Co. 12. Rep. p. 64. and they were entred per Curiam Nay take in their Hypothesis Brady Johnson Filmer who would persuade us that Parliaments of old time before they were christen'd by that Name were but Assemblies of the King's Tenants in the nature of a Court-Baron Why even in a Court-Baron the Suitors are Judges And all the Judges of England told King James the First Co. 12. Rep. 64. That the King could not in Person adjudge any Case If therefore our King 's have no Judicial Power personally in them how can they derive to others what themselves have not How comes it to pass that the King can grant a Commission to review a Decree when himself cannot review it nor is impowered by Act of Parliament to grant any such Commission I will dwell no longer upon these Acts concerning Appeals It appears I hope already that Appeals which by the Antient Law of the Realm were to the Curia Regis had been gain'd from it to the Court of Rome That King Henry the Eighth caused such Foreign Appeals to be restrain'd and directed how they should be prosecuted within the Realm for the future Which Direction ought to be pursued for so far forth as it gives Appeals to the King in Chancery it is introductive of a New Law Which I must believe till I can be inform'd that our Kings in former times ever received Appeals out of Parliament or their Magna Curia what ever that was The next thing in our way is another part of the fore-mentioned Statute of 25 Hen. 8. cap. 19 viz. That the Clergy in their Convocations shall enact no Constitutions without the King's Assent The words of the enacting Clause are That they the Clergy nor any of them from henceforth shall presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincial or Synodals or any other Canons nor shall enact promulge or execute any such Canons Constitutions or Ordinances Provincial by whatsoever Name or Names they may be call'd in their Convocations in time coming which alway shall be assembled by Authority of the King 's Writ unless the same Clergy-men have the King 's most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial or Synodal upon pain of every one of the Clergy doing contrary to this Act and being thereof convict to suffer Imprisonment and make Fine at the King 's Will. This Act cannot be pretended to give the King and the Clergy any new power For it is penn'd in Negative Words It is but declarative of what the Antient Law of the Kingdom was The Clergy had frequent Provincial Synods ever since the Christian Faith was introduc'd amongst us but till the Pope had set his Foot here our Kings sometime presided were frequently present in them Their Assent was had to all Constitutions made for the Government of the Church And Canons intended to bind the Laity never obtain'd as Ecclesiastical Laws here without the Assent of the Temporalty But when the Clergy had got an Exemption from the Temporal Laws and lookt upon themselves as a distinct separate Body of Men from the rest of the King's Subjects as having a dependance upon and owing Canonical Obedience to a Foreign Head then they proceeded to make Canons without consent of the King or the Temporalty But even in those days when ever they entrench't upon the Common Law of the Realm which was the Subjects Fence and Protection the Temporal Courts gall'd them with Prohibitions They had not in the times of Popery a Power of binding the Laity even in Matters of Religion without their Assent But themselves they bound and the inferior Clergy were all subjected to the Power of Provincial Synods because of their Oath of Canonical Obedience And these Canons by which they bound the whole Body of the Clergy never had any Royal Assent to them since King Stephen's days No Ecclesiastical Laws other than what were enacted in Parliament having since that King's Reign derived their Authority from the King. This Act therefore ties up the Clergy from any power of making Canons and Constitutions without the King. But since it gives them no manner of Power or Authority whatsoever their Power even the Royal Assent taken in is no other since this Act than it was before they had withdrawn themselves from the King and the Laity Which how far it extended has been sufficiently explain'd already I will not go so far as some have done to affirm Sir Edward Bagshaw's Argument concerning the Canons that the King's Assent here spoken of must be understood of his Assent in Parliament But I think it is very observable that the Parliament did by this Act appoint Sixteen of the Two and thirty Commissioners who were to view search and examine the Canons Constitutions and Ordinances Provincial and Synodal heretofore made in order to the keeping of some and rejecting others to be of the Vpper and Nether House of Parliament They would have Committees of their own Houses inspect all Canons formerly made and judge which were fit to be retain'd How can we then imagine that they had any thoughts of subjecting themselves and their Posterities to the King and the Convocation of the Clergy in Matters of Religion for the future Nay they seem as it were jealous lest this Act tho as cautiously penn'd as the Wit of Man could contrive it should be made use of to colour some unwarrantable Power of the Clergy in Convocation having the Royal Assent to their Constitutions And therefore they add a special Proviso that no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by the Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the King's Perogative Royal or the Customs Laws or Statutes of the Realm Now whether it was against the Laws of the Realm or not in the Opinion of this Parliament for the King and the Clergy to top any Laws upon them without their consent will appear by the Preamble of another Act of this very Session of Parliament and therefore I will pass it by now Nor was there any thing in the future practice of this King's Reign which gave or asserted any Power to the King and Convocation to bind or conclude the People without an Act of Parliament concurring and enforcing the same The next Act is the Twentieth Chap. of this same Session of Parliament concerning the Election and Consecration of Bishops This Act does not resume the Election to the Parliament from whom it had been gain'd but leaving a shadow of Election in the Consistory impowers the King to name the Person commands the Dean and Chapter under the Penalty of a Praemunire to choose the Person nominated to them in the Writ of Conge d'eslire and appoints how he shall be Consecrated without Pall Bulls or other things formerly requisite to be obtained at the See of Rome
