A discourse concerning the illegality of the late ecclesiastical commission in answer to the vindication and defence of it : wherein the true notion of the legal supremacy is cleared, and an account is given of the nature, original, and mischief of the dispensing power.

CHAP. II. The King's Supremacy by Common-Law enquired into; Coke's fifth Report, de Jure Regis Ecclesi∣astico, examined.

BUT against this it is pleaded with some Appearance of Rea∣son, That in Caudry's Case the Judges resolved, That the Act of the first Year of the late Queen was not introductory of a new Law, but declaratory of the Old; and that the King by the Ancient Law might make such an Ecclesiastical Commission. And since the Act 13 Car. 2. c. 12. saith, That we are not to abridg or diminish the King's Supremacy in Ecclesiastical Matters and Affairs; Therefore we are still to suppose, That the King hath a Power by Law to ap∣point such a Commission for Ecclesiastical Matters.

This is the Substance of what is pleaded for the Legality of the Court: And since the Argument is confined to Matter of Law, to clear this Matter, it will be necessary to give an Account of these two things,

• I. What the Ancient Law was as to this Matter.
• II. How far the Legal Supremacy is abridged by these Statutes.

I. As to the Ancient Law in this matter, It's true that the Lord Coke, in Caudry's Case hath endeavoured to prove, That the Statute 1 Eliz. was not introductory of a new Law, but de∣claratory of the Old; but the Instances he produces fall very short of being Demonstrative Proofs, as he calls them: For the true Case is not,

(1.) Whether the King ought not to interpose in Ecclesiasti∣cal Matters, so far as the Peace and good Government of his Realm was concerned. Nor,

(2.) Whether he might not order things which concerned the Right of Ecclesiastical Possessions; as in Bishopricks, Commen∣dams, Right of Patronage, Pleas of Tiths, &c. Nor,

(3.) Whether the King, by his Supreme Authority might not limit the Proceedings of ordinary Ecclesiastical Courts in Mat∣ters concerning his Crown and Dignity, by granting Prohibitions. Nor,

(4.) Whether the King by Common Law cannot grant a Com∣mission of Review, after the Proceedings of the Ecclesiastical Courts; which Judge Hutton affirmed, Was all that was determined in Caudry's Case. Nor,

(5.) Whether the King in Parliament may not make Law; for Reformation of Religion and establishing good Order therein. Nor,

(6.) Whether the Supreme Coactive Jurisdiction were not always a Right of the Crown, however it were in a great Mea∣sure usurped by the Pope after King John's Resignation.

But, Whether our Ancient Law doth give the King a Pow∣er, by virtue of his Ecclesiastical Jurisdiction, to appoint Commis∣sioners by an extraordinary way of Jurisdiction to proceed in pri∣ma instantia, against Persons by Ecclesiastical Censures? And to prove this I cannot find one sufficient Example, as I shall make appear by a short Account of the Instances he produces, and the Ecclesiastical Jurisdiction exercised at that time.

In the Time of the Saxons.

In the Saxon Times he brings first an Instance of Kenulphus, King of Mercia, granting an Exemption to the Abbot of Abingdon: But what does this signifie to Ecclesiastical Jurisdiction, to prove, That the King gave the Abbot an Exemption from the Temporal Jurisdiction of the Bishops? for, in those Days there were great Disputes between the Bishops and Abbots about the Temporal Ju∣risdiction over the Lands of their Abbies; which the Bishops claimed, and the Abbots refused, and put themselves under the Protection of Princes and Great Men, as appears by the Coun∣cils of Cloveshoo and Becanceld, in the time of Kenulphus. But Stamford puts this Matter out of Dispute in the Confirmation of the Charter of Kenulphus, by Edwin, for the Words are, Quod praefatum Monastrium omnis terrenae servitatis esset liberum: And what is this now to Ecclesiastical Jurisdiction?

