good Order and Regiment to be had and continued amongst the Ministers of the same And forasmuch as the Authority of the making of the said Statutes Ordinances and Orders was reserved only unto the said King and no mention made of any like Authority to be reserved unto his Heirs and Successors the same Orders and Statutes cannot now be made and provided without Authority of Parliament And then the Act proceeds to empower that Queen during her Life to prescribe such Orders and Statutes and to alter transpose change augment or diminish the said Orders Statutes c. And gives her likewise Authority to make ordain and establish Statutes Ordinances and Foundations for the good Order and Government of Grammar Schools erected by King Hen. 8. or King Edw. 6. and to alter Statutes already made V. Rastall's Statutes 1 Mar. Par. 2. Act 9. And she dying before the work was finished there was another Act in Queen Elizabeth's time impowering her to do the like and to alter the Statutes in being Hence I infer first if King Henry the Eighth having reserved a Power to himself of appointing private Laws c. as aforesaid and coming to die without executing that Power his Successor could not make such Laws though for the Government of Colleges c. of which the King himself was Founder as most evidently according to the Opinion of those two Queens and their Parliaments she could not and for the Government of Colleges c. that had no private Laws at all for their good Order and Government then a power given by Commission to Survey Alter Reform Amend c. the Statutes of the Foundation of Colleges Halls c. was not in those days look'd upon as Law. Secondly If the King could not appoint New Laws for the Government of Colleges c. of his own Foundation then he could not alter the Statutes of Colleges founded by Subjects I infer from hence in the third place that some Commission grounded upon these Statutes of Queen Mary and Queen Elizabeth which were Temporary and gave those Queens Power but for Life has been the pattern for that Clause in a late Commission which relates to the Colleges in Vniversities c. And that the Gentleman who drew the late Commission had forgot those two Acts of Queen Mary and Queen Elizabeth because the latter never was printed and the former being expired long before his Statute-Book was printed is left out of it but it is to be seen in Rastall And finding such a Commission upon the Roll he concluded the King had a Power by the Common Law to grant it Archbishop Laud pretended to visit both Vniversities Jure Metropolitico and it was decreed at the Council Table that he had right to visit but he claimed only a Right to visit them as to their Doctrin and Church Discipline and Ceremonies not to meddle with the private Statutes of their Foundation Which he disclaimed any Right to enquire into V. Rushworth's Collections I mention this only to shew how a College may be subject to a double Visitation diverso respectu The Question is not here concerning the King's Authority to visit the Vniversity but what Authority he has to visit a private College for their good Government and to meddle with their Statues himself not being the Founder I cannot see as yet HAVING given some Account of the Nature of the Antient Legal Jurisdiction which in former Ages the Crown claim'd and exercis'd in Ecclesiastical and Spiritual Matters come we now to King Henry the Eighth's Reign in whose time all Foreign Power was excluded the Antient Supremacy restor'd and New Powers given some to that King personally some to Him his Heirs and Successors I shall run through the Acts as they lye in order of Time. The first Act that made an open Breach with Rome was that of 24 Hen. 8. cap. 12. That no Appeals should be used but within the Realm The Preamble to that Act will afford us considerable Observations and very pertinent to the chief Subject and Occasion of this present Discourse It runs thus Where by divers sundry old authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire and so hath been accepted in the World governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same Vnto whom a Body Politick compact of all sorts and degrees of People divided in Terms and by Names of Spiritualty and Temporalty been bounden and own to bear next to God a natural and humble Obedience He being also institute and furnished by the Goodness and Sufferance of Almighty God with plenary whole and entire Power Pre-eminence and Authority Prerogative and Jurisdiction to render and yield Justice and final determination to all manner of folk Resiants or Subjects within this his Realm in all Causes Matters Debates and Contentions happening to occur insurge and begin within the Limits thereof without restraint or provocation to any Foreign Princes and Potentates of the World The Body Spiritual whereof having Power when any cause of the Law divine cometh in question or of Spiritual Learning that it was declared and shewed by that part of the said Body Politick called the Spiritualty now being usually called the English Church which always hath been reputed and also found of that sort that both for Knowledge c. it hath been thought and is sufficient and meet of it self without the intermedling of any exterior Person or Persons to declare and determine all such Doubts and to administer all such Offices and Duties as to their Rooms Spiritual doth appertain And the Law Temporal for tryal of Property of Lands and Goods and for the conservation of the People of this Realm in Vnity and Peace without Rapine or Spoil was and yet is administred adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politick called the Temporalty and both their Jurisdictions and Authorities do conjoin together in the due Administration of Justice the one to help the other From this part of the Preamble we may observe First That for the Kingdom of England's being an Empire consisting of two Estates of Men and governed by One Supreme Head the King and Parliament appeal to old authentick Histories and Chronicles and consequently wherein the power of this One Supreme Head doth consist must be learnt from Antiquity Secondly That the Exclusion of Foreign Jurisdiction was the main thing in their Eye without restraint or provocation to any Foreign Princes or Potentates of the World. Thirdly That as this Supreme Head administred ordinary Justice to his Subjects in Matters Temporal by proper Officers sundry Judges and Ministers so in Causes of the Law Divine or of Spiritual Learning the same was to be declared interpreted and shewn by the Spiritualty which is to be understood of ordinary Proceedings And consequently not by Commissioners appointed by the Supreme Head
his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same c. This Act of Parliament having abrogated the Pope's Power here in England those places that had been exempt from ordinary Jurisdiction would naturally have fallen back within the Visitation of the Diocesan I mean such places as had been exempt by vertue of any Bulls Licences or Dispensations from Rome only if it had not been especially and expresly provided that nothing in the said Act should be taken nor expounded to the derogation or taking away of any grants or confirmations of any Liberties Priviledges or Jurisdiction of any Monasteries Abbies Priories or other Houses or places exempt which before the making of this Act have been obtained at the See of Rome and if the Visitation of them by Commission under the Great Seal had not been provided for In the next Year Ann. 26 H. 8. The Statute was made which enacts that the King our Soveraign Lord his Heirs and Successors Kings of this Realm shall be taken accepted and reputed the Only Supreme Head on Earth of the Church of England called Anglicana Ecclesia and shall have and enjoy united and annexed to the Imperial Crown of this Realm as well the title and stile thereof as all Honours Dignities Preheminences Jurisdictions Priviledges Authorities Immunities Profits and Commodities to the said Dignity of Supream Head of the same Church belonging and appertaining What was then meant understood recognis'd c. by the word Supreme Head will appear by these following Considerations First that the recital of the Act shews they intended not by that recognition to invest him with any new Power For they recite that the King's Majesty justly and rightfully is and ought to be the Supreme head of the Church of England and so is recognised by the Clergy of the Realm in their Convocations yet nevertheless for corroboration and confirmation thereof c. So that this Act so far forth as it gives or acknowledges the Title of SUPREME HEAD is but Declarative And consequently they that upon this Act ground a Translation of the Pope's Power by the Canon-law to the King utterly mistake the matter For our King 's Ecclesiastical Jurisdiction was not grounded upon the Canon Law but the Common Law of the Realm it was a Native of our own and not of any foreign extraction Secondly That this Supreme Head-ship of the Church consists only in his being Supreme head of that Church of England which then was called Anglicana Ecclesia and who they were appears First by the Statute of 24. Henr. 8. cap. 12. aforementioned The body Spiritual whereof of the Realm of England having Power when any Cause of the Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shew'd by that part of the said body Politick called the Spiritualty now being usually called the English Church So that the Spiritualty are the Ecclesia Anglicana of whom the King is here declar'd the supreme head Secondly It appears by the Recognition of the Clergy who having no Authority to declare a Supreme Head in Ecclesiastical matters for the Laity did but by that Submission acknowledge themselves to be to all intents and purposes the King's Subjects and not the Pope's But Thirdly This same Parliament in this very Session tells us that the King had of right always been so It is in the third Chapt. for the payment of first-fruits to the King. The words are Wherefore his said humble and obedient Subjects as well the Lords Spiritual and Temporal as the Commons in this present Parliament Assembled c. do pray that for the more surety continuance and augmentation of his Highness Royal estate being not only now recognis'd as he always indeed hath heretofore been the only Supreme Head in Earth next and immediately under God of the Church of England but also their most assured and undoubted natural Lord and King having the whole Governance of this his Realm c. They tell him That he was not only the Supreme Head of the Church of England but their viz. the Temporalties Lord and King so that he had the Governance of the whole Realm and Subjects of the same What can be more plain than first That by Supreme Head of the Church of England was meant the Supreme Head of the Spiritualty which was necessary to be recogniz'd because they had acknowledged formerly another Supreme Head. Secondly That they gave no new Power by that word since they tell us that indeed he had always been so And Thirdly That his Supremacy consists only in a power of Governance Fourthly This title of Supreme Head does not give the King any power of dispensing with Acts of Parliament in Matters of Religion or Ecclesiastical Affairs whatsoever That power was never yielded to the Pope himself during that whole time that he was uncontroulably submitted to as Head of the Church That power they complain of in the Act of 25 H. 8. cap. 21. as an Vsurpation an Abuse a Cheat. They declare it to be in the King and themselves Fifthly Dr. Burnet in his History of the Reformation p. 142 143. First Part has these words But at the same time that they pleaded so much for the King's Supremacy and power of making Laws for restraining and coercing his Subjects it appears that they were far from vesting him with such an absolute Power as the Popes had pretended to for they thus defined the extent of the King's Power Institution of a Christian Man. To them speaking of Princes and Magistrates specially and principally it appertaineth to defend the Faith of Christ and his Religion to conserve and maintain the True Doctrine of Christ and all such as be true Preachers and setters forth thereof and to abolish Heresies Abuses and Idolatries and to punish with corporal pains such as of Malice be the occasion of the same And finally to oversee and cause that the said Bishops and Priests do execute their Pastoral Office truly and faithfully and speally in these Points which by Christ and his Apostles were given and committed to them and in case they shall be negligent in any part thereof or would not diligently execute the same to cause them to double and supply their lack and if they obstinately withstand their Prince's kind monition and will not amend their faults then and in such case to put others in their rooms and places And God hath also commanded the said Bishops and Priests to obey with all humbleness and reverence both Kings and Princes and Governors and all their Laws not being contrary to the Laws of God whatsoever they be and that not only propter iram but also propter conscientiam Thus it appears that they both limited obedience to the King's Laws with the due caution of not being contrary to the Law of God and acknowledged the Ecclesiastical Jurisdiction in discharge of the
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
Regum Anglorum Lib. 2. cap. 5. This Council Matthew Westminster pag. 181. Anno Dom. 9051 calls Concilium Grande Episcoporum Abbatum fidelium populorum in Provinciâ Geviseorum In the same Council the bounds of their Diocesses were Limitted which the same Historian describes He tells us likewise that in the same Council two other Bishops were chosen One to the Bishoprick of Dorchester and another to that of Chichester In King Henry the Eighth's time six New Bishopricks were erected by the King's Letters Patents viz. Glocester Bristol Chester Peterborough Oxford and Westminster But those Letters Patents had the Authority of an Act of Parliament to warrant them made in the One and thirtieth year of that King's Reign cap. 9. Be it Enacted by the Authority of this present Parliament that his Highness shall have full power and Authority from time to time to declare and nominate by his Letters Patents c. such number of Bishops such number of Cities Sees for Bishops Cathedral Churches and Diocesses by metes and bounds c. as to his most Excellent Wisdom shall be thought necessary and convenient And also shall have power and Authority to make and devise Translations Ordinances Rules and Statutes concerning them All and every of them c. And that all and singular such Translations Nominations of Bishops Cities Sees and limitation of Diocesses for Bishops Erections Establishments Foundations Ordinances Statutes Rules c. shall be of as good strength force value and effect to all Intents and purposes as if such things c. had been done made and had by Authority of Parliament This is most apparently an Enabling Act Power is here given to the King by Authority of Parliament and it is Enacted that the Contents of his Letters Patents to be made for perfection of the Premises shall be as valid as if they had been Enacted in Parliament So that in that King's Judgment force and validity was by this Act given to his Letters Patents which otherwise they would have been destitute of and have been invalid for the End to which they were designed This was but a Temporary Act and dyed with that King for no such Power is given by the Act to his Successors And therefore in King Edward the sixth's time a Bill was brought into the House of Commons and read the first time To authorize that King to make New Bishopricks by Letters Patents As I find in a Manuscript Journal of King Edward the Sixth's Parliaments Anno Regni 7. What became of it afterwards I know not It was brought in towards the End of the Session and did not pass into a Law. But the bringing of it in shews that the King was not conceived to have any such Authority of Common Right Nor did that King exercise any such Authority For the Bishoprick of Durham was in his Reign divided into two by Act of Parliament And when it was restored to its former Estate in Queen Mary's time it was done by Act of Parliament Vid. Dr. Burnet's History of the Reform vol. 2. p. 215. Rastal's Statutes 1 Mariae Parl. 2. That Act of King Henry the Eighth by which he was impowered to Erect New Bishopricks was Repealed 1 2 Phil. Mar. And to the End that by the Repeal of the Act those Bishopricks that had been Erected by vertue of it might not be consequentially dissolved A Clause was inserted into the Act of Repeal That all Bishopricks Cathedral Churches Hospitals Colledges Schools and such other Foundations then continuing made by Authority of Parliament or otherwise according to the Order of the Laws of the Realm since the schism should be confirmed and continued for ever So that then the Bishopricks that had been newly Erected by King Henry the Eighth stood upon this Foundation viz. A Confirmation by Parliament notwithstanding the Repeal of 31 Henr. 8. cap. 9. But now that the Statute of 1 2 Phil. et Mar. cap. 8. is Repeal'd by Primo Eliz. and this clause of Confirmation not excepted out of the Repeal I know not upon what bottom they stand at this day So far were our Kings from assuming a Power to Erect and divide Bishopricks at their pleasure as a late Author in a Book intituled A Vindication of the King 's Sovereign Rights c. pag. 12. takes upon him to affirm That they never so much as divided Parishes nor could make Vnions and Consolidations of Parochial Churches without Authority of Parliament Witness the Statutes of 33 Henr. 8. cap. 32.32 Hen. 8. cap. 44.37 Hen. 8. cap. 21.17 Car. 2. cap. 3.22 Car. 2. cap. 11.22 23 Car. 2. cap. 15. c. Sir Roger mentions likewise the Bishoprick of Carlisle which was Erected by King Henry the First Anno Dom. 1133. The Prior of Hagulstad speaks of this in General terms Coll. pag. 257. Consecratus est Adulphus Prior de Nostlia ad Vrbem Karleol quam Rex Henricus initiavit ad sedem Episcopalem Math. Westm in like manner pag. 241. Rex Henricus Novum fecit Episcopatum apud Carleolum in Limbo Angliae et Galwalliae et posuit ibi primum Episcopum nomine Ethelulphum sancti Oswaldi Priorem Abbas Jorvallensis tells us the story in like terms Collect. pag. 1019. Eodem Anno Rex fecit Novum Episcopatum apud Karliolum quem Arnulfo Priori de sancto Bertulpho Contulit But it appears by Radulph de Diceto Coll. pag. 505. that in this very year a Parliament was held and a very solemn one Rex Henricus Convocatis Regni sui Principibus filiam suam haeredes filiae suae sibi successorres instituit In which Parliament it is not unlikely that this Bishoprick of Carlisle was erected notwithstanding these loose Expressions of the Monks For the same Authors express themselves in the same terms concerning the Bishoprick of Ely Which yet was erected by Act of Parliament Radulphus de Diceto Collect. pag. 501. Rex Henricus Abbathiam Elyensem ad Episcopalem mutavit sedem Herveum ibi praesecit Math. Westminst pag. 238. Rex Henricus Abbbathiam Elyensem in Episcopalem sedem commutavit Abbas Jorvallensis pag. 1003. Collect. Abbathiam de Ely ad sedem Episcopalem convertit primum Episcopum Herveum Bangorensem constituit So that no Argument can be drawn from these Historians mentioning the King's Founding the Bishoprick of Carlisle without naming the Parliament as a party to it to prove that therefore it was not Erected by Authority of Parliament For if the Charter of the Foundation of the Bishoprick of Ely had been lost the same Argument would have lain against it And all the Bishopricks in England of whose first Foundations there is any particular Account given by our Historians appear to have been Founded by Our Kings in Parliament or by vertue of an Authority given by Act of Parliament I suppose it will not be deny'd but whenever any Bishoprick in Particular was Founded at the same time it was endow'd Now Our Ancient Kings could not
