Peace and Vnity of this Realm 3 And that such person or persons so to be named assigned authorized and appointed by your Highness your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by vertue of this Act and of the said Letters Patents under your Highness your Heirs and Successors to exercise use and execute all the premisses according to the tenor and effect of the said Letters Patents any matter or cause to the contrary in any wise notwithstanding So that I take it that all manner of Ecclesiastical Jurisdiction was in the Crown by the Common Law of England and declared to be so by the said Act of 1. Eliz. 1. and by that Act a power given to the Crown to assign Commissioners to Exercise this Jurisdiction which was accordingly done by Queen Eliz. and a High-Commission Court was by her Erected which sate and held Plea of all Causes Spiritual and Ecclesiastical during the Reign of Queen Eliz. King James the first and King Charles the first till the 17. year of his Reign Which leads me to consider the Statute of 17. Car. 1. ca. 11. which Act recites the Title of 1. Eliz. ca. 1. and Sect. 18. of the same Act and recites further Section 2. That whereas by colour of some words in the aforesaid branch of the said Act whereby Commissioners are Authorized to execute their Commission according to the tenor and effect of the Kings Letters Patents and by Letters Patents grounded thereupon the said Commissioners have to the great and insufferable Wrong and Oppression of the Kings Subjects used to Fine and Imprison them and to exercise other Authority not belonging to Ecclesiastical Iurisdiction restored by that Act and divers other great Mischiefs and Inconveniences have also ensued to the Kings Subjects by occasion of the said Branch and Commisions issued thereupon and the executions thereof Therefore for the repressing and preventing of the aforesaid Abuses Mischiefs and Inconveniences in time to come by Sect. 3. the said Clause in the said Act 1. E. 1. is Repealed with a Non obstante to the said Act in these words Be it Enacted by the Kings most excellent Majesty and the Lords and Commons in this present Parliament Assembled and by the Authority of the same That the aforesaid Branch Clause Article or Sentence contained in the said Act and every word matter and thing contained in that Branch Clause Article or Sentence shall from henceforth be Repealed Annulled Revoked Annihilated and utterly made Void for ever any thing in the said Act to the contrary in any wise notwithstanding And in Sect. 5. of the same Act it is Enacted That from and after the First of August in the said Act mentioned all such Commissions shall be void in these words And be it further Enacted That from and after the said First day of August no new Court shall be erected ordained or appointed within this Realm of England or Dominion of Wales which shall or may have the like Power Iurisdiction or Authority as the said High-Commission Court now hath or pretendeth to have but that all and every such Letters Patents Commissions and Grants made or to be wade by his Majesty his Heirs or Successors and all Powers and Authorities Granted or pretended or mentioned to be Granted thereby and all Acts Sentences and Decrees to be made by vertue or colour thereof shall be utterly void and of none effect By which Act then the power of Exercising Ecclesiastical Jurisdiction by Commissioners under the Broad-Seal is so taken away that it provides no such Power shall ever for the future be Delegated by the Crown to any Person or Persons whatsoever Let us then in the last place consider Whether the Act of 13. Car. 2. ca. 12. hath Restored this Power or not And for this I take it that it is not restored by the said Act or any Clause in it and to make this evident I shall First set down the whole Act and then consider it in the several Branches of it that relate to this matter The Act is Entituled An Act for Explanation of a Clause contained in an Act of Parliament made in the 17th Year of the Late King Charles Entituled An Act for Repeal of a Branch of a Statute in primo Elizabethae concerning Commissioners for Causes Ecclesiastical The Act it self runs thus Whereas in an Act of Parliament made in the Seventeenth Year of the Late King Charles Entituled An Act for Repeal of a Branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical it is amongst other things Enacted That no Arch-bishop Bishop nor Vicar-General nor any Chancellor nor Commissary of any Arch-bishop Bishop or Vicar-General nor any Ordinary whatsoever nor any other Spiritual or Ecclesiastical Iudge Officer or Minister of Iustice nor any other person or persons whatsoever exercising Spiritual or Ecclesiastical Power Authority or Iurisdiction by any