Pastoral Office committed to the Pastors of the Church by Christ and his Apostles and that the Supremacy then pretended to was no such extravagant Power as some imagine Sixthly That the Supremacy ascribed to the King by this Act had no reference to any such absolute Power as the Pope pretended to appears by the whole course of the King's Reign forasmuch as the Exercise of this Supremacy in every Branch of it was directed by particular and positive Laws made much about the same time nor perhaps were any Acts of Supremacy exerted during this King's Reign that some Act of Parliament or other did not warrant as will appear in our Progress The truth of it is that no more can be made of it than an utter Exclusion of the Pope's pretended Authority and an acknowledgment that the King is not an absolute Dominus fac-totum in Spiritualibus but the Fountain of Justice to be administred according to Law in Cases commonly called Ecclesiastical as well as Temporal without any dependance upon a Foreign Potentate Hence it is that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs the Crown of England is so often mentioned to be an Imperial Crown and the Realm of England an Empire Sir Edward Haleâ—'s Case Tho that Word has been made use of of late to countenance a very strange and unheard of Judgment But the Gentleman that made use of the Word either understood it not or wilfully misapplyed it The Crown of England is said to be an Imperial Crown because it is subject to no Foreign Jurisdiction The Kings of England are not Homagers nor ever were for their Kingdom to any other as many Kings have been A Regal Crown does not ex vi termini exclude a Subordination an Imperial Crown does The Emperor of Germany whose Crown must needs be Imperial has less Power in the Empire than most Princes in their own Dominions But it must be confess'd that the Word Supreme Head tho legally understood it be no such Bug-bear yet was a Term borrowed from Antichrist a Word that gave offence especially to those that knew little of its Signification but what they had learnt from a Jurisdiction pretended to be exercis'd by the Pope as such and claiming to be so as Vicar General to Christ Papists thought the Right of St. Peters Successor injuriously invaded and Protestants though universally submitting to the Legal Power of the Crown yet many of them boggl'd at the Title as making too bold with our Saviours Prerogative of being the only HEAD of the Church And so great Powers were given to King Henry the Eighth by Acts of Parliament of which by and by in Ecclesiastical and Spiritual Matters which though given by particular Laws and those Laws occasion'd by the then Circumstances of Affairs yet by some unadvised Persons are confounded with his Legal and Original Supremacy at the Common Law or at least are lookt upon as incident to the Title Style and Dignity of Supreme Head that no wonder the Title has found little countenance from Protestant Writers The other part of this short Act of 26 Hen. 8. cap. 1. is very observable and discovers a Secret that few observe but rightly considered lays open a very fine Scene and gives an undeniable Answer to the only material Argument that can be produced in favor of the late Ecclesiastical Commission The Argument lies thus King Henry the Eighth issued a Commission to Cromwell whereby he constituted him his Vicegerent in Ecclesiastical Matters and delegated to him the Exercise of all his Ecclesiastical Jurisdiction long before the 1 Eliz. which impowered Queen Elizabeth and her Successors from time to time to issue such Commissions And this Commission to Cromwell cannot be deny'd to have been a Legal Commission because it is recited in an Act of Parliament 31 Hen. 8. cap. 10. admitted to be according to Law and a place appointed him in respect of that Office above the Archbishop of Canterbury in the House of Lords And there having been no Act of Parliament in King Henry the Eighths time whereby he was expresly impowered to issue such a Commission the Commission was warranted by the Common Law. This being the Argumentum palmarium tho foolishly omitted by those that have undertaken to write in Vindication of the Proceedings of the late Commissioners receives a full and satisfactory Answer from this very Act of Parliament this being the Act which was the Ground and Foundation of that Commission and as far as I know of the Commission did really warrant it The Words are these viz. And that our Sovereign Lord the King his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner Spiritual Authority or Jurisdiction ought or may be lawfully reformed repressed ordered redressed corrected restrained or amended most to the Pleasure of Almighty God the increase of Vertue in Christs Religion and for the conservation of the Peace Vnity and Tranquillity of this Realm any Vsage Custom foreign Laws foreign Authority Prescription or any thing or things to the contrary hereof notwithstanding By