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
bound by the settling or determining any point of Religion any where else than by themselves in Parliament then at least the power of settling and determining Points of Doctrine and Practice either is no part of the King 's Ecclesiastical Supremacy or is not personal But must be exerted in Parliament In the British times Bishopricks were conferred in Parliament Petivit Rex Arthurus Eboracum instantis Natalis Domini Festum celebraturus Cumque urbem intrasset visa Sacrarum Ecclesiarum desolatione condoluit Expulso namque beato Samsone Archiepiscopo cunctisque sanctae Religionis viris Templa semi-usta ab officio Dei cessabant Tanta etenim Paganorum insania praevaluerat Exin convocato Clero Populo Capellanum suum Metropolitanae sedi Destinat Ecclesias usque ad solum dirutas renovat Atque Religiosis caetibus Virorum Mulierum exornat Galfrid Monumeth lib. 9. cap. 8. Here King Arthur in an Assembly of his Clergy and People makes an Arch-Bishop restores ruinous Churches and replenishes Monasteries with Monks and Nuns If a Judge or a Lawyer should say tho' he took along with him the concurrence and assistance of his Parliament yet he might have done all this by his Prerogative without them I must insist upon proof of such Prerogative If a Divine tells me that by the Law of God such Prerogatives belong to Princes for that the Power of the Prince is Superior to that of the Law not given by Law but from God then cannot I comprehend how our Churchmen can value themselves upon their being Established by Law if they acknowledge a Power upon Earth above the Law. But if it shall appear by what follows that till the Reign of King John Arch-Bishopricks Bishopricks and other Ecclesiastical Dignities were conferred in and by the Parliament then will a common mistake appear to run through many of the Books of Law wherein we frequently read Cr. Jac. 553 554. Ro. rep 2d part 130. Sir John Dav. rep that before his time they were donative and conferred by the King Per Traditionem annuli baculi Confounding the Election with the Investiture and ascribing that to the King solely which was the Act of the King and Parliament Bishop Vsher in his Antiqu. p. 63. Britan. Eccles Gives us other Instances of Bishops Elected in Parliaments or Great Councils Postquam praedicti senioris Germanus Lupus Pelagianam Haeresin extirpaverant Episcopos pluribus in locis Britanniae consecraverunt Super omnes autem Britannos dextralis partis Britanni beatum Dubricium summum Doctorem à Rege ab omni Parochia Electum Archiepiscopum consecraverunt Hac dignitate ei à Germano Lupo data constituerunt ei Episcopalem sedem concessu Regis Maurici Principum Cleri Populi apud Podium Lantavi Addit Galfridus ab eodem Dubricio Vrbis Legionum tunc Archiepiscopo Arthurum Regni Britannici diademate insignitum eundemque Dubricium in Curia illa magna quam apud urbem legionum Arthurus tenuisse dicitur in eremiticam vitam anhelantem sese ab Archiepiscopali sede deposuisse Eodem tempore Davide procurante Meneviam Metropolitanae sedis factam esse translationem refert Giraldus Cambrensis postea in Breviensi Synodo confirmatam In illâ scil Synodo magnâ omnium Episcoporum Abbatum totius Cambriae nec non Cleri Universi una cum Populo Collecta propter Pelagianiam Haeresin that Doctrin it seems revived tho it had been publickly over-ruled ubi unanimi totius Conventus tam Electione quam Acclamatione quanquam invitus renitens David in Archiepiscopum est sublimatus Usher Britan. Antiqu. pag. 64. Now if in the times of the Britains the People assembled in the Common Councils of the Nation had decisive Votes in Controversies of Religion in the Election of Arch-Bishops and Bishops if by their Authority ruinous Churches and Houses of Religion were repaired and furnished with Monks and Nuns Bishops Sees founded and translated if in those Assemblies Resignations of Bishopricks were made c. Then we may reasonably conclude that the Supremacy commonly so called was lodged and vested just where the Legislative Power in Temporal Matters resided to wit in the King 's together with their Commune concilium Regni But the first is true as appears by the foregoing Authorities Ergo c. Nor was it peculiar to this Nation V. Dr. Burnet's History of the Rights of Princes in the disposing of Ecclesiastical Benefices c. to have the People chuse Bishops It was the Universal Practice of all Christendom for many hundred years as is notoriously known to all that read any History In the second place I will exhibit a very few Instances of the Saxon Times during the Heptarchy The Reader may consult many more at his leisure No marvel if we find this People submitting to nothing in Religion but what was ordain'd by themselves Tacitus de moribus Germanorum cap. 11. De majoribus omnes was one of their Fundamental Constitutions before they came hither and it is continued here to this day And Matters of Religion were amongst their Majora even before they received Christianity Accordingly Edwin King of Northumberland Vid. Bed. Eccl. Hist Lib. 2. Cap. 13. Huntington Lib. 3. Pag. 188. habito cum sapientibus concilio renounced his Paganism and he and they embraced the Christian Faith. This is described in Bede and Huntington to have been done in such an Assembly of Men as the Parliaments of those days are generally mentioned to consist of After the Christian Religion had spread amongst the Saxons the Bishops and Clergy frequently held Synods without the Laity for Church-Visitation Vid. Spelm. Conc. ubique and made constitutions for the Regulation of the Clergy which they obeyed and submitted to by reason of their Oath of Canonical Obedience But as nothing transacted in those Assemblies of the the Clergy bound the People so can no instance be produced of the Clergy's being bound by any Act of the King not assented to in the Provincial Synods of those Times But the Clergy themselves both as to Doctrin Discipline and Ceremonies were bound by the publick Laws of the Kingdom enacted in the Great Councils of the Nation In the year 673 Matt. West pag. 122 123. Concilium Herudfordiae celebratum est sub initio primi anni Lotharii Regis Cantiae Praesidente Theodoro Cantuariae Archiepiscopo At this Council says Matthew of Westm were present Episcopi Angliae Reges Magnates Vniversi Where Theodore proposed decem capitula out of a Book of Canons before them All which were there Assented to and Subscribed The first was concerning the observation of Easter the ninth that the number of Bishops should be encreased crescente fidelium numero The rest were concerning Bishops Bishopricks Monks Marriage Fornication c. Spelm. Council Vol. 1. pag. 152 153. The Presence of the Bishops and all the Magnates makes this Assembly appear to have been a Parliament of
cum aliis Proceribus Normanniae simul adesse praecepit ut Rex jussit factum est Igitur 8. Anno Papatus Domini Gregorii Papae 7. Celebre Concilium apud Jullam bonam Celebratum est Et de Statu Ecclesiae Dei totiusque Regni Providente Rege cum Baronum suorum consilio utiliter tractatum est Then he inserts the Laws made there all concerning Ecclesiastical Matters In the next Reign that of King William Rufus there was a Schism in the Popedom between Clement and Vrban Anselme whilst he was Abbot of Bec in Normandy had Sworn Obedience to Vrban and being Elected Archbishop of Canterbury desired leave to go out of the Realm to fetch his Pall from him This the King opposed for that Vrban had not been received for Pope in England and told the Archbishop he could not keep his Fealty to him his Prince saving the Obedience which he owed to Vrban Anselme upon this referred himself to the Judgment of the Archbishops Bishops Proceres c. in Parliament who accordingly were Convened at Rochingham Ex Regia Sanctione and the matter discussed before them If the Archbishop had had any Notion of a Personal Supremacy in the King separate from and independant of the Great Council of the Realm it had been absurd in him not to acquiesce in the King's Judgment but Appeal to a Parliament If the King himself had been possessed with an opinion of any Legislative or Supreme Judicial Power in Ecclesiastical Matters lodged in his Person he would never have consented to call a Parliament to determine a cause which himself as far as in him lay had determined already The History may be read at large in Eadmer Hist Nov. Lib. 2 page 24 25 26 c. In King Henry the First 's time Anno Dom. 1102. A Council was held at London in which at Anselm's request to the King the Laity were present Quatenus quicquid ejusdem Concilii authoritate decerneretur utriusque Ordinis curâ sollicitudine ratum servaretur Sic enim necesse erat Quum multis retro annis Synodali culturâ cessante vitiorum vepribus succrescentibus Christianae Religionis fervor in Angliâ nimis tepuerat This is a clear Testimony that the Assent of the Laity was necessary to the Enacting such Ecclesiastical Laws as they were to be bound by And that neither the King by his Prerogative nor the King and the Clergy could impose any Constitutions upon them without their Assent Eadmer Histor Nov. Lib. 3. Will. Malmesb. De Gest Pontif. Anglor Lib. 1. p. 129. But tho' the King could not make Laws Himself could he not permit a Legate to exercise his Legatine Power here King Henry the Eight indeed permitted Wolsey to exercise his Office here and afterward brought the whole Clergy under a Premunire for submitting to him and owning his Authority But the Statutes of Praemunire were then in being Could not our ancient Kings that Reigned before any Act of Parliament now upon Record was extant they that must needs have had all the inherent Prerogatives that are involved in the Notion of Imperial Soveraignty Doctor Hicks they that understood their power somewhat better perhaps than it is now understood because they lived nearer to the creation of it and exercised it before it was sophisticated could not they I say by vertue of their Ecclesiastical Supremacy permit the Popes Legate to domineer a while within the Realm Why King Henry the First was very well satisfied that himself had no such power For when Petrus Monachus Cluniacensis was sent hither by Calixtus the Pope to exercise his Office of Legate within this Realm the King would not suffer him so much as to Lodg upon the Road in any Religious House And when he came into his presence and had told him his Errand Rex obtensâ expeditione So Anno Dom. 1225. Magister Otto Domini Papae nuncius in Angliam veniens promagnis Ecclesiae Rom. negotiis Regi literas praesentavit sed Rex cognito literarum tenore Respondit quod solus non potuit definire nec debuit negotium quod omnes Clericos laicos totius Regni tangebat Matth. Paris p. 325. in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Hist Nov. p. 138. And so the Legate went back as he came He tells it him as a known truth Constaret that the giving him leave to exercise his Office here was too great a work for him to go about as his affairs then stood for that it could not be done but in and by the Parliament If the Parliament had not a share in the Ecclesiastical Jurisdiction how came their Assent to be necessary If they had when did they lose it If the King's Supremacy was personal why might not he if he would have licensed him himself If it was not personal then but is so now then do not assert over and over that the late Acts of Restitution are all declarative and give no new power If the Pope's power de facto exercised be translated to the King shew the conveyance This same King in a Letter to Pope Paschall about Investitures tells him that if himself should be so mean in tantâ me dejectione ponerem as to part with them yet Optimates mei imò totius Angliae Populus id nullo modo pateretur Decem Scriptores 999. The Investitures were performed by the King in person but subsequent to an Election by the Parliament and yet the Parliament were so concerned in them that they were not nor could be parted with but by an Act of Parliament Which accordingly ensued notwithstanding the King's resoluteness at first for when Anselme came from Rome the King was perswaded to with-draw his claim and it was granted in a Parliament held at London Astantibus Archiepiscopis caeteraque multitudine maxima Procerum Magnatum ut ab eo tempore in anteâ nullus electus per dationem Baculi pastoralis vel Annuli de Episoopatu vel Abbathia investiretur per Regem vel aliam quamcunque personam secularem Ibid. Et Sim. Mon. Dun. 228 229 230. But tho' Investitures were lost Elections remained as they were at least of right till King John's time Concessit Rex Johannes liberas in omnibus Ecclesiae Anglicanae electiones Matth. Par. p. 262 263. The Charter it self which was certainly an Act of Parliament See Presidents of many Bishops and Abbots Elected in Parliament in the Reigns of King Stephen and King Henry the Second In Spelm. Conc. Second Part. p. 42 119. Innumerable are the instances of Canons and Constitutions made in the Reigns of the first Norman Kings in their Great and General Councils concerning Churchmen and Church Matters
Second King Stephen and so backwards And yet we find no Resolutions concerning what the Supremacy at Common Law was and wherein it consisted grounded upon Authorities of those Times which only can afford a right Idea of it Nor indeed can any thing be found in our Old Books of Law as Bracton Glanvil Britton Fleta the Mirrour nor in the Antient Histories of those Times that warrants such an Ecclesiastical Supremacy in the Crown as we now a-days dream of no Supremacy in Ecclesiastical Matters other than in Temporal which in a Nation of Saxon descent could never exclude the Ordines Regni having ever entred into the thoughts of Man as lodged in the King's Person or any Temporal Prince The Pope pretended to it but our Kings never did Only where the Constitutions of Clarendon mention Appeals from the Archbishop to the King they take up with the Letter and examine no farther As some Philosophers have ascribed Phaenomena in Nature which they could give no rational Account of to occult Qualities so the Lawyers resolve puzling Questions by telling us Magisterially that so and so it was at the Common Law as occult in these Matters to many of them as any Secret of Nature to the Philosophers That Branch of 1 o. Eliz. which unites Ecclesiastical Jurisdiction to the Crown appears by the Journal of the House of Lords to be in the sense of the Parliament V. Sir Simon Dewes that past it but Declarative But that all other Acts and Clauses of Acts which were pass'd at the time of the Reformation with respect to the Ecclesiastical Jurisdiction are so too I can't believe till I see Authorities of Antiquity proving it Those particular Branches of the Supremacy concerning the making of Bishops Appeals c. with some Temporary Laws now expired as they were guided and limited by positive Laws made in King Henry the Eighths time and King Edward's and revived in Queen Elizabeth's so they are grounded upon those Laws only and have no other Foundation so far forth as they are Personal For the Antient and Legal Supremacy having been so long overshadowed as to be almost forgot they did not upon the Restitution of it return all things to their former estate They prescribed another course for Appeals than had ever been known in our Law before They did not resume the Elections of Bishops to the Parliament who had had them formerly but leaving a shew of an Election in the Consistory they authorize the King to name the Man. The power of making Laws and Constitutions Ecclesiastical for the Government of the whole Kingdom we find no Resumption of no declarative Act concerning it other than in the Recital of 25 Hen. 8. cap. 21. For that Point had never been gained from them From the Reign of King Henry the Second downward to King Henry the Eighth we find little or nothing of any Canons and Constitutions for the Government of the Church made with assent of the Laity For the Clergy had now established their Exemption and had set up Imperium in Imperio But many Acts we meet with setting Bounds to their Encroachments and limiting their Jurisdiction and all made by the same Authority that enacted the Temporal Laws of the Kingdom And therefore the Supremacy so far forth as it remained in the Crown was not Personal but exerted it self in the Legislative Body of the Kingdom For the Parliaments tho in a great measure Anti-Christ-ridden did not even in these Times so far forget the old Constitution as to let the Church and Religion run adrist for all them and be wholly managed either by the King or their Ghostly Fathers The Writs of Summons to Parliaments both antient and modern have this special Clause in them Pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum c. So that the State of the Church is as properly within the care of a Parliament as the State of the Realm And in the Prologues to most Acts of Parliaments the Honour the Profit the Reverence the Benefit the Advancement of Holy Church is mentioned as the End of their Meeting no less than the Safety and Defence of the Realm Accordingly innumerable Acts of Parliament were made and are now in print concerning Church-men the Ecclesiastical Jurisdiction Matters of Religion c. As the Statutes of Mortmain Circumspecte agatis the Statute upon the Writ of Consultation Articuli Cleri several Statutes entituled Pro Clero the Statutes of Premunire and Provisors concerning Priests and Salaries against Appeals to Rome prohibiting Bishops to meddle in Matters of the Peace removing Bishops from Temporal Offices restraining the Popes Exactions and Usurpations and Encroachments of the Canons upon the Civil Jurisdiction freeing Clergy Men from Arrests during the time of Divine Service for the Instruction of the People by Preaching concerning Priors dative and removable c. Exempting of Pilgrims from the Punishment of Vagrants Hunting on Holy-days Consecrations of Church-yards and Appropriations of Churches and Alms concerning Provisions of Exemptions from regular or ordinary Obedience granted to Religious Persons from Rome the Suppression of Sectaries Heretical Books Schools Working on Holy-days Entring into Religion without Consent of Parents Tythes Chalices Ornaments of the Church c. So that whatever remained of the Supremacy remained in the Legislative Body of the Kingdom and was there exerted During this time the question was not Whether the King could by his Prerogative impose Laws upon the Clergy or in concurrence with the Clergy conclude the Laity these are Notions started up since the Reformation which has brought to light in Politicks as well as Religion Mysteries that had been hid from Ages but whether the Spirituality or State Ecclesiastical of whom the Pope was now de facto the Head could bind the Laity without their Assent in Parliament This was a fifth Encroachment which was attempted by introducing the Canon Law and drawing to themselves by a side wind all Temporal Jurisdiction in ordine ad Spiritualia But the design was never brought to perfection such was the Genius of a Government built upon this noble Foundation that no man ought to be bound by a Law that he does not consent to that muffled up in Darkness and Superstition as our Ancestors were yet that Notion seemed to be engraven in their Nature born with them sucked in with their Mothers Milk the impression was so strong that nothing could deface it Accordingly we often find them protesting that this and the other thing did not bind them because it was done without their Assent Rott Par. 40. Edw. 3. nu 7 8. Rott Parl. 5 Ed. 3. art 46. Rott Parl. 6 Rich. 2. nu 62. that they would not be bound by any Ordinances of the Clergy without their Assent That they would not subject themselves to the Prelates no more than their Ancestors had done And in the 25. H. 8. cap.