But we have manifest Proof in the Saxon Times, That the Ecclesiastical Jurisdiction was never exercised by such a Com∣mission, but that all extraordinary Cases were dispatched in Parliamentary Assemblies, and the Ordinary Jurisdiction was ex∣ercised by the Archbishop of Canterbury, in Chief, and by the rest of the Bishops. The first extraordinary Instance of proceeding against an Ecclesiastical Person, in the Saxon Times, was that of Wilfred Archbishop of York, who because he would not consent to the making three Bishopricks in his Province, was deposed by Theodore Archbishop of Canterbury, the King himself being pre∣sent, and the great Council of the Nation: For so King Alfrith saith, that he was bis à toto Anglorum Concilio damnatus, as the Words are in Malmsbury; and Eddius, who lived at that time, saith, That King Alfrith gave this Reason against restoring him, because he had been condemned by the Kings his Predecessors, with their Council, the Archbishop assisting, and himself had judged him, cum omnibus pene Britanniae vestrae Praesulibus, all the Bishops, al∣most, being present.

In the Council of Nester field, in his Case, it is said, The King was present and Berthwaldus, Archbishop of Canterbury, cum to∣tius pene Britanniae Episcopis. In the Council at Nid, it is said, sedentibus Rege & Episcopis, cum Principibus eorum in loco Syno∣dali; which was a Parliamentary Assembly.

Not long after Tunbert was deposed from his Bishoprick, but it was, saith Florentius Wigorniensis, congregata Synodo sub prae∣sentia Regis Egfridi. The Archbishop Theodore likewise depo∣sed Winfred Bishop of the Mercians, saith the same Author, af∣ter Bede, for some Disobedience, and consecrated Saxulphus, the first Abbot of Peterborough, in his Place.

This Winfred had been present at the Council at Herudford, and there consented to the Canons then first received in the English Church; and there they submitted to Ecclesiastical Censures, upon the Violation of them. At this Council, saith Matt. Westminster, were present not only all the Bishops, but all the Kings and Great Men of the Nation; so that the first Canons were received in a full Parliament. One of these Canons was for increasing the Number of Bishopricks, as the Number of Believ∣ers increased: And upon this Canon Theodore proceeded against both Wilfred and Winfred: For not long after Theodore divided his Bishoprick into five; but it was done, saith Florentius, con∣sensu ejusdem Regis & Principum illius, as Ina divided the We∣stern Province into two Bishopricks, Synodali Decreto, saith Mat. Westminster, which then was the same, as by Act of Parlia∣ment. And the opposing such a Division seems to have been the Crime of Disobedience, for which he was deprived by the Arch∣bishop: For as Bede observes of him, He first exercised Ecclesi∣astical Jurisdiction over all England.

In the great Council at Be••anceld, where King Withred was present, A. D. 694. with his Nobles (Ducibus & Satrapis in unum glomeratis) together with the Clergy: He there disowrs any Ecclesiastical Jurisdiction, and leaves it to the Archbishop of Canterbury; Metropolitani Episcopi est Ecclesias Dei regere, guber∣nare, &c. and then follows, Presbyteros, Diaconos eligere, sta∣tuere, sanctificare, firmare & amovere. And he makes this an inviolable Law, as far as his Words could make it, Si quis au∣tem Rex post nos levatus in Regnum, aut Episcopus, aut Abbas vel Comes, vel ulla potestas hominum contradicat huic Chartuae, aut infringere tentaverit, sciat se sequestratum à Corpore & Sanguine Domini, &c. And after it follows, Haec Lex inviolabilis usque ad consummationem Saeculi permaneat, &c.

Mr. Prynn, out of his old Kindness to the Archbishops of Can∣terbury, in his vast Heap of Collections, would have this reje∣cted as Spurious; but Sir H. Spelman, whose Judgment was far beyond the others, saith, He had perused five MSS. of i••, whereof one was with a mixture of Saxon Letters, and he had ••o Mistrust of its Sincerity. And the Learned and Judicious Edi∣tors of the Decem Scriptores, Sir Roger Twisden and Mr. Selden have thought fit to insert it after them, out of a MS. in CCC.

