A letter to the author of the Vindication of the proceedings of the Ecclesiastical Commissioners concerning the legality of that Court by Philonomus Anglicus.

A Letter &c. SIR,

HAving read your pretended Vindication of the Proceedings of the Eccleſiaſtical Commiſſioners againſt the Biſhop of London and the Fellows of Magdalen Colledge, I could not forbear acquainting you with the Reaſons why I remain as yet unſatisfied as to the Legality thereof, notwithſtanding all that you alledge in their Juſtification.

I ſhall paſs by your Introduction, and the invidious Reflections therein contain'd, upon the Church of England, with reſpect to their ſevere way of exerciſing the Regal Power againſt Proteſtant Diſſenters; and come to your firſt Section, which you entitle The Legality of the Court held by His Majeſty's Eccleſiaſtical Commiſſioners.

Upon which the Queſtion muſt be, Whether or no by the Laws of the Nation, as they now ſtand, the King's Eccleſiaſtical Juriſdiction may be delegated to Commiſſioners?

It is enacted by primo Eliz. cap 1. That ſuch Iuriſdictions, Priviledges, Superiorities and Preheminencies Eccleſiaſtical and Spiritual, as by any Eccleſiaſtical or Spiritual Power or Authority, hath heretofore been or may be lawfully exerciſed or uſed, for the Viſitation of the Eccleſiaſtical State and Perſons, and for Reformation, Order or Correction of the ſame, and of all manner of Hereſies, Errors, Schiſmes, Abuſes, Offences, Eontempts and Enormities, ſhall for ever by Authority of this preſent Parliament, be united and annexed to the Imperial Crown of this Realm.

And then follows the Branch Concerning the Queen's Aſſigning Commiſſioners to exerciſe Eccleſiaſtical Juriſdiction.

This you ſay (and quote the Lord Coke's Authority for it) that it is an Act of Reſtitution,Pag. 6. and that the Expreſs Letter and meaning of 1ſt. Eliz. is to Reſtore to the Crown the Antient Iurisdiction Eceleſiaſtical: Which that it is true in general, to wit, that the Eccleſiaſtical Iuriſdiction of the Crown of England, had been uſurp'd upon by the See of Rome, and was by this Act intended to be reſtor'd, I ſuppoſe no man will deny: But whether Our Kings by vertue of their Antient Inherent and Primitive Eccleſiaſtical Iuriſdiction, might delegate to Commiſſioners the Exerciſe thereof: Or whether Eccleſiaſtical Commiſſioners derived their Authority from his Majeſty by vertue of that Act only, and not upon the ſcore of any Prerogative in the Crown, preceding to that Act, whereby Our Kings might appoint Commiſſioners in ſuch Caſes, ad libitum, is (as I take) the ſingle Queſtion, upon which the validity or invalidity of the preſent Commiſſion will turn.

The Supreme Eccleſiaſtical Iuriſdiction was an Ancient Right of the Crown. But whether the Kings of this Realm by vertue of their ſupreme Eccleſiaſtical Juriſdiction could anciently grant a Commiſſion of this Nature, may admit of a doubt.

It will be worth while to enquire, what this Supreme Eccleſiaſtical Iuriſdiction antiently was, in order to the finding out whether ſuch a Commiſſion as is now iſſued, has any Warrant from the Common Law or not.

For the clearing of this, we muſt look many Ages backward, and as well as may be diſcovered at ſo great a diſtance, examine, What Power our Antient Kings had in Eccleſiaſtical Affairs, before ſuch time as the Papal Ʋſurpations wreſted it from them.

It is not an expreſſion that might drop from my Lord Coke's Pen, that will determine ſo weighty a point as this; eſpecially being a Queſtion that depends upon ſome Knowledge of Antiquity, which my Lord Coke was very little acquainted with. And what you call the greateſt clearneſs in that Chapter of his, Cap. 74. appears to others very blind, and the Light that is in it, makes wretchedly againſt you.

He tells us that No Commiſſioner by force of that Ancient Eccleſiaſtical Juriſdiction, could impoſe Fine and Impriſonment, but never tells us that our Kings, by Vertue of their Ancient Eccleſiaſtical Juriſdiction, could appoint any Commiſſioners.

Nor does he quote any Authorities in the Margent of that whole Diſcourſe, to evince wherein the Ancient Eccleſiaſtical Iuriſdiction conſiſted; which yet he never fails to do, when he can, right or wrong.