old Master the Cardinal who obtained his Legacy by our late Sovereign Lord's request at Rome and in his sight and knowledge occupied the same with his two Crosses and Masses born before him many years yet because it was against the Laws of the Realm the Judges concluded it the Offence of the Praemunire which conclusion I bare away and take it for the Law of the Realm because the Lawyers so said but my Reason digested it not The Lawyers for confirmation of their Doings brought in a Case of the Lord Tiptoft as I remember a jolly Civilian he was Chancellor to the King who because in the Execution of the King's Commission he had offended the Laws of the Realm he suffered on Tower-Hill they brought in many Examples of many Judges that had Fines set on their Heads in like Cases for doing against the Laws of the Realm by the King's Commandment and then was brought in the Judge's Oath not to stay any Procesâ— or Judgment for any Commandment from the King's Majesty And one Article against my Lord Cardinal was that he had granted Injunctions to stay the Common Law and upon that occasion Magna Charta was spoken of and it was made a great matter the stay of the Common Law and this I learned in that Case sithence that time being of the Council when many Proclamations were devised against the Carriers out of Corn at such time as the Transgressors should be punished the Judges would answer It might not be by the Laws whereupon ensued the Act of Proclamations in the passing of which Act many liberal Words were spoken and a plain Proviso that by Authority of the Act for Proclamations nothing should be made contrary to an Act of Parliament or Common Law. A known and notorious Judgment has been lately given in favour of a Dispensation with an Act of Parliament Sir Edward Hales's Case in a cause of extraordinary great consequence and the Court grounded themselves upon a Case pretended to have been adjudged in the Second year of King Henry the Seventh concerning Sheriffs It had been enacted by several Statutes That no Sheriff Vnder-Sheriff c. should abide in his Office above one whole year as by the 14 Edw. 3. cap. 7. and the 42 Edw. 3. cap. 9. And in King Richard the Second's time it was enacted That no Man who had been Sheriff of any County by one whole year should be another time chosen into the said Office within three years ensuing c. Notwithstanding which Statutes the contrary was often practised by colour of Dispensations with those Laws Which Dispensations of what validity they were in Law in the Judgment of Parliaments may be seen by divers Instances in Cotton's Abridgment of the Records of the Tower V. Cott. Abr. p. 387. Anno 1. H. 4â— One Artic. of Impeachment against King Rich. 2. some of which are very untoward To obviate the mischief of these Non Obstante's the Parliament in the Twenty Third year of King Henry the Sixth enacts That the said Statutes above recited shall be duly observed and inflicts the Penalty of 200 l. upon any Sheriff Under-Sheriff c. that shall hold the said Office longer than a year And farther enacts That every Pardon thereafter to be made for such Offence or Occupation or forseiture of Sums before recited shall be void and not available and that all Patents made or to be made of any of the said Offices for term of Years for term of Life or in Fee Simple or in Fee Tail shall be void and of no value by the same Authority any Clause or Word of Non Obstante in any wise put or to be put in any such Patents notwithstanding And moreover that whosoever shall take upon him to have or occupy the said Office of Sheriff by vertue of such Grants or Patents now to be made for term of Years for term of Life Fee Simple or Fee Tail shall stand for ever and at all times disabled to bear the Office of Sheriff within any County of England That that Statute was ever after looked on as a Law binding to the King and restraining any Non Obstante's in such case for the future will appear by considering some Statutes subsequent to the Law it self both before and after the pretended Judgment in 2 H. 7. The first is that of 28 Hen. 6. cap. 3. Whereby it is ordained and granted that the Sheriffs c. which were for the year last passed shall be quit and discharged against our Soveraign Lord the King and all his Liege People of the Penalties and Forfeitures of 200 l. which they or any of them might fall in or incur by force of the said Statute made in the 23d Year of the said King as for the occupation or exercise of the Office of Sheriff longer than by a Year c. So that such Sheriffs as had exercised their Office longer than a Year contrary to the said Statute of 23 Hen. 6. could not be safe by any Dispensation granted by the King without an Act of Parliament to indemnifie them against him and his People In the Eighth Year of King Edw. 4. cap. 4. the Parliament reciting the Statute of the 14th of King Edward 3. and of the 42 of the said King above-mentioned and that of the 23th of King Hen. 6. concerning Sheriffs and that contrary to the said Ordinances divers Sheriffs c. in the First Second and Third Years of the said King Edward the 4th that then was the Realm then being in great trouble and the Peace not fully established did occupy over a Year the said King by Advice and Assent of the Lords Spiritual and Temporal and at the Request of the Commons ordained and established That no manner of persons being Sheriffs Vnder-Sheriffs c. in the said Three first Years of his Reign or any space within the same for the occupation of the Office of Sheriff c. in the said Three Years or any part or space within the same or of the same or any of the same above a Year altho their Occupation were against the Ordinances above recited be damnified nor in any wise hurt by any Action Pain or Forfeiture in the same Ordinances or any of them comprised c. Yet nevertheless the said Ordinances and every of them to remain in their strength and force against all Sheriffs Vnder-Sheriffs c. for their occupation all other Years than the said Three Years as aforesaid If the King's Pardon could have saved them harmless the Act of 26 H. 6. notwithstanding which provided that all such Pardons should be void then these Offenders had not need to have recourse to an Act of Parliament for their Security These two Laws subsequent to the said Act of 23 H. 6. cap. 8. and prior to the said pretenced Judgment of 2 H. 7. shew it to have been the Sense of the Parliaments and People of those times that all Pardons and Dispensations with the said Statute were
nullities in Law. Whether they received any further light as to the King's Prerogative in Dispensing with it notwithstanding all the caution that the Wisdom of a Nation could use in such a case from the pretended Opinion of the Judges in that Case we may guess at by observing the Act of 6 H. 8. cap. 18. Which Act reciting the Act of 13 Ed. 3. and of the 23 of King H. 6. and the Forfeitures and Penalties thereby imposed and that every Pardon for such Offence should be void and all Patents with Non Obstante's of the said Statute void in like manner does yet Enact Establish and Ordain that the Vnder-Sheriffs and other Officers of Sheriffs in the Shire of the Town of Bristol may continue to occupy their Offices in like manner as the Vnder-Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Act to the contrary notwithstanding By this Act it appears that in the Judgment of that Parliament a Patent to exercise the Office of Sheriff longer than a Year with a Non Obstante of the Statute of 23 Hen. 6. cap. 8. was a Patent void in Law For they recite the Act not only as an Act in force but that particular clause in it whereby Non Obstante's to it are declared to be void as a reason why the Under-Sheriffs of Bristol could not be safe in acting contrary thereunto without Assent of Parliament which was therefore had for their Security and would have been needless if a Patent with a Dispensation had then been accounted legal These Acts of Parliament might be thought sufficient to invalidate the Authority of that Judgment if any such had been given but the truth of it is there never was any such Judgment given as that the King might by his Perogative dispense with the said Statute of 23 Hen. 6. by which it is expresly enacted That no Non Obstantes in such case shall be available The Question indeed was upon the validity of a Grant made by King Edward the Fourth of the Shrivalty of Northumberland to the Earl of that County for his Life And the Judges held the Patent to be good But they did not ground their Judgment upon the Non-Obstante therein for there is not a word spoken of the Non-Obstante but by Rocliffe who was then second Baron of the Exchequer after the Court had agreed the Patent to be good By reason of a Proviso in an Act of Resumption But I shall forbear meddling any more with that Case for that a very good Account of it will be shortly given by another Hand as also of the five Points pretended to have been agreed by the Judges in Sir Edward Hales's Case and a sufficient Answer to that slight Pamphlet entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales's Case Written by Sir Edward Herbert in Vindication of himself Indeed Non Obstante's as they were first invented and introduced by Popes between the years of our Lord 1200 and 1250 V. Matth. Paris p. 810 811. Ibid. p. 817 818. p. 854. p. 875. and afterwards inserted into the King's Patents and Protections in imitation of them by King Henry the Third so they were never made use of by any of our Kings to elude Acts of Parliament till after the Statute of Mortmain which was made in the 7th of Edw. 1. Which first attempt as it must needs be illegal First because contrary to Magna Charta cap. 36. which is the first Law that prohibits Alienations in Mortmain and was not only sworn to when enacted and confirmed but is also by many after Acts of Parliament ordered to be observed in all Points as by 2 Edw. 3. cap. 1. 4 Edw. 3. cap 1.14 Edw. 3. cap. 1. and innumerable others Secondly Because when the Clergy petitioned King Edward the First for a relaxation of it His Answer was Hen. Knighton p. 2502. in Dec. Script that he could not do it because it was enacted de Consilio Magnatum suorum sine eorum Consilio non erat revocandum And Thirdly Because the sole Act of the King could not with any colour of Reason prejudice the Rights and Interest of the Mesne Lords yet such was the misguided Piety and Devotion of those Times that such Non Obstante's were obtained as appears by the Patent and Charter Rolls in the Tower from 8 Edw. 1. downwards abounding with special Licences to purchase and hold Lands c. Statuto de terris tenementis in manum mortuam non ponendis non Obstante And yet were not these Licences accounted legal or the Clergy safe in purchasing Lands Rents Advowsons c. by virtue of them till it was enacted in Parliament Anno 18 Edw. 3. cap. 3. That if Prelates Clerks beneficed or Religious People which have purchased Lands and the same have put to Mortmain be impeached upon the same before our Justices and they shew our Charter of Licence and Process thereupon by an Inquest of Ad quod damnum or of our Grace or by Fine they shall be freely let in Peace without being further impeached for the same purchase And in case they cannot sufficiently shew that they have entred by due Process after Licence to them granted in general or in special that they shall well be received to make a convenient Fine for the same and that the Enquiry of this Article shall wholly cease according to the accord comprized in this Parliament But Non Obstante's with the Statute of Mortmain having been introduced as aforesaid tho undeniably illegal at first and gaining afterwards a countenance from this Act of Parliament have given occasion to the dispensing with other Acts of Parliament Tho at first they were very rare and seldom occur in the Old Books and tho they are more frequent in the New and that Judges and Courts of Justice have invented little Distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of a more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subject has an interest and is intituled to an Action as pars gravata yet the Cases that have hitherto come before them judicially have been Questions upon Dispensations granted to particular Persons to exempt them prohîc nunc from incurring the Penalty of such or such a Law. A Dispensation suspending the Effect of a Law at once has been so far from receiving any countenance from Courts of Justice hitherto Thomas and Sorell's es of Wine-Liceneer that it has always been a fatal Objection against any particular Dispensation if it was such as consequentially quite eluded and frustrated the whole Law For that such a Dispensation is in effect a Repeal of the Law. It would be endless to launch out into a Discourse upon such particular Dispensations as have been granted and
either allowed or condemned The principal Cases in our Modern Books in which the conceits of latter times are display'd are these following Coke's 8th Report the Princes Case The Case of the City of London 11th Report the Case of the Taylors of Ipswich and the Case of Monopolies Dyer 52. a. 54. a. 224. b. 270. a. 303. a b. Plo. Com. Grendon against the Bishop of Lincoln Vaughan's Reports Thomas and Sorell's Case V. Roll's Abridgment Second Part p. 179 180. Lett. Y. Co. 12th Report p. 18 19. Sir John Davie's Reports Le Case de Commenda p. 68 c. Moor's Reports p. 244 245 c. cs 384. But how correspondent the reason of some of these Judgments is to the sense of former Parliaments and consequentially to the Judgment of the whole Nation and the very Constitution of this Government take a hint from a notable Record in the Fiftieth Year of King Edward the Third whereby it appears That Richard Lyons Merchant of London was impeached and accused by the Commons of many Deceits Extortions and other evil Deeds committed by him against our Lord the King and his People as well in the time that he had been belonging to the House and Council of the King as otherwise during the time that he was Farmer of the Subsidies and Customs of the King and more especially for that the said Richard by Covin had between him and some of the Privy Council of our Lord the King for their singular Profit and Advantage had procured and gotten many Patents and Writs of Licence to be made to carry great Faith and Credit whereby Skins Wool and other Merchandizes were transported otherwise than to the Staple of Calice against the Ordinances and Defences made in that behalf concerning the same before time in Parliament He was charged with other particular Crimes to some of which he offered to make a Defence but to others and this amongst the rest he made no answer Wherefore the said Richard was a warded to Prison during the King's pleasure and distrained to Fine and Ransom according to the quantity of his Trespass and that he should lose his Freedom of the City of London and be no more in Office under the King and to incur other Penalties and Forfeitures as may be seen at large in the Record printed by Mr. Selden in a Book entituled The Priviledges of the Baronage of England pag. 34 35 36 c. So that Licences for the shipping of Wool contrary to an Act of Parliament tho mentioned by Rocliffe in the Book of King Henry the Seventh as legal and grantable by the King with a Non Obstante and countenanced sufficiently by latter Judicial Authorities Vide Dyer 52. a 54. a c. Yet appeared otherwise to antient Parliaments and if the Judgment of a Parliament be of greater Authority than that of a Court in Westminster-Hall or indeed than that of all the Judges put together and if Judicial Presidents do not make the Law but ought to declare it only then is the Legal Perogative in dispensing with Acts of Parliament much straiter if any at all than modern Opinions would represent it to us And that Parliamentary Presidents are of the highest Authority in this Nation will appear by considering that in former Times it was very frequent with the Judges in Westminster-Hall if any Case of Difficulty came before them especially if it depended upon the Construction of an Act of Parliament to be so cautious of making any new unwarranted Presidents that they frequently adjourned the Matter ad proximum Parliamentum By the Statute of Westminster the Second made Anno 13. Edwardi primi cap. 23. It 's enacted That Quotiescunque de caetero evenerit in Cancellaria quod in uno Casu reperitur breve in consimili casu cadente sub eodem Jure simili indigente Remedio non reperitur concordent Clerici de Cancellariâ in brevi faciendo vel atterminent querentes in proximum Parliamentum escribantur Casus i◠quibus concordare non possunt referant eos ad proximum Parliamentum My Lord Coke in his Second Institutes pag. 407. tells us That before this Act the Justices did punctually hold themselves to the Writs in the Register because they could not change them without an Act of Parliament And pag. 408. That Matters of great Difficulty were in antient Times usually adjourned into Parliament to be resolved and decided there And that this was the antient Custom and Law of the Kingdom Bracton bears witness Si aliqua nova inconsueta emerserint quae nunquam priùs evenerunt obscurum difficile sit eorum judicium tunc ponantur judicia in respectu usque ad Magnam Curiam ut ibi per Concilium Curiae terminentur And hereof the Lord Coke says There are infinite Presidents in the Rolls of Parliament and quotes in his Margent many Presslents out of the Year Books Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mischiefs have hapned for that in the Chancery King's Bench Common Bench and Exchequer Judgments have been delayed sometimes by Difficulty and sometimes by divers Opinions of the Judges and sometimes for some other Cause It is assented established and accorded That from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and Power of the King to hear by Petition delivered to them the Complaints of all those that will complain them of such Delays and they shall have power to cause to come before them at Westminster or elsewhere the Tenor of Records and Processes of such Judgments so delayed and cause the same Justices to come before them which shall be then present to hear the cause of such Delays Which Cause and Reason so heard by good Advice of themselves the Chancellor Treasurer the Justices of the one Bench and of the other and other of the King's Council as many and such as they shall think convenient shall proceed to take a good Accord and make a good Judgment So that our Parliaments of antient Time looked upon the Judges not as absolute Oracles of the Law but as Men that were both liable to Mistakes and under the Regulation and Direction of Parliaments even in their Ordinary Proceedings The Nation did not so far intrust them as they themselves would persuade us of late In the Three and thirtieth of H. 6. a Question arose in the Exchequer Chamber Whether a Record then and there certified as an Act of Parliament were really an Act of Parliament or no Fortescue who gave the Rule says They would be well advised before they annulled an Act of Parliament and the Matter was adjourned to the next Parliament that they might be certified by them of the certainty of the Matter 33 Hen. 6. Fol. 18. Indeed the Question Whether such or such a Record certified were an Act of Parliament or no may seem too high for
