Concerning the Illegality of the Ecclesiastical Commission, Treatise · Chapter 1
CHAP. I. The State of the Question concerning the Court of the late Ecclesiastical Commission.
The Case stands thus;
BY the Act of 1 Eliz. 1. it was established and enacted, That such Jurisdictions, Priviledges, Superiorities and Preheminencies Spiritual and Ecclesiastical, as by any Spiritual or Ecclesiastical Power or Authority, have heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons, and for Reformation, Order and Correction of the same, and of all manner of Errors, Heresies, Schisms, Abuses, Offences, Contempts and Enormities, shall for ever by this present Parliament be united and annexed to the Imperial Crown of this Realm.
And that the Kings and Queens of this Realm shall have ful Power and Authority by virtue of this Act by Letters Patents under the great Seal of England, to assign, name and authorize, when and as often as they shall think meet and convenient, and for such and so long time as they shall think meet to exercise, use, occupy and execute all manner of Jurisdictions, Priviledges and Preheminences in any wise, touching or concerning any Spiritual or Ecclesiastical Jurisdiction within these Realms; and to visit, reform, redress, order, correct and amend all such Errors, Heresies, Schisms, Abuses, Offences, Contempts and Enormities what soever, which by any manner of Spiritual or Ecclesiastical Power, Authority or Jurisdiction can or may lawfully be reformed, ordered, redressed, corrected, restrained or amended to the Pleasure of Almighty God, the increase of Virtue, and the conservation of the Peace and Unity of this Realm: And that such Person and Persons so to be named, authorized and appointed after the said Letters Patents to him or them made and delivered, shall have full Power and Authority, by virtue of this Act, and of the said Letters Patents to exercise, use and execute all the Premises, according to the Tenour and effect of the said Letters Patents, any Matter or Cause to the contrary, in any wise, notwithstanding.
But in the Act 17 Car. 1. c. 11. after the recital of this latter Clause, these words follow, And whereas by Colour of some Words in the aforesaid Branch of the said Act, whereby Commissioners areauthorized to execute their Commission, according to the Tenor and Effect of the King's Letters Patents, and by Letters Patents grounded thereupon, the said Commissioners have to the great and unsufferable Wrong and Oppression of the King's Subjects, used to fine and imprison them, and to exercise Authority not belonging to Ecclesiastical Jurisdiction restored by that Act; and divers other great Mischiefs and Inconveniences have also ensued to the King's Subjects by occasion of the said Branch and Commissions issued thereupon, and the Executions thereof; therefore for the Repressing and Preventing of the aforesaid Abuses, Mischiefs and Inconveniences in time to come, Be it enacted by the King's Most Excellent Majesty and the Lords and Commons in this present Parliament assembled, and by the Authority of the same, That the aforesaid Branch, Clause, Article or Sentence shall from henceforth be repealed, annulled, revoked, annihilated and made void for ever, any thing in the said Act to the contrary, in any wise, notwithstanding.
Then after a Clause relating to ordinary Jurisdiction, repealed 13 Car. 2. c. 12. the Act concludes thus, And be it further enacted, That from and after the said first Day of August, no new Court shall be erected, ordained or appointed within this Realm of England or Dominion of Wales, which shall or may have the live Power, Jurisdiction or Authority as the said High-Commission-Court now hath or pretendeth to have, but that all and every such Letters Patents, Commissions and Grants made or to be made by his Majesty, his Heirs and Successors; and all Powers and Authorities granted or pretended, or mentioned to be granted thereby, and all Acts, Sentences and Decrees to be made by virtue or colour thereof, shall be utterly void and of none effect.
By the Act, 13 Car. 2. c. 12. This Repeal stands good in the first Proviso; and in the second Clause, where that which concerns Ordinary Jurisdictions, is repealed, an Exception is put in, in these Words, Excepting what concerns the High-Commission-Court, or the new erecting some such like Court by Commission.
The Case which arises from hence, is, Whether these Acts of Parliament only take away the Power of Fining and Imprisoning, from any Ecclesiastical Commission, granted by the King; so that notwithstanding these Repeals, the King may still constitute a Commission proceeding by Ecclesiastical Censures: And for the same Ends which are expresly mentioned in the Statu te repealed, viz. To exercise, use, occupy and execute all manner of Jurisdictions, Privileges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within this Realm of England, and Dominion of Wales, and to visit, reform, order, correct and amend all Abuses, Offences, Contempts and Enormities whatsoever, which by the Spiritual and Ecclesiastical Laws of this Realm, can or may lawfully be reformed, ordered, redressed, corrected, restrained, or amended, to the Pleasure of Almighty God, the Increase of Vertue, and the Conservation of the Peace and Unity of this Realm. These are the Powers of the present Commission, and are the same which are mentioned in the Act of Repeal, 17 Car. 1. c. 11. only Errors, Heresies and Schisms, being left out.
