upon themselves to be sole Judges in it and for all that I can see the Act 2 H. 4. owns this to be part of their Spiritual Jurisdiction And this is one Reason alledged for the Repeal of this Act 25 H. 8. c. 14. because there is no Declaration of Heresie made in it but it is left to the Judgment of the Ordinary And therefore this Act was ill thought upon to prove the King 's Ecclesiastical Jurisdiction In Henry the Seventh's time the King is said to be persona mixta because he hath both Ecclesiastical and Temporal Jurisdiction But this Argument is drawn only from some occasional Talk mentioned in the Year Books 10 Hen. 8. 18. Brian said That a sage Doctor of Law said one time to him That Priests might be tried at Common Law Car il dit quod Rex est persona mixta car est persona unita cum sacerdotibus saint Eglyse If all this be granted it proves no more than that the King hath Jurisdiction by his Law over Ecclesiastical Persons which is not disputed CHAP. III. Whether the King's Supremacy by Law extends to the Dispensing with Laws Of the Nature and Original of the Power The Inconsistency of such a Dispensing Power with the Frame of our Government HAving thus far proceeded in clearing the ancient Legal Supremacy I am now come to an Instance of greater Weight and Difficulty and which will therefore require more Pains and Care in the Examination of it viz. 11 H. 7. 12. By the Ecclesiastical Laws allowed with in this Realm a Priest cannot have two Benefices nor a Bastard can be a Priest but the King may by his Ecclesiastical Power and Jurisdiction dispense with both these because they be mala prohibita and not mala per se. Here we are to enquire into these things 1. How far the King's Power and Jurisdiction did extend in the Cases mentioned 2. How far the Reason here given will justifie a Power of Dispensing with Laws 1. As to the Cases here mentioned there is no doubt but the Canonists made the Power of Dispensing in these to be an Argument of the Pope's Supremacy or the Plenitude of his Power But doth it hence follow That what Princes did to their own Subjects as to the qualifying them for a Legal Possession of Benefices must argue a Supremacy in them over Ecclesiastical Persons and Causes And there is a difference to be made between not Receiving the Pope's Canons in particular Cases and a Power of Dispensing with Ecclesiastical Laws If the Law were so then as is noted by Fineax in 11 H. 7. 12. the plain Consequence is That the contrary were no part of the Ecclesiastical Laws allowed within this Realm As in the famous Case about the Canon Law concerning Bastardy when the Barons said Noluleges Angliae mutari no man can say That the Barons dispensed with the Pope's Ecclesiastical Laws but that they refused to execute them for as it is well observed in Standish's Case in Kelway's Reports 7 H. 8. Ecclesiastical Laws have no force where the General Practice hath been contrary If this were no more than a private Opinion of Fineux of what he thought the King might do although there were no Precedent for it then it signifies little but if from hence it appears What the Common Law of England was then it follows That this was not received at that time for the Ecclesiastical Law of this Kingdom And so Hobart in Colt and Glover's Case understands it f. 147. for he produces this as an Instance That the Crown always kept a Possession of its Natural Power And to this he adds a Power of Commendam or Retaining a Benefice with a Bishoprick 11 H. 4. 60. This he calls a Power of Dispensation in Spiritualibus But with submission to two such great Men in the Law If the Crown always kept a Possession of these Rights there could be no Dispensation with the Ecclesiastical Law in these Matters but an Exclusion of it As for Instance The Kings of France do challenge many Priviledges to themselves in their Kingdoms in plain Derogation to the Canon Law and for these Priviledges they plead an Ancient Right of the Crown or an immemorial Custom As in the great Controversic of late Years about the Regale the Canon Law is express That upon Pain of Excommunication no Lay Person what soever shall presume to meddle with the Profits of Vacant Bishopricks which was decreed by two Popes in several Councils Urban II in a Council at Awergn MXCV and Innocent II in Lateran Council MC XXXIX both entred in the Body of the Canon Law And yet the Kings of France insist to this Day on the Rights of Vacant Sees as belonging to them But can this be pleaded as a Dispensing with the Ecclesiastical Laws allowed in that Realm No but that this Part of the Ecclesiastical Law was not received there for that partly by the Feudal Right partly by the Right of the Crown partly by Immemortal Custom the Profits of Vacant Bishopricks accrue to the King. It is a harder Point to defend the Regale where the Custom hath gone along with the Canon but if the Rights of the Crown be defended in France against Custom and Canon too our Kings cannot be blamed for resuming other Rights after so long Usurpation by the Popes But where the Canon Law was not received in any Part of it there it hath no Force to oblige and where there is no Ecclesiastical Law in Force there can be no Dispensing with it for although