And it may juſtly diſparage that whole Diſcourſe, that he tells us the Statutes of 26 H. 8. cap. 1. and of 35 H. 8. c. 3. are in force, for as much as the Statute of 1 and 2 Ph. and Mar. cap. 8. (whereby they were repealed) was it ſelf repealed Primo Eliz. and conſequently thoſe Acts Implicitly revived.

Then which nothing can be more falſe; for the Statute of primo Eliz. though it repeal 1 and 2 Ph. and Ma. c. 8. does yet enact that all Laws and Statutes, &c. made void by the ſaid Act of Repeal (1 and 2 P. and M.) and not in this preſent Act ſpecially mentioned and revived, ſhall ſtand repealed and void, any thing in the ſaid Statute (of primo Eliz) to the contrary notwithſtanding. Now the Laws of 26 H. 8. cap. 1. and 35 H. 8. cap. 3. were repealed by the 1 and 2 Ph. and Ma. and are not ſpecially mentioned to be revived primo Eliz. and conſequently do at this day ſtand Repealed.

He tells us the Branch concerning the High-Commiſſion was Enacted out of neceſſity: Pa p. 326. ☞ For that all the Biſhops and moſt of the Clergy of England being then Popiſh, it was neceſſary to raiſe a Commiſſion to deprive them, that would not deprive themſeves. So that, as neceſſity cauſed this Commiſſion, it ought not to be exerciſed but upon neceſſity, for it was never intended to be a continual ſtanding Commiſſion. For that would prejudice all the Biſhops of England in their Eccleſiaſtial Juriſdiction, &c.

What need then of an Eccleſiaſtical Commiſſion at this time, now that all the Biſhops and moſt of the Clergy of England, are Proteſtants?

The deprivation of the Popiſh Clergy, he ſays, was the main Object of the Act.

That indeed he demonſtrates clearly, and alſo that thoſe Commiſſioners never had any Authority to Fine and Impriſon; but the Ancient Eccleſiaſtical Iuriſdiction he is very dark in, becauſe he underſtood it not.

He labours in vain to prove the Queen Head of the Church by Statute-Law. For (as I have ſaid) no Law in force declared her ſo.

But that ſhe was ſo by the Common-Law, and that all our Kings virtute officii are and ought to be acknowledged ſo, I readily grant. They are the head of the State, as well as of the Church, but are bound by the Laws of the Realm in the exerciſe of their Juriſdiction.

Let us conſider a little what this Legal Eccleſiaſtical Supremacy anciently was, is, and ought to be.

The beginning of Popiſh Uſurpations is as high as King William the Conqueror's days. Then it was the Pope apprehended the firſt opportunity to uſurp upon the Liberties of the Crown of England. For the Conqueror came in with the Pope's Banner, and under it won the Battel, which got him the Garland; and therefore the Pope preſumed he might lawfully pluck ſome Flowers from it, being partly gained by his Countenance and Bleſſing. Hereupon he ſent two Legates into England, &c. but no Decree was paſs'd, or put in Execution in his time without his Royal Aſſent. In his Succeſſor William Rufus his time, they attempted to draw Appeals to the Court of Rome, but prevailed not. In the ſucceeding Reigns of King H. I. King Steven, King Henry II. and King John, Inveſtitures of Biſhopricks, Appeals to Rome, and exemption of Clerks were contended for, and with much difficulty obtained: and in King Stephen's time, when the Clergy were Lords Paramount, the Canon-Law got footing amongſt us, and has been in part received and ſubmitted to ever ſince. It was introduced by the power of the Clergy without aſſent of the Legiſlative Power of the Nation; and from that time till the Reformation, Kings and Parliaments were axcluded from the enacting of Canons and Conſtitutions for the Government of the Church.

The Eccleſiaſtical Juriſdiction of the Crown was during that time under an Eclipſe, which King Henry the eighth Reſtor'd to its Luſtre, but becauſe whatever he did, was undone again by Queen Mary, we may date the Reſtitution of Eccleſiaſtical Juriſdiction from primo Eliz Which Reſtitution being in general terms, and relating to former uſage, we cannot know by that Act what the Ancient Iuriſdiction of the Crown was in Eccleſiaſtical Matters. The true notion of which, as it would diſpel ſome Miſts that Ignorance and Flattery have occaſioned, ſo it muſt be fetch't from thoſe times, in which it was genuine, unadulterated by forreign uſurpations, or modern impertinent and vain aſcriptions.