these Words a Personal Authority not of Legislation but of visiting redressing correcting c. is given to whom To the King his Heirs and Successors This Power was given by the Parliament nor was enjoyed or exercised by the King or any of his Predecessors before and being vested in the King his Heirs and Successors may consequentially be delegated to Commissioners After this Act was pass'd out comes Cromwell's Commission of Vicegerency and not till then tho the Clergy had recogniz'd the Supremacy two years ago and the Parliament in the 24 Hen. 8. cap. 12. and the 25 Hen. 8. cap. 21. had in effect done so too Yet was not the recognis'd restor'd and declar'd Supremacy lookt upon as any Warrant for an Ecclesiastical Commission till a new Power was given to the King by this Act And this Act of Parliament having been Repealed by the First and Second of Phil. and Mar. and never since reviv'd there is now no ground from this Act or from that President of Cromwell's Commission for a like Commission in our Days How far the Statute of 1 Eliz. gives countenance thereunto shall be enquired into when we come to it The next Act that I shall take notice of is the Thirteenth Chapter of this same Session entituled By whom Suffragans shall be nominated and elected The Act recites that sithen the beginning of this present Parliament good and honourable Laws and Statutes have been made and established for Elections Presentations Consecrations and investing of Archbishops and Bishops of this Realm with all Ceremonies appertaining to the same yet nevertheless no Provision hath been made for Suffragan Bishops and therefore enacts what Towns shall be taken and accepted
of any inherent Prerogative or by vertue of his Imperial Soveraignty or as incident to his lately recognis'd title of Supreme Head of breaking through all Acts of Parliaments relating to Religion and Ecclesiastical Affairs that now in the 32 Year of his Reign when he had been declared the Supreme Head by Act of Parliament Six Years ago when every Act of Parliament about Church Matters carried an acknowledgment of that Declaration in the front of it when a Legislative Power as to Doctrine and Ceremonies was given him by Act of Parliament yet even then when the Supremacy blaz'd like a Meteor and had so malignant an influence as to strike opposers dead when it was armed with such a Power as never any King of England enjoyed before or since yet then were Acts of Parliaments accounted so Sacred that nothing was to be ordained or defined by this new Legislative Authority contrary to the Laws and Statutes of the Realm And this very Legislative Power owing its birth to a Parliamentary Concession which qualified it with a Restriction which perhaps was not acceptable is sufficient to inform us that a Parliament can give more power and larger Prerogatives to the King even in Ecclesiastical Matters than he has by common right and that 's all the use that can be made of this Act now in our days The next Act is that of Marriages cap. 38. of this Session the Conusance of Marriage had time out of mind belonged to the Spiritual Jurisdiction which was now vested in a great measure in the King's Person the executive part he might administer by Commissioners delegated by vertue of the Stat. of 26 Hen. 8. cap. 1. as hath been said a Legislative Power was given him by 32 Hen. 8. cap. 26. But that Act did not enable him to make any binding Laws about Marriage for the Declarations Decrees Definitions Resolutions and Ordinances which he was impowered to make according to God's Word and Christ's Gospel with his Bishops and Doctors to be appointed were only in Matters of Christian Faith and the lawful Rites and Ceremonies of the same And the setling of the Degrees of Marriage not falling under either of those two Heads viz. Matters of Faith or Ceremonies it was necessary there should be an Act of Parliament to make a Regulation therein The next Act is the 34 and 35 Hen. 8. cap. 1. which prohibits the setling or using of any Books of the Old or New Testament of Tindal's Translation or comprizing any Matter of Christian Religion Articles of Faith or Holy Scripture contrary to the Doctrin set forth since Anno Dom. 1540. or to be set forth by the King prohibits the retaining any English Books or Writings concerning Matters against the Holy and Blessed Sacrament of the Altar or for Maintenance of the Anabaptists or other Books abolished by the King's Proclamation forbids any thing to be taught contrary to the King's Instructions c. under severe Penalties In which there is this farther Clause And be it farther enacted That the King's Majesty our said Soveraign Lord that now is King Henry the Eighth may at any time hereafter at his Highness liberty and pleasure change and alter this present Act and Provisions of the same or any Clause or Article therein contained as to his Highness most excellent Wisdom shall seem convenient any thing in this Act to the contrary in any wise notwithstanding So that a Power in the King of Changing and Altering and consequently of Suspending which in effect is Repealing Acts of Parliament concerning Matters of Religion unless given by a Parliament is not according to the Constitution of our Government nor is it a Perogative inherent in the King of common Right For if he had had such a Power in himself this Clause which no doubt was put in by the King's Order would have been vain and nugatory The Act of 35 Hen. 8. cap. 16. gives the King Authority during his Life to name Thirty two Persons viz. sixteen Spiritual and sixteen Temporal to examine all Canons Constitutions and Ordinances Provincial and Synodal and to establish all such Laws Ecclesiastical as shall be thought by the King and them convenient to be used in all Spiritual Courts