Grant Licence or Commission of the Kings Majesty his Heirs or Successors or by any Power or Authority derived from the King His Heirs or Successors or otherwise shall from and after the First Day of August which then should be in the Year of our Lord God One thousand six hundred forty one Award Impose or Inflict any Pain Penalty Fine Amercement Imprisonment or other Corporal Punishment upon any of the Kings Subjects for any Contempt Misdemeanor Crime Offence Matter or Thing whatsoever belonging to Spiritual or Ecclesiastical Cognizance or Iurisdiction 2. Whereupon some doubt hath been made that all ordinary power of Coertion and proceeding in Causes Ecclesiastical were taken away whereby the ordinary course of Iustice in Causes Ecclesiastical hath been obstructed 3. Be it therefore Declared and Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by the Authority thereof That neither the said Act nor any thing therein contained doth or shall take away any ordinary Power or Authority from any of the said Arch-bishops Bishops or any other person or persons named as aforesaid but that they and every of them exercising Ecclesiastical Iurisdicton may Proceed Determine Sentence Execute and Exercise all manner of Ecclesiastical Iurisdiction and all Censures and Coertions appertaining and belonging to the same before any making of the Act before recited in all Causes and Matters belonging to Ecclesiastical Iurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample Manner and Form as they did and might lawfully have done before making of the said Act. Sect. 2. And be it further Enacted by the Authority aforesaid That the afore recited Act of Decimo septimo Car. and all the Matters and Clauses therein contained excepting what concerns the High-Commission Court or the new Erection of some such like Court by Commission shall be and is thereby Repealed to all intents and
The King's Power in Ecclesiastical Matters truly Stated HIS present Majesty having erected an High-Commission Court to enquire of and make redress in Ecclesiastical Matters c. Q. Whether such a Commission as the Law now stands be good or not And I hold that the Commission is not good And to maintain my Opinion herein I shall in the first place briefly consider what power the Crown of England had in Ecclesiastical or Spiritual Matters for I take them to be synonymous Terms before 17. Car. 1. ca. 11. And 2dly I shall particularly consider that Act of 17. Car. 1. ca. 11. And 3dly I shall consider 13. Car. 2. ca. 12. And by that time I have fully considered these Three Acts of Parliament it will plainly appear That the Crown of England hath now no power to erect such a Court. I must confess and do agree That by the common Law all Ecclesiastical Jurisdiction was lodged in the Crown and the Bishops and all spiritual Persons derived their Jurisdiction from thence And I cannot find that there were any attempts by the Clergy to divest the Crown of it till William the First 's time in whose time and his Successors down to King John the Pope obtained four Points of Jurisdiction 1st Sending of Legates into England 2dly Drawing of Appeals to the Court of Rome 3dly Donation of Bishopricks and other ecclesiastical Benefices And 4ly Exemption of Clerks from the secular Power Which four Points were gained within the space of an Hundred and odd Years but with all the opposition imaginable of the Kings and their People and the Kingdom never came to be absolutely inslaved to the Church of Rome till King John's time and then both King and People were and so continued to be in a great measure in Henry 3d's time and so would in all likelihood have continued had not the Wise Edward 1st opposed the Pope's Usurpation and made the Statute of Mortmain But that which chiefly brake the Neck of this was That after the Pope and Clergy had endeavoured in Ed. 2. his time and in the beginning of Ed. 3. to Usurp again Ed. 3. did resist the Usurpation and made the Statutes of Provisors 25. Ed. 3. and 27. Ed. 3. And Richard 2. backed those Acts with 16. Rich. 2. ca. 5. and kept the Power in the Crown by them Laws which being interrupted by Queen Mary a bloody Bigot of the Church of Rome during her Reign there was an Act made in 1. Eliz. ca. 1. Keble's Stat. which is Intituled An Act to restore to the Crown the ancient Jurisdiction over the Estate Ecclesiastical and Spiritual and abollishing all foreign Powers repugnant to the same From which Title I collect three things 1st That the Crown had anciently a Jurisdiction over the Estate Ecclesiastical and Spiritual 2dly That that Jurisdiction had for some time been at least suspended and the Crown had not exercised it 3dly That this Law did not introduce a New Jurisdiction but restored the Old but