A LETTER TO A Person of Quality, Concerning the Archbishop of CANTERBURY'S SENTENCE OF DEPRIVATION Against the Bishop of St. DAVIDS. LONDON, Printed in the Year, 1699. A LETTER TO A Person of Quality. SIR, I AM the less backward in obeying your Commands, to writ my Thoughts of the Bishop of St. David's Case; out of a persuasion that the best of men are not to be trusted with any greater Power, Civil or Ecclesiastical, than our Constitution warrants. The chief imputation within Ecclesiastical Cognizance which he labours under, is said to be simony: for this, if clearly proved, without presumptions and strained Inferences, that a Bishop is deprivable, I shall not deny; but the Question is, Whether a Bishop of this Kingdom is, by the sole Authority of his Metropolitan, deprivable for simony? Till better informed, I cannot but hold the Negative, with all imaginable deference to the proper Judges; and yet shall show that our Law is not defective herein, but has appointed a proper Court for inquiring into, and punishing all such Enormities: nor is there any necessity of recourse to the Legislature. It cannot be denied, that before the coming of the Normans, the Bishops sat in the same Court with the Civil Judges; but then if they had any judicial Power, Vid. Leges Edgari c. 5. de Comitiis. cvi quidem illius diacesis Episcopus& Senator intersunto, quorum alter jura divina alter humana populum edoceto. 'twas only in matters concerning the Divine Law: and it seems that they were to inform the People, who determined thereupon as they thought fit. Thus it continued till the year 1085. But by a Law then made, Ecclesiastical Courts were set up separate from the Civil; and matters which concerned Spelm. council. 2 Vol. f. 14. ib. Nec causam quae ad regimen animarum pertinet, ad judicium secularium hominum adducant. the regiment of Souls, were appropriated to the Ecclesiastical: by this means, by degrees some Causes which affencted Civil Rights, were in ordine ad. spiritualia, lest to their Jurisdiction. But as they often encroached upon the King's Courts of Law, they with great struggle kept the Power of restraining them, especially where the matter concerned the King or any of his Peers: and therefore thô Excommunication was accounted purely Spiritual, by the Constitution Chron. Gerv. Dorob. Col. 1386. Mat. Paris. Const. Cap. 7. Nullus qui de Rege teneat in Capite, &c. of Clarendon, 10 H. 2. in affirmance of the ancient Law of the Kingdom, no Tenant in Capite is to be excommunicated, unless the King, if within the Kingdom, if not his Chief Justice, were first made acquainted with the Cause; nor were their Lands to be interdicted. Tho the Chief Justice in those times had greater Authority, than the Chief Justice of the King's Bench at this day; yet a Power has resided in that Court, to restrain and punish the encroachments of Persons exercising Ecclesiastical Jurisdiction; a remarkable instance of which is given in Spelm. Reliq. Icenia, f. 160. Anno 25. H. 8. Sir H. Spelman's Remains. In relation to the present Question, I think these particulars may appear with great clearness. 1. That all Deprivations of Bishops or other Prelates, used, by the course of the Common Law, to be in Councils. 2. Tho the Councils were called Ecclesiastical, when the Summons was only or chiefly for Spiritual matters, or regarding the Canon Law; the laity were by the Constitution of the Kingdom to be parties and privies to all the Canons which passed, and Judgments in pursuance of those or other Canons; and thus the practise continued till the time of Archbishop Becket. 3. Whatever judicial Power was exercised in Ecclesiastical or Civil Councils of the Nation, devolved upon the House of Lords. 4. No Statute has taken away the Jurisdiction in these matters, which has been vested in the House of Lords. 5. Whatever the ordinary Jurisdiction of an Archbishop may be, and how much soever preserved, it cannot extend to the depriving of a Bishop. 