This the King could not do by Vertue of the Act of 32 Hen. 8. cap. 26. For that Act gave him a Power concerning Matters of Christian Faith and Ceremonies only Nor could the King and the Clergy settle these Canons and Constitutions without an Act of Parliament for the Laity in all Matters Ecclesiastical in all things of Spiritual Conusance were to be bound by them Nor would the Parliament trust the King and the Spiritualty to settle the Canon Law without an equal number of the Temporalty added to them The next and last Act that I shall observe in this King's Reign is the 37 Hen. 8. cap. 17. ' which Act reciting That the Archbishops Bishops Archdeacons and other Ecclesiastical Persons have no manner of Jurisdiction Ecclesiastical but by under and from the King Enacts That all Persons as well Lay as Marryed Men being Doctors of the Civil Law may lawfully execute and exercise all manner of Jurisdiction and all Censures and Coercions appertaining to or in any wise concerning the same c. any Law Constitution or Ordinance to the contrary notwithstanding What can be more purely Spiritual than exercising Ecclesiastical Censures and yet this King though he had a Personal executive Power given him in all Matters Ecclesiastical by the 26 Hen. 8. cap. 1. a Legislative Power in part by the Statutes of 31 Hen. 8. cap. 8. and 32 Hen. 8. cap. 25. and a Power of Dispensing with the Canon Law by the Statute of 25 Hen. 8. cap. 21. yet thought it convenient at least to have the concurrence of his Parliament in breaking through those Ordinances and Constitutions whereby Lay-men and Marryed-men were disabled to exercise any Jurisdiction Ecclesiastical or be Judge or Register in any Court commonly called Ecclesiastical Court. I cannot well deny but that the King might have dispens'd with those Canons and Constitutions by Vertue of the Statute of the 25 Hen. 8. cap. 21. which impowered him to allow the Archbishop of Canterbury to grant Licences and Dispensations even in Cases not wont to be dispensed in at Rome Nay and these Constitutions whereby Lay and Married Men were disabled as aforesaid are in the Preamble of this Statute said to be utterly abolish'd frustrated and of none effect by a Statute made in the Twenty fifth Year of the Kings most Noble Reign By which seems to be meant the Nineteenth Chapter of the then Session of Parliament And yet because the Archbishops Bishops Archdeacons and other Ecclesiastical Persons practised the contrary which might give occasion to some evil disposed Persons to think and little to regard the Proceedings and Censures Ecclesiastical made by your Highness and your Vicegerent Officials and Commissaries Judges and Visitors being also Lay and Married Men to be of
This Prerogative that our Kings now have in the Election of Bishops stands upon the foundation of this Act of Parliament and other it has none The Supreme Headship it seems did not include the power of appointing Bishops for that had been allow'd two Years ago and is acknowledged by way of recital in this Session cap. 21. and yet the Election and Consecration of Bishops is appointed by Act of Parliament so that the title of Supreme Head did not then imply any such exorbitant Power as some have imagin'd Next comes the Act entituled No Imposition shall be paid to the Bishop of Rome c. It recites That where this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any Man's Law but only to such as have been devised made and ordained within the same for the Wealth of the said Realm or to such other as by sufferance of your Grace and your Progenitors the People of this Realm have taken at their free Will and Liberty by their own Consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consent and custom and none otherwise These other Laws which the People of this Realm are said to have taken at their free Will and Liberty by their own Consent and are said to have bound themselves to as to the Established Laws of the Realm by the said sufferance consent and custom and none otherwise are the Canon Laws Which here the Parliament disclaim any Obligation to the observance of otherwise than as they had bound themselves by their own sufferance and consent And consequently they did not look upon any Ecclesiastical Laws as obligatory to themselves and their Posterity but what themselves had or for the time to come should Consent to This would never have proceeded from them if they had imagin'd that the Legislative Power in Ecclesiastical Matters was or ever had been vested in the King's Person as some amongst us have not stuck to assert of late But the Act goes on It standeth therefore with natural equity and good Reason that in all and every such Laws humane made within this Realm or induced into this Realm by the said sufferance consent and custom your Royal Majesty and your Lords Spiritual and Temporal and Commons representing the whole state of your Realm in this your most high Court of Parliament have full Power and Authority not only to dispense but also to authorize some Elect Person or Persons to dispense with those and all other humane Laws of this your Realm c. and also the same to abrogate amplifie or diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament meet and convenient c. Here is no dispensing Power acknowledged to be personal in the King. Nor is the Parliament so much a stranger to Matters of Religion as not to have a share even in the dispensing as well as the abrogating Power with respect to Ecclesiastical Laws You see as soon as ever the foreign Yoke was cast off they put in for their share of the Supremacy nor did the King look upon it as any diminution to his own legal right to admit their claim It was in concurrence with them and with their assent that the method of prosecuting Appeals