with restoring the old Jurisdiction to the Crown gave a power of Delegating the Exercise of it And as a consequence from the whole that all Jurisdiction that is Lodged in the Crown is subject nevertheless to the Legislative power in the Kingdom I shall now consider what Power this Act of 1. Eliz. 1. declares to have been anciently in the Crown and that appears from Sect. 16 17 18. of the same Act. Section 16 Abolisheth all Foreign Authority in Cases Spiritual and Temporal in these words And to the intent that all the Vsurped and Foreign Power and Authority Spiritual and Temporal may for ever be clearly Extinguished and never to be used or obeyed within this Realm or any other your Majesties Dominions or Countries 2 may it please your Highness that it may be further Enacted by the Authority aforesaid That no Foreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Iurisdiction Superiority Authority Preheminence or Priviledge Spiritual or Ecclesiastical within this Realm or within any other your Maiesties Dominions or Countries that now be or hereafter shall be but from thenceforth the same shall be clearly Abolished out of this Realm and all other your Highnesses Dominions for ever any Statute Ordinance Custom Constitutions or any other matter or cause whatsoever to the contrary in any wise notwithstanding And after the said Act hath abolished all Foreign Authority in the very next Section Sect. 17. it annexeth all Ecclesiastical Jurisdiction to the Crown in these words And that also it may likewise please your Highness That it may be Established and Enacted by the Authority aforesaid That such Iurisdictions Priviledges Superiorities and Preheminences Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be Vnited and Annexed to the Imperial Crown of this Realm From these words That such Jurisdiction c. as by any Spiritual or Ecclesiastical Power or Authority had then-to-fore been Exercised or used were annexed to the Crown I observe That the Four things aforesaid wherein the Pope had incroached were all restored to the Crown and likewise all other Ecclesiastical Jurisdiction that had been exercised or used in this Kingdom and did thereby become absolutely vested in the Crown Then Section 18. gives a power to the Crown to assign Commissioners to Exercise this Ecclesiastical Jurisdiction in these words And that your Highness your Heirs and Successors Kings or Queens of this Realm shall have full Power and Authority by vertue of this Act by Letters Patents under the Great Seal of England to Assign Name and Authorize when and as often as your Highness your Heirs or Successors shall think meet and convenient and for such and so long time as shall please your Highness your Heirs or Successors such person or persons being Natural born subjects to your Highness your Heirs or Successors as your Majesty your Heirs or Successors shall think meet to exercise use occupy and execute under your Highness your Heirs and Successors all manner of Iurisdictions Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Iurisdiction within these your Realms of England and Ireland or any other your Highnesses Dominions and Countries 2 and to Visit Reform Redress Order Correct and Amend all such Errors Heresies Schisms Abuses Offences Contempts and Enorimties whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Iurisdiction can or may lawfully be Reformed Ordered Redressed Corrected Restrained or Amended to the pleasure of Almighty God the increase of Vertue and the conservation of the
purposes whatsoever any thing clause or sentence in the said Act contained to the contrary notwithstanding Sect. 3. Provided always and it is hereby Enacted That neither this Act nor any thing herein contained shall extend or be construed to Revive or give Force to the said Branch of the said Statute made in the said First Year of the Reign of the said Late Queen Elizabeth mentioned in the said Act of Parliament made in the said Seventeenth Year of the Reign of the said King Charles but that the said Branch of the said Statute made in the said First Year of the Reign of the said Late Queen Elizabeth shall stand and be Repealed in such sort as if this Act had never been made Sect. 4. Provided also and it is hereby further Enacted That it shall not be lawful for any Arch-bishop Bishop Vicar-General Chancellor Commissary or any other Spiritual or Ecclesiastical Iudge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Iurisdiction to Tender or Administer unto any person whatsoever the Oath usually called the Oath Ex Officio or any other Oath whereby such person to whom the same is tendered or Administred may be charged or compelled to Confess or Accuse or to purge him or her self of any Criminal matter or thing whereby he or she may be liable to Censure or Punishment any thing in this Statute or any other Law Custom or Vsage heretofore to the contrary hereof in any wise notwithstanding Sect. 5. Provided always That this Act or any thing therein contained shall not extend or be construed to extend to give unto any Arch-bishop Bishop or any other Spiritual or Ecclesiastical Iudge Officer or other person or persons aforesaid any Power or Authority to Exercise Execute Inflict or Determine any Ecclesiastical Iurisdiction Censure or Coertion which they might not by Law have done before the Year of our Lord 1639. 2. Nor to Abridge or Diminish the Kings Majesties Supremacy in Ecclesiastical Matters and Affairs nor to confirm the Canons made in the Year 1640. nor any of them nor any other Ecclesiastical Laws or Canons not formerly Confirmed Allowed or Enacted by Parliament or by the Established Laws of the Land as they stood in the Year of our Lord 1639. From the Title of the Act and the Act it self considered I gather First That it is an Explanatory Act of the 17. of Car. 1. as to one particular Branch of it and not introductive of any New Law. Secondly That the occasion of making it was not from any doubt that did arise Whether the High-Commission Court were taken away or Whether the Crown had power to Erect any such-like Court for the future but from a doubt that was made that all ordinary Power of Coertion and proceedings in Causes Ecclesiastical was taken away whereby Iustice in Ecclesiastical Matters was obstructed and this doubt did arise from a Clause in 17. Car. 1. ca. 11. Sect. 4. herein mentioned to be recited in the said Act of 13. Car. 2. ca. 12. Thirdly That this Statute of 13. Car. 2. ca. 12. as appears upon the face of it was made to the intent the ordinary Jurisdiction which the Bishops and other Ecclesiastical persons had always exercised under the Crown might not be infringed but not to restore to the Crown the power of Delegating the Exercise of Ecclesiastical Jurisdiction by Letters Patents to Lay persons or any others and as to this nothing can be plainer than the words of the Act it self Sect. 2. Whereby 17. Car. 1. is repealed but takes particular care to except what concerned the High-Commission Court or the new erection of some such Court by Commission Neither did the Law-makers think this Exception in that Statute of 13. Car. 2. ca. 12. Sect. 2. to be sufficient but to put the matter out of all doubt in the Third Section of the same Statute It is provided and Enacted That neither that Act nor any thing therein contained should extend or be construed to revive or give force to the Branch of 1. Eliz. 1. Sect. 18. but that the same Branch should stand absolutely Repealed And if so then the power of the Crown to delegate the Exercise of Ecclesiastical Jurisdiction is wholely taken away for it was vested in the Crown by 1 Eliz. 1. and taken away by 17. Car. 1. ca. 11. and is in no manner restored by 13. Car. 2.12 or any other But there may arise an Objection from the words in the Statute of 13. Car 2. ca. 12. that saith That that Act shall not extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical Matters and Affairs Whence some Men would gather That the same Power still remains in the Crown that was in it before 17. Car. 1. ca. 11. To which Objection I give this Answer That every Law is to be so construed that it may not be Felo de se and that for the honour of the Legislators King Lords and Commons Now I would appeal to the Gentlemen themselves that assert this Doctrine Whether they can so construe the Act of 13. Car. 2. ca. 12. as they pretend to do without offering violence to their own Reason For when the 1 Car. 1. ca. 11. had absolutely Repealed the Branch of 1. Eliz. 1. that vested the power in the Crown of Delegating the Exercise of Ecclesiastical Jurisdiction and Enacts That no such Commission shall be for the future and the Act of 13. Car. 2. ca. 12. Repeals the 17. Car. 1. ca. 12. except what relates to that particular Branch there can no more of the Kings Supremacy in Ecclesiastical Matters and Affairs be saved by the saving in the 13. Car. 2. ca. 12. but what was left in the Crown by 17. Car. 1. ca. 11. And now I hope I have sufficiently evinced That all the Proceedings before the Ecclesiastical Commissioners are CORAM NON JVDICE and therefore have sufficient Reason to believe That the same would never have been set on foot by his present Majesty who had always the Character of JAMES the Just and hath Promised upon his Royal Word That he will invade no Mans Property had he not been Advised thereunto by them who are better versed in the Canons of the Church of ROME than in the Laws that relate to the CROWN and CHURCH of ENGLAND FINIS