the later Canon Law doth void all Customs against the Liberties and Priviledges of the Church Non debet in hac parte Canonibus ex aliqua consuetudine praejudiâ—ium generari Yet when these Canonists come to explain it they tell us That an immemorial Custom hath Force against a Canon but how Not as a Custom but as it is a Proof of an Ancient Priviledge granted by the Pope although there be not the least â—ootsteps of it And so this Instance of H. 7. will prove according to this Way only some Ancient Priviledge our Kings had and no Ecclesiastical Jurisdiction by the Right of the Crown But whether the King could Dispense with the Ecclesiastical Laws in these Cases or not it is certain the Pope challenged to himself the Power of doing it For after that the Third Council of Lateran liad strictly forhidden Pluralities which were then so common and scandalous upon pain of Forfeiture Innocent the Third complained in the Fourth Lateran That he saw little or no Benesit come by that severe Canon and therefore he seems to make one more severe That whosoever takes another Benefice shall be deprived of the former ipso jure and if he seeks to keep it to lose the other Yet after all this ends only in the Popes Power to dispense as he saw Cause with Persons of greater Rank or Merit and greater Preferments The Words are Circa sublimes tamen
Bracton observes several things which are material to this purpose 1. The first General Exception which is allowed he saith is contra Jurisdictionem Exceptions are either dilatory or Peremptory Some that are only dilatory as to the Action may be peremptory as to the Jurisdicton And these are to be put in ante Litem contestatam ad perimendum Judicium ne procedat And the first of this sort are the Exceptions contra Jurisdictionem contra Personas Judicantium quibus deficit Autoritas judicandi So that he supposes that such who do not deny the Kings Supreme Authority may have a Legal and just Exception against the Authority of a Court. 2. It was an allowable Exceptio Fori then if any lay-Lay-Persons did take upon them to proceed by Ecclesiastical Censures In Ecclesiastical Causes saith he a Secular Judge hath no Cognizance because he hath not the Power of Coercion proper to them viz. by Ecclesiastical Censures therefore he saith in his Causis pertinet Cognitio ad Judices Ecclesiasticos His Reason is Because those only are the competent Judges who have the Power of Coercion proper to the Court. And for the same Cause Ecclesiastical Judges are not to interpose in Secular Causes cum jura sint separata limitata And although the Exemption of Ecclesiastical Persons from the Civil Courts be certainly taken away by the Acts of Supremacy yet it hath been still alledged by our Divines That the Ecclesiastical Censures were still reserved to the Ecclesiastical Functions either in the way of Ordinary or Delegate Jurisdiction If the High Commission did seem to go further then that Power being taken away by Act of Parliament it must return to the Ancient Course 3. There must be a Legal Authority to constitute a Legal Jurisdiction Ad hoc quod rata sint judicia videre oportet a◠Justic. Warrantum habeat à Rege quod judicare possit Si Warrantum non habuerit non valebit quod coram eo actum fuerit quasi coram non suo judice quia primo legi debet Breve Originale postmodum Breve per quod Justiciar constitutus est si nullum omnino habuerit aut si habuerit non tamen ad manum non erit ei parendum nisi it a forte sit quod Breve Originale de Justiciaria sua faciat mentionem Bracton l. 5. De Except c. 14. 1. There must be a Commission from the King which must be read and if either they have it not or it be not at hand the Jurisdiction is not to be owned unless it be mentioned in the Original Writ For Commissions in those days were most commonly granted by Writ saith the Lord Coke But by Bracton's Words it appears That commonly there was an Original Writ and a Commission besides but sometime the Commission was in the Original Writ and then the reading of that was sufficient The Mirror saith That the Jurisdiction may be denied if the seeing or hearing the Commission be denied 2. The Bounds of the Jurisdiction must be expressed and if those be exceeded he saith an Exception lies Which signifies nothing unless the Commission be known 3. The Commission must be according to Law For that is Bracton's standing Rule Nihil aliud potest Rex in Terris cum sit Dei Minister Vicarius nisi id solum quod Jure potest So that a Commission against Law is void in Law. He mentions the Common Saying in the Civil Law Quod Principi placet Legis habet Vigorem and answers it thus Quod Principi placet is not to be understood of his Presumptive but his Legislative Will Animo condendi Jura and with the Advice of his Magistrates the King himself giving Authority which is the Description of an Act of Parliament as we now call it Which he more fully expresses elsewhere Legis vigorem habet quicquid de Consilio de Consensu Magnatum Reipublicae Communi sponsione Authoritate Regis sive Principis praecedente juste fuerit Definitum Approbatum If this were the Ancient Law of England how comes the Exception against a Court to be a Denial of the King's Supremacy unless it be supposed