But Mr. P. thinks, it is contradicted by the Council of Bergham∣stead, about Ecclesiastical Affairs, under King Withred: But I can find nothing like it. It is true, there are Laws made concerning Ecclesiastical Matters, by common consent of the King, the No∣bles and Bishops; but the very first is Ecclesia libera sit fruaturque suis judiciis, &c.

But besides, in the Great Council at Clovesho, where AEthel∣baldus, King of Mercia, was present, and Cutbert, Arch-Bishop of Canterbury, with the other Bishops, this Charter of Withred's, was read, and approved, and consirmed; with the like San∣ction annexed to it.

In the Council at Clovesho, A. C. 787. The extent of the Juris∣diction of the Archbishop of Canterbury was very much lessen∣ed by the means of King Offa, who caused another Archbishop∣rick to be set up in Mercia, and the Archbishop of Canterbury gave his Consent, saith Matt. Paris: But his former Jurisdicti∣on was restored in the Council of Clovesho, A. D. 803. by a ge∣neral Consent. But in the former Council the Ecclesiastical Ju∣risdiction was strenuously asserted, in these Words; Sicut Re∣ges omnibus dignitatibus praesunt, ita & Episcopi in his quae ad Deum attinent. And in the latter, there is a severe denunciation against all that should lessen the Honour, or take away the Juris∣diction of that See.

From henceforward I find no Diminution of the Archbishop's Ordinary Jurisdiction through the Saxon times. The King had the Political Supremacy in him, by which he erected and divi∣ded Bishopricks, and nominated Bishops, and summoned Coun∣cils, and confirmed their Proceedings as he saw Cause; but the immediate Ecclesiastical Jurisdiction was left to the Archbishop of Canterbury in the first place, and to the rest of the Bishops As to any Publick Acts which related to Ecclesiastical Affairs, they were not dispatched by particular Commissions, but in the Parliamentary Assemblies; In which, the custom was, to begin with what related to the Church, and then to proceed to other Business. Of this Ingulphus gives us an Instance in Ceolnothus Archbishop of Canterbury; for in the Parliament Assembled at Kingsbury, A. C. 851. in Hebdomada Pasch. (which was chiefly assembled pro Regni negotiis) yet even then, he proposed, That Church Affairs might be first dispatched; Divina Negotia debere primitus proponi; to which they all assented. And so Bertulphus his Charter of Crowland then passed; as Withlasius his did before, at a time when the Bishops and Nobles attended the King at London, to consult about the Danish Pyrates, which very much infested our Coasts.

Thus AEthelwolfus passed his Famous Grant of the Tenth of all the Lands to the Church, in a Council at Winchester; himself, and the King•• of Mercia and East-Angles, being present, and all the Nobility and Bishops giving their free Consent; as Ingulphus relates it. Several others might be produced; but these are suf∣ficient. And the Saxon Laws are a plain Evidence, That Church-Matters

were in those times determined in the same Assemblies, wherein the other Laws of the Kingdom were passed.

In the Reign of King Edward the Confessor.

The next Instance is of Edward the Confessor, who saith in his Laws, That he is Vicar of the highest King, and he is ordained to this end, that he should Govern and Rule the People of the Land, and above all things, the Holy Church, and that he defend the same from Wrong-doers, and root out Workers of Mischief.