modest Judges to take upon themselves the Resolution of Tho nothing can be too high nor too difficult for such Judges to determin who are wise enough to declare Acts of Parliament void Co. 8. Rep. Fol. 118. a. Moor's Reports pag. 828. But what shall we say of them in 40 Edward 3. who because the Statute of 14 Edw. 3. cap. 6. had impowered them to amend the misprision of a Clerk in writing a Letter or a Syllable too much or too little not only made a Question Whether they might amend where there was a Word wanting but went to the Parliament to know the Opinion of them that made the Law See the Story in Coke's 8 Report 158. a. So sacred were Acts of Parliament accounted in those days and so little was the Authority of the Judges in Westminster-Hall or rather of so great Credit and Authority were the Resolutions of Judges in those days when they were wary and cautious of making Alterations and in difficult Matters consulted their Superiors Other Examples of Adjournments ad proximum Parliamentum may be seen in Cotton's Abridgment of the Records in the Tower. But that which surprizeth us is That all our Judges since the Reformation should have attained to such an omniscience in the Law that I think I may confidently affirm there has not been an Adjournment ad proximum Parliamentum propter difficultatem these Hundred and fifty Years last past Sure I am that no President of any such thing appears in our modern Books of Law. And yet Cases of as great moment concern and consequence to the Government and the whole Nation have come in question within that space of time as ever did or could in former Ages But there is a Notion broached amongst us that the Kings of England have greater Power and larger Prerogatives in Ecclesiastical Matters than in Temporal and that by vertue of their Ecclesiastical Supremacy they may dispense with such Acts of Parliament as concern Religion But they that say so do not consider that before the Reformation the Kings of England had much less power in Ecclesiastical Matters than in Temporal and therefore they cannot have greater now unless some Act of Parliament give it them And therefore this power of dispensing with Acts of Parliament in Matters of Religion must be given by some Acts of Parliament since the Reformation or else the King has it not And admit for the present their Hypothesis who would invest the King with whatever power the Pope de facto exercised here Yet that will not serve the turn for as much as the Pope himself whatever power he might claim and attempt to exercise yet was never allowed a power to dispense with Acts of Parliament concerning Ecclesiastical Matters even when it was full Sea with him here in England Take one remarkable President out of Matt. Paris p. 699. that in the Year of our Lord 1245. The King the Prelates Earls Barons and Great Men of the Realm then Assembled in a most general Parliament at Westminster drew up several Articles of Grievances against the Popes Exorbitances and Illegal Oppressions one of which was conceived in these words viz. Item Gravatur Regnum Angliae ex adjectione multiplici illius infamis nuncii Non Obstante per quem juramenti Religio consuetudines antiquae Scripturarum vigor concessionum authoritas Statuta Jura Privilegia debilitantur evanescunt And it cannot but seem strange that after such publick Complaints for many others of the like nature might be cited of the whole Kingdom against Non Obstante's as intolerable Grievances they should be afterwards countenanced and screwed up to such a transcendent Soveraignty as to frustrate Laws Statutes and Acts of Parliament and that by vertue of an Ecclesiastical Supremacy by which the King is pretended to have whatever power the Pope had when the Pope himself was never allowed this To these Presidents and Authorities of former times it may not be improper to add what happened in the latter end of the Reign of King James the First and the beginning of King Charles the First upon occasion of the Spanish Match with relation to the Penal Laws against Roman Catholicks The whole Negotiation of that Affair may be read at large in Rushworth's first Volume of Historical Collections and in Prynne's Introduction to the Archbishop of Canterbury 's Tryal I will only point at two or three passages that are most material to the present purpose 1. King James in a Letter written with his own hand to the King of Spain has these words viz. Leges nostrates quae mulctam Catholicis non mortem irrogant aboleri aut rescindi à nobis Seorsim non posse leniri it a posse cùm erit usus exploratum habeat Serenitas vestra omnibus ut dictorum Catholicorum Romanorum animis mansuetudine ac lenitate nostrâ conciliatis c. he had promised that no Romish Priest or Catholick should be proceeded against for any Capital Crime but for the other Laws ut supra Yet afterwards when King James was made to believe that the Match was just upon the point of being concluded a Proclamation was prepared for granting a toleration to Papists tho' it never came out But Archbishop Abbot wrote a Letter in the nature of a Remonstrance to King James in which besides other Considerations of Religion and Policy these words follow Prynne's Introduct p. 40. Besides this Toleration which you endeavour to set by your Proclamation cannot be done without a Parliament unless your Majesty will let your Subjects see that you will take unto your self a Liberty to throw down the Laws of the Land at your pleasure And in the Second Year of King Charles the First the King commanded his Attorney General to charge the Earl of Bristol at the Bar of the House of Lords with High Treason and other Offences and Misdemeanours that they might proceed in a legal Course against him according to the Justice and usual Proceedings of Parliaments the fifth of which Articles is in these words That from the beginning of his Negotiation and throughout the whole managing thereof by the said Earl of Bristol and during his said Ambassage he the said Earl contrary to his Faith and Duty to God the true Religion professed by the Church of England and the Peace of the Church and State did intend and resolve that if the said Marriage so treated of as aforesaid should by his Ministry be effected that thereby the Romish Religion and the Professors thereof should be advanced within this Realm and other his Majesties Realms and Dominions and the true Religion and the Professors thereof discouraged and discountenanced And to that end and purpose the said Earl during the time aforesaid by Letters unto his late Majesty and otherwise often counselled and persuaded his said late Majesty to set at Liberty the Jesuits and Priests of the Romish Religion which according to the good Religious and Publick Laws of this Kingdom were
imprisoned or restrained and to grant and to allow unto the Papists and Professors of the Romish Religion free Toleration and silencing of all Laws made and standing in force against them Vide Rushworth Vol. 1. p. 251. and Prinne 's Introduct p. 32. So that King James thought himself had no power to rescind or repeal the Laws Seorsim tho' he could so moderate the execution of them as to make his Roman-Catholick Subjects be obliged to him Yet when afterwards in hopes of obtaining the Infanta for his Son he had agreed to issue a Proclamation for Indulgence to Roman Catholicks and a Proclamation was drawn accordingly but never published we may read the Sense of the Church of England upon it in Archbishop Abbot's Remonstrance The Reason why the Proclamation was not published was because the putting of it in practice or not was to depend upon the success of the Match which miscarrying the Proclamation was stifled And that may be the reason why the Parliament in 21 Jacobi take no notice of it But in the Parliament of 2 Car. 1. The Earl of Bristol was charged by the King 's own Direction for having persuaded the King to it as having committed a very high Crime in so doing Whereas if the King had a power by Law to do it it could not well be a Crime in him to persuade him to make use of his Power when the Circumstances of his Affairs required it And as it was then conceived a Misdemeanour to Advise the King to it so who knows how far future Parliaments may account it a Misdemeanour to have been in any wise instrumental towards the carrying on of a design which some will not stick to say now as the Archbishop did then is to give the King a Power of throwing down all the Laws of the Land at his pleasure Thus I have endeavoured to give some small account of the rise and progress of Dispensations with Acts of Parliament by which it does appear that as the clause of Non Obstante was first introduced by Popes and first applied by the instigation of the Popish Clergy to break through Acts of Parliaments tho' our Parliaments never Countenanced them and our Courts of Justice never extended the dispensing power farther than to particular persons or at most to Corporations so Dispensations suspending at one blow the whole effect of Laws were invented at Rome too in favour of English Papists upon the Treaty of the Spanish Match in King James's time But they never appeared bare-faced in view till King Charles the Second's time in whose Reign they were twice damned in Parliament The third effort has been made of late since which no Parliament has yet sat down It may seem strange considering the great Solemnity and Caution that is used in passing Acts of Parliament that so impudent a conceit as that of the Legality of a dispensing Power should ever enter into the thoughts of Men. For if a Bill be first brought into the House of Lords after it is read it is committed to a Committee of Lords and certain Judges are appointed to attend them that nothing may be put into the Act which may be mischievous to the King or Kingdom After which when it comes to be read in the House again the Judges sit as Attendants upon the House and hear all the Debates of the Lords upon it Indeed they have no Voice in the House of Lords but if any Bill that is passing should in their Judgments have any ill Consequences to the King or Kingdom they might either have offered their Reasons at the Committee or suggested what their thoughts were to some of the Lords in the House who would have acquainted the House with it A Bill having passed the House of Lords with all this Caution is afterwards sent down to the Commons by some of the Judges themselves and sometimes by the Chief Justices and Chief Baron who coming into the House of Commons with Reverence and the respect of three Bows deliver the Bill to the Speaker And the method is the same in case of a Bill coming from the House of Commons and committed by the Lords some of the Judges are always appointed to attend and wait upon the Committee of the Lords After all this Solemnity the Bill yet signifies nothing without the Royal Assent In order to which before the King is to give it the Clerks of the House of Lords are to bring the Bills before the King and the Privy Council before whom they are read and not only the King's Council are ordered to attend and be present but likewise all the Judges in Westminster Hall And if any Bills should be thought of mischievous Consequence they as being the King's Council in Matters of Law are bound by the express tenour of their Oath to shew and disclose it to the King. But if no such thing be done then the King in full Parliament gives his Le Roy le Voet and so it becomes a general Law to bind the whole Kingdom Now after a Law made with such caution and solemnity is entred upon Record as a Statute binding to the whole Kingdom it must needs seem strange that the Judges in Westminster Hall should dare to allow of Dispensations with such a Law grounded upon the sole Act of the Prince and much more that they should as a late Honourable Author tells us they have done declare Acts of Parliament to be void Coke 8 Rep. Fol. 118. Heb. 87. and contrary to the Law of God or Natural Equity or that they should suppose any Law thus made to be so without assuming a power to themselves of Impeaching both Houses of Parliament the King himself all the Privy Councillors nay and themselves too or at least their Predecessors for want of Knowledge Prudence or Foresight as not being capable to judge of common Sense or not fore-seeing Inconveniences which either themselves now perceive or would persuade us the King by some new illumination has discovered especially when these inconveniences if real may easily be redressed In Parliament without having recourse to a Westminster Hall Prerogative or Dreams of Imperial Power vampt up with Ignorance a good Fancy and a tollerable Pen by some scurrilous Authors whose names I cannot prevail upon my self to defile paper with I cannot leave this period of time betwixt King John and King Henry the Eighth without a remark upon an Act of Parliament made in the Second Year of King Henry the Fifth cap. 1. That Act recites that many Hospitals have been founded by the Kings of this Realm and divers other Estates of Men and Women to which Hospitals the Founders have given part of their moveable Goods and of their Lands therewith to sustain impotent Men and Women c. And that the same Hospitals be now for the most part decayed and the Goods and Profits of the same withdrawn and spent in other uses And therefore Enacts That as to the Hospitals which be
of the Patronage and Foundation of the King the Ordinaries by vertue of the King's Commissions to them directed shall enquire of the manner and foundation of the said Hospitals and of the Governance and Estate of the same and of all other matters requisite and necessary in that behalf and the Inquisitions thereof shall certifie into the King's Chancery And as to other Hospitals which be of another Foundation and Patronage than of the King the Ordinaries shall enquire of the manner of the Foundation Estate and Governance of the same and of all other Matters and Things necessary in this behalf and upon that make due correction and reformation according to the Laws of Holy Church as to them belongeth This Act apparently makes a distinction betwixt Hospitals that are and that are not of the King's Foundation and Patronage with respect to the Right of Visitation Those of the King's Foundation the Ordinaries were to visit by the King's Commission But those that were not of the King's Foundation the Ordinaries were to visit too but how Not by any Commission from the King but as special Commissioners special Visitors appointed by that Act. The King did not pretend to issue a Commission to Visit an Hospital of a Subject's Foundation The Parliament were strangers to such a conceit The right of Visiting de communi Jure belongs to the Founder he that gave the Laws ought to see them executed If the Parliament had appointed that Hospitals of the Foundation of Subjects should be Visited by the Ordinaries by Commission from the King they had in effect translated the Rights of all Founders that were Subjects to the King which they never intended For the Legal Notion of Visitation in such Cases is no more than this viz. A Man Founds and Endows a College The Rule of Law and of Natural Reason teaches cujus est dare ejus est disponere As a Man may give Lands to a private person upon what condition the Donor pleases provided it be not against Law so a Man may give Lands to a Society of Men upon what terms he pleases The terms exprest in the Foundation are called the private Laws by which the Society is to be ordered and governed And just as when a Man makes a Lease for Life or Years the Lessor may enter of right to see whether waste be done or no so a Founder may come and enquire whether those of his Foundation observe the Rules and Orders prescribed by him or his Ancestors and proceed according to the Statutes and the Powers thereby reserved in case he find any neglect or misdemeanour What right the King has to interpose his Authority in such case any more than in the Government of a private Family I cannot discern But Colleges in Vniversities are pretended to be visitable by the King's Commission by vertue of his Ecclesiastical Authority Here we must distinguish A College of Divines for Example founded by a Subject and Endowed and receiving Laws for their Governance from their Founder are visitable by their Founder and his Heirs or Successors They may be also for any thing here alledged to the contrary visitable by the Bishop of the Diocess or if exempt from Episcopal Jurisdiction by the King's Commission But what Power have these Visitors The Founder enquires whether the Statutes of the Foundation are observed and punishes according to the Statutes but goes no farther The Ordinary or Archbishop or if the place be exempt the King's Visitors enquire Whether they profess the Doctrin and observe the Rites and Ceremonies of the Church of England If the King had any thing to do to intermeddle with the Statutes and Government of such a College in the first Instance by virtue of his Ecclesiastical Supremacy it