Appeals to Rome, were gain'd in King Stephen's Time; and not till then. Therefore before his time, Appeals in Eccleſiaſtical Cauſes were to the King. But how? To the King in Perſon? I meet with no ſuch thing in my little Reading. Nor any foot-ſteps of Commiſſions of Delegates, till King Henry the 8th's time. But Appeals were to the King in Parliament: or, in the Language of thoſe times, to the Commune Concilium Regni. Of which there are many inſtances.

Inveſtitures and Elections of Biſhops were gain'd from the Crown in King Henry the 1ſt. and King John's Time. But before their days it was not a perſonal Prerogative in the King to elect and inveſt them. For Biſhopricks were then conferr'd by the Curia Regis pro ſuâ complacentiâ.

In like manner the Power of making Canons for the Government of the Church and of receiving and incorporating into our Government Canons made beyond Sea by General Councils, or Councils ſo reputed, was in the Crown, as was the Power of making Temporal Laws for the Government of the State. But how to be exercis'd? In an Arbitrary deſpotick manner? No, but with the concurrence of the Great Council of the Realm: And by that Authority were all the Laws made in thoſe days for the Government both of Church and State.

Thoſe Eccleſiaſtical Laws thus made, were adminiſtred by the Biſhops and others having Eccleſiaſtical Juriſdiction, and before the entrance of the Normans in the Hundred and County-Courts, and at the Turnes, where the Biſhop and the Earl ſate together: And in the Conquerour's days, ſince in the Biſhops Courts, who by a Law in his Reign, were impowered to hold their Courts apart from the Laity.

But no Eccleſiaſtical Juriſdiction was ever Delegated to Commiſſioners. Records of thoſe times are loſt in a great and deplorable meaſure: But many Hiſtories, and all written by Church-men, are extant, which could not have fail'd giving ſome hint thereof, if any ſuch thing had ever been.

Now if no ſuch Commiſſion was ever granted till the Reformation, then was that Branch of primo Eliz. which ſets up the High-Commiſſion, introductive of a New Law. It gave the Queen Power, which ſhe had not before, which power conſequently ceaſed, when the foundation upon which it reſted, was taken away.

For Commiſſions are not ſuch Arbitrary things as ſome miſtaken men fondly imagine. Though Commiſſioners are but Subſtitutes and Deputies, Perſons that Act in his Name that impowers them, and execute his Authority, not their own: And how plauſibly ſo ever it be ſaid, that what Power a man has in himſelf he may delegate to another: Yet this difference muſt be admitted betwixt Perſons commiſſionated by the King in matters of Government, and Perſons Authorized by Private men, to act for them and in their ſtead; viz. that private men may by Law do thoſe things in Perſon, which they impower others to do for them. But the King commiſſionates Perſons to do, what himſelf cannot by Law do in Perſon: And conſequently they do not receive their Authority from him onely, but from the Law of the Realm, which Authorizes him to commiſſionate them, and where the Law does not impower the King to iſſue a Commiſſion, he can iſſue none, to exerciſe Juriſdiction.

The Law (by which the King Reigns) has already diſtributed his Juſtice to his hands, and committed the Adminiſtration of it to the ſeveral Temporal and Spiritual Courts, the Juriſdiction of which he can neither enlarge nor abridge. Circumſtances of Affairs ſometimes require the iſſuing out of Commiſſions of a new, and perhaps an extraordinary nature; and the Repreſentative Body of the Kingdom, which by the Law is to be aſſembled once a year in Parliament, do from time to time impower the Crown, to iſſue Commiſſions according as the caſe requires. All which Acts of Parliament would be needleſs, if his Majeſty might iſſue Commiſſions at Pleaſure.

The King is impowered by the Law to grant a Commiſſion, when either an Act of Parliament warrants it, or cuſtome immemorial, which preſuppoſes a Law. When both fail, the Commiſſion is illegal.

Commiſſioners of Oyer and Terminer, of Aſſize, Niſi priùs, Goal-Delivery, and the Peace, are all by vertue of Acts of Parliaments, as was the High-Commiſſion, whilſt it was in being: But the foundation thereof being taken away, this Modern one is built upon Sand, and when the wind blows, it will fall. Civil cauſes (where Acts of Parliament do not warrant it) cannot be determined by Commiſſion, and yet the King is the head of the State as much as of the Church, and the fountain of Temporal as well as of Eccleſiaſtical Juriſdiction, and all Judges derive their Authority from him. But there is no Law for it: and therefore it cannot be.