F. Parsons saith, All this was by Commission from the Pope, such as the Kings of Sicily had.

But in my Opinion, this is a very bad Answer: For it supposes Persons otherwise uncapable, to be made capable of the same Jurisdiction, which follows Orders; provided they have a De∣legation from the Pope: Which is in effect, to confound all Ec∣clesiastical Jurisdiction in any, but the Pope himself, and those to whom he commits it. But those who assert the Right of Ju∣risdiction to follow the Power of Order, must first suppose a Person duly qualified, before he can receive from the Pope him∣self the Power of Ecclesiastical Jurisdiction. If therefore a Prince hath not an inherent Right to it, he cannot receive it by Com∣mission from the Pope. And the Powers which the King of Si∣cily challenges, relating to 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 Ju∣risdiction, like that of Bishops, but an Authoritative and Legisla∣tive Supremacy without any foreign Appeals, as will appear after∣wards. 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 Supre∣macy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions pub∣lished 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 man∣ner of Persons, born within these her Realms, Dominions and Coun∣tries, of what Estates, either Ecclesiastical or Temporal soever they be, so as no other foreign Power shall or ought to have any superio∣rity 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 Su∣premacy is not to be defined by Ecclesiastical Jurisdiction, but by Su∣pream Government.

Becanus urged this as an Argument against the Kings Supre∣macy, That he had no Ecclesiastical Jurisdiction. Dr. Burrhil an∣swered, 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 Misdemean∣ors of Church-men (as well as others;) but for proper Ecclesiasti∣cal 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 im∣mediate 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 Judica∣ture, 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 Eccle∣siastical 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 Pro∣fessions of King James; witness all our Statutes themselves.

The King of England, saith he, by the Fundamental Constitu∣tion of the Monarchy, hath plenary Power, without the Licence or Help, or Concurrence of any Foreign Prelate or Potentate, to ren∣der final Justice, that is, to receive the last Appeals of his own Sub∣jects, 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 Fo∣reign Jurisdiction.

But as in Temporal Matters the King's Supreme Authority is exercised in his Ordinary Courts. so likewise in Ecclesiasti∣cal: Which deriving their Jurisdiction from the King as Su∣preme, his Supremacy is preserved in the ordinary Ecclesiasti∣cal 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 Au∣thority 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 & reg••t; but Hoveden, revereatur & ab 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 Ec∣clesiastical 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 Introducto∣ry of a New Law, but only declaratory of a Natural Right. The French Lawyers allow Appeals from the Ecclesiastical Courts, tan∣quam 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 Commis∣sion from the Pope. It is true, that in the third Charter of West∣minster 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 Par∣liament being granted to be taken away, the King by the An∣cient 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 set∣led, 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 Jurisdicti∣on.

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. Its true, since the Acts for restoring Ju∣risdiction 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 be∣cause 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 de∣prived 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 pre∣vailing 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 after∣wards 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 refer∣red, saith Eadmerus, to a Conventus Principum at Pinnedenen; and when the King heard their Resolution, cum consensu omnium Principum suorum confirmavit, saith the Textus Roffensis. He likewise confirmed Charters as the Saxons had done; that to Bat∣tel 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 ex∣traordinary Acts relating to Church Matters were passed in Par∣liament 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 pre∣sent; The Bishops declared they could not deprive him (as the King would have had them) to whom they had promised Obedience. Af∣ter 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 be∣tween 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 [ 66] Sides referred it to the Parliament. [ 70]

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 [ 67] 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 For∣feitures, to the great Grievance of the Clergy. Anselm al∣though then in Disfavour, writes to the King about it; and tells him, This was a new Method of Proceeding, because it be∣longed to the Bishops in their Diocesses to call the Clergy to an Ac∣count; or if they neglected, to the Archbishop and Primate. The [ 86] King Answers, That his Barons were to meet him on Ascension∣day, and by their Advice he would give an Answer; but upon An∣selms [ 90] 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 Au∣gust; and then the Bishops, Abbots and Lords of the Kingdom, met [ 91] 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 Con∣sent [ 95] in Parliament, Regi, Archiepiscopo, caeterisque Principibus Regni visum fuit, saith Eadmerus. The Consecration of an elect Arch∣bishop of York, was transacted in Parliament, the King advising with the Bishops and Nobles about it; for Anselm, before his Death [ 102] had sent an Inhibition to the Bishops, Not to consecrate him un∣less he made the Profession of Obedience to the Archbishop of Canterbury: The Bishops resolved to adhere to Anselm's Inhibi∣tion, 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, [ 109] was agreed upon: And the King filled the Abbies before he went into Normandy, consisto Principum & Episcoporum suorum. [ 110]

