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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61544	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.	Stillingfleet, Edward, 1635-1699.	1689 (1689)	Wing S5581; ESTC R24628	67,006	76

Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the De●retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other

Principum suorum confirmavit saith the Textus Roffensis He likewise confirmed Charters as the Saxons had done that to Battel 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 extraordinary Acts relating to Church Matters were passed in Parliament 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 present The Bishops declared they could not deprive him as the King would have had them to whom they had promised Obedience After 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 between 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 Sides referred it to the Parliament 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 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 Forfeitures to the great Grievance of the Clergy Anselm although then in Disfavour writes to the King about it and tells him This was a new Method of Proceeding because it belonged to the Bishops in their Diocesses to call the Clergy to an Account or if they neglected to the Archbishop and Primate The King Answers That his Barons were to meet him on Ascension-day and by their Advice he would give an Answer but upon Anselms 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 August and then the Bishops Abbots and Lords of the Kingdom met 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 Consent in Parliament Regi Archiepiscopo caeterisque Principibus Regni visum fuit saith Eadmerus The Consecration of an elect Archbishop of York was transacted in Parliament the King advising with the Bishops and Nobles about it for Anselm before his Death had sent an Inhibition to the Bishops Not to consecrate him unless he made the Profession of Obedience to the Archbishop of Canterbury The Bishops resolved to adhere to Anselm's Inhibition 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 was agreed upon And the King filled the Abbies before he went into Normandy consisto Principum Episcoporum suorum In the latter End of Henry the First many Disputes hapned about Ecclesiastical Jurisdiction as between the Bishops of S. Davids 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 referred 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 Ecclesiastical Court for any thing of which by Allowance and Custom it had not lawful Cognizance But how doth the King's Power of granting Prohibitions prove his Ecclesiastical Jurisdiction It effectually 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 Dignity The contrary seems rather to follow viz. That the Ecclesiastical 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 Imperial 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 Jurisdiction 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 Temporal 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