It cannot be denied, That the Power of Fining and Imprisoning, is most expresly taken away, and that is assigned as one Reason and Occasion of repealing the Clause of 1 Eliz. 1. which establishes the Court; but I cannot be satisfied, that this was all that was intended by the Act 17 Car. 1. c. 11. And that for these Reasons:
1. If no more had been intended, then it had been sufficient to have destroyed the Letters Patents by which the Power of Fining and Imprisoning was granted, without mentioning the Act of Parliament, which gives no such Power. But the Act of Repeal, 17 Car. 1. c. 12. begins with the Act of Parliament: Whereas in the Parliament holden in the first Year of Queen Eliz. there was an Act made and established, &c. In which Act, among other things, there is contained one Clause, Branch, Article or Sentence, whereby it was Enacted to this effect, &c. Then follows all the Enactin; Clause; and after it, the Abuses of the Power, by the Letters Patents are reckoned up, viz. Fining and Imprisoning, and other great Mischiefs and Inconveniences: Therefore, for the repressing and preventing of them, not meerly the Power to Fine 4 Inst. f. 35. 2and Imprison; but the whole Clause, and all things contained in it, are from thenceforth repealed, annulled, revoked, annihilated, and utterly made void for ever. What need all this, if no more were designed than to take away the Power of Fining and Imprisoning?
It is plausibly argued by the Lord Coke, That the Power to Fine 4 Inst. f. 325.and Imprison, was not agreeable to the Design of the Act. 1. Because the Title of it is, An Act restoring to the Crown the Ancient Jurisdiction; but the Ancient Jurisdiction Ecclesiastical had not a Power to Fine and Imprison, but proceeded only by Ecclesiastical Censures. 2. Because the Power to reform, order and correct all Errors, Heresies, &c. was to be such as may be lawfully reformed, corrected, restrained, or amended by any manner of Spiritual, Ecclesiastical Power, Authority or Jurisdiction, which did not extend to Fine and Imprisonment. 3. The Tenor of the Letters Patents was to exercise, use and execute all the Premises. Since therefore the Premises go no further than Ecclesiastical Jurisdiction, the Letters Patents could give no such Power, being in pursuance of the Act. But it is agreed, saith he, That before this Act no Man could be punished by Fine and Imprisonment by any Ecclesiastical Power, unless it were by force of some Act of Parliament. But because the Act saith, They are to use and execute all the Premises according to the Tenor and Effect of the Letters Patents; Others have thought, That the Power to Fine and Imprison, being within the Letters Patents, the Act of Parliament did bear them out in pursuing what was in the Tenor of them.
But in my Opinion, this Matter ought to be a little further cleared; and therefore we must distinguish between the Original Commission, and the Supplemental Power, added to enforce it. The Original Commission extended no farther than Ecclesiastical Jurisdiction, as is plain from tho reading of the Statute; and that of it self could go no further than Ecclesiastical Censure. But because of the Circumstance of that Time, when (as the Lord Hobart, in a M. S. Discourse of the High Commission observes) The Persons In B…blioth. Cotton.most concerned did slight the Ecclesiastical Censures; therefore it was thought necessary in the Letters Patents to grant them a new Commission to enforce the former, and that extended to Fine and Imprisonment: For in the High Commission for the Province of York, (which is preserved) distinct Powers are granted, which are not in the Act. For, whereas the Act goes no further than the Ecclesiastical Jurisdiction, the Commission gives them Power to proceed after another manner than by Ecclesiastical Censures; for the Words are, Contumaces autem & Rebelles, si quos invenerint, tam per Censuras Ecclesiasticas, quam Personarum apprehensionem, & Incarcerationem, &c. ac quaecunque alia Juris Regni nostri Remedia compescendum, &c. Here we see plainly a Conjunction of the Power of Common Law, added to that of the High Commission, by virtue of the Act of Parliament, and so in all probability it was in the Letters Patents for the High Commission in this Province, which bore equal Date with the former.
And although the Date of the High Commission was before the Depriving of the Bishops, I Eliz. Yet I see no ground for my Lord Coke's Assertion, which the Defendant takes for granted, p. 13. That this Commission was first granted for depriving the Popish Bishops, and that about Twenty were 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 Sand. de Schif. 4. 157.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 Bract. l. 5. c. 1.inter partes; and to the same purpose Fleta: They both distinguish two kinds of Jurisdiction, Ecclesiastical and Civil. Ecclesiastical, Flet. l. 6. c. 37.saith Bracton, is that which belongs to Ecclesiastical Causes: Which shews, That they looked on Ecclesiastical Proceedings c. 2.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 c. 36. sect. 5.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 hath no Jurisdiction it is no Court; if it have Jurisdiction, it is void in Law; for the Act of Parliament takes away all Power, Jurisdiction and Authority from any such Court.
3. The Explanatory Act 13 Car. 2. c. 12. makes this more evident; for there being a Clause inserted 17 Car. 1. c. 11. which seemed to take away the Ordinary Jurisdiction of the Ecclesiastical Courts, it was thought fit to make that Act on purpose to clear that Matter, by repealing that Clause. But that Clause being part of the Act which took away the High-Commission Court, lest by such a Repeal the Act it self should be thought repealed, therefore there is only an Exception put in, not barely as to the Old High-Commission, but as to the new erecting some such like Court by Commission: And a particular Proviso is added, That neither this Act, nor any thing herein contained shall extend or be construed to revive or give force to the said Branch of the said Statute, made in the said first Year of the Reign of the said late Queen Elizabeth, mentioned in the said Act of Parliament, made in the seventeenth Year of the Reign of the said King Charles; but that the said Branch of the said Statute made in the said first Year of the Reign of the said late Queen Elizabeth, shall stand and be repealed in such sort, as if this Act had never been made. Now it ought to be considered, That even this Parliament doth not fix upon the Power to Fine and Imprison, to take that away; but upon the Original Clause in the Act, which gave Power to erect such a Court. And this Parliament was zealous to assert the Ordinary Jurisdiction, and as zealous to prevent any such extraordinary Jurisdictions, as was in the High-Commission; which it shewed by continuing the Repeal of that Power by which it was established.