In the latter End of Henry the First many Disputes hapned about Ecclesiastical Jurisdiction, as between the Bishops of S. Da∣vids 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 re∣ferred 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 Ecclesiasti∣cal Court for any thing of which by Allowance and Custom, it had not lawful Cognizance. But how doth the King's Power of grant∣ing Prohibitions, prove his Ecclesiastical Jurisdiction? It effectu∣ally 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 Digni∣ty? The contrary seems rather to follow, viz. That the Ecclesia∣stical 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 Impe∣rial 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 Juris∣diction 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 Tem∣poral 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 as they could to the Laws in force. But the Judges confessed, That although de jure both the Jurisdictions were ever in the Crown, yet the one was sometimes usurped by the See of Rome, which is a plain acknowledgment, that by the Matters of Fact in those times, the Right could not be proved; and especially in the times of H. 3. when the Popes Usurpations here, were at so great a height, that the King upon Writs of Enquiry sent into the several Counties, found, That the Revenues of the Roman Court, by Provisions, Extortions, &c. exceeded the Kings. And the King had so little Authority left, that the Pope put Bishops up∣on him Rege penitus irrequisito, saith Matt. Westm. so that he was so far from Ecclesiastical Jurisdiction, that he had not the No∣mination of his Bishops, nor so much as a Consent to their Electi∣on, unless the Pope thought fit sometimes to gratifie him in it. For the Pope pretended to the Right of Disposal of Church Pre∣ferments, by Vertue of his Ordinary Jurisdiction, which was said to be twofold. 1. Voluntary, in the Collation of Benefices. 2. Ju∣dicial, in the hearing of Causes; the former might be done at Rome, but the other in the Ordinary Ecclesiastical Courts. And Bracton, who was a Judge in his time, owns the Pope as much to have the Ecclesiastical Jurisdiction, as the King had the Tem∣poral; but yet he adds, That, if an Ecclesiastical Judge did med∣dle with Matters out of their Cognizance, the King's Prohibition did lye against him, and he ought to supersede his Proceedings till it

were tryed in the King's Court, to whom the Jurisdiction belonged. But it is still harder to prove the King's Ecclesiastical Jurisdicti∣on, because the Spiritual Courts were to certifie the Kings Courts, in case of Bigamy, Bastardy, and such like. For the Question is not about their Temporal Subjection to the King in signifying the Sentence of the Court, but whence they derived their Authority of hold∣ing the Ecclesi astical Courts; over which, Bracton saith the Pope had the ordinary Jurisdiction, & the Power to delegate others to execute it.

What doth it signifie to the Kings Ecclesiastical Jurisdiction, that the Barons of England would not receive that part of the Canon Law which concerned the Legitimation of Children born before Wed∣lock? For it depended upon the Barons Consent, Whether a Ca∣non of the Church should be made the Law of the Land concern∣ing the Rights of Inheritance.

In the Reign of King Edward I.

In the Time of Ed. I. we may expect some brisker Sallies to∣wards the Kingdoms Deliverance from the Popes Usurpations, which were thought so intolerable even by the Monkish Histo∣rians, in his Fathers Reign.