had been settled they joyn'd with him in tying up the hands of the Clergy from promulging any Constitutions without the Royal Assent their Authority concurr'd in appointing how Bishops should be Elected Invested and Consecrated and here they impower the Archbishop and the King to grant Dispensations Then they proceed to Enact how and by whom and in what cases Dispensations shall be granted for the future And first they impower the Archbishop of Canterbury for the time being and his Successors to grant Dispensations to the King his Heirs and Successors for causes not contrary to the Scriptures and the Laws of God. How Could not the King by vertue of his inherent Prerogative dispense with himself Dr. Hicks Was not this involv'd in the formal conception of Imperial Soveraignty No. If he will act contrary to Law he must have a Dispensation and that Dispensation granted by a Subject impowered by Act of Parliament so to do This is the first and only Act that gives the King a power of dispensing in Ecclesiastical Matters and the Archbishop of Canterbury may dispense in all cases which the King by vertue of this Act may dispense in only in cases unwont to be dispensed in at Rome he must advertise the King or his Councel who if they determine that such Dispensation shall pass then the Archbishop having the King's Licence shall dispense accordingly But who ever heard of the King 's Licensing an Archbishop to dispence with an Act of Parliament How would it found in our Ears if Divinâ Providentiâ Cantuariensis Archiepiscopus should issue a Non Obstante to an Act of the King Lords and Commons in Parliament And yet the Archbishop may grant Dispensations with the King's allowance in all Cases whatsoever that that Act extends to Therefore I say the King's Power of dispensing by vertue of that Act is with the Canon Law only which in effect was no Law at all To say that the King is not restrain'd by this Act Hob. p 146. in Colt and Glovers Case but his power remains full and perfect as before and he may grant them still as King for all Acts of Justice and Mercy flow from him is a sound of words only vox praetereà nihil And yet we find by Experience that hae nugae seria ducunt in mala there is likewise a strange Expression in Moor's Reports 542. cs 719. Al tierce point ils semblont que la Royne poit granter dispensations come le Pape puissoit en cases lou l'Archevesque n'ad authority per le Stat. de 25 H. 8. de granter dispensations quia tout l'authority que le Pape usoit est done al Corone But these and many other scattered Cases and extravagant Expressions of Reporters which have been made use of as Judgments in after times there may possibly be some account given hereafter in a Discourse by it self The latter part of the Statute of 25 H. 8. c. 21. concerns the visiting of Colleges Hospitals and places exempt It is enacted that the Archbishop of Canterbury or any other person or persons shall have no Power and Authority by reason of this Act to visit or vex any Monasteries Abbeys Priories Colleges Hospitals Houses or other places Religious which be or were exempt before the making of this Act but that Redress Visitation and Confirmation shall be had by the King's Highness
Ecclesiastical Commission such as c. by the Antient Perogative and Law of England never yet came in question judicially before any Court whatsoever The Case betwixt Cawdry and Atton turned upon this Point viz. Whether the High Commissioners might deprive for the first Offence whereas the Act of 1 mo Eliz. cap. 2. inflicts it only for the second Pop. Rep. pag. 59 60. And resolved that the Statute is to be understood when they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction What 's this to the Question Whether such a Commission might have been issued without an Act of Parliament impowering the Queen to issue it Nor do the Judges in that Case nor the Lord Coke in his double-tongued Report of it nor the post prandium Judges and Serjeants so much as pretend to any manner of Authority for their Opinion there delivered that the King might grant such a Commission by his Perogative at Common Law Nor do's the late Defender quote any antient Record History Maxim of Law or any other Legal Authority or Historical Proof whatsoever to clear the Point Nor will I reflect upon some Resolutions of Judges that have been in former times or in this Age of ours Ship-Money which gained so little Credit upon their Authorities that exemplary Punishments have and may be inflicted upon some of the Resolvers But tho this Point be left so forlorn by the Defender as having nothing to support it on his side but an ipse dixit and tho we live in an Age in which blessed be God most Men have a better Opinion of their own Understandings than to take things upon trust yet because this Question concerning the Legality of an Ecclesiastical Commission resolves it self into the mistaken notion of a Personal unbounded Supremacy and because some of our Clergy give us Schemes of Government according to which this Commission is the most justifiable thing in the World I am desirous to offer a few Observations concerning the Ecclesiastical Jurisdiction of the Kings of England in doing of which the only thing I aim at is the putting others who are better qualified and perhaps misinformed upon farther Inquiries if haply I may compass that We are told that our Common Lawyers have often affirmed Legality of c. defended pag. 38.39 That whatever the Pope de facto formerly did within this Realm by the Canon Law that of right belongs to our Kings That on this ground it has been adjudged That the Legislative Power in Matters Ecclesiastical is lodged in the King. The Pope made Laws for the Government of the Clergy and so may the King and so much Queen Elizabeth as