Concerning the Illegality of the Ecclesiastical Commission, Treatise · Chapter 4

Concerning the Illegality of the Ecclesiastical Commission · Treatise · Chapter 4

p. 49CHAP. 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 Eadmer. f. 113, 115.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 De…retal Epistles against them.

p. 50Afterwards, the Pope sent his Legate, and the King denied him f. 118, 121.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 Hunt. f. 226.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 Hoveden, f. 426, 433, 465.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, K. James his Premon. p. 300.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 p. 51and 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. Visitatorial Power, &c. p. 262.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 p. 52usurped 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 P. 266.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-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 p. 53in 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 p. 54inherent 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, and governing this Church and Kingdom by our own Laws: Which is well expressed in the Preamble to the Act against Appeals, viz. That this Realm of England is an Empire governed by one Supreme Head and King, having the Dignity and Royal Estate of the Imperial Crown of the same, unto whom a Body Politick, compact of all Sorts and Degrees of People, divided in Terms and by Names of Spiritualty and Temporalty, been bounden, and ought to bear, next to God, a Natural and Humble Obedience.

By virtue of this Act Cromwel was made Vicegerent and Vicar General, (for both are in the same Commission) and the King gave to him omnem & omnimodam Jurisdictionem, Authoritatem sive Potestatem Ecclesiasticam, quae nobis tanquam supremo Capiti hujusmodi competit, &c. which are the Words of his Commission.

It's true, That the Power of granting a Commission to exercise this Power, is not expressed in the Act of Parliament; but it being vested in the King by the Act, he might appoint One or more Commissioners to do it in his name; but the Case is very different where that very Power of Delegation is taken away by Act of Parliament, for that is the present Case.

To make this clear, we must consider the Words of this Act, and compare them with 1 Eliz. 1. the 17 Car. 1. 12. and the present Commission.

The Words, 26 H. 8. 1. are the same in effect with those 1 Eliz. 1. But with this observable Difference, That whereas the Statute of H. 8. gives the King his Heirs and Successors full Power and Authority from Time to Time to Visit, &c. That of 1 Eliz. 1. unites the Jurisdiction to the Imperial Crown of this Realm; but then it doth not proceed as the other did, To give full Power and Authority to her, her Heirs and Successors, to visit, &c. but the Words are, And that your Highness, your Heirs and Successors Kings or Queens of this Realm shall have full Power and Authority by this Act, by Letters Patents under the Great Seal of England to Assign, Name and Authorise, when and as often as your Highness, your Heirs and Successors shall think meet to Exercise, Use, Occupy and Execute under your Highness, your. Heirs and Successors, all manner of Jurisdictions, Priviledges and Preheminences, in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction, &c. so that the Administration of this Extraordinary Jurisdiction is by this Act limited to such who are nominated and appointed by the Letters Patents. The Fountain of all Jurisdiction is acknowledged to be in the p. 55Imperial Crown of this Realm, but the Administration is twofold; Ordinary, in the Archbishops, Bishops and Ecclesiastical Courts; and to secure their Dependance on the Crown, the Oath of Supremacy is required by this Act to be taken by every Archbishop, Bishop, and all Ecclesiastical Persons and Officers. But besides this, it was then thought fit, That there should be an Extraordinary Administration of it, which is limited by this Act to such as should be nominated and appointed in Letters Patents, &c. and no other Reason can be given of the Change from what it was in the Time of Henry the Eighth, for it is not now placed absolutely, as then, in the Queen, her Heirs and Successors, but the Jurisdiction is annexed to the Crown, and the Extraordinary Administration to be by Commission under the Broad Seal.

Now since this Power of nominating Commissioners for Extraordinary Jurisdictions is taken away by Act of Parliament, the only Question is, Whether notwithstanding the Right of Jurisdiction being still in the Crown, a new Commission may not be granted for Extraordinary Jurisdiction?

There had been no Question in this Case, if the Administration of Extraordinary Jurisdiction had not been setled 1 Eliz. 1. to be by Commission, and that very Power of granting such a Commission had not been taken away by Act of Parliament.