seems very strange that in the third and fourth Year of Queen Elizabeth's Reign when the Bishop of Winchester Founder of Maudlyn College in Oxford had at a Visitation deprived the President and he appealed to the Queen in Chancery the Judges and Civilians having had a Conference upon the Business agreed that the Appeal lay not as the Law then stood for that this Case was out of the Statutes of 24 and 25 Hen. 8. which direct Appeals to the King in Chancery and this Deprivation was a meer Temporal Thing and inflicted as by a Lay Patron And that if he were wrongfully expelled he might have an Assize or other Suit at Common Law. Concerning the King's Power with respect to the private Statutes of a College of a Subjects Foundation I will acquaint the Reader with one Act of Parliament made 1 Mariae which will yield some very useful Inferences The Act recites Whereas the late Noble Prince of Famous Memory King Henry the Eighth Father unto our most Gracious Sovereign Lady the Queen amongst other his godly Acts and Doings did erect make and establish divers and sundry Churches as well Cathedral as Collegiat and endowed every of the same with divers Mannors Lands Tenements and Possessions for the maintenance of the Deans Prebendaries and Ministers within the same and for other charitable Acts to be done and executed by the same Deans Prebendaries and Ministers and also did incorporate the same Deans Prebendaries and Ministers and made them Bodies politick in perpetual Succession according to the Laws of this Realm of England And where also as the said late King for the better maintenance and preservation of the said Churches in a godly Unity and good Order and Governance granted unto the several Corporations and Bodies Corporate of every of the said Churches that they should be ruled and governed for ever according unto certain Ordinances Rules and Statutes to be specified in certain Indentures then after to be made by his Highness and to be delivered and declared to every of the Bodies Corporate of the said several Churches as by the said several Erections and Foundations of the said Churches more plainly it doth and may appear Since which said Erections and Foundations the said late King did cause to be delivered to every of the said Churches so as is aforesaid erected and incorporated by certain Commissioners by his Highness appointed divers and sundry Statutes and Ordinances made and decreed by the same Commissioners for the Order Rule and Governances of the said several Churches and of the Deans Prebendaries and Ministers of the same which said Statutes and Ordinances were made by the said Commissioners and delivered unto every of the Corporations of the said several Churches in writing but not indented according to the Form of the said Foundations and Erections by reason whereof the said Churches and the several Deans Prebendaries and Ministers of the same have no Statutes or Ordinances of any Force or Authority whereby they should be ruled and governed and therefore remain as yet not fully established in such sort as the godly intent of the said late King Henry the Eighth was to the great imperfection of the Churches and the hindrance of God's Service and
For he can appoint no Commissioners to determine Matters of civil Right but where special Acts empower him and no Act had yet impowered him to do so in Ecclesiastical Matters nor did his Predecessors or himself practise it till afterwards For his divers sundry old Histories and Chronicles afforded him no president of any such thing and therefore it could not be either in the nature of the thing or in the sense and meaning of the King and his Parliament any essential part of his Legal Supreme Headship to have a Personal Supremacy either independant of the Estates of the Realm or which might be administred otherwise than in the Course setled by Law i. e. by proper Officers appointed thereunto either by express Act of Parliament or the Original Constitution of the Government or both The Body of the Act prohibits Appeals to the See of Rome and enacts That in such Cases where heretofore any of the King's Subjects and Resiants have used to pursue c. any Appeal to the See of Rome and in all other cases of Appeals in and for the Causes aforesaid they may and shall from henceforth take have and use their Appeals within this Realm and not elsewhere in manner and form as hereafter ensueth and not otherwise that is to say First From the Arch-deacon or his Official if the Matter or Cause be there begun to the Bishop Diocesan of the said See if in any case the Parties be aggrieved And in like wise if it be commenced before the Bishop Diocesan or his Commissary from the Bishop Diocesan or his Commissary within fifteen days next ensuing the Judgment or Sentence thereof there given to the Archbishop of the Province of Canterbury if it be within his Province and if it be within the Province of York then to the Archbishop of York and so likewise to all other Archbishops within the King's Dominions c. there to be Definitively and Finally ordered decreed and adjudged according to Justice without any other appellation or provocation to any Person or Persons Court or Courts By the next Clause Matters or Contentions to be commenced before the Archdeacon of any Bishop or his Commissary are appointed in case either Party be aggrieved to be brought by Appeal to the Court of Arches or Audience of the same Archbishop of the Province there to be Definitively and Finally determined The next Clause appoints that Causes to be commenced before any of the Archbishops shall before the same Archbishop be definitively determined saving always the Prerogative of the Archbishop and Church of Canterbury in all the aforesaid Causes of Appeals in such and like wise as they have been accustomed and used heretofore Then it is Enacted that Causes touching the King his Heirs and Successors shall be finally decreed by the Prelates Abbots and Priors of the Vpper House of Convocation Hitherto no Appeal lay to the King in Person or in Chancery You have heard already that originally the ultimate Appeal in Ecclesiastical and Temporal Matters was to one and the same Tribunal Afterwards the See of Rome gained Appeals by Usurpation and Connivance Now they are lodged in the Diocesan the Archbishop and Vpper House of Convocation and their Sentences respectively are appointed to be final and definitive And therefore neither the Clergy in their Submission wherein they Recogniz'd the King to be the Supreme Head of the English Church V. Burnet's Collect. ad Vol. 1. p. 128 129. nor this Parliament who had been inform'd by Old Authentick Histories and Chronicles that the Spiritualty and Laity of this Realm are governed by One Supreme Head and King did so much as imagine that by vertue of that Office or Title the Supreme Cognisance of Appeals belonged to him personally If Appeals to the King in Person or in Chancery or Commissions of Review had then been dreamt of there needed not another Act in the Year ensuing to take off the odium of these definitive Sentences from the Archbishops It is the Stat. of 25. H. 8. cap. 19. Wherein it is Enacted That for lack of Justice at or in any of the Courts of the Archbishops of this Realm or in any of the King's Dominions it shall be lawful to the parties grieved to Appeal to the King's Majesty in the King's Court of Chancery And that upon every such Appeal a Commission shall be directed under the Great Seal to such persons as shall be named by the King's Highness his Heirs or Successors like as in case of Appeals from the Admiral 's Court to hear and Definitively to determine such Appeals By a subsequent Clause Appeals from the Jurisdiction of any Abbots Priors or other Heads and Governours of Monasteries c. and places exempt c. shall be made immediately to his Majesty into the Court of Chancery which Appeals so made shall be Definitively determined by Authority of the King's Commission It looks like a blemish to the Notion of Supreme Head in the modern acceptation of the Word to have the final Judgment in Causes Ecclesiastical referr'd by the Parliament to the Bishops Archbishops or to Commissioners appointed by vertue of an Act of Parliament c. and yet the Parliament in 25 Hen. 5. cap. 21. takes Notice of and allows the Clergy's Recognition nor was it till many Years after to wit the 39 of Eliz. that the Lawyers found out a way to make these Acts consistent with their imaginary personal Supreme Headship and that was by introducing Commissions of Review Which they tell us the King after such a definitive sentence may grant as Supreme Head Ad revidendum 4 Instit p. 341. Where two reasons are given for it First For that it is not restrained by the Act which seems to be a mistake For it is restrain'd by the Act as much as it was capable of being restrain'd and that by these words viz. that such Judgment and Sentence as the said Commissioners shall make and decree in and upon such Appeals shall be good and effectual and also definitive How could Commissions of Review be restrain'd more expresly than by these words They are not nam'd indeed and good reason why viz. because there never had been any such things in our Law before For he that will apply to this Case that common Rule of Law viz. that where the King is not named in a Statute he is not intended to be bound by it must prove that Appeals lay to the King in Person or in Chancery before these Acts were made And then perhaps I may yield that such Commissions of Review are not hereby restrained How comes it to pass V. Cr. Car. 40 Jones Rep. p. 147. Duke's Law of Char. Uses p. 62. Windsor and Hilton's Case that the Chancellor's Decree upon Complaint of a person aggrieved by a Decree of the Commissioners of Charitable Vses is final upon which no Bill of Review is to be allow'd Why because the Statute of 43 Eliz. cap. 4. gives an Appeal to him
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
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
for Sees of Bishops Suffragans And gives the King Power and Authority to give to one of two Persons to be presented to him by any Archbishop or Bishop the Stile Title and Name of a Bishop of such a See c. provides for the Consecration of such Bishops limits what Authority they shall have in the Diocess c. Hence I infer that the Parliament had its share in the Government of the Church The Letters Patents made pursuant to this Act conclude Vigore Statuti in ejusmodi casu editi provisi Dr. Burnet Coll. of Rec. ad Vol. 1. p. 130. notwithstanding the Restitution of the Supremacy and the King could not as SUPREME HEAD without this Act of Parliament appoint the number of Suffragan Bishops or give limit or bound their Power and Authority In the Twenty eighth Year of this King it was enacted That all Archbishops and Bishops of this Realm or of any the Kings Dominions consecrated and at this present Parliament taken and reputed for Archbishops and Bishops may by the Authority of this present Parliament and not by Vertue of any Provision or other Foreign Authority Licence Faculty or Dispensation keep enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner as if they had been promoted elected confirmed and consecrated according to the due Course of the Laws of this Realm And that every Archbishop and Bishop of this Realm and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Archbishop or Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging Here the Parliament impowers the Archbishops and Bishops that then were to use and exercise their Offices and Orders not by Virtue of any Foreign Authority but by Authority of this present Parliament This the King could not have done without consent of Parliament because he could not dispense with the Statutes of Praemunire and Provisors as has been said already and as appears by a notable Act in the Twenty fifth Year of this King's Reign Burnett's Collect. of Records ad Vol. 1. pag. 121 122 123. concerning the Deprivation of the Bishops of Salisbury and Worcester The Act recites That where by the laudable Laws and Provisions of this Realm it had been established that no Person or Persons of of what Degree Estate or Quality should take or receive within this Realm of England to Farm by any Procuracy Writ Letter of Attorney Administration by Indenture or by any other Mean any Benefice or other Promotion within this Realm of any Person or Persons but only of the King 's true and lawful Subjects being born under the King's Dominions And also that no Person or Persons of what Estate and Degree soever by reason of any such Farm Procuracy Letter of Attorney Administration Indenture or by any other Mean should c. Notwithstanding which said wholsom Laws Statutes and Provisions the King's Highness being a Prince of great Benignity and Liberality having no Knowledge or due Information or Instruction of the same Laws Statutes and Provisions hath heretofore nominated and preferred and promoted Laurence Compegius Bishop of Sarum with all the Spiritual and Temporal Possessions c. belonging to the same And hath also nominated preferred and promoted Hierome being another Stranger to the See of Worcester c. Be it enacted by Authority of this present Parliament That the said two several Sees of Salisbury and Worcester shall be taken reputed and accounted in Law void c. Here we see the King was not allowed to act contrary to Acts of Parliament concerning Ecclesiastical Matters We see Bishops depriv'd by Act of Parliament and by the Act of 28 H. 8. cap. 16. other Bishops and Archbishops who in strictness of Law were no Bishops of those Sees by reason of their foreign Provisions quieted in the injoyment of their Bishopricks and authoriz'd to exercise their Episcopal Function there by Act of Parliament though it is not to be doubted but if the Rolls of those times were searcht Dispensations formerly granted to those Bishops would be found amongst them But they stood them in no stead because contrary to the Laws Statutes and Provisions aforesaid So that here the King and Parliament acknowledging that the King had no knowledge or due Information or Instruction of the said Statutes which is a modest and respectful way of expressing the King's doing an illegal thing what else can we infer than that they disown and he disclaims any personal Prerogative inherent in himself to violate those and consequently other Laws concerning Ecclesiastical Affairs Which shews both that the King's Supremacy was not accounted any such unbounded Power as some fancy and that the Parliament retain'd its share in the Jurisdiction over Ecclesiastical Persons and Things notwithstanding the restitution recognition or call it what you will of the Supremacy I pass by the Act of 31 H. 8. c. 14. whereby certain Opinions then accounted Heresie and Marriage of Priests are brought within the compass of Treason and Felony for that the inflicting of such Punishments for what Crimes or pretended Crimes soever is an Act of Civil not of Spiritual or Ecclesiastical Jurisdiction and come to the Act of 32 H. 8. cap. 26. which laid the top stone of King Henry the Eighths Supremacy and mounted it one story higher than ever it was carried before or since It was thereby enacted that All Decrees and Ordinances which according to God's Word and Christ's Gospel by the Kings Advice and Confirmation by his Letters Patents shall be made and ordained by the Archhishops Bishops and Doctors appointed or to be appointed by his Royal Majesty or else by the whole Clergy of England nota benè in and upon the matter of Christian Religion and Christian Faith and the lawful Rites Ceremonies and Observations of the same shall be in every point thereof believed obeyed and performed to all intents and purposes upon the pains therein comprised Here Matters of Doctrin and Worship are given up to the King's determination and appointment But he was to determine by such Advice as was appointed by the Act. And this Power was personal died with him and was never pretended to by any of his Successors It was given him by Parliament who could not have given it him if they had not had it themselves for there was no Act of Convocation in the case He had it not before for then there would have been no need of the Act. It is greater to give than to receive They give it him with a restriction that affords a good Argument against a pretended power in the King of dispensing with all Acts of Parliament concerning matters of Religion viz. Provided that nothing shall be ordained or defined which shall be repugnant to the Laws and Statutes of the Realm It seems the Parliament at that time was so far from apprehending any power lodged in the King either by vertue
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