supreme Head of the Church of England exercised c. And that the Power in the King in Matters Ecclesiastical is too ample to be bounded by an Act of Parliament But notwithstanding these and other Bravado's we are told also that the Acts of Parliament which restore the Ecclesiastical Jurisdiction to the Crown are but Declarative Vindication pag. 6. Legality of c. defended pag. 8. that they give no new Power but recognize what always was de Jure the King 's Right Which naturally sends us back to Antiquity to enquire how the Supremacy was then managed and exerted before a Forreign Power had made inroads upon it They that affirm this or the other Act to be but Declarative and that this or that may be done by the Common Law always alledge if they intend to perswade some Judicial or other President some Record or other some anciently received Maxime or Rule of Law They that resolve without such grounds for their Resolution set up for Law-makers and not Interpreters Now it was to difficult matter to resolve that the Supreme Jurisdiction Ecclesiastical as well as Temporal did originally belong to the Crown of England Every Chronicle Writer can tell us when the power of the Court of Rome prevailed to lop off some of its Branches And the Crown must needs have it before it could lose it But whether our modern conceptions of the Supremacy are adequate to that Ancient Legal Supremacy at the Common Law of which we agree the restoring of Ecclesiastical Jurisdiction by Act of Parliament to be but Declarative is certainly worth their Enquiry who pretending that All Laws concerning it are but declarative must either justifie that Position and other modern Ascriptions from Antiquity or confess the vanity of them The Ancient Ecclesiastical Supremacy of the Kings of this Realm was no personal Prerogative But our Kings were Head of the Church as they were Head of the State governing both by Laws made by the same Authority if designed to be binding to all and administred in the same Courts till King William the Conqueror's Reign and from that time downwards in the Spiritual and Temporal Courts apart All Matters whatsoever concerning Religion Discipline Ceremonies with all Laws Canons and Articles whatsoever relating thereunto by which the Laity were to be bound were anciently Enacted by the same Authority that made our Temporal Laws and without such Authority are not binding to the Laity to this day nor ever were Nor has the King any power by the Law to impose any New Article Ceremony Practice Rule or Order whatsoever upon the Clergy or any of them under any sort of Penalty without an Act of Convocation at least In the first place I will give a few Instances before the entry of the Saxons by which it will appear in some measure how the Law stood in those days with respect to the Supremacy In the Year 448 Germanus and Lupus two Learned Bishops were sent hither out of France to suppress the Pelagian Heresie Upon which occasion a Synod was assembled at Verolam Aderat Populus expectabatur futurus Judex Adstabant partes c. After a long debate Populus arbiter vix manus continet Judicium clamore contestando c. In this first Synod that we read of in England the People were present and were Judges and by their determination a great Controversie of Religion was settled * Vide Spelm. Concil Tom. 1. p. 47 48. An Account of this Council and of the time when it was held Bed. Eccl. Histor Gent. Anglor Lib. 1. Cap. 17. Thus it was in the first Christian Council that ever sate viz. the 15th Chapter of the Acts of the Apostles After the matter had been debated whether the believing Gentiles ought to be Circumcised and to keep Moses his Law verse 22d It pleased the Apostles and Elders with the whole Church to send c. And they wrote Letters after this manner The Apostles and Elders and Brethren send Greeting unto c. It seemed good to the Holy Ghost and to us c. So that the Laity as well as the Clergy had in this Council decisive Votes And if it shall appear by what follows that the People of this Nation never were nor can to this day be
Anselm's contempt consist in Disobeying the Law and not the King 's Personal and Arbitrary Will and Pleasure If any Man depart the Realm at this Day after a Writ of Ne Exeat Regnum served upon him he becomes a Fugitive and the King may seize his Estate as he did the Archbishops Temporalities And yet we have no Act of Parliament for this now upon Record but Custom Time out of Mind which we call Common-Law Yet among the Laws of Clarendon this is one VIZ. Archiepiscopis Episcopis Personis Regni non liceat Exire Regnum absque Licentia Domini Regis Decem Scriptores pag. 1386 1387. Matth. Paris pag. 100. And Polydore Virgill pag. 171. carries this Law up as high as to the Reign of King William Rufus Publico Edicto Vetuit says he Vnumquemque sine Licentiâ suâ Ex Angliâ egredi qui mos lexve dicitur Ne Exeas Regnum Quae adhuc cùm ita res requirit usurpatur And it appears by the Register Fol. 193 194. That Religious Persons purchased Licences to go beyond the Sea. And Bracton tells us Lib. Quinto Fol. 413. b. That those Writs were de Communi Consilio totius Regni Concessa Approbata Of which more hereafter And great Reason there was that they who were then strugling with the Government to Introduce a Foreign Jurisdiction should when they went beyond Sea Assecurare Regem quod nec in eundo vel redeundo vel moram faciendo perquirerent malum sive damnum Domino Regi Constitution Clarend Suprad But as Mr. Selden says in his Metamorphosis Anglorum pag. 237. Huc referas Scil. ad temp Henrici Secundi an cum Polydoro ad Rufum an ad posteriora tempora rescriptum quod in Regesto NE EXEAS REGNVM habetur haud ità multùm interest nec quaestionem accurare operae pretium est Quis enim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 