But as the Matter now stands, the only Pretence left for it is, That the same Act which confirms the Repeal, hath a Salvo for the King's Supremay, in these Words; Provided always, That this Act shall not extend, or be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters or Affairs. If these Words be taken strictly, with Respect to the same Matter, they make the Act inconsistent with it self: For then the meaning would be, The King's Supremacy shall not extend to the setting up such a Court, always provided, that his Supremacy, notwithstanding this Act, may extend to the setting up such another Court. Is it consistent with the Wisdom of a Parliament to make such delusory Acts? Therefore we must understand the King's Supremacy in other Matters. And there was this Reason for it, All the Acts of Parliament touching the Supremacy in Henry the Eighth's Time were repealed by Queen Mary, and the Restoring the Supremacy to the Crown was by the same Act which set up the High Commission; and therefore p. 56when part of that Act was Repealed, and that Repeal confirmed, it was fitting to add a Clause, That there was no intention to abridg or diminish the Supremacy setled by Law, especially, since by that Act the Ordinary Jurisdiction of the Bishops in their Courts was revived: And it is very well known, what Clamors had been made, As though the Bishops Courts being held in their own Names were inconsistent with the King's Supremacy; and although the Judges had declared, July the first 1637. That there was no necessity that Processes Ecclesiastical should be in the King's Name; and the King, August the eighteenth, in 13 Car. 1. published a Proclamation to that purpose: Yet all this did not satisfie some, but the Bishops were still thought by them, in their Ordinary Jurisdiction, to usurp upon the King's Supremacy and to abridg and diminish it; therefore when this Act passed to revive their Jurisdiction, it was no more than reasonable to add such a Clause to prevent Misconstruction, viz. That this Act, nor any thing in it, be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters; as the Ordinary Jurisdiction of the Bishops had been thought to do.

And the Vindicator of the Ecclesiastical Commission, could Vindication Eccles. Com. p. 19.not forbear a Marginal Note to that purpose. The Court held by his Majesties Ecclesiastical Commissioners, is more legal than the Bishops Courts; This is in the Kings Name, theirs in their own Name only: As though the new setting up a Court, forbidden by Law, did not make it illegal, in whose Name soever it were; and as though Courts expresly owned and allowed by Law, were illegal, meerly because the Forms of their Proceedings do not run in the Kings Name. But I desire him to take an Answer from his own Oracle the L. Ch. J. Coke, Co. 5. R. f. 39.Now albeit the Proceedings and Process in the Ecclesiastical Courts, be in the Name of the Bishops, &c. it followeth not therefore, that either the Court is not the Kings, or the Law, whereby they proceed, is not the Kings Law. For taking one Example for many, every Leet or view of Frank Pledge holden by a Subject, is kept in the Lords Name, and yet it is the Kings Court, and all the Proceedings therein are directed by the Kings Laws; and many Subjects in England have and hold Courts of Record, and other Courts, and all their Proceedings be according to the Kings Laws and Customs of the Realm.

But there is a Material Objection or two yet to be answered.

p. 571. It is Objected, That 2 Jac. the Judges declared in the Star-Chamber, That the Deprivation of Non-conformists, was 2 Cr. f. 37. Moor, f. 755. Noy, f. 100.lawful, because the King had supreme Ecclesiastical Power, which he hath delegated to the Commissioners, whereby they had Power of Deprivation by the Canon Law of this Realm; and the Statute of 1 Eliz. doth not confer any new Power, but explain and declare the ancient Power: And therefore they held it clear, that the King without a Parliament might make Orders and Constitutions for the Government of the Clergy, and might deprive them, if they obeyed not.

To which I answer,

1. Our Question is not, Whether the King, without a Parliament, may not require the Observation of Canons passed the Convocation, so as to deprive the Obstinate, by Vertue of his Supreme Power in Ecclesiastical Matters; but whether he may appoint a Commission with Power to deprive against an Act of Parliament; which hath taken away the Legal Power of any such Commission.

2. In matters of this nature, it is safer trusting the Supreme Judicature of the Nation in Parliament, than the Extrajudicial Opinion of the Judges.

