurisdiction too far as appears by the Record of the Concord made between the King and him In the Reign of King Edward the Second In the Reign of K. E. 2. nothing is produced but the Statute 9 E. 2. for Regulating the Proceedings between the Civil and Ecclesiastical Courts But how the Kings Ecclesiastical Jurisdiction is proved hereby is hard to understand It appears indeed that the Ecclesiastical Jurisdiction is allowed and limited by Parliament But from hence saith he it follows that these Laws may be called the Kings Eccclesiastical Laws or the Ecclesiastical Laws of England There is no question but they may But there is a Difference between Laws so called by Acceptation and Allowance and such as have their whole Force and Authority from the King. For otherwise where the Popes Jurisdiction is owned and received the Pope must receive his Authority from the King. But a Liberty to exercise Authority and deriving Authority are two Things In the Reign of King Edward the Third In the Time of E. 3. many things are alledged and to more purpose but yet a short Answer will serve If the first Instance doth hold viz. That the Sentence of Excommunication by the Archbishop holds against the Sentence of the Pope or his Legate it only proves that the Eccesiastical Jurisdiction here by Law is in the Archbishop and not in the Pope or his Legate But there may be another Reason mentioned by Fitz Herbert viz. That the Certificate of the Archbishop might be more Authentick than the Seal of a Legate The second sixth and eighth only prove the King Supreme Patron and a Right of Patronage is distinct from a Right of Ecclesiastical Jurisdiction and so it was resolved in Grendon's Case Pl. f. 498. That the King presents by Lapse as Supreme Patron and not as Supreme Ordinary For this belongs to him as King the Land on which Churches are built being originally held of him And this Right the King enjoyed when the Pope was owned to be Supreme Ordinary But in the Case of his own free Chapels Fitz-Herbert saith right That in Case of Lapse by the Dean the King presents as Ordinary the Archbishop and Bishop having no Authority there as Ordinaries The third fourth and fifth are about Exemptions from Episcopal Jurisdictions granted by the King especially in his own free Chapels which are only visitable by Commission from the King. But this very Pretence of Exemptions from Episcopal Jurisdiction was founded upon the Belief of the Pope's being Supreme Ordinary for exempt Places were not supposed to be free from all Ordinary Jurisdiction but from that of Inferior Ordinaries being immediately subject to the Pope A Bishop by the Canon Law may grant an Exemption from his Right of Jurisdiction but not from his Right of Visitation but the Pope from both And in the Grant of Exemption the immediate Subjection to the Roman See is expressed As to the King 's free Chapels their Exemption was by an express Bull of Innocent III to King John and in the Case of the free Chapels of S. Martins Henry III granted a Prohibition wherein it is inserted That it was a free Chapel ab omni Jurisdictione Episcopali per Sedem Apostolicam exempta And 45 Hen. 3. in a Prohibition concerning the free Chapel of Wolverhampton the Grant of Innocent III is repeated The Right to extra-parochial Tithes is Provisional and not by way of Inheritance and so it may belong to the King although he have no Ecclesiastical Jurisdiction As to the severe Proceeding about Bulls from Rome I have given an Account of that already in E. 1. The anointing of Kings proves no more their Capacity of Spiritual Jurisdiction than it proves the Kings of Israel to have been High Priests There is no doubt the Ecclesiastical Courts may be limited by the Laws of the Land and there are some Causes which belong to them not originally of a Spiritual Nature but they have been a long time possessed of them by Custom and are allowed by Law which is well expressed in 24 Hen. 8. c. 12. where it is said 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 Customs of the same appertaineth to the Spiritual Jurisdiction of this Realm shall be determined within the Kings Jurisdiction and Authority It doth not seem probable That the King by his own Authority would remove Secular Canons and put in Regular when Hoveden saith in the same Case H. 2. did it by the Pope's Authority and with the free Consent of the Parties The Statutes of Provisors were excellent Statutes but are said to be enacted for the Good and Tranquility of the Realm which no doubt the King and his Parliament were bound to take care of But they prove no more Ecclesiastical Jurisdiction than the Pragmatick Sanctions of Lewis IX and Charles VII in France did which were of the same nature The following Instances in other Reigns are many of them of the same kind with those already answered but what seems to have any new Force shall be considered In the Reign of King Henry the Fourth 2 H. 4. c. 15. is urged to prove That the King by consent of his Parliament did direct the Proceedings of the Spiritual Courts in Cases of Heresie and other Matters more Spiritual but it is evident by the Act it self That the Spiritual Jurisdiction was left wholly to the Ordinaries and only an Inforcement of it by the Civil Power was added by the Law then made for the Words are Whereas the Diocesans of the said Realm cannot by their Jurisdiction Spiritual without Aid of the said Royal Majesty sufficiently correct c. Therefore a Power to Imprison and Fine was given to the Ordinaries who might before have proceeded by Ecclesiastical Censures but these being contemned by them the Ordinaries called in the Assistance of the Civil Power If there had been a Power before to have proceeded against Hereticks by Common Law when convict by their Ordinaries I cannot see any Reason why that Law should be made In case of Apostacy i. e. Renouncing Christianity Bracton saith The Person convict is to be burned and he instanceth in the Deacon who turned Jew in the Council of Oxford And Fleta speaks only of Apostates whether Clerks or others and those are the Miscreants in Briton and in Horn Heresie was then the same with renouncing Baptism or turning Jew or Turk or using Sorcery but after Wickliff's Time the Ordinaries inlarged the Notion of Heresie and took