1st. By what has been observed of the first Institution of Ecclesiastical Courts here in England it appears, that we have no occasion of inquiring into proceedings in such Causes before the time of W. I. after whose Accession to the Throne, till the 4th of his reign, no Prelate had been deprived: and then Archbishop Stigand lead the way. Malmsb. De Gestis pontiff. f. 116. Malmsbury, tho a Bigot for the Court of Rome, owns that he was Deposed or Deprived, coacto concilio," A Council being assembled. Hoveden Hoveden f. 259. Eodem Anno concilium m●gnum in octabis Pas. Wintoniae celebratum est, jubente& present Rege W. dom. Alex. Papa consentionte. calls this a Great Council celebrated at the command, and in the presence of King William, and with the consent of the Pope, in which Council he says Stigand is degraded. Hoveden speaks of the Deprivations in that Council, of Stigand's Brother Agelmare Bishop of the East. Angles, and of some Abbots: which however he supposes to have been by an Hoveden sup. Ques nulla evidenti causa nec concilia nec leges saeculi damnabant. abuse or straining, both of the Canons and the Law of the Land. At the Council at Westminster, 2 H. 1. where as Hoveden expresses Ib. f. 269. Ann. 1102. 2 H. 1. Principes regni omnes tam Ecclesiastici quam sacularis ordinis. it, all the Princes or Great men of the Kingdom, both Ecclesiastical and Secular, were present; several Abbots of Foreign and English Birth Plures Francigenae abbots& Angli sunt depositi,& honoribus privati, quos injust adqui sierunt aut in eis inhoneste. vixerunt. were deposed, and deprived of the Honours which they had acquired unjustly, or lived in dishonestly. Eadmerus says Eadm. Hist. f. 67. From the Authority of the Holy Fathers, the surreption of the Symoniacal Heresy was condemned in that Council; and names several Abbots who were then deposed Eadm. sup. In qua culpa inventi depositi sunt Guido abbess de Perscore, &c. for simony, in which he is followed by Malmsb. de Gestis Poutif. f. 129. b. Malmsbury. 2dly. That the Laity were of right Members of those Ecclesiastical Councils, and so admitted to be till within the time of H. 2. is very evident. Lanfranc Archbishop of Canterbury in the time of W. I. having inquired what was the ancient Modus tenendi Synodos apud Anglos. manner of holding Synods among the English; after mention of the order in which the Prelates are to sit, 'tis told him; Then Exinde introducantur Laici bonae conversationis, vel qui Electione conjugali interest meruerint. Bib. Cot. sub effigy Cleopatrae, C. 8. f. 35.& Spelm. council. 2 vol. f. 1. let the Laity of good Conversation be introduced, or they who should deserve or obtain to be there by a joint Election. That the Laity were at the Council of Winchester above mentioned is passed Dispute; and so they were at the Council at Westminster, 2 H. I. Maud, H. 1st's intended Queen, having been entered into a Nunnery, Malmsbury says the matter came to a Disceptation, and informs us, that Archbishop Anselm could not be induced to consent to the Marriage till Malmsb. f. 93. Res in disceptationem venit. 'twas sworn by lawful witnesses, that Sine professione causa procorum velum gessisse. she wore a Veil only to avoid the importunity of Suitors, but was never professed. This Disceptation and Consent of the Archbishop, was in a Council; where, as Eadmerus who was present informs us, she offered her self to be tried by the offered se judicio totius eccles. Anglorum, &c. judgement of the whole Church of England. That this was an Ecclesiastical Cause is passed Dispute; yet for the Decision of it there convened the Bishops, Abbots, all the Nobles and Clergy Nobiles quique ac religiosi ordinis viri. . Anselm stated her case before all the Nobility Tota regni nobilitas populusque minor. and Commons of the Realm; upon this judgement was given, that they might mary according to the Secundum legem Christianam. Christian Law; and then all crying together that the matter was justly Decreed, they were lawfully joined together. In the 8th of H. 1. an Ecclesiastical Council was held, wherein the Clergy were restrained from marrying; the very Act or Canons of which Council Hoveden f. 270. Hoveden gives us at large: They are there said to be statuted or enacted, by the Archbishops and Bishops, in the presence of the King, with the Assent of his Earls and Barons. This being for Ecclesiastical matters, the Bishops are mentioned as having the chief Authority; yet the Act or Canons passed with the Assent of the Laity. Thus in Contin. ad Flor. Wigorn. f. 1127. the 27th of that King, William Archbishop of Canterbury is said to have assembled a General Council of all the Bishops, Abbots, and religious Persons; but then there resorted thither Confluxerant quoque illuc magnae multitudines Clericor. Laicor. tam divitum quam medioerium. great multitudes of Clergy and Laity, both rich and mean: where the crowd Quaedam propter nimium aestuantis turbae tumultum ab audientia judicantium profligata. and noise was so great, that 'twas difficult to judge which way the Majority determined. King Stephen being taken Prisoner in the 6th of his Reign Hunting. f. 223, 224.