And in this Case the Parliament hath declared it self another way; as appears by the Canons, 1640. which were not only condemned in Parliament afterwards (which then might be imputed to the heat of the Times) but in the most Loyal Parliament after the King's Return, particular care was taken, that neither the Canons of 1640. should be confirmed, 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 the Lord, 1639. Which implies, that the Sense of the Parliament then was, that we are not to own any Canons but such as were confirmed, allowed, or Enacted by Parliament, or by the Established Laws of the Land before 1639. And therefore no new Injunctions without a Parliament or Convocation, can make the Clergy liable to a Legal Deprivation. No, not that which the Defender is so pleased with the thoughts of, viz. to give their Assent and Consent to the King's Declaration, on pain of Deprivation.P. 14.

3. The Temporalties of the Clergy, especially the Bishops, are secured by several Acts of Parliament without a Tryal at Law. Which, because I see none of our great Lawyers take notice of, I shall here set down.

p. 5814 Edward the Third, c. 3. We Will and Grant for us, Statut. pro Clero.and for our Heirs, that from henceforth We nor Our Heirs shall not take nor cause to be taken into Our Hands, the Temporalties of Archbishops, Bishops, &c. or other People of Holy Church of what Estate or Condition they be, without a true and just Cause, according to the Law of the Land and Judgment thereupon given.

25 Edward the Third, c. 6. The Title of the Statute is, A Bishops Temporalties shall not be seized for a Contempt. And this was received for good Law, 9 E. 4. 28. Br. Ord. 12. Reg. f. 32.

But a very late Writer tells the World, That the Possessions Visitatorial Power, &c. p. 302.of Ecclesiastical Persons are but Conditional Freeholds; and although Absolute Freeholds require a due Course of Law, yet Conditional do not; so that if a Man chance to be deprived of his Office, his Freehold is gone.

This is touching Clergymen's Freeholds to purpose; and no doubt out of pure Zeal to the Church of England: But see the Equity and Impartiality of this Man!

He had undertaken before to give Publick Assurance of Abby-Lands to the present Possessors: And for what Reason? Assurance of Abby-Lands, p. 164, 184.Because the Pope granted a Dispensation with a non obstante to the Canon Law: And yet in this Book he proves, That a non obstante is no ways binding to the Supreme Power; so that no Man could more effectually overthrow his own Assurance than he hath done himself: For, saith he, Present Sovereigns, whether King or Pope cannot Visitatorial Power, &c. p. 297, 298.bind their Successors. And again, Acts of Graces and Favours are alterable and suspendible at the Pleasure of the Succeeding Sovereign: Why then should any be so weak as to think the Plenitude of the Pope's Power as to Abby-Lands, can be bound up by the Act of any former Pope? I confess the comparing these two Books together hath extreamly lessened his Assurance of Abby Lands with me.

And his Answers to the Power of Revocation are so p. 200.weak, that they come at last to no more than this, It is a thing which cannot well be done at present, therefore there is no fear it ever should be done. Here is some Security at least, till it can be done. But as to the Possessions of the Ecclesiastical Persons of the Church of England, he endeavours to prove, That they can have no Security at all of their present Possessions, notwithstanding any Promise or a Legal Title: For if, as he saith, The King by his p. 59Paramount Jurisdiction can make any Exceptions null; and p. 297, 298.so void a solemn Oath▪ not to accept a Dispensation from that Oath; why should he not as well make void any Promise of his own; when it hinders (as he thinks) a greater Good, especially if the Prerogative cannot be bound? But then, as to a Legal Title, that is the vainest thing imaginable, as to such Conditional Freeholds which Clergymen have; for if the Commissioners deprive them by their Power ab Officio & Beneficio, their Attendent Frehold, saith he, is gone, without any Course of Law. And the Defender Defence. p. 24saith, The Commissioners may deprive if Clergymen should not assent and consent to all contained in the King's Declaration, if he required it. But it is to be hoped, That Princes will not take the Measures of Justice, and Wisdom, and Honour from such Men: We will therefore set aside the Omnipotent Engine of a non obstante, which doth not batter so much as it undermines, and consider the Legal Security of these Conditional Freeholds.