What that Bull was, the bringing whereof the Law-Books say, was then adjudged Treason, it would have been worth our while to have known. For it is hard to imagine that at that time, the meer bringing a Bull, should be so Capital a Crime, when so ma∣ny were brought without danger both before and after. But it seems by the Certificate of the Judges concerning it (still in the Tower) the Matter of it was very prejudicial to the Crown. And it argues no Spiritual Jurisdiction for Princes to examine and refuse (when they see cause) Bulls that come from Rome. For this is practised in those Countries which profess Obedience to the Popes Jurisdiction. Covarruvias affirms it of Spain. In Portugal, when John the Second would have given up that Right to the Pope, the Estates of the Kingdom would not permit him. Peter the Second, Duke of Britain forbad receiving any Bull before Examination by his Council, under pain of Corporal Pu∣nishments and Confiscation of Goods. Ant. Faber saith, in Savoy, No Bulls have Authority there, till they are approved by the Senate, and an Appeal lies from them tanquam ab Abusu. Even in Naples it self, Ferdinand the Catholick King, gave a severe Reprimand to his Vice-Roy, for not hanging up a Person who would have ex∣ecuted a Bull without his Authority. The Letter it self is Pub∣lished in the Jus Belgarum; where many other things may be seen to the same purpose.

The Right of Patronage is a Civil Right in Princes as well as o∣thers; and therefore E. 1. Without pretending to Ecclesiastical Jurisdiction, might justly punish the Archbishop of York for his obstinate refusing to admit the Kings Clerk because of a Papal Provision.

The Statute of Bigamy might very well be interpreted in Par∣liament, and yet the King have no Ecclesiastical Jurisdiction. For it was no more than declaring in what sense a Law should be ta∣ken, i. e. Whether it should extend to Bigamy before the Consti∣tution of the Council of Lyons, or after.

The Act of Parliament made at Carlisle, 35 E. 1. against Aliens possessing Benefices, is no more than hath been done in Countries where the Popes Jurisdiction is the most owned. As in Spain, Covarruvias saith, They have Prescription and Pragmatical Sancti∣ons against Aliens possessing Benefices. The Laws of Poland, and many Edicts in France exclude Strangers.

But I shall now produce some considerable Precedents in the time of Ed. 1. to shew that the Proceedings against the Arch-Bishops and Bishops for Misdemeanors or Contempts, was in Parlia∣ment, and not by Commissioners (the inferior Clergy being left to the Jurisdiction of their Ordinaries.)

3 Ed. 1. E. Warren complained to the King, That the Archbishop of Canterbury had contemned his Orders in not taking off Excom∣munication from some of his Servants: The King sends to him to proceed no further against the Earl or his Servants usque ad Par∣liamentum, where the Matter of Contempt might be debated. But in the mean time the Archbishop sends to the King a true Ac∣count of the Matter, and how far he was from Contempt; which is still extant in the Records of the Tower.

7 E. 1. John Peckam, Archbishop of Canterbury, was sum∣moned to Parliament, to answer to a Charge of Misdemeanors a∣gainst him, for some Passages in the Council at Reading; which he was fain to revoke, and to declare that no Articles there pas∣sed, should create any Prejudice to the Crown or Kingdom.

8 E. 1. The Archbishop went about to Visit the Kings Free Chap∣pels: The King hearing of it, sent a Writ to him, to forbear usque ad proximum Parliamentum; ut tunc ex unamini & mutuo consensu provideamus quid fieri debeat in Praemissis.

21 E. 1. John Roman, Archbishop of York, was Attached up∣on a Contempt for Excommunicating the Bishop of Durham, while he was in the King's Service. And after a full hearing in pleno Parliamento, he was condemned, and upon Submission, was Fined to the King sour thousand Marks.

28 E. 1. A Controversie arose between the King and the Bi∣shop of Chichester, about his refusing to admit a Person Present∣ed to a Prebend in the Free Chappel of Hastings; the King sends his Writ to the Warden of Cinque-Ports (extant in the Tower among the Writs of that Time) to enquire into this Matter, 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 Re∣cords.

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 Eccle∣siastical 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 Eng∣land.

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 Liber∣ty 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 Arch∣bishop, 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 Cer∣tificate 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 Bi∣shop having no Authority there as Ordinaries.