& Malms. f. 106. , his Brother the Pope's legate, Bishop of Winchester, held an Ecclesiastical Council: that the Laity both Lords and Commons were there is passed Dispute, the Council having been adjourned in expectation of the Representatives of the City of London, who soon after came, and declared themselves sent a Communione Londoniarum, from the Community of London. And as late as 11 H. 2. a Council being held by Richard Archbishop of Canterbury, then the Pope's Legate, the Canons were promulged with the Assent of the King, and all the Nobility of the Kingdom Chron. Gerv. Dorob. f. 1429. Assensu Regis& primorum omnium regni haec subscripta promulgata sunt capitula, &c. . 3d. That whatever judicial Power was exercised in any of these Councils belongs now to the Lords in Parliament, cannot be denied, without questioning their Jurisdiction in general. 'tis observable that in the Council, 27 H 1. there were particular Persons Judicantes, judging, tho there was the Consent of more: who the Persons that judged were, appears by the Constitution of Clarendon, Quadril. lib. 5. in Princip. Gerv. Dorob. Col. 1586. Seldeni Janus Anglor. p. 108. Habent possuas de Rege sicut Baroniam. 10 H. 2. in affirmance of the Common Law, which says, The Archbishops, Bishops, and all Persons of the Kingdom, who hold of the King in chief, have their Possessions of the King as a Barony, and from thence answer to the Justices, and the King's Officers, perform all Rights and regal Customs, and as the other Barons ought to be at the Judgments of the King's Court, &c. In the Case of Roger Mortimer, impeached by the Commons in Parliament of High-Treason, Rot. Parl. 4. E. 3. n. 1. less dits Counts, Barons,& peers, come Juges au Parliament, per assent du Roy en la Parl. agarderent& ajugerent, &c. And in the case of the Earl of Middlesex impeached by the Commons, Journal Dom. Proc. Ann. 21.& 22. J. 1. the Lord-Keeper delivering the judgement of the Lords, says, The High-Court of Parliament doth adjudge, &c. 4th. It appearing that Deprivations were judicial Acts of Councils, and the Judgments there were the judgments of the Lords; at least that Authority has been since vested in them; Let's see whether this was ever taken away. The Statute 24 H. 8. 24 H. 8. c. 12. for the restraint of Appeals provides, that some particular Spiritual Causes there mentioned, shall be finally adjudged and determined within the King's Jurisdiction and Authority, in such Courts Spiritual and Temporal, as the nature of the matter shall require, without Appeal to any foreign Power. Then it provides, that Appeals shall be made in Manner and Form as there follows, and not otherwise: from the Bishop to the Archbishop, to be definitively decreed without Appeal to any other Person or Court; This Statute relates not to the Case where a Jurisdiction is exercised contrary to Law. if before the Archdeacon of any Archbishop, or his Commissary, to the Arches; from thence to the Archbishop, without further Appeal: if begun with the Archbishop, to be finally determined as that Act has appointed; which seems to be by the Archbishop alone, no Appeal being provided for from him, except where the matter concerns the King, and then the Appeal is to be to the Convocation. The Statute 25 H. 8. is more general, 25 H. 8. c. 19. taking in all Spiritual Causes, and provides, that Appeals shall be prosecuted as was appointed by the former Statute in the Cases there expressed; then it adds an Appeal from the Archbishop to the Delegates, and provides that no further Appeal be had or made from the said Commissioners. Notwithstanding this it has been resolved that there may be a Commission of Review to other Commissioners, and so the Law is taken at this day: and the reason for it is, that the Prerogative lodged in the Crown shall not be taken away by general words: but the Prerogative of the Crown is to judge in the proper Courts; which as to the Deprivation of Bishops, as I have shown, is the House of Lords in Parliament. Besides, the Statute 25 H. 8. provides, that the Causes not name in the 24th shall be tried, as others are appointed by the 24th; and by that an Appeal in a Spiritual Cause concerning the King, as the Deprivation of a Bishop is, was to be determined in Convocation. 