I. All Freeholds are in some Sense Conditional, or else they could never be forfeited: Which shews, that there are none Absolute, with Respect to the Law. And as to their Original among us, it is agreed, That by the Ancient Right of Tenures, all Fees are Conditional; for they suppose Fealty, the non-performance whereof is Felony: Which is not that which is done felleo animo, as Sir Edward Coke trifles, but it is the same with Falshood or Treachery. The Laws of H. 1. c. 5. Si Dominus de Felonia vel Fide mentitus compellat hominem suum: And in another Law, the punishment of Felony is Forfeiture of the Land, c. 43. and therefore the Feudists say, That Felony is delictum Vasalli adversus Dominum; From the Gothick Fell or Fehl, which signifies in general, a Fault; And in this Case, the Breach of Trust towards his Lord: Of which sort of Felonies the Feudists reckon up some twenty, some thirty, any one of which makes a Forfeifeiture: So that here is no such mighty Difference, that the poor Clergymen must only have Conditional and Attendant Freeholds, as though other Men's were Absolute, whereas Sir Thomas Smith affirms, all in England are Rep. Angl. l. 3. c. 10.Fiduciary, i. e. Conditional Freeholders, beside the King. It is easie enough for any one to frame such a Distinction of Freeholds; and to say, That these who have but such a Freehold may be ejected, without any Trial at Common Law: But he ought to have shewed, That Magna Charta or the Ancient Laws made such a Difference between Ecclesiastical Freeholds and others; which he hath not preended to do; and therefore such a Distinction ought p. 60not to be allowed, especially since I have produced an Act of Parliament 14 Edward 3. c. 3. which saith, That Instit. 51.Clergymen shall not be ejected out of their Temporalties without a True and Just Cause, according to the Law of the Land: This was none of those Statutes which are in Print, but never enrolled, for Sir Robert Cotton owns Cottons Abr. p. 23.the enrolment of it, and that it was made into a Statute; and Mr. Pryn himself had nothing to object against it: But now it seems their Conditional Freholds may be taken from them without any due Course of Law.

II. There is more to be said concerning the Rights of Ecclesiastical Persons in Colledges, because they are Lay Mod. Rep. f. 84.Corporations. For in Appleford's Case it was declared to be the Opinion of all the Judges in Pattrick's Case, That a Colledge was a Temporal Corporation: And therefore some notable Difference in Point of Law must be shewed, Why Men may be deprived of some Freeholds without due Course of Law, and not of others; for I cannot imagine, That Colledges being founded for the encouragement of Learning, should lay Men more open to Arbitrary Proceedings, than any other Legal Societies are: However, Deprivation, in Coveney's Case, was agreed to be a Temporal Thing; and for that Reason his Appeal Dier, f. 209.was rejected, as not relating to a Matter of Ecclesiastical Jurisdiction, which was only provided for 24. and 25. Henr. 8. But it was allowed, That he might bring an Action at p. 320.Common Law. Our Author several times mentions this Case; but puts it off till he comes to Treat of Appeals, i. e. to the Place he knew it to be improper in. For the Question is not, Whether an Appeal doth lie to the King in Chancery in a Case of Deprivation? but, Whether there be not a Remedy at Common Law, if a Person be deprived of a Free-hold without due form of Law? And after a great deal of Impertinency, p. 224.about the manner of Appeals, he at last concludes, The Remedy had been at Common Law only; which is clear giving up the Point. For then, in case a Person be deprived without due course of Law, of his Free-hold, he grants, that he is to have his Remedy at Law; and consequently that a Deprivation of such a Free-hold without due Course of Law, is not sufficient. For the Law provides no Remedy where there is no Injury done, nor just Cause to seek for Redress. And so I come to the second Objection; which is this;

2. That to deny the Jurisdiction of this Court, is to deny the King's Supremacy; and that is a dangerous thing by the Law.

p. 61The Case was this; Dr. F. of Magdalen College in Visitatorial Power, p. 313.Oxford, being summoned before the Commissioners, denied the Authority of the Court, and persisted in so doing; which our Author saith, in another Kings Reign perhaps might have been interpreted a Questioning the very Supremacy it self; which, how fatal it was to John Fisher, Bishop of Rochester, and Sir Thomas Moor, is worthy to be considered, both as a Demonstration of our Kings Clemency, and that the Doctor hath not so much reason to complain of his hard Usage.