little or none Effect or Force Therefore it is ordained and enacted by Authority of this present Parliament That all and singular Persons as well Lay as those that be Married being Doctors of the Civil Law c. The enacting of a thing by Parliament to silence all Doubts to give credit to the Proceedings of such Lay-men as then did actually exercise Ecclesiastical Jurisdiction by Commission or otherwise shews sufficiently that even in Matters never so Spiritual the Act of King Lords and Commons carryed a greater Authority than any Commission Dispensation or other Act whatsoever proceeding from the King solely and that at a time when the Supremacy was at the height There were many other Acts passed in this Kings Reign concerning Church men and Matters confessedly of Ecclesiastical Conusance as 21 Hen. 8. cap. 5. concerning Probates of Wills. Cap. 6. Concerning Mortuaries taken by Priests and others Cap. 13. Against Pluralities of Benefices and taking of Farms by Spiritual Men. 23 Hen. 8. Cap. 1. Abridging the Power of Ordinaries and taking away the Benefit of Clergy in some Cases Cap. 9. That no Man be cited into any Ecclesiastical Court out of the Diocess wherein he dwells unless in certain Cases Cap. 10. Concerning Feoffments and Assurances to the use of any Church or Chappel 25 Hen. 8. Cap. 14. For the punishment of Heresie and Hereticks limiting the manner of proceeding against them defining what shall be Heresie how it shall be punisht and abridging the Authority of the Bishops and the Canon Law. Cap. 16. Concerning Pluralities 26 Hen. 8. Cap. 3. For the payment of the First Fruits of all Dignities Benefices Promotions Spiritual and Tenths to the King and his Heirs abolishing the Pope's Usurpation and Authority herein Cap. 13. For abolishing the Priviledge of Sanctuary in Cases of High Treason Cap. 15. Against some Exactions of Spiritual Men within the Archdeaconry of Richmond 27 Hen. 8. Cap. 8. That the King 's Spiritual Subjects shall pay no Tenths whilst they are in their First Fruits Cap. 19. Limiting Sanctuaries and Sanctuary Persons Cap. 20. Concerning the Payment of Tythes within the City and Suburbs of London Cap. 28. For the suppressing of Monasteries Priories and Religious Houses vesting their Revenues in the King and erecting a Court of Augmentations 28 Hen. 8. Cap. 10. For extinguishing the Authority of the Bishop of Rome prescribing an Oath of Abjuration of it and Popery together with the Pope's Usurpations and excellently setting forth the King's Supremacy and Parliaments Authority in Matters Ecclesiastical Cap. 11. For the Restitution of the Profits arising during the Vacation of a Benefice to the next Incumbent Cap. 13. Compelling Spiritual Persons to reside upon their Livings Cap. 16. Releasing such as had obtain'd pretended Licences and Dispensations from the See of Rome 31 Hen. 8. Cap. 16. Enabling such as were Religious Persons to purchase Lands to sue and to be sued in all manner of Actions which they were disabled formerly to do by the Common and Canon Law. Cap. 9. Enabling the King to make Bishops by his Letters Patents and to erect new Bishopricks which he did Cap. 13. For dissolving all Monasteries and Religious Houses and vesting them in the King. Cap. 14. For abolishing diversity of Opinions in Matters of Religion most fully and exactly demonstrating the Parliaments Jurisdiction in Matters of Religion 32 Hen. 8. Cap. 7. For the true Payment of Tythes and Offerings Cap. 10. For the Punishment of incontinent Priests and Women offending with them Cap. 12. Concerning Sanctuaries and the Priviledges of Churches and Church-Yards Cap. 15. Prescribing the manner of proceeding against Hereticks and impugners of the Act for abolishing of enormous Opinions in Christians Religion Cap. 25. Dispensing with the Marriage between the King and the Lady Ann of Cleve 33 Hen. 8. Cap. 29. For enabling Religious Persons to sue and be sued Cap. 31. Severing the Bishopricks of Chester and the Isle of Man from the Jurisdiction of the Archbishop of Canterbury and uniting them to the Province and Archbishoprick of York Cap. 32. Making the Church of Whitegate a Parish Church by it self and severing it from the Parish of Over All these Acts and perhaps some few not here enumerated evince beyond all possibility of contradiction that the whole Fabrick of the English Church both as to the Doctrin Discipline Ceremonies Censures Rights Jurisdictions Endowments Priviledges c. was from time to time ordered moulded governed altered improved or impaired by Authority of Parliament and not by the King in right of his meer Supremacy nor by the Clergy upon the score of any pretended Authority derived from from Christ or from the King as SUPREME HEAD on Earth That no one Pin was fastned in this Tabernacle but according to what the Legislative Body of the Kingdom prescribed and directed from time to time That this Age had no other Notion of the King's Supremacy by common right than our Fore-Fathers had before the Pope and his Faction grew upon our Constitution That many Powers and Authorities given to King Henry the Eighth by Parliament which are now either abrogated or expired as they shew that our King 's were not nor are entituled to them of common Right nor can justifie the executing any such Authority by Presidents in his Reign which were grounded upon Laws then in being but which are now of no force so they shew unquestionably that there is a greater and more Soveraign Supremacy in Matters Spiritual and Ecclesiastical in the King and both Houses of Parliament than is lodged in the King himself or in the King and Convocation It appears farther that those Temporary Powers given to that King expiring with him and the Act of 26 Hen. 8. Cap. 1. being now Repeal'd the Legal and Ancient Jurisdiction of the Crown in Matters Ecclesiastical is the same now that it was Five hundred Years ago notwithstanding any thing that pass'd in this Reign only that a new Course is now settled and that by Act of Parliament too for the Electing of Bishops and Prosecuting of Appeals Only one Thing more I shall add viz. That in Matters Spiritual as well as Temporal several Resolutions of the Judges being grounded on Temporary Acts of Parliament then in being following Judges both Ecclesiastical and Civil meeting with such Resolutions and not considering that those Acts upon which such Resolutions were made were but Temporary or Repeal'd they have made such Judgments to be Presidents to graft their Modern Opinions upon FINIS An Answer to CHAP. 4. SECT 1. Of a late BOOK Entituled the King 's Visitatorial Power Asserted By way of APPENDIX SInce the foregoing Papers were Written a late Mercenary Writer One Nathaniel Johnson Doctor in Physick has publish'd a Book Entituled The King 's Visitatorial Power Asserted in which Book he has inserted a long Section how pertinently to his main design in that Treatise may perhaps be shewn hereafter concerning the King's Supremacy and Power in Ecclesiastical Causes and
Visitations page 144. c. to page 160. In which Section because he pretends to set up an imaginary Personal Supremacy quite different from what I have endeavoured to assert from some Remarks upon Ancient Histories and late Acts of Parliament but agreeable enough with some Opinions that have been espous'd of late and made use of to warrant some late Proceedings I thought it might not be amiss to trace him through that Section and submit to the Judgment of the Unprejudiced Reader whether the Doctor has afforded the World a right Scheme of the King 's Ecclesiastical Supremacy I beg the Reader 's Pardon if he meet with some few passages over again here that were touch'd upon in the foregoing Discourse I hope their usefulness will excuse the repetition of them and the Answer would not have been so clear without it He tells us pag. 144. that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Bulls and Breves of the Apostolick See to be executed here without their Allowance Which I agree to be very true only the Doctor saying without their Allowance implies and it appears by the whole drift of his Discourse in this Chapter and indeed by the main Scope of his Book that he would be understood that With their Allowance such Canons and Constitutions Bulls and Breves might lawfully be Executed Which I deny And hope to make it evident that Our Kings could not by their own Personal Authority let in upon their Subjects a foreign Jurisdiction He adds pag. 145. that since the Supremacy has been Established by Act of Parliament in the Crown The Kings of England may according to the Laws in force not only Exercise all the Powers they could What Powers those are no Man knows but Filmer Brady Johnson Hicks Sir. Roger L'Estrange and a very few others of yesterday as Sovereign Princes but likewise whatever the Pope de jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently that whatsoever was done in Visitations by the Authority of the Popes Metropolitans or Diocesan Bishops may now be done by the Kings of England as Supreme Ordinaries Which is a very wild Assertion and without the least Foundation of Truth He does not here speak it out roundly That the King may by the Law do whatever the Pope de facto did but minces the matter a little by saying Whatever the Pope de jure if not de facto could or did do And yet with the same breath he says positively that whatever was done in Visitations by Authority of the Pope may now be done by the King. So that however the King may be limited and tyed up in other Parts of his Ecclesiastical Jurisdiction to what the Popes de jure could do in Visitations at least he has Authority to do whatever the Popes Archbishops or Bishops actually did The Doctor did not consider that the several Branches of the Supremacy now restored by Act of Parliament are guided directed and limited by positive and particular Laws made about the time of the Reformation And that the Act of primo Elizabeth in that general Clause which Restores the Supremacy Vnites and Annexes only such Jurisdiction and Authority as had or might be lawfully Exercised by any Spiritual Person c. Not that the Pope to speak strictly could Exercise any Jurisdiction lawfully within this Realm for the Old Laws and Customs of the Realm and the Statutes of Premunire and Provisors were firm Bars to his Right but a Jurisdiction may be lawful in it self that is for so I would be understood the Acts of a Person Assuming Jurisdiction may be lawful in themselves considered separate and a-part from the Person of him that Exerts it though the Person Exercising such Jurisdiction have no legal Authority If an Usurper should possess himself of any Government and carry on the Administration of it in the same Method and Course of Justice that the Lawful Prince did or ought to do in strictness of Law there might perhaps be a Nullity in all his Acts and yet considered Abstracted from his Person his Government would be said to be lawful that is according to Law and the course of Proceedings that had been setled and obtained before his Usurpation So whatever the Pope did in this Nation as pretending to be Head of the English Church which was not in it self contrary to the Law of the Realm in Church or State but might lawfully be done though not by him is by the said Act of primo Elizabeth Vnited and Annexed to what Why to the Imperial Crown of this Realm Whereas by the Act of Supremacy that passed in King Henry the Eighths time All such Jurisdiction Authority c. was personally vested in the King his Heirs and Successors But of that distinction more shall be said God willing some other time Pursuant to this imagination of the Pope's Power being Translated to the King he tells us that latter Laws have devolved upon the King even the Power of the Pope in foro externo pag. 145. He says pag. 145 146. that during the Schism in the Papacy between Vrban and Clement King William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere And that none should be received as Pope in England without his Licence and Election Here if I understand the Doctor aright he takes for granted that if there should happen a Schism in the Popedom the King might declare whether or which of the Competitors himself thought fit to be Pope within this Realm Which I deny that he could do without the Assent of the Clergy and Laity in a General Assembly He says pag. 145. that if the Archbishop of Canterbury called and presided in a General Council of Bishops King William allowed nothing to be appointed or forbidden unless they were accommodated to his Will and were first ordained by him These are the Words of Eadmerus out of whom the Doctor Quotes them Eadm Lib. 1. Fol. 6. But if the Doctor would here insinuate as he does and consonantly to his own Hypothesis must mean that the King's Will concurring with the Assent of a General Council of Bishops could make an Ecclesiastical Law to bind the whole Kingdom without the Assent of the Laity that is what I deny and hope to make it very clear in the following Discourse Whereas he says pag. 145. out of the same Author Eadmerus that King William suffered not any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precept I hope it will appear that this was not an Arbitrary Power assumed by the King but that the Law of the Realm was so He says pag. 146 147. that the Oath of Fidelity which Anselme had taken to King William Rufus was no ways like the present Oath of Supremacy He says pag. 148 149. As to the legantine Power it is apparent by
a tresmale ensample Nostre Seignor le Roy fist monstre ses dites Letters as Prelates Seignors auters Grand Sages de son Royalme esteant a dit Parlement Et vewes entendus les Letters avant dits Et ewe molt deliberation sur la matter estoit per Les dits Prelates pronunciez publiez per plusors grands notables reasons illeoques monstrez en plein Parlement cy bien per matter trove en les dites Letters que autrement que le dit Vrban etoit duement esleu en Pape que ensy est doit etre veroy Pape luy come Pape Chef de Saint Esglise â—â—on doit accepter obeyir Et a ceo faire s'accordent touts les Prelates Seignors Commens en la Parlement avant dit c. Stat. 2 Rich. 2. cap. 7. Here the Whole Parliament heard the Reasons debated and after a full Hearing agreed to admit Vrban Now whereas the Government as to the Essential parts of it was in King William the Conqueror's Time the same that it is now saving some Inroads that have since been made by the Prerogative And whereas in times subsequent to his the King in Parliament determined who should be received as Pope and who not And since there is nothing more common with the Monks than to mention things as done by Our Kings which were either Judicial Acts of their Courts or done by them in their Great Councils and consequently were Acts of Parliament of which some Instances will be given hereafter in this Discourse upon what Grounds can any rational Man conceive otherwise than that the Constitution afore-mentioned to be made by King William the Conqueror was a Law or an Act of Parliament made in his Time And that his Commanding who should be owned as Pope within his Dominions was to be a Command by him in Parliament since the Law in his Time was such That the King was to do all publick things no otherwise than per Judicium Consilium Procerum Regni The Second Complaint of Eadmerus is That None should receive the Pope's Letters unless they were first shewed to him By which if Letters of Provision only are meant I shall have occasion to speak further of them hereafter If all Provisions and Process from Rome be meant then was not this introduced by King William for that the bringing in of Bulls Citations Exemptions Faculties Dispensations Provisions c. from Rome was in those Days and antecedent to this Constitution contrary to Law and in Derogation of the Rights of the Crown and the Liberties of the People Nor could the shewing them to the King and his Personal Approbation or Allowance give them any Legal Authority within this Kingdom and consequently the Concurrence of the Great Council must be here understood though not expressed by the Monk. The Third is That If the Archbishop of Canterbury called and presided in a General Synod of the Bishops he allowed nothing to be Appointed or Forbidden unless they were accommodated to his Will and were first Ordain'd by him Which is such another Law as that of the Twenty fifth of King Henry the Eighth cap. 19. That the Clergy shall not presume to Attempt Alledge Claim or put in Vre any Constitutions or Ordinances Provincial or Synodal or any other Canons nor Enact Promulge or Execute any such Canons c. in their Convocations c. without the King's Assent This Law of King Henry the Eighth was not Introductory of a new Law for there the King 's Humble and Obedient Subjects of the Clergy of this Realm of England acknowledged According to Truth that the Convocations of the same Clergy are always have been and ought to be Assembled by the King 's Writ And that their Promise in verbo sacerdotii that from thenceforth they would not presume to Attempt Allege Claim or put in Vre Enact Promulge or Execute any New Canons Constitutions c. unless the King 's most Royal Assent and Licence may to them be had c. was but in Affirmance of the Old Law of the Realm even before King William the Conqueror's Reign appears abundantly by Sir Henry Spelman's Councils where I think no Ecclesiastical Laws appear to have been made without the King's Assent before the Conquest nor for some Reigns after His Fourth Complaint is That He would not suffer any of his Barons or Officers to Vndergo any Ecclesiastical Censure but by his Precept This was afterwards One of the Laws of Clarendon Vid. Decem Script pag. 1387. Matth. Par 100. And the reason of it given by Radulphus de Diceto is Ne Rex ignorantiâ lapsus Communicet Excommunicato Decem Scriptor pag. 596. This Mr. Selden calls a Law first made by King William the First Titl of Honor pag. 583. The Doctor pag. 145 146 147. relates the Controversie betwixt King William Rufus and Anselm in such a manner as If the Episcopi Abbates Principes Regni had had no more to do in it than to carry Messages betwixt him and the King. Whereas upon Anselm's desiring to go and fetch his Pall from Pope Vrban whom the Nation had not then received for Pope When the King told him that he could not keep the Faith which he owed to him Simul obedientiam Apostolicae se dis contra suam voluntatem Anselmus petivit inducias ad istius rei examinationem quatenus Episcopis Abbatibus Cunctisque Regni Principibus unà coeuntibus commun-Assensu definiretur utrum salvâ reverentiâ obedientiâ sedis Apostolicae posset fidem terreno Regi servare annon For Anselm whilst he was Abbot of Bec in Normandy had submitted to Vrban as Pope and as he told the Parliament afterward had professed as much when the King and they chose him Archbishop This Question betwixt the King and Himself he desired the Parliament might decide Dantur ergo Induciae atque ex Regiâ sanctione fermè totius Regni Nobilitas quinto Idus Martii pro ventilatione illius causae in unum apud Rochingham coit And the Matter was discussed and debated before them Vid. Eadmer pag. 25 26 27 28 29 c. The Doctor tells us pag. 146. that When in the same King's Reign the Archbishop was Sollicitous to have leave to go to Rome and Visit the Successor of St. Peter for the being better Instructed in the Government of the Church he received Answer from the King That if he went he should for certain know that he would seize his whole Archbishoprick into his Hands nor would he receive him for Archbishop any more like as now the Writ Ne Exeat Regnum is used with a Penalty specified Notwithstanding which the Archbishop went beyond Sea and the King was as good as his Word This the Doctor says may be a document to some not obstinately to oppose their Prince But now if by the Law of the Land no Archbishop Bishop or other Great Man might depart the Realm without the King's leave then did