impossible That there should be an Illegal Court with the King's Commission But we may suppose it possible for a new kind of Star-Chamber or Court of Wards to be set up must no Man question the Legality of such a Court without denying the King's Authority For this is a Question in Point of Law. And the King's Authority always goes with the Law and therefore to suppose it to be in any thing against Law is to suppose it to be contradictory to it self But our Author saith It is necessary for every Court to assert its own Jurisdiction Very true and to clear it too if it be liable to a just Exception I am very far from denying the King's Supremacy yet I may be as far from thinking such a Court to be Legal if an Act of Parliament can make a Court Illegal and to say no more for it but that every Court must assert its own Jurisdiction is to level it with the Infamous High Court of Justice which when King Charles the First of Blessed Memory denied their Authority all the Reply was That the Court was satisfied of its own Authority Which could give Satisfaction to no Body else And if this be all can be said for the Legality of it for all that I can see there is just Reason to deny it FINIS A Catalogue of Books Published by the Reverend EDWARD STILLINGFLEET D. D. Dean of St. Paul 's and Sold by Henry Mortlack at the Phoenix in St. Paul 's Church-yard A Rational Account of the Grounds of the Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. Wherein the true Grounds of Faith are cleared and the False discovered the Church of England vindicated from the Imputation of Schism of the most important particular Controversies between us and those of the Church of Rome throughly examined the Second Edition Folio Sermons Preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae Or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph By Edward Stillingfleet D. D. Dean of St. Pauls Folio Irenicum A Weapon-Salve for the Churches Wounds Quarto Origines Sacrae or A Rational Account of the Grounds of Christian Faith as to the Truth and Divine Authority of the Scriptures and Matters therein contained Quarto The Unreasonableness of Separation or an impartial Account of the History Nature and Pleas of the present Separation from the Communion of the Church of England to which several late Letters are annexed of eminent Protestant
Ecclesiastical Jurisdiction are either such as other Princes have an equal Right to or else they must imply such proper Eclesiastical Jurisdiction as follows the Power of Order and then how can the Pope give the one without the other Such a Gift is like an Appropriation of a Benefice with a Cure to a Nunnery which the Lord Hobart saith is void in Law by reason of the incapacity of the Persons But the Supremacy which our Law gives is not any proper immediate spiritual Jurisdiction like that of Bishops but an Authoritative and Legislative Supremacy without any foreign Appeals as will appear afterwards But the Rights which the Kings of Sicily challenge are these 1. That they have the same Powers which Legates a Latere have and may judge of the same Causes and proceed in the same manner with Ecclesiastical Censures 2. That no Appeal lies from the King's Commissioner even to Rome it self and it is common to appeal from the Censure of the Bishop to him The former is a Power which our Kings never pretended to by vertue of their Supremacy for it is a Delegation of the Power of the Keys which the Legates à Latere exercise by vertue of their Function as well as their Commission But the Legal Supremacy with us is a Right to govern all sorts of Men by our own Laws without any foreign Jurisdiction and that with respect to Ecclesiastical Matters as well as Temporal But to prevent Mistakes and Cavils about this Matter it will be necessary to clear the Notion of Supremacy as it hath been owned and received in the Church of England And for this we have two Authentic Declarations of it to rely upon The first is mentioned 5 Eliz. c. 1. § 14. Where the Supremacy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions published in the first year of her Reign And the Words there are That the Queen neither doth nor will challenge any Authority but such as was of ancient time due to the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all manner of Persons born within these her Realms Dominions and Countries of what Estates either Ecclesiastical or Temporal soever they be so as no other foreign Power shall or ought to have any superiority over them The Second is in the 37th Article wherein it is declared That by the Supremacy is meant that only Prerogative which we see to have been always given to all Godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers So that granting a Commission for proceeding by Ecclesiastical Censures is no part of that Supremacy which our Church owns And thus the Divines of our Church have understood it By the Supremacy saith Bishop Andrews we do not attribute to the King the Power of the Keys or Ecclesiastical Censures R. Thompson in his Desence against Becanus saith The Supremacy is not to be defined by Ecclesiastical Jurisdiction but by Supream Government Becanus urged this as an Argument against the Kings Supremacy