Statutes And it cannot be supposed that at that time when the Pope was allowed to be Head of the Church and consequently Supreme Patron of the Benefices of it that the Acceptance of a Title to an Ecclesiastical Benefice from him should be thought Malum in se. But these Statutes being in force I shall make it appear that the King did own he had no Power to Dispense with them but as the Parliament thought fit to allow it I begin with 15 R. 2 at a time when the Kingdom was in quiet and however could not be in any disturbance on the Account of the Statute of Provisors which the Nation desired and only those who depended on the Court of Rome opposed But the Court-Bishops suggested that it was for the Kings Interest in dealing with the Court of Rome to have a Power to Relax and to Dispense with these Statutes as he saw Cause Therefore the Arch-Bishop of York then Chancellor proposed it in the opening of the Parliament as one of the things for which it was called viz. To find out a Temperament in that Matter so as the Pope might not lose his Right nor the King his After this Matter was debated the Commons declare their Assent en plein Parliament That without prejudice to the Rights of those who were in Possession by virtue of the Statute the King by the Advice and Consent of the Lords might Dispense with the said Statute so as should seem reasonable and useful till the next Parliament but so as the said Statute be repealed in no Article of it And they reserve to themselves the Liberty of disagreeing the next Parliament And they conclude with a solemn Protestation That this was a Novelty not practised before and ought not to be drawn into an Example and Precedent for the future and they desire this Protestation might be Entred and Recorded in the Rolls of Parliament which the King commanded to be done Doth this now look like a Declaratory Act and made in Affirmance of the Kings Dispensing Power It might as well be said That an Act for Restraining the Prerogative is made in Affirmance of it It is true there is a Dispensing Power granted but with such Restrictions and Limitations as shew that such a Power was not then thought to be inherent in the Crown For 1. Why should it be proposed to the Parliament to grant it if the King had it before Did the King ever put it to the Parliament to grant him a Power to Pardon Malefactors But in the case of Dispensing with a Law it was not only proposed but assigned as one Reason of calling the Parliament 2. Why till the next Parliament if it were owned to be an inherent Right of the Crown Would the Parliament go about to bound and limit an inseparable Prerogative in such a manner 3. Why is it called a Novelty and a thing not to be drawn into example Was ever any thing like this said of a Declaratory Act The Natural Consequence whereof is just contrary that whereas some just Right of the Crown hath been contested and denied for the future it ought to be owned and submitted to by all Persons It is hard to think of Words more inconsistent with a meer Declaratory Act than those Ne soit trait en ensample nen Consequence en temps avenir 4. If this were a Declaratory Act what need it be repeated so often in Parliament afterwards Were the Commons so forgetful of the Kings Prerogative as to need making so many Declaratory Acts about the same thing Yet thus we find it about this Dispensing Power as to the Statutes of Provisors For 16 R. 2. The Archbishop of York again declared in the opening of the Parliament That one Cause of calling it was to settle this Matter about Provisors And the Commons again yielded The King should have such a Power to moderate it as he should with his Council judge expedient but so as it be all laid open before the next Parliament that they might upon good Advice agree to it 17 R. 2. Tydeman Abbot of Beauley was by the Popes Provision made Bishop of Landaff But the King notwithstanding the former Proceedings did not take upon him to dispense with the Statute but left it to the Parliament and his Dispensation was passed by Act of Parliament the King Lords and Commons assenting thereto 20 R. 2. The Commons in Parliament do again Assert de bon gre de leur parte en plein Parlement That the King with his Council may dispense with the Statute of Provisors as shall seem fit so as the same be heard and examined the next Parliament and so corrected as shall be thought convenient by the King with the Advice of his Council in Parliament 1 H. 4. The Commons in like manner give their Assent That the King should have the same Power of Dispensing with the Statute which his Predecessors had and to Repeal and Annul it as should seem expedient to him Which was no more than a General Dispensation Yet notwithstanding this was recorded in Parliament 2 H. 4. The Commons appearing before the King and the Lords it was declared That the Dispensation should not extend to Cardinals or other Strangers At the same Parliament a Petition was presented to the King That if any one did accept a Benefice by Papal Provision against the Statute and had his Pardon from the King for it yet if he went about to disturb the present Possessor by virtue of his Provision then his Pardon should be void and he should incur the Penalty of the Statute To which the King gave his Assent 3 H. 4. The King having granted particular Licenses for Dispensations as to this Statute and finding the great Inconveniences which came by them he generally and universally revovoked them and promised in Parliament to find out some proper Remedy in this Matter 7 H. 4. The King was moved in Parliament to confirm that Revocation but he then took time to consider But 9 H. 4. c. 8. the King reinforced in Parliament all the Statutes against Provisors as it is in Print 1 H. 5. The Commons pray That the Statutes may stand in full force against Provisors and that no Protection or Grant made by the King to hinder the Execution of the said Statutes shall be allowable or of any force and whatever is done contrary to them shall be null The Answer is Let the Statutes be observed and kept But if the Statutes were to be strictly observed what saving can there be to the King's Prerogative since the Statutes were Universal and the King 's particular Grants in this Case were the great Motive of the Commons Desire to have them reinforced in the beginning of this King's Reign And these Statutes continued in full Force to the Time of H. 8. insomuch that Cardinal Woolsey was prosecuted by the King's Attorney for offending against them by his Legatine Power