The third, fourth and fifth are about Exemptions from Episco∣pal 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 Jurisdicti∣on was founded upon the Belief of the Pope's being Supreme Ordi∣nary; 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 exem∣pta. And 45 Hen. 3. in a Prohibition concerning the free Cha∣pel 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 Spi∣ritual 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 where∣of, 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 Au∣thority.

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 Prag∣matick 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 Pow∣er was added by the Law then made, for the Words are, Where∣as the Diocesans of the said Realm, cannot by their Jurisdiction Spi∣ritual, 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 con∣vict by their Ordinaries, I cannot see any Reason why that Law should be made. In case of Apostacy, i. e. Renouncing Christiani∣ty, 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 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. be∣cause 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 Jurisdicti∣on.

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, men∣tioned 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 di∣sputed.

Notes

• Defence of Ecclesiastical Commission, p. 8, 9.
• Littleton's Rep. 189.
• Stamford, l. 3. f. 111.
• Malmsb. l. 3. f. 152. Edd. vit. Wil∣fred. c. 55.
• Ibid. c. 45.
• c. 57.
• Florent. Wigor. f. 254.
• Spelm. Concil. p. 154.
• Mat. Westm. A. G. 673.
• Florent. p. 559.
• Mat. Westm. A. G. 711.
• Bed. l. 4. c. 2.
• Spelm. p. 190.
• Chronologi∣cal Vindica∣tion. To. I. f. 193.
• Decem Script. f. 2209.
• A. C. 742.
• Decem Script. p. 2209.
• Spelm. p. 296.
• P. 324.
• Ingulpb, p. 490. c.
• Ingulph. ib.
• c. 5. R.
• Ans. to Coke's 5th Rep. c. 5. n. 20.
• Hob. Rep. f. 148.
• Tortura Torti, p. 380.
• Elenebus Re∣fut. Tort. Tor∣ti, p. 80.
• c. Mart. Bec∣pro Tort. Torti, c. 21. p. 234.
• p. 22. P. 244.
• Mason, De Minist. Angl. 1. 3. c. 3. p. 271.
• Apology, &c. f. 263.
• Bramhal's Works, p. 340.
• p. 63.
• Covarruvias Pract. Quaest. c. 35. n. 3.
• Salgado, De Regia Prot. part 1. c. 1. n. 23.
• Pasq. Recher. l. 3. c. 33.
• Hoveden. f. 259. 2.
• Eadmer. f. 6.
• Hoveden, f. 260.
• Eadm. f. 9.
• Selden. ad Eadm. f. 165.
• Eadm. f. 26.
• f. 30, 31. 38.
• Id. f. 65,
• f. 85,
• Hen. Hunt. l. 7. f. 220. 2.
• Coke 2 Inst. f. 602.
• Mat. Wesim. f. 320.
• Bract. l. 5. p. 5. c. 15.
• L. Assis. 30. E. 3. pl. 19. Brook Tit. Pr. pl. 10.
• Covarruv. Pe∣aut. Q. c. 35. n. 5, 6.
• Jus Belgar. p. 70.
• Cod. Fab. ad Tit. Cod. de Appel. ab Abus. Def. 3, 4
• P. 72.
• Covarr. Prat. Q. 35. n. 5. Stat. Polon. p. 207, 208. Pre. de Liher∣tes de l' Eg∣lis. Gal. vol. 2. c. 30.
• Claus. 7 E. 1.
• Placit. Parl. 21 E. 1. f. 135
• Placit. Parl. 28 E. 1. f. 227.
• Claus. 31. E. 1. m. 6.
• 16 E. 3. Tit. E. 1. com. 4.
• Lomed. De ex∣empt. c. 3. n. 7.
• Chart. 16. Job. m. 9. Pat. 22. H. 3. m. 10.
• Hoveden, f. 320.
• Bracton l. 3. c. 9. n. 2. Flet. l. 1. c. 29. n. 7. Brit. c. 9. Horn. ch. 2. Sect. 22.