in Councils of the Clergy of their Kingdom though the Pope's Legates were present and Quotes Spelman's Councils pag. 292 293. Out of which Book it will not be amiss to give an Account of that Assembly which the Doctor in this place calls a Council of the Clergy Anno Gratiae 787 Concilium Calchythense Legatinum Pananglicum a Gregorio Ostiensi Theophylacto Tudentino Episcopis Legatis Hadriani Papae Calchythae celebratum est In quo decernitur de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus Et de Conferendâ parte Archiepiscopatûs Cantuariae ad Ecclesiam Litchfeldensem jam in Archiepiscopatum promovendam Habebatur in duabus Sessionibus says Sir Henry Spelman rectiùs fortè concilia dicendis quarum prima fuit in regno Northanhymbrorum coram Alfwoldo illic Rege Magnatibus suis Praesidente è Legatis Gregorio Ostiensi Episcopo Secunda Sessio in Regno Merciorum fuit coram Offâ Rege ibidem suis Magnatibus Praesidente etià m in eâdem Gregorio ipso Ostiensi So that here appears the Doctor 's First mistake in saying that the Kings presided though the Legates were present I confess our Kings frequently did preside in Ecclesiastical Assemblies nor was the Grandeur of Popes arrived in those Days to such an Extravagant pitch as to Usurp Precedency before Kings and Emperors But I observe this to shew the Doctor 's carelesness in his Quotations not to argue any Inferiority of the Kings Persons by reason of their not presiding when they were Present For we find Instances of Archbishops of Canterbury presiding though the Kings were Present The Doctor 's Second mistake is in calling this an Assembly of the Clergy For though this Council was Assembled for Ecclesiastical Matters nor do we find any Temporal Laws made or Temporal Affairs transacted in it saving that in the Twelfth Chapter it is decreed what sort of Persons shall be chosen to be Kings and by whom yet were all Persons present that in those Days constituted the General Legislative Assemblies of the Nation which in latter Ages we have Christned by the Name of Parliaments And this appears by the Letter which one of the Legates wrote to the Pope giving him an account of the Success of their Mission Pervenimus ad aulam Offae Regis Merciorum at ille cum iugenti gaudio ob Reverentiam Beati Petri vestri Apostolatûs honore suscepit tam nos quà m sacros apices à summâ sede delatos Tunc convenerunt in unum Concilium Offa Rex Merciorum Chinulphus Rex West-Saxonum cui etià m tradidimus vestra Syngrammata Sancta Ac illi continuò promiserunt se de his vitiis corrigendos Tunc inito concilio cum praedictis Regibus Pontificibus Senioribus terrae perpendentes quod angulus ille longè latèque protenditur permisimus Theophylactum Venerabilem Episcopum Regem Merciorum Britanniae partes adire Ego autem assumpto mecum Adjutore quem filius vester Excellentissimus Rex Carolus ob reverentiam Vestri Apostolatûs nobiscum misit Virum probatae fidei Wighodum Abbatem Presbyterum perrexi in regionem Northanhymbrorum ad Oswaldum Regem Archiepiscopum Sanctae Ecclesiae Eboracae Civitatis Eanbaldum Sed quia praefatus Rex longè in Borealibus commorabatur misit jam dictus Archiepiscopus missos suos ad Regem qui continuò omni gaudio Statuit diem concilii Note here the manner of receiving Foreign Canons in those days Ad quem Convenerunt Omnes Principes Regionis tam Ecclesiastici quà m Saeculares And a little after Qui omni Humilitatis Subjectione clarâ voluntate tam admonitionem Vestram quà m parvitatem nostram amplexantes sposponderunt se in omnibus obedire Then follow the Canons themselves And afterwards these Words VIZ. Haec decreta Beatissime Pater Adriane in Concilio publico coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus regionis seu Senatoribus Ducibus Populo terrae proposuimus illi c. se in omnibus custodire decreverunt signo crucis in vice vestrâ in manu nostrâ confirmaverunt Then follow the Witnesses Names of whom part are Secular part Ecclesiastical Persons And afterwards His peractis perreximus Assumptis nobiscum Viris illustribus Legatis Regis Archiepiscopi c. qui unà nobiscum pergentes ipsa decreta secum deferentes in Concilium Merciorum ubi Gloriosus Rex Offa cum Senatoribus terrae unà cum Archiepiscopo Janbrichto sanctae Ecclesiae Dorovernensis caeteris Episcopis regionum convenerat in Conspectu Concilii Clarâ voce singula Capitula perlecta sunt tam Latinè quà m Teutonicè quo omnes intelligere possent dilucidè reserata qui omnes consonâ voce alacri animo gratias referentes promiserunt se in omnibus haec Statuta custodire In this Convention the Canons of the six first General Councils were received And several Constitutions made for the Government of the English Church All which were Assented to by the Clergy and the Laity of these two Kingdoms of the Heptarchy And by Vertue of that Assent became incorporated into the Municipal Laws of those Kingdoms So that though this and many other such Councils as this was shew abundantly the King of England's Supremacy in Ecclesiastical Affairs in opposition to a Foreign Power yet no Argument can be drawn from hence to prove any other or greater power in Ecclesiastical Matters to be lodged in the King than he has in Temporals The Supreme Power in both being in the King in conjunction with his Great Council or Parliament but not in him separate and apart from them Another Example produced by the Doctor of our Kings having presided in a Council of the Clergy though the Pope's Legates were present is out of Sir Henry Spelman's Counc pag. 189. But in this he has as bad luck as in the former for as in the former the Kings did not preside but one of the Legates so in this the King indeed presided but no Legate appears by the Book to have been present And the Acts of the Council begin thus VIZ. In Nomine Domini Dei Nostri Salvatoris Jesu Christi Congregatum est Magnum Concilium in loco qui vocatur Becancelde Praesidente in eodem Concilio Withredo Clementissimo Rege Cantuariorum nec non Bertualdo Reverendissimo Archiepiscopo Britanniae simulque Tobiâ Episcopo Roffensis Ecclesiae caeterisque Abbatibus Abbatissis Presbyteris Diaconibus Ducibus Satrapis in unum glomeratis paritèr tractantes anxiè examinantes de statu Ecclesiarum Dei c. Here the King presides in a General Council of his own People or in a Parliament assembled for Matters concerning the State and Government of the Church And what use the Doctor can make of all this I know not The Charter of King William the Conqueror whereby he severed the Ecclesiastical Courts from the Temporal and which the Doctor
would have us believe was an Act of the King 's Personal Authority in Ecclesiastical Affairs was a Parliamentary Charter or an Act of Parliament Willielmus Dei gratiâ c. Sciatis c. quod leges Episcopales quae non benè nec secundum sanctorum Canonum praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Procerum Regni mei emendandas Judicavi Propterea mando praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneat c. This Mr. Selden understood to be an Act of Parliament for having given an account of his Diaploma to Battle-Abbey and recited it at length in his Notes Specilegium ad Eadmerum p. 165 166. which was granted Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Concilio etiam Episcoporum Baronum meorum says he id genus etiam est sancitum ejus quo Sacrum à Civili discriminavit Forum The same Author speaking in another of his Works of King William the Conquerour's bringing the Possessions of the Church under Military Service of which though Roger Wendover out of whom Matthew Paris took the Relation says that Episcopatus Abbathias omnes quae Baronias tenebant in purâ perpetuâ Eleemosynâ eatenus ab omni servitute Seculari Libertatem habuerant sub servitute statuit Militari irrotulans singulos Episcopatus Abbathias pro Voluntate suâ quot milites sibi successoribus suis hostilitatis tempore voluit à singulis exhiberi Yet says Mr. Selden how it is likely he brought them to this kind of Tenure may be conjectured by other circumstances of the stories of the the same time And observe especially That he held a Parliament the same Year so that perhaps this Innovation of their Tenures was done by an Act of that Parliament Seld. Titles of Honour p. 578. Which I mention only to shew that things said to have been done by the Conquerour and especially Laws and Constitutions mention'd to have been made by Him must not presently be suppos'd to have proceeded from his own single personal Authority but to have been made More Anglico cum assensu Ordinum Regni as has been even now observed out of Mr. Selden What follows in the Doctor p. 156 157 concerning the King 's Temporal Courts being Judges whether a Cause belonged to the Jurisdiction of the Temporal or Ecclesiastical Courts is very true And so is the Account that he gives of King William the First his settling many particulars to belong to the Jurisdiction of the Ecclesiastical Judges in a Council at Illibon in Normandy Anno 1080. But it is an inveterate Error of the Doctor 's to confound the King 's personal Authority with his Authority in his Courts and his Authority in and with the Assent of his Great Councils or Parliaments That Councel of Illebon mention'd by the Doctor is related by Ordericus Vitalis in this manner viz. Anno ab Incarnatione Domini MLXXX Rex Gulielmus in festo Pentecostes apud Illebonam resedit ibique Gulielmum Archiepiscopum omnes Episcopos Abbates Comitesque cum aliis Proceribus Normanniae simul adesse praecepit Vt Rex jussit factum est Igitur Octavo Anno Papatus Domini Gregorii Papae septimi Concilium apud Jullam bonam celebratum est de statu Ecclesiae Dei totiusque Regni providentiâ Regis cum Baronum suorum consilio utiliter tractatum est And then follow the Canons all being concerning matters Ecclesiastical Now what use the Doctor makes of this Paragraph I know not For the Jurisdiction of the King in his Courts where the Law of the Land is the Judges rule to restrain All Inferiour Courts within their proper bounds no man denies And the King's Authority to limit erect and appoint Consilio Baronum suorum And unà cum Episcopis Comitibus Proceribus Regni sui what Causes shall belong to the cognisance of Ecclesiastical Judges and what not no man that is a Protestant questions How many Acts of Parliament in every Age might be reckon'd of this nature vid. Stat. de Circumspecte agatis temp Edwardi 1. Stat. de Articulis Cleri tempore Edward 2. Statutum pro Clero tempore Edw. 3. and innumerable others Then the Doctor refers his Readers for farther satisfaction how far the Kings of England have exercised Jurisdiction in Ecclesiastical matters to Sir Roger Twiselen pag. 108 109 c. who instanceth in eighteen particulars I will not stand with the Dr. for the number but referr him to Mr. Prynn's second Tome of his Chronological Vindication of the King 's Supreme Ecclesiastical Jurisdiction out of the Introduction to which Volume he might have named five and twenty But because he has chosen to quote Sir Roger Twisden's eighteen let us examin those Particulars and Sir Roger's Authorities upon which he grounds them and it will presently appear how far they make for his Hypothesis 1. The first is that they permitted none to be taken for Pope but by the King's appointment For which he quotes Eadmerus pag. 26. But of this matter having spoken already I shall say no more of it in this place The Second is That none were to receive Letters from the Pope without shewing them to the King who caused all words prejudicial to him or his Crown to be renounced For which he quotes Eadmerus pag. 113. In whom are these words in a Letter from Pope Paschal to King Henry the First viz. Sedis eni◠Apostolicae Nuntii vel Literae praeter jussum sum Regiae Majestatis nullam in potestate tuâ susceptionem aut aditum promerentur This was but the Law of England not to be subject to any Foreign Power asserted by a Law in King William the Conquerour's time and afterwards over and over in opposition to Papal Encroachments and Usurpations confirm'd by the Statutes of Praemunire and Provisors and effectually secured by the Laws made at and since the Reformation and particularly by that Remarkable Statute of 14 Henr. 8. cap. 12. concerning Appeals And that the King could not of himself let in a Forein Power upon his People appears sufficiently by what has been said already The two Passages quoted by Sir Roger out of Thorn Collect pag. 2151 2152 and 2194 shew that two Persons to whom the Pope had conferr'd by Provisions the Monastery of St. Austin in Canterbury were enforced before their Admittance to renounce all such words in their Bulls of Provision as were prejudicial to the King and his Crown i.e. to the Laws of the Realm in and over which the King was Supreme Magistrate and Governour After which renunciation made they did fealty to the King and were by the Escheator put into possession of their Temporalties The King might by Law have oppos'd these Provisions but the Monks who had the Right of
out of Parliament endow Bishopricks because they could not distrahere patrimonium Regni And a further Consideration to this purpose may be drawn from the Exemptions which the possessions of the Church enjoy'd from all secular service Except the Trinoda necessitas Which Exemptions were all Granted by Charters Assented to in Parliament as appears undeniably by the several Charters Granted in divers Kings Reigns successively to the Abby of Crowland All inserted in haec verba into Ingulphus his History of that Monastery and by the Monasticon In which it appears further that all Exemptions from Episcopal Jurisdiction Except of the King 's free Chappels which were of his own Foundation were granted in Parliament I mean all such Exemptions granted by our Kings For the Pope used to grant Exemptions by Bulls and those Papal Exemptions were confirm'd by Parliament temp Henr. 8. King William the Conquerour Founded Battle-Abby in Sussex in the place where he overcame Harald and Exempted it from Episcopal Jurisdiction But whether he did it in Parliament or not let the Charter it self testifie viz. Willielmus Dei Gratia Rex Anglorum c. Notum sit Vobis me Concessisse confirmasse cum Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Consilio etiam Episcoporum Baronum meorum ut Ecclesia Sancti Martini de Bello quam Fundavi ex voto ob Victoriam quam mihi Deus in eodem loco concessit libera sit quieta in perpetuum ab omni servitute omnibus quaecunque humana mens excogitare potest c. Nec liceat Episcopo Cicestrensi quamvis in illius Dioecesi sit in Ecclesia illa vel Maneriis ad illam pertinentibus ex consuetudine hospitari contra voluntatem Abbatis nec Ordinationes aliquas facere ibidem nec Abbatiam in aliquo gravare sed neque super illam Dominationem aliquam aut vim aut potestatem exerceat sed sicut mea Dominica Capella libera sit omnino ab omni ejus Exactione c. Hoc etiam Regali Authoritate Episcopolum Baronum meorum Attestatione constituo quatenus Abbas Ecclesiae suae leugae circumjacentis per omnia Judex sit Dominus The Fourteenth Particular is that our Kings have by their Writs commanded Bishops to keep resident Which considering that it was their Duty incumbent on them by Law what great Power does it argue in the King to command his Subjects to do what the Law enjoyns them The Sixteenth is That they have commanded their Bishops by reason of Schism or Vacancy in the Popedom c. not to seek Confirmation from Rome but the Metropolitans to be charged by the King 's Writ to bestow it on the Elected For this Sir Roger quotes Rot. Parl. 16. Mart. 3 Hen. 5. nu 11. Anno Domini 1414. Now that was done by Act of Parliament Which because it is observable to many purposes shall be transcrib'd at large Our Lord the King considering the long Vacancy of the Apostolick See by reason of the damnable Schism which has now continued a long time in Holy Church and is not known how long it may yet last And that certain Cathedral Churches within the Kingdom which are of the Foundation of his Noble Progenitors and belong to his Patronage have been for some while and are yet destitute of Parochial Government because the Persons that are elected into the same cannot be confirmed in Parts beyond the Sea for want of an Apostle Altho' our said Lord the King bath thereunto given his Royal Assent to the Great decrease of Divine Service in the said Churches substraction of Hospitality Great peril of many Souls Devastation and Destruction of the Lordships and Possessions belonging to the same and the Impoverishment of such Bishops Elect And that by possibility all the Cathedral Churches within the Realm may become void in like manner and so be destitute of Government and the King and his Realm of Council Comfort and Aid which they ought to have of the Prelacy And considering also that in divers foreign Parts since the Voidance of the said See divers Confirmations have been and are daily made by the Metropolitans of the places as he is credibly informed and Willing for that cause for ousting the said Mischiefs chiefs to provide such remedy as it behoves By the full and deliberate Advice and Assent of the Lords and Commons of his Realm in this present Parliament Wills and Ordains that the persons so chosen and to be chosen within his Kingdom during the Vacancy of the said See Apostolick shall be comfirmed by the Metropolitans of the Places without Excuse or further delay in that behalf And that the King's Writs if need be be directed to the Metropolitans straitly charging them to make the said Confirmations And to perform all that to their Office belongeth As also to the Bishops Elect that they on their part Effectually prosecute their Confirmations that through default of such Metropolitans or Bishops Elect dammage or prejudice may not ensue to our Lord King and his Kingdom and to his Realm and to the said Churches for the Cause aforesaid which God forbid Here it is plain that what Sir Roger ascribes to the King was really done by the full and deliberate Advice and Assent of the Lords and Commons of his Kingdom in Parliament And therefore that the supreme Jurisdiction in matters Ecclesiastical was not in the notion of that Age Lodg'd personally in the King but in the King by Law in the King with his Parliament about him Pursuant to this President we find in King Henry the Eighth's time a Notable Act in the 28th Year of his Reign cap. 16. In which there is this clause viz. And that it may be also Enacted by Authority of this present Parliament that all Arch bishops and Bishops of this Realm or of any the King's Dominions Consecrated and at this present time taken and reputed for Arch-bishops and Bishops may by Authority of this Present Parliament and not by vertue of any Provision or other Forein Authority Licence Faculty or Dispensation keep enjoy and retain their Arch-bishopricks in as large and ample manner as if they had been promoted Elected and consecrated according to the due course of the Laws of this Realm And that every Arch-bishop and Bishop of this Realm and of other the King's Dominions may minister use and Exercise all and every thing and things pertaining to the Office or Order of an Arch bishop and Bishop with all Tokens Ensigns and Ceremonies thereunto Lawfully belonging This Act in the 2d paragraph had made void all Bulls Dispensations Breves c. obtain'd at Rome contrary to the statutes of Premunire Provisors whereby many Bishopricks would have become void To prevent which the Clause here recited makes them legal Bishops notwithstanding and supplies all the Ceremonies of Election and Consecration Which I suppose no man will take upon him to say that the King might then