That he had no Ecclesiastical Jurisdiction Dr. Burrhil answered That the Supremacy implied many other things as the Power of calling Convocations of confirming Canons of giving Commissions of Delegates of taking Cognizance of the Misdemeanors of Church-men as well as others but for proper Ecclesiastical Jurisdiction he denies it to belong to Supremacy And after asserts That the King's Supremacy is preserved if he takes care that those who have the Power of Ecclesiastical Censures do exercise them and not as though it belonged to the Supremacy to give an immediate Power to proceed by Ecclesiastical Censures which was not supposed to belong to it but a supreme Right of governing all sorts of Persons by our Laws The King's Supremacy in Ecclesiastical Matters doth not saith Mason imply the Power of the Keys which the King hath not but he may command those who have them to use them rightly All these wrote in King James I. his Reign when the Point of Supremacy was throughly sifted on both sides And the King himself who very well understood these Matters saith That the Oath of Supremacy only extended to the King's Power of Judicature over all Persons as well Civil as Ecclesiastical excluding all foreign Powers and Potentates to be Judges within his Dominions Not as though the King hereby challenged to himself a Power of inflicting Ecclesiastical Censures on Persons but leaving the Spiritual Jurisdiction to those who have the Power of the Keys it belonged to him to exercise his Supreme Authority over Ecclesiastical Persons and Causes as he did over Temporal For saith Archbishop Bramhal our Laws never invested the King with any Spiritual Power or Jurisdiction witness the Injunctions of Q. Eliz. witness the Publick Articles of Our Church witness the Professions of King James witness all our Statutes themselves The King of England saith he by the Fundamental Constitution of the Monarchy hath plenary Power without the Licence or Help or Concurrence of any Foreign Prelate or Potentate to render final Justice that is to receive the last Appeals of his own Subjects without any Fear of any Review from Rome or at Rome for all Matters Ecclesiastical and Temporal Ecclesiastical by his Bishops Temporal by his Judges And thus our Laws were in the Right when they called the Act of Supremacy Restoring the Rights of the Crown for if we take away all the Papal Usurpations as to Appeals Exemptions of Persons Dispensations Provisions making Canons sending Legates to hold Courts to call Convocations c. we may easily understand what the Supremacy is viz. a Power of Governing all Sorts of Men according to the Laws Ecclesiastical and Temporal without any Foreign Jurisdiction But as in Temporal Matters the King 's Supreme Authority is exercised in his Ordinary Courts so likewise in Ecclesiastical Which deriving their Jurisdiction from the King as Supreme his Supremacy is preserved in the ordinary Ecclesiastical Courts but as to extraordinary Jurisdiction that deper ds on the Legislative Power And whether that be not now taken away by it is the thing in Question Having endeavoured to set this Matter in as clear a Light as I could I now return to the Instance of Edward the Confessor And those Words of his as they are in Hoveden signifie no more than a General Right of Protecting and Defending the Church which is not denied to belong to Kings where the Pope's Authority is the most owned I cannot but take notice of a different Reading in the Lord Cokes Copy from all that I have seen for where he hath it Sanctam Ecclesiam regat defendat Lambard veneretur regâ—t but Hoveden revereatur ab
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
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
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
Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the Deâ—retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other
Land c. 43. and therefore the Feudists say That Felony is delictum Vasalli adversus Dominum From the Gothick Fell or Fehl which signifies in general a Fault And in this Case the Breach of Trust towards his Lord Of which sort of Felonies the Feudists reckon up some twenty some thirty any one of which makes a Forfeifeiture So that here is no such mighty Difference that the poor Clergymen must only have Conditional and Attendant Freeholds as though other Men's were Absolute whereas Sir Thomas Smith affirms all in England are Fiduciary i. e. Conditional Freeholders beside the King. It is easie enough for any one to frame such a Distinction of Freeholds and to say That these who have but such a Freehold may be ejected without any Trial at Common Law But he ought to have shewed That Magna Charta or the Ancient Laws made such a Difference between Ecclesiastical Freeholds and others which he hath not preended to do and therefore such a Distinction ought not to be allowed especially since I have produced an Act of Parliament 14 Edward 3. c. 3. which saith That Clergymen shall not be ejected out of their Temporalties without a True and Just Cause according to the Law of the Land This was none of those Statutes which are in Print but never enrolled for Sir Robert Cotton owns the enrolment of it and that it was