The Meaning whereof is this, That if they had proceeded in Justice against him, he ought to have suffered as Bishop Fisher and Sir Thomas Moor did. This is more than a bare Insinuation, That to deny the Jurisdiction of this Court, is to deny the Kings Supremacy; and that it is meer Clemency not to deal by them who do it, as H. 8. did by Bishop Fisher and Sir Thomas Moor.

But, 1. It is by no means evident, That those two Persons suffered meerly on that Account. For their Attainder in Parliament, was for refusing the Oath of Succession; and King James I. mentions the Words of Sir Thomas King James his Works, p. 283.Moor to that purpose, which he spake to the Lords when he was condemned. And their Attainder, if I mistake not, was in the same Parliament which made it Treason to deprive the King of his Dignity, Title or Name of his Royal Estate, and therefore could not be by an Act not then passed.

But, 2. Suppose that they were at last proceeded against on the Act then passed, what is this to the present Case? when Coke saith, This Act was twice Repealed. And it is no 4 Inst. f. 42.extraordinary Clemency, not to be proceeded against by a Law that hath no force.

3. The Statute in Force, 5 Eliz. c. 1. is against those who defend or maintain the Authority, Jurisdiction, or Power of the Bishop of Rome, or of his See, heretofore claimed, used, or usurped within this Realm, or by any Speech, open Deed, or Act, advisedly, wittingly attribute any such manner of Jurisdiction, Authority, or Preheminence to the said See of Rome, or any Bishop of the same, for the time being, within this p. 62Realm. So that it cannot be denied, that there is occasion for his Majesties Clemency; but it is to another sort of Men.

4. It is very hard straining to make the denying the Jurisdiction of this Court, to be denying the Kings Supremacy, when a Person hath done all which the Law requires him to do towards owning the Supremacy. If he had said Dr. F. had taken Possession of his Fellowship there, without taking the Oath of Supremacy, which the Law requires, he had then indeed given ground to suspect him for denying the Kings Supremacy; but to take no notice of those who refused to do as the Law requires, and to talk thus of what Severity might be used to one that hath done it, looks in him neither like Clemency nor Justice.

5. It was always looked on, as a Legal Right to make Exception to the Jurisdiction of a Court, especially when newly established, without Act of Parliament, and to any ordinary Understanding, in flat Contradiction to it. It is very new Doctrine that in a Legal Government Exceptio Fori shall be interpreted a Denial of supreme Authority, which was not only allowed by the Canon and Civil Laws, but by the most Ancient Common Lawyers we have.

Bracton observes several things, which are material to this purpose.

1. The first General Exception which is allowed, he saith, Bract. 1. 5 de Excep. c. 1.is contra Jurisdictionem. Exceptions are either dilatory or Peremptory. Some that are only dilatory, as to the Action, may be peremptory as to the Jurisdicton. And these are to be put in ante Litem contestatam, ad perimendum Judicium, ne procedat. And the first of this sort, are the Exceptions contra Jurisdictionem, & contra Personas Judicantium, quibus deficit Autoritas judicandi. So that he supposes, that such who do not deny the Kings Supreme Authority, may have a Legal and just Exception against the Authority of a Court.

p. 632. It was an allowable Exceptio Fori then, if any Lay-Persons L. 2. c. 8. n. 9.did take upon them to proceed by Ecclesiastical Censures.