verum potis est elicere It being almost impossible to find out the Original of this Law and it appearing by the Register that whenever it did begin it began by Authority of Parliament and since nothing is known to the contrary but that it might begin in King William Rufus his Time to whose Time Polydere Virgill refers it and if it did not since Parliaments were frequently held then and One famous one at Rochingham during this very Controversie betwixt the King and Anselm Eadmer pag. 38. about his going to Rome in which he asked leave to depart and was denyed it Who knows but there might then be a particular Prohibition to him by the King in that Great Council But be that how it will the Truth in this Matter lies too deep by reason of the loss of almost all the Civil Laws made in the Reigns of Our First Norman Kings through the Embezelment of Records and the Carelessness of the Monks of those times for the Doctor to draw a good Argument from hence of the Danger of disobeying the King 's Personal Command Nay further if this Instance were never so much for him First It was in King William Rufus his Reign the Irregularities and Tyranny of whose Government was such and the Matters of Fact so lamely Reported to us that no Argument drawn from what he might do will be very conclusive to the Legality or Illegality of any thing And Secondly There is a very good Law made since VIZ. Ann. 14 Edwardi 3. cap. 6. to Protect the Clergy from incurring any such prejudice for the future for not doing whatsoever they are bid to do We Will and Grant for Vs and our Heirs that from henceforth We nor our Heirs shall not take nor cause to be taken into our Hands the Temporalities of Archbishops Bishops Abbots Priors nor other People of Holy Church of what Estate or Condition they be without a Just and True Cause according to the Law of the Land and Judgment thereupon given The Doctor makes account pag. 146 147. that the Oath which he says Anselm had taken whereby he promised the King Eadmer pag. 39. lib. 2. se usus ac leges suas usquequaque deinceps servaturum eas sibi contra omnes homines fideliter defensurum was no ways like the present Oath of Supremacy Whereby he would represent the Supremacy as a quite other thing and much more Exorbitant since the Reformation than it was in King William Rufus his Time Which is a great Errour For the Ecclesiastical Jurisdiction of the Kings of England was then almost entire and in puris naturalibus Foreign Jurisdiction had not then grown upon our Constitution The Bishops indeed were warping Rome-wards which caused the Government to have a watchful Eye upon them and to enjoyn Oaths upon them for security against Vsurpations then feared because attempted as after the Reformation they were enjoyned to prevent the return of them But the Oath of Supremacy prescribed by primo Elizabeth being only to Assist and Defend all Jurisdictions Priviledges Preheminencies and Authorities Granted or Belonging to the Queen's Highness her Heirs and Successors Or Vnited and Annexed to the Imperial Crown of this Realm is the same in Substance with Swearing in King William Rufus his Time to Keep and Defend the Laws and Vsages of the Realm For those Jurisdictions Priviledges Preheminencies and Authorities which having been torn from the Crown were restored by the primo Elizabeth and by the several Acts of King Henry the Eighth thereby revived were in being and actually enjoyed in King William Rufus his Time and before and for some time after He was the Supreme Governour of the Realm in Spiritual or Ecclesiastical Things and Causes as well as Temporal Witness that Law of King Edward the Confessor revived and confirmed by King William the First Rex quia Vicarius summi Regis est ad hoc est Constitutus ut Regnum terrenum populum Domini super omnia Sanctam Veneretur Ecclesiam ejus Regat ab injuriosis defendat maleficos ab eâ evellat destruat penitùs disperdat Lambard leg pag. 142. And the several Branches afterwards lopped off from the King's Supremacy were endeavoured to be preserved and secured by the Laws of Clarendon The Third Chapter of which provides against the Exemption of Clerks from the King's Justice The Eighth against Appeals to Rome The Twelfth secures the King's Right and Interest in the Elections of Archbishops Bishops Abbots and Priors c. These Constitutions then called the Avitae Consuetudines Regni Archbishop Becket promisit in verbo sacerdotali de plano se velle custodire Similiter Episcopi promiserunt Juraverunt Gerv. Dorob Coll. pag. 1366. This was no other than the Modern Oath of Supremacy without any material difference The Archbishop did not pretend that the Laws of Clarendon as Wicked and Unjust as he might think them were any other than Explanations and Assertions of the Ancient Vsages of the Realm His Suffragans tell him in a Letter
whereas Subjects might Collate in those Days Churches of their own Foundation to any Clerk in Orders and give him the Investiture even without so much as a Presentation to the Bishop yet our Antient Kings Collated Bishopricks no otherwise than in Curia suâ For though Bishopricks were Royal Foundations yet they were Founded by Acts of Parliament as will appear by and by And one Great Reason why our Kings at least in those Days could not Erect Bishopricks and endow them otherwise was because they could not in those Days Alien their Crown Lands without the Assent of their Barons Non poterat Rex distrahere Patrimonium Regni And though King John told Pandulphus the Legate Omnes Praedecessores mei contulerunt Archiepiscopatus Episcopatus Abbathias in thalamis suis Monast Burton pag. 264. That must be understood to have been done since the Norman Conquest only though the contrary was frequently practised even