have done notwithstanding his Newly restor'd Supremacy Sir Roger's 16th Particular is that Our Kings placed by a Lay hand Clerks in Prebendary or Parochial Churches Ordinariis penitus irrequisitis But if he had considered that Originally all Church livings in England were Donatives And that Presentations to Ordinaries Admissions Institutions and Inductions thereupon obtain'd in England in compliance with the Canons many years after the Conquest he would not have mentioned that as a special prerogative in the King which was but common to him with All his subjects that had been Founders and were Patrons of Benefices Mr Selden tells us in his History of Tythes cap. 12. sect 5. that it was not till about the year MCC that the Decretals and the Encreasing Authority of the Canons had settled the Vniversal course here of filling Churches by Presentation to the Bishop Archdeacon Vicar of the Bishop or Guardian of the Spiritualties and that then the use of Investitures of Churches and tythes severally or together practised by Lay-men was left off And a Division of secular and Ecclesiastical Right from thence been continued in practice And in the same Section pag. 392. he says that whilst the use of Lay-Investitures was in being all Churches so given were properly Donatives For further satisfaction as to that Particular I refer to him Sir Roger's seventeenth Particular is that Our Kings prohibited the Laity from yielding Obedience or answering by Oath to their Ecclesiastical Superior enquiring de peccatis subditorum This take out of the Additaments to Matth. Paris pag. 200. num 9. from whence Sir Roger quotes it Item cum Praelati Ecclesiastici inquirere volunt de peccatis subditorum prohibentur laici ne de veritate dicendâ aut de credulitate aliquod juramentum exponant aut Praelatis super hujusmodi obediant propter quod multorum excessus peccata mortalia incorrecta impunita relinquuntur sic praestatur audacia delinquendi peccandi facultas Now this was no other then protecting the Laity from being impos'd upon by the Oath ex officio And innumerable Authorities might be cited to prove that no kinds nor forms of Oaths can be made or imposed on the King's Subjects nor prescribed to them in any new cases but by Act of Parliament onely And that no Bishop or Subject whatsoever hath any power to make or enjoyn any new Oaths or forms of Oaths nor any Authority to administer an Oath to any Man without some Legal Commission from the King under the Great Seal or some Act of Parliament especially Authorizing him to give or take an Oath unless in Courts of Record or other Courts who have Authority to administer Oaths by Prescription But Anno Dom. 1237. Otho the Pope's Legate in a Council at London made this Constitution touching Oaths in Spiritual Causes in Ecclesiastical Courts till that time not known nor used in England as appears by the words of the Constitution Jusjurandum Calumniae in causis Ecclesiasticis quibuslibet de veritate dicenda in spiritualibus quoque ut Veritas aperiatur facilius causae celerius terminentur statuimus de caetero Praestari in Regno Angliae secundum canonicas Legitimas sanctiones Obtentâ in contrarium Consuetudine Non obstante vid. Matth. Paris 454. A clear resolution that till that time the custom of England and the Law of the Land was to the contrary and that they could not enforce any Man to his Oath in such cases After which Grosthead Bishop of Lincoln Anno 1246. Vpon the suggestion of the Fryers Predicant and Minorites raged more than was meet or Expedient they are the words of Matthew Paris against those of his Diocess making strict inquisition in his Bishoprick by his Arch-deacons and Deans concerning the Chastity and manners as well of noble as ignoble upon Oath to the enormous hurt and scandal of the reputations of many Quod nunquam antea fieri consueverat The King hearing the Grievous Complaints of his people Consilio Curiae suae scripsit Vicecomiti Hertfordiae in haec verba Henricus Dei Gratia Rex Angliae c. Praecipimus tibi quod sicut teipsum omnia tua diligis non permittas quod aliqui laici de Ballivâ tuâ ad voluntatem Episcopi Lincolniensis Achidiaconorum vel Officialium seu Decanorum Ruralium in aliquo loco Conveniant de caetero ad cognitiones per sacramentum eorum vel attestationes aliquas faciendas nisi in causis matrimonialibus Testamentariis Matth. Par. p. 716. And the very next year following in pursuance hereof the King by Parliament Enacted and Commanded That if any Lay-man were convented before any Ecclesiastical Judge for breach of Faith and Perjury that they should be prohibited by the King and that the Ecclesiastical Judge should be prohibited to hold plea for all Causes against Lay-men unless they were of Matrimony and Testament All which Matth. Paris precisely relates pag. 727. Which Prohibition and Statute nullified the Constitution of Otho and put a stop to this his innovation But yet about nine years after Boniface Arch-bishop of Canterbury published this peremptory Constitution in affront to them both Statuimus quod laici ubi de subditorum peccatis excessibus corrigendis per Praelatos Ecclesiasticos judices inquiritur ad praestandum de Veritate dicendâ juramentum per Excommunicationis sententias si opus fuerit Compellantur Impedientes vero ne hujusmodi juramenta praestentur for the Judges with many others then generally oppugned and hindred the ushering in of this Innovation per interdicti excommunicationis sententiam arceantur To evacuate which illegal Constitution trenching both upon the people's Liberties and the Courts of Justice too the Judges frequently Granted out sundry General Prohibitions to all or most of the Sheriffs of England as is evident by the Register of Writs Pars 2. fol. 36.43.50 Fitzherbert's Nat. Brev. fol. 41. A. Auxy home poit suer prohibition direct al Viscount que le Viscount ne permit ne suffer les lay subjects del Roy de vener a ascun lieu al citation del Evesque ad faciend aliquas recognitiones vel sacrament prestand nisi in causis matrimonialibus Testamentariis Rastal's Abridment of the statutes Title Prohibit nu 5. Vpon which Prohibitions this Attachment followed The King to the Sherifs Greeting Cause such a Bishop to put in sureties to appear before our Justices c. to shew cause why he made certain Lay persons to be summoned and distrained by Ecclesiastial censures to appear before him at his pleasure to take an Oath against their Wills In Grave Praejudicium Coronae Dignitatis nostrae Regiae necnon contra consuetudinem Regni nostri By all which and by the Petition of Right it self it appears evidently that this Juramentune Calumniae or Oath ex officio was utterly against Law. For one of the Grievances complain'd of in that Petition was that the King's Subjects had had an Oath administred to
SOME OBSERVATIONS UPON THE Ecclesiastical Jurisdiction OF THE KINGS of ENGLAND WITH AN APPENDIX In Answer to part of a Late Book Intitled The KING' 's Visitatorial Power Asserted LONDON Printed for William Battersby at Thavies-Inn Gate in Holborn and Thomas Basset at the George in Fleet-street 1689. To the Reader A Late Declaration for Liberty of Conscience whereby the King Assum'd a Power of Suspending All Penal Laws in matters of Religion The Ecclesiastical Commission and suspending by vertue of it the Bishop of London and depriving the Fellows of Magdalen-Colledge occasioned a general dissatisfaction in the Nation and produc't some Pamphlets to justifie all those Proceedings viz. One Entituled The King 's Right of Indulgence in Spiritual Matters with the Equity thereof Asserted Another A Vindication of the Proceedings of his Majestie 's Ecclesiastical Commissioners against the Bishop of London and the Fellows of Magdalen-Colledge A Third The Legality of the Court held by his Majestie 's Ecclesiastical Commissioners Defended And last of all The King 's Visitatorial power asserted Perusing these Pamphlets I could not but observe that one and the same inveterate error ran through them All viz. Their ascribing to the King all such power Jurisdiction and Authority as by the Law of England and the very Original Constitution of our Government is lodged in the Legislative body of the Kingdom and which the King is intrusted onely with the Administration of and that in his Courts of Justice I had attempted the answering more than one of those Pamphlets but I found that at every turn I met with that mistake in the Authors who either through Ignorance or Design or both argue for the King's Prerogative from whatever they find to have been done in Great Councils of the Realm or in Ordinary Courts of Justice this one mistake together with some rash and unwarranted expressions glean'd out of a few late Writers will be found to be the main strength of their Cause I thought therefore that it might be a work of some use especially at this time to endeavour the removal of this rubbish and the laying open in some measure the nature of the Ecclesiastical Jurisdiction of the Crown of England both because we have lately seen how dangerous and fatal these mistakes are and because although much has been written since the Reformation by Mr. Prynn Sir Roger Twisden and others to vindicate the Ecclesiastical Supremacy from Forein Pretensions and Vsurpations yet I know not whether any has yet taken in hand to give an Account of it as stands by Law here at home I do therefore offer these few Observations upon it to the publick desiring the Judicious Reader 's pardon for what slips and imperfections he may find herein and have added in an Appendix an Answer to a Section in the Book concerning Visitatorial Power wherein I hope the Reader will be satisfied how groundless and weak most of the arguments are which our Prerogative-mongers pretend to draw from Antiquity These following Observations are brought down no lower then to the latter end of King Henry the eighth's Reign I design a Continuation with Remarks upon some Judicial Presidents that have pass't since the Reformation if these Papers are well received if not I shall save time and be eas'd of trouble SOME OBSERVATIONS Upon the Ecclesiastical Jurisdiction Of the King 's of ENGLAND IT is obvious enough to judicious and intelligent Persons by what unhappy Circumstances it comes to pass that one great Mean of our Preservation seems at present in a manner hid from our Eyes But since Experience is said to be the Mistress of Fools it is hoped that at least in this our Day we may see the things that belong to our Peace Luke 19.42 and remember that the reason why the Ostrich leaveth her Eggs in the Dust Job 39.13 14 15 17. forgetting that the Foot may crush them is because God hath deprived her of Wisdom neither hath he imparted to her Vnderstanding If Interest or Ambition have swayed with some of us Prov. 22.28 as far as in them lay to remove the antient Land-Marks which our Fore-Fathers have set Josh 7.19 let such give Glory to God and take Shame to themselves In the mean time what effect soever these ensuing Papers may have upon our Friends at least let our Adversaries see that there is a Remnant left in Israel 1 Kings 19.18 that have not bowed their Knees to Baal An Arch-Bishop may tell us The Legality of the Ecclesiastical Commission defended pag. 6 7. that the King may take what Causes he pleases to determin from the Determination of the Judges and determin them himself and that it is clear in Divinity that such Authority belongs to the King by the Word of God. But as we are not to receive even the Word of God it self under the Sanction of a Human Law from the Mouth of an Arch-Bishop or from the whole Body of the Clergy much less are we bound to submit to any Courtly Glosses upon that Sacred Text concerning the Power of Kings whose Authority as we suppose it to be grounded wholly upon Municipal Laws so we know the Law to be a better Foundation and a better Security than any imaginary Authority pretended from Scripture And if the Defender would have observed what the Lord Coke in the Presence and with the clear consent of all the Judges and Barons of the Exchequer Coke 12. Rep. pag. 63 64 65. answered upon that occasion before the King himself both from Reason and Authority he would have silenced the Arch-Bishops Divinity and saved me the trouble of taking notice of that part of his Discourse It was their Opinion that the King could not in Person adjudge any Case Which they confirm with such Reasons and Authorities from judicial Records and Acts of Parliament that it seems very imprudent in the Defender to urge that as an Authority which received so solid so learned and so honest an Answer Judges and Serjeants may entertain themselves with what Discourse they please post prandium Legality of c. defended pag. 10 11. Coke 12. Rep. pag. 19 c. and in their mooting upon one extrajudicial Point may talk of another by the by and if one of the Company put this transient Discourse into Paper so that afterwards it gets into the Press Good God! what condition are we come into when Tablechat must be obtruded upon us for Law To go a little further Judges in Courts of Justice may pretend to resolve what Points of Law they please but if their Resolutions are not pertinent to the Matter depending before them in Judgment and necessary for the deciding it such Resolutions go for nothing because the Judges had no Authority so to resolve And I am fully assured that this Point Legality of c. defended Pag. 8.9 Coke 5. Rep. Cawdry's Case viz. Whether any King or Queen of England for the time being might issue an
those Times What Orders of Men were comprehended under the word Magnates is not material to our present purpose The Great Councils that made the Laws and without whom no Laws were made are frequently so described by our antient Historians In the year 692 Ina King of the West Saxons enacted many Constitutions for the Government of the Church as De formula vivendi Ministrorum Dei. De baptizandis Infantibus De opere in die Dominico De immunitate fani c. The Preface to which Laws runs thus Ego Inas Dei beneficio Occiduorum Saxonum Rex suasu instituto Cenredi Patris mei Heddae Erkenwaldi Episcoporum meorum Omnium Senatorum meorum natu Majorum sapientum Populi mei in magnâ servorum Dei frequentiâ religiose studebam tum animorum nostrorum saluti tum communi Regni Nostri conservationi ut legitima nuptiarum faedera c. Here the King his Bishops all his Senators the Natu Majores Sapientes of his People which are Descriptions of the Laity in Parliaments of those Times and a great number of Gods Servants by which the Clergy are meant make Ecclesiastical Laws This was a Parliament as appears not only by the presence of the Laity but by many Temporal Laws enacted at the same time Spelm. Conc. Tom. 1. Fol. 182 183 c. In the year 694. Concilium Magnum Becanceldae celebratum est Presidente Withredo Rege Cantiae necnon Bertualdo Archiepiscopo Britanniae cum Tobiâ Episcopo Roffensi Abbatibus Abbatissis Praesbyteris Diaconibus Ducibus Satrapis c. All these pariter tractabant anxie examinabant de Statu Ecclesiarum Dei c. Here the King 's Legislative Power in Ecclesiastical Matters exerted it self not Personally but in this Great Council They do all enact Statuimus decernimus praecipimus For when the King himself is spoken of the Singular Number is used Nullus unquam habeat licentiam accipere alicujus Ecclesiae vel Familiae Monasterii Dominium quae à meipso vel antecessoribus meis c. Spelm. Conc. Pag. 189 190. A Council was held at Berghamjtede Anno 5 to Withredi Regis Cantiae i. e. Anno Christi 697. Sub Bertualdo Archiepiscopo Cantuariensi praesentibus Gybmundo Episcopo Roffensi omnibus Ordinibus Gentis illius cum Viris quibusdam militaribus In quo de moribus cavetur ad Ecclesiae cognitionem plerumque pertinentibus These Ordines Gentis illius seem by the Preface to these Laws to be meant of the Ordines Ecclesiastici Gentis illius but withal that they cum viris utique militaribus humanissimè communi Omnium Assensu has Leges decrevêre Spelm. Conc. 194. So that these Ecclesiastical Laws were enacted by the assent of the viri Militares as well as of the King and the Clergy A Council was held at Cloveshoe sub Cuthberto Doroberniae Archiepiscope praesentibus praeter Episcopes Sacerdotes Ecclesiasticos quamplurimos Aedilbaldo Merciorum Rege cum suis Principibus Ducibus Anno Dom. 747. In quo decernebatur de unitate Ecclesiae de Statu Christianae Religionis de Concordiâ pace c. Spelm. Conc. 242 c. In the Year 787 Concilium Legatinