injuriatoribus defendat Which is that Right of Protection which is allowed by all The Spanish Lawyers hold That there lies an Appeal to the Kings Courts by his Right of Protection in Case of any violent Proceedings in the Ecclesiastical Courts Which Violences are so many as make such Appeals so frequent and necessary that whole Volumes have been written about them And this they say Is not Introductory of a New Law but only declaratory of a Natural Right The French Lawyers allow Appeals from the Ecclesiastical Courts tanquam ab abusu which must be founded on an Original Right in the King to defend the Church both from Injuries and Abuses And as to the Church it self it is fully expressed in the Writ de Excommunicato capiendo in these Words Quia vero Potestas Regia Sacrosanctae Ecclesiae in querelis suis deesse non debet But such a Right of Protection and Assistance is different from that of Jurisdiction unless it be that which is only Coactive which is not the Jurisdiction we now enquire into But it is most considerable that King Edward saith He is God's Vicar and therefore could not look on himself as acting by Commission from the Pope It is true that in the third Charter of Westminster there is a Bull of Nicholas the Second wherein he gives to the King and his Successors the Protection and Defence of that Place and of all the Churches of England and a Power in his stead to make good Laws with the Advice of the Bishops and Abbots But I do not find that King Edward owned that he acted in these Matters by any Commission from the Pope but from God himself And this Law in Hoveden and others overthrows any such pretended Commission And yet the Pope himself doth not give him a Power to delegate his Authority to others but to act in it himself and that only with the Advice of Bishops and Abbots The Point then which was to be proved was not that the King had a Right to protect the Church from Injuries but such an Inherent Right of Ecclesiastical Jurisdiction which he might delegate to others whether Bishops or not and impower them to proceed by Ecclesiastical Censures against Offenders summoned to appear before them And the Question now is not Whether by the Supreme Legislative Power of the Nation such an Authority might not in an extraordinary Case be Committed to particular Persons by Act of Parliament but Whether such an Act of Parliament being granted to be taken away the King by the Ancient Law of the Realm may appoint such Commissioners as he thinks fit Laymen or Bishops to proceed against the King's Subjects by Ecclesiastical Censures And this very stating of the Case as it ought to be shews how impertinent the remainder of his Examples are But to proceed In the Reign of King William the First In the time of William the Conqueror he only mentions a Case out of Fitz-Herbert That he made an Appropriation of Churches with Cure to Ecclesiastical Persons viz. to a Prebend of the Church of York now this saith he was agreed by all could not be done without Ecclesiastical Jurisdiction It is too common a Fault in some great Lawyers that what they find once setled for Law in their Books they imagine was never otherwise Thus Appropriations after Diocesses were setled being looked on as chiefly the Act of the Ordinary who is to take Care of the whole Diocess From hence they infer That in all Times an Appropriation must argue Ecclesiastical Jurisdiction But before the Parochial Rights were established there were many Volantary Appropriations made by particular Persons who thought there was no more Ecclesiastical Jurisdiction in the Appropriation of Churches than in the Endowments of them and in the Right of Patronage only the one is setled on a Spiritual Corporation as perpetual Incumbent and the other on particular Persons in Succession It s true since the Acts for restoring Jurisdiction to the Crown the Power of making Appropriations in the King is said to be from his Supreme Ecclesiastical Authority Grindon's Case in Pl. f. 448. But then we are told It was because the Pope as Supreme Ordinary had such a Power without the Bishops which Reason will not hold as to such Times when the Pope was not owned to be Supreme Ordinary as he was not in the Conqueror's Time the Canon-Law not being then received in England But what a mean Proof is this in such a busie Time as that of William the Frst when so many great Churchmen were deprived of their Bishopricks being English and the Normans put in their Places Was this done by any Commission from William to his Great Lords and others to proceed against them by Ecclesiastical Censures nothing like it Stigand Archbishop of Canterbury if Spot's Story be true was too great a Friend to the English Liberties to be endured by him But he was too great a Dissembler to seem to have any thing to do in it himself and therefore knowing he was of the opposite Party to the prevailing Pope he privatly sends to him To send a Legate for that Purpose wherein the Pope and He had their several Ends and then in Parliament Time the King keeping his Easter at Winchester Stigand was deposed and Agilmarus Bishop of the East Angles and several others without any evident Reason saith Hoveden but only to make way for the Normans This was in Concilio Magno saith he and the rest for Easter was one of the three Seasons for the Parliamentary Meeting in the Year which William kept up in Imitation of the Saxons who at Christmas Easter and Pentecost held their Publick Courts and did wear their Crowns till the Times of H. 2. and then they did dispatch Publick Affairs Thus far he complied with the Saxon Customs but he had a new Work to do The Archbishop he could not rely upon and therefore was put to find out a new way by sending for a Legate from the Pope to serve his turn And thus William for his own Ends having so hard a Game to play here called in the Pope's Assistance who knew well enough how to draw his own Advantage out of it But William would go no further than his Interest carried him for afterwards he declared That he would maintain his own Rights which he enjoyed in Normandy viz. That nothing should be done without him in Convocation no Legate come but as he pleased c. But still he seemed to let them enjoy their Saxon Liberties in Matters of Ecclesiastical Proceedings so far as to have them debated in Parliament Thus the Controversie between the two Archbishops was referred to Parliament the King and the Great Men as well as the Bishops being present The Controversie between Lanfrank Archbishop of Canterbury and Odo Bishop of Baieux was referred saith Eadmerus to a Conventus Principum at Pinnedenen and when the King heard their Resolution cum consensu omnium
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
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
Cases besides those which depended on the Canon-Law For saith he the Pope usurped such a Power in derogation of the Authority Royal and then that Power must be originally in the King otherwise in the Construction of the Act it could be no Usurpation But this is a very false way of Reasoning The Pope usurped such a Power on the Crown therefore the Crown hath it of Right For the Popes Usurpations were many of them unreasonable his Primacy according to Canons being allowed and our Law did restore to the King the ancient Right and Jurisdiction of the Crown and not put him into the Possession of all the extravagant Power which the Pope usurped For this Law charges the Pope with intolerable Exactions of great Sums of Money in Pensions Censes Peter-Pence Procurations Fruits Suits for Provisions and Expeditions of Bulls for Arch-Bishopricks and Bishopricks and for Delegates and Rescripts in Causes of Contentions and Appeals Jurisdictions Legantine as well as Dispensations Licenses Faculties Grants Relaxations Writs called Perinde valere Rehabilitations Absolutions c. Now all these were Usurpations in Derogation of the Crown but doth it therefore follow that the Crown hath a Right to them all But to go no further than the Business of Dispensations Hath the King a Right by this Statute to dispense as far as the Pope The Pope usurped a Power of dispensing in Matrimonial Contracts in Oaths in Vows in some positive Divine Laws which I suppose H. 8. by vertue of the Supremacy never pretended to So that it is a very mistaken Notion of some Men That the King had all the Power which the Pope usurped And as to the Act it is plain by the Words of it That the Original Power of Dispensing was lodged in the King Lords and Commons and the Ministerial Execution of it with the Arch Bishop of Canterbury even with respect to the King himself But if the King had pretended to all the Power which the Pope usurped he must have dispensed with himself But this Author offers to Prove That there is a Power in the Crown to dispense with Acts of Parliament even such as concern the Consecration of Bishops because it is said 8 Eliz. That the Queen by her Supreme Authority had dispensed with all causes or Doubts of any Imperfection or Disability in the Persons c. To give a clear Answer to this we must consider these Things 1. That 1 Eliz. 1. The Act of 25 H. 8. for the Order and Form of Electing and Making arch-Arch-Bishops and Bishops was revived as appears by the same Act 8. Eliz. 1. 7. 2. That by another Act 1 Eliz. 2. The Book of Common-Prayer and Administration of Sacraments and other Rites and Ceremonies of the Church of England which were in use in the time of 6 E. and repealed by Queen Mary were re-inforced 1 Eliz. 2. 2. and the Repeal annulled But by the Act 5 and 6 E. 6. c. 1. § 5. the Form and Manner of making Arch-Bishops Bishops Priests and Deacons was added to the Book of Prayer as of like Force and Authority with it 3. That the Act of E. 6. being revived with the express mention of the Alterations and Additions made to it there was ro Necessity apprehended 1 Eliz. to make a distinct Act for that which was in force already by the Name of Additions therein added and appointed by that Statute And this I conceive was the true Reason why a Bill did not pass 1 Eliz. to that purpose For I find by the Journals of the House a Bill was prepared and read the third time in the House of Lords but upon Consideration it was laid a side as superfluous 4. That the Popish Party took Advantage of this and pretended That the Book of Consecration c. was not established by Law being not expresly mentioned and therefore the Bishops made by it were not Legal Bishops And upon this Bonner resolved to stand the Trial against Horn Bishop of Winchester as may be seen in Dyer R. f. 234. So that the Papists then stood upon it That the Crown could not dispense with Laws otherwise Bonner's Plea signified nothing For if there were such an Inherent Right in the Crown to Dispense with Laws in Ecclesiastical Matters then these were Legal Bishops having all the Queen 's Dispensing Power for them 5. The Clause in the Queen's Letters Patents for Dispensing with Imperfections and Disability was put in out of abundant Caution and not for any Necessity that we can find But it was Customary in the Popes Bulls to put in such kind of Clauses and therefore they would omit no Power in that Case which the Pope did pretend to which the Act faith was for avoiding all Ambiguities and Questions 6. But after all lest there should be any Colour for Disputing this Matter left according to the express Letter of the Law therefore it was declared 8 Eliz. 1. 3. That not only the Book of Common-Prayer but the Form of Consecrating Archbishops Bishops c. which was set sorth in Edward the Sixth's Time and added to the Common Prayer shall stand and be in full Force and Effect And all Acts done by it are declared to be Good and Perfect to all Intents and Purposes So that this Act of Parliament doth rather overthrow a Dispensing Power for if there were then such a Supreme and Absolute Power in the Crown as to Ecclesiastical Matters what need such an Act of Parliament to Confirm and Ratifie what our Author supposes done by virtue of it But to return to the 25th of H. 8. In the same Act of Parliament care is taken for the Visiting Exempt Places as Monasteries Colledges and Hospitals by a particular Commission under the Great Seal But that which comes nearest to our Business is That 26 H. 8. c. 1. another Act passed wherein the King's Supremacy is acknowledged and a Power given by Act of Parliament for him to Visit Redress and Amend all Errors Heresies Abuses Contempts and Enormities whatsoever which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed in any Usage Custom Foreign Laws Foreign Authority Prescription or any Thing or things to the contrary hereof notwithstanding If the King had this Power by virtue of his Supremacy and Prerogative Royal can we imagin H. 8. so weak a Prince and so little a valuer of his own Prerogative as to have that given him by Act of Parliament which was acknowledged to be in him before But the Words are express And that our Sovereign Lord c. shall have full Power and Authority from Time to Time to Visit c. From whence it follows That in the Judgment of H. 8. and the Parliament such a Power was not personally inherent in him but that it did belong to the Legislative Power and therefore an Act of Parliament was required for it so that the Supremacy as then setled by Law lay in a total rejecting any Foreign Jurisdiction