So that I take it very clearly, that our Kings Antient Eccleſiaſtical Juriſdiction was not a Perſonal Supremacy, ſeparate and diſtinct from the States of the Realm; that it was lodged in the Crown of England, in the King encompaſſed with Peerage and Cominalty, and to be adminiſtred in the Biſhops Courts, and no otherwiſe, but in caſes of Appeals, which were to the Parliament.

But admitting that primo Eliz. with reſpect to the High-Commiſſion were but declarative; yet it ſeems to me beyond all manner of Scruple, that the Statute of 16 Car. 1. has taken away the Commiſſion it ſelf, Root and Branch, and not only the Power to Fine and Impriſon, and miniſter the Oath ex officio. For if they had looked no farther, why the Statute of primo Eliz. repeal'd? In the 4th. Baragr. it is enacted, that no Arch-Biſhop &c, nor any perſon whatſoever exerciſing Spiritual or Eccleſiaſtical Authority or Iuriſdiction by any Grant, Licence or Commiſſion of the King's Majeſty &c. ſhall inflict any Pain, Penalty, Fine, Amercement, Impriſonment, or other Corporal puniſhment, &c. This had been ſufficient to diſable them to Fine and Impriſon. But they repeal the Branch of primo Eliz. and ordain, That no new Court ſhall be erected, which ſhall or may have the like Power, Iuriſdiction or Authority, as the High-Commiſſion Court then had or pretended to have. And the Stat. of 13. Car. 2. cap. 12. which Repeals the 16 Car. 1. Excepts out of the Repeal, What concerns the High Commiſſion Court, or the New erection of ſuch like Court by Commiſſion: enacts that the Branch of the Statute primo Eliz. ſhall ſtand repealed.

Beſides immediately upon the paſſing of 16. Car. 1. the High-Commiſſion Court, that then was, ceas'd to Act. They did not only ceaſe to Fine and Impriſon, but they ceaſed to Act as a Court. Nor in the Annus mirabilis of 1660 at the Reſtitution of all things, were the High-Commiſſioners reſtor'd, but the ordinary Juriſdiction of Archbiſhops and Biſhops &c. being aſſerted, which ſome ambiguous words in the 16 of Car. 1. had rendred doubtful: They yet keep down the High-Commiſſion Court bound by two Chains; viz. that of the Repeal of primo Eliz. and the enacting that no ſuch like Court ſhall be erected by Commiſſion. All which caution had been impertinent, if Fining and Impriſoning and miniſtring the Oath ex officio, were the only things provided againſt by 16 Car. 1. and the only things, which 13 Car. 2. cap. 12. deſigned to prevent the returning of.

You ſeem to lay a ſtreſs upon thoſe words of 13 Car. 2. c. 12. Or any other perſon or Perſons, exerciſing Spiritual Iuriſdiction by any Grant, Licence or Commiſſion from the King. By which you ſay that all Eccleſiaſtical Authority is recogniſed to belong to them, the Stat. of 16 Car 1. notwithſtanding. But thoſe words are ſatisfied by Commiſſioners of Delegates, and Commiſſioners to viſit in places exempt, who exerciſe Eccleſiaſtical Authority by Commiſſion from the King. So that we need not take in the High Commiſſioners, eſpecially the Act providing in expreſs terms, that there ſhall be none ſuch.

Nor does that ſaving of the Kings Supremacy in Eccleſiaſtical Affairs mend the matter. For it is againſt the nature of a Saving, to extend it to ſuch things as are particularized before. It would be nonſenſe to enact that the King ſhall not grant any ſuch Commiſſions, ſaving that the King may ſuch Commiſſion, if he pleaſe. Rather the Makers of that Law did not look upon the granting of ſuch a Commiſſion, as being any part of the King's Eccleſiaſtical Supremacy, as indeed it was not, but a new Authority given to the Crown by primo Eliz. Which might be taken away again without any blemiſh to the Antient Legal Supremacy.

You do not pretend to ground this preſent Commiſſion upon the primo Eliz. which confeſſedly ſtands repealed: but upon the King's Supremacy at Common Law. What power then have the Commiſſioners to cite any man out of his Dioceſs? For it is againſt the 23 H. 8. cap. 9. for any judge ſpiritual ſo to do.

Theſe things I offer concerning the Juriſdiction it ſelf, in which if you think it worth your while to give me ſatisfaction, you will extreamly oblige

Your Friend and Servant, Philonomos Anglicus. FINIS.