In Ecclesiastical Causes, saith he, a Secular Judge hath no Cognizance, because he hath not the Power of Coercion proper to them, viz. by Ecclesiastical Censures; therefore, he saith, in his Causis pertinet Cognitio ad Judices Ecclesiasticos. His Reason is, Because those only are the competent Judges, who have the Power of Coercion proper to the Court. And for the same Cause, Ecclesiastical Judges are not to interpose in Secular Causes, cum jura sint separata & limitata. And although the Exemption of Ecclesiastical Persons from the Civil Courts, be certainly taken away by the Acts of Supremacy; yet it hath been still alledged by our Divines, That the Ecclesiastical Censures were still reserved to the Ecclesiastical Functions; either in the way of Ordinary or Delegate Jurisdiction. If the High Commission did seem to go further, then that Power being taken away by Act of Parliament, it must return to the Ancient Course.

3. There must be a Legal Authority to constitute a Legal Jurisdiction.L. 5. de Exc. c. 14.

Ad hoc quod rata sint judicia, videre oportet a… Justic. Warrantum habeat à Rege quod judicare possit. Si Warrantum non habuerit, non valebit quod coram eo actum fuerit, quasi coram non suo judice, quia primo legi debet Breve Originale, & postmodum Breve per quod Justiciar. constitutus est, & si nullum omnino habuerit, aut si habuerit non tamen ad manum, non erit ei parendum nisi it a forte sit, quod Breve Originale de Justiciaria sua faciat mentionem, Bracton, l. 5. De Except. c. 14.

1. There must be a Commission from the King, which must be read; and if either they have it not, or it be not at hand, the Jurisdiction is not to be owned, unless it be mentioned in the Original Writ. For Commissions in those days were most commonly granted by Writ, saith the Lord 2 Inst. f. 418.Coke.

But by Bracton's Words, it appears, That commonly there was an Original Writ and a Commission besides; but p. 64sometime the Commission was in the Original Writ, and then the reading of that was sufficient.

The Mirror saith, That the Jurisdiction may be denied, Mirror de Justic. c. 3. §. 16.if the seeing or hearing the Commission be denied.

2. The Bounds of the Jurisdiction must be expressed; and if those be exceeded, he saith an Exception lies. Which signifies nothing unless the Commission be known.

3. The Commission must be according to Law; For that L. 3. de Action c. 9. n. 3.is Bracton's standing Rule: Nihil aliud potest Rex in Terris, cum sit Dei Minister & Vicarius, nisi id solum quod Jure potest. So that a Commission against Law is void in Law. He mentions the Common Saying in the Civil Law, Quod Principi placet, Legis habet Vigorem; and answers it thus, Quod Principi placet is not to be understood of his Presumptive, but his Legislative Will (Animo condendi Jura) and with the Advice of his Magistrates, the King himself giving Authority; which is the Description of an Act of Parliament, as we now call it.

Which he more fully expresses elsewhere, Legis vigorem L. 1. c. 1. n. 2.habet, quicquid de Consilio & de Consensu Magnatum, & Reipublicae Communi sponsione, Authoritate Regis, sive Principis praecedente, juste fuerit Definitum & Approbatum.

If this were the Ancient Law of England, how comes the Exception against a Court to be a Denial of the King's Supremacy; unless it be supposed impossible, That there should be an Illegal Court with the King's Commission?

But we may suppose it possible for a new kind of Star-Chamber, or Court of Wards to be set up; must no Man question the Legality of such a Court, without denying the King's Authority? For this is a Question in Point of Law. And the King's Authority always goes with the Law: and therefore to suppose it to be in any thing against Law, is to suppose it to be contradictory to it self.

p. 65But our Author saith, It is necessary for every Court to P. 313.assert its own Jurisdiction. Very true, and to clear it too; if it be liable to a just Exception. I am very far from denying the King's Supremacy; yet I may be as far from thinking such a Court to be Legal, if an Act of Parliament can make a Court Illegal; and to say no more for it, but that every Court must assert its own Jurisdiction, is to level it with the Infamous High Court of Justice; which when King Charles the First, of Blessed Memory, denied their Authority, all the Reply was, That the Court was satisfied of its own Authority; Which could give Satisfaction to no Body else.

And if this be all can be said for the Legality of it, for all that I can see, there is just Reason to deny it.

FINIS.