in those Days and especially since the Constitutions of Clarendon For the Instance that he there gives of Wolstan's being made Bishop of Worcester in King Edward the Confessor his Time was far from a Collation in Thalamo if we believe himself when he resigned his Pastoral Staff at the Confessor's Tomb There concurred Electio Plebis Petitio Voluntas Episcoporum Gratia Procerum a full Parliament as well as the Authoritas Voluntas of the King himself Matth. Paris pag. 20 21. As for our Kings seizing the Temporalties of Bishops into their Hands and so suspending them à beneficio which the Doctor speaks of pag. 155. of which he says many Instances may be found in Mr. Prynn 's Historical Collections I suppose he would not be understood as if our Kings either might or used to seize them ad Libitum but by legal process and for some contempt for which by the Law they were liable to Seizure They were held of the King by Barony and though the Bishops pretended to an Exemption as to their Persons from the Laws of the Land yet their Temporalties which were held of the King and for which they did him Fealty were no-wise Exempted but that if they should commit Offences for which the King might by Law capere se ad Baronias suas they as well as the Laity that held by the same Tenure were equally liable to the Course and Rigour of the Law. What use this is of to the Doctor for the setting up some Notional Supremacy lodged in the King Personally I know not as yet Irregularities and Oppressions might well be used upon such occasions and Seizures made when there was no cause but the Statute of the fourteenth of Edward the Third cap. 6. aforementioned was provided to prevent such Mischiefs for the future But the Doctor was very ill advised in quoting pag. 155. to clear the point the Statutes of Provisions For those Statutes which every body knows and the Doctor will not deny to be only new Bullwarks to secure Old Rights were yet such as the King could never dispense with But when the Circumstances of his Affairs were such that to gratify the Pope and tye him to his Interest he found it convenient to have some Relaxation made of those Laws then were Parliaments called and at their first meeting one cause of their Convention declared to be to provide remedy touching the Statutes of Provisions for eschewing debate between the Pope and the King and his Realms And then we find leave given to the King from time to time to dispense with those Laws and that but for a time and this declar'd to be a Novelty Vid. Cotton's Abridgment pag. 341. 346. Annis 15. 16. Rich. 2. And the Complaints of the English Nation in Matth. Paris against the Pope's Provisions were grounded upon this VIZ. That Patroni Ecclesiarum ad eas cum Vacaverint Clericos idoneos praesentare non poterant sed conferebantur Ecclesiae Romanis qui penitùs Idioma Regni ignorabant pecuniam extra Regnum asportabant These Oppressions fell chiefly upon the Clergy as appears by most of the Laws against Provisions of which hereafter for the Pope assum'd a greater Power over them and Churches of which they were Patrons then he could pretend to over the Laity and they sometimes comply'd with his Provisions and submitted to collate Italians and Foreigners as at other times they did to heavy Exactions insomuch that in the year 1240. misit Dominus Papa praecepta sua Domino Cantuariensi Archiepiscopo Edmundo Sarisberiensi Lincolniensi Episcopis ut trecentis Romanis in primis beneficiis Vacantibus providerent scientes se suspensos à beneficiorum Collatione donec tot competenter providerentur Matth. Paris pag. 532. And it appears by the same Author that these and more were provided of Ecclesiastical Benefices in England Praebendas Ecclesias varios redditus opimos plusquam trecentos ad suam vel Papae contulerat legatus Otto voluntatem id p. 549. But many grievous Complaints and Petitions in Parliaments and in Letters to the Pope occur in Mr. Prynne's Historical Collections and in the Parliament Rolls against these Provisions as intolerable Grievances and contrary to all Law and Reason If at some times they were comply'd with upon condition that the Persons recommended by the Pope were of good condition and worthy of Promotion how does that relate to its being in the King's power even to admit the persons to the Dignity and Office as the Doctor ignorantly and childishly asserts But his conclusion VIZ. That the Exercise of their Government was according to the King's Laws I do not Quarrel with him about for it was or ought to have been so But not according to the King's Pleasure Nor would any unbyassed Man in Reading King Alfred's Laws have readily made such an Inference as the Doctor does pag. 155 156 telling us out of L. l. Alvredi that King Alfred reserved to himself the liberty even of Dispensing with the Marriage of Nuns Which he would represent as a thing prohibited by the Canons only and that the King reserved to himself a Power of Dispensing with it though without his Especial Dispensation he suffered the Canon to take place Now the Marriage of Nuns was really prohibited by a Law of the State by an Act of Parliament of that Age For Brompton giving us an Account of King Alfred's Laws says thus Ego Alfredus West-Saxonum Rex ostendi haec omnibus sapientibus meis dixerunt Placet ea Custodire And many Temporal Laws are amongst them all Enacted by the same Authority And the same Law or Canon that prohibits Nuns from Marrying gives the King and not only him but the Bishop of the Diocess leave to Dispense so that the Doctor might as well have argu'd for the Bishops as the Kings reserving a Power to himself of Dispensing The Words are Si quis Sanctimonialem ab Ecclesiâ abduxerit sine Licentia Regis vel Episcopi c. Then he says That our Kings Presided sometimes