'tis further observable, that neither of those Statutes gave a Jurisdiction to the Spiritual Courts of Archbishops or others, where they had none before, only provides for Appeals in Causes within their Jurisdiction: therefore matter of Deprivation, which was never within their Jurisdiction, is casus omissus out of those Statutes; and by consequence 'tis proper to petition the Lords upon their assuming such a Jurisdiction. Tho the Statute 24 H. 8. gives no Authority to the Convocation to judge originally in Causes concerning the King; yet in times of Popery they supposing that the supreme Authority in such Causes was in the Clergy, 35 H. 8. N. 25. both Lords and Commons petitioned the King to grant a Commission to his Clergy in Convocation to judge of the validity of his Marriage with and of Cleve: yet this was not thought sufficient without the Assent of the King, Lords and Commons in Parliament, by which that Marriage was declared voided. The legality of the Commission 35 H. 8. they might suppose founded upon the Statute which takes from the Pope that Headship he had assumed, 26 H. 8. c. 1. and by consequence the necessity of his Consent by his Legate or otherwise to the Acts of Ecclesiastical Councils; and further annexes and unites this Authority to the Crown, and provides that the King, his Heirs and Successors, shall have full Power and Authority to visit, repress, redress, reform, and order all Errors, &c. which might be by any manner of Spiritual Authority or Jurisdiction. This seeming only to leave the Causes to the proper Courts; 1 Eliz. c. 1. the Statute 1 Eliz. not only annexes all Spiritual Jurisdiction to the Imperial Crown of this Realm, but particularly empowers the Queen, her Heirs and Successors, to grant Ecclesiastical Commissions. Afterwards the Act 16 Car. 1. repeals that Clause in the Statute 1 Eliz. and enacts that no new Court shall be erected with like Power. 16 C. 1. c. 11. Still those parts of the Statutes 26 H. 8. and 1 Eliz. which unite Spiritual Jurisdiction to the Crown, remain untouched; 'tis agreed that these are but declaratory of the Common Law, upon which the Jurisdiction exercised by Popes, was an Usurpation. Nothing therefore is more plain, than that as anciently, while the Nation was under this Usurpation, matters of Deprivation were judged of in the Great Council of the Nation, with the Assent of the Pope; now they are to be judged and determined by the Lords Spiritual and Temporal in Parliament, without any interposition of the Pope: and all Judgments elsewhere are violations of the right of the Lords, who have this Jurisdiction properly, and originally. 5th. Since this Power never belonged to Archbishops, but with others, as Members of the Great Council; there's no colour to imagine that 'tis saved by the Clause in the Act 13 Car. 2. which provides, 13 Car. 2. c. 12. that the Statute 16 Car. 1. shall not take away any ordinary Power or Authority from the Archbishops, or Bishops. Besides the Evidence above, that matter of Deprivation it not within their ordinary Power; we have the Authority of very learned Judges, Dyer, f. 209. Justice Brown and Justice Weston, who in the 3d and 4th of Eliz. refused to act as Delegates upon an Appeal from a Sentence of Deprivation by the Bishop of Winchester, as Visitor of a College; because the Deprivation was merely Temporal, and by a Lay Patron: where the only reason was not that the Bishop acted as a Lay Patron, but as well that the Deprivation was of a Temporal Interest: and therefore the Judges held the Party might have his Remedy by Action at Common Law. And fully to come up to this Case, the Barony annexed to the bishopric, is to many purposes a Lay-Fee: according to the Constitution of Clarendon, ties the Bishops to Lay Services; and upon Contempts or the like, Rex capit se ad Baroniam: but this Sentence would deprive the King of that Remedy. Whether it naturally follows from the Premises, that the Lords in Parliament are the proper and only Judges in the Case in Question; is submitted to your Consideration by SIR, Your very humble Servant.