made into a Statute and Mr. Pryn himself had nothing to object against it But now it seems their Conditional Freholds may be taken from them without any due Course of Law. II. There is more to be said concerning the Rights of Ecclesiastical Persons in Colledges because they are Lay Corporations For in Appleford's Case it was declared to be the Opinion of all the Judges in Pattrick 's Case That a Colledge was a Temporal Corporation And therefore some notable Difference in Point of Law must be shewed Why Men may be deprived of some Freeholds without due Course of Law and not of others for I cannot imagine That Colledges being founded for the encouragement of Learning should lay Men more open to Arbitrary Proceedings than any other Legal Societies are However Deprivation in Coveney's Case was agreed to be a Temporal Thing and for that Reason his Appeal was rejected as not relating to a Matter of Ecclesiastical Jurisdiction which was only provided for 24. and 25. Henr. 8. But it was allowed That he might bring an Action at Common Law. Our Author several times mentions this Case but puts it off till he comes to Treat of Appeals i. e. to the Place he knew it to be improper in For the Question is not Whether an Appeal doth lie to the King in Chancery in a Case of Deprivation but Whether there be not a Remedy at Common Law if a Person be deprived of a Free-hold without due form of Law And after a great deal of Impertinency about the manner of Appeals he at last concludes The Remedy had been at Common Law only which is clear giving up the Point For then in case a Person be deprived without due course of Law of his Free-hold he grants that he is to have his Remedy at Law and consequently that a Deprivation of such a Free-hold without due Course of Law is not sufficient For the Law provides no Remedy where there is no Injury done nor just Cause to seek for Redress And so I come to the second Objection which is this 2. That to deny the Jurisdiction of this Court is to deny the King's Supremacy and that is a dangerous thing by the Law. The Case was this Dr. F. of Magdalen College in Oxford being summoned before the Commissioners denied the Authority of the Court and persisted in so doing which our Author saith in another Kings Reign perhaps might have been interpreted a Questioning the very Supremacy it self which how fatal it was to John Fisher Bishop of Rochester and Sir Thomas Moor is worthy to be considered both as a Demonstration of our Kings Clemency and that the Doctor hath not so much reason to complain of his hard Usage The Meaning whereof is this That if they had proceeded in Justice against him he ought to have suffered as Bishop Fisher and Sir Thomas Moor did This is more than a bare Insinuation That to deny the Jurisdiction of this Court is to deny the Kings Supremacy and that it is meer Clemency not to deal by them who do it as H. 8. did by Bishop Fisher and Sir Thomas Moor. But 1. It is by no means evident That those two Persons suffered meerly on that Account For their Attainder in Parliament was for refusing the Oath of Succession and King James I. mentions the Words of Sir Thomas Moor to that purpose which he spake to the Lords when he was condemned And their Attainder if I mistake not was in the same Parliament which made it Treason to deprive the King of his Dignity Title or Name of his Royal Estate and therefore could not be by an Act not then passed But 2. Suppose that they were at last proceeded against on the Act then passed what is this to the present Case when Coke saith This Act was twice Repealed And it is no extraordinary Clemency not to be proceeded against by a Law that hath no force 3. The Statute in Force 5 Eliz. c. 1. is against those who defend or maintain the Authority Jurisdiction or Power of the Bishop of Rome or of his See heretofore claimed used or usurped within this Realm or by any Speech open Deed or Act advisedly wittingly attribute any such manner of Jurisdiction Authority or Preheminence to the said See of Rome or any Bishop of the same for the time being within this Realm So that it cannot be denied that there is occasion for his Majesties Clemency but it is to another sort of Men. 4. It is very hard straining to make the denying the Jurisdiction of this Court to be denying the Kings Supremacy when a Person hath done all which the Law requires him to do towards owning the Supremacy If he had said Dr. F. had taken Possession of his Fellowship there without taking the Oath of Supremacy which the Law requires he had then indeed given ground to suspect him for denying the Kings Supremacy but to take no notice of those who refused to do as the Law requires and to talk thus of what Severity might be used to one that hath done it looks in him neither like Clemency nor Justice 5. It was always looked on as a Legal Right to make Exception to the Jurisdiction of a Court especially when newly established without Act of Parliament and to any ordinary Understanding in flat Contradiction to it It is very new Doctrine that in a Legal Government Exceptio Fori shall be interpreted a Denial of supreme Authority which was not only allowed by the Canon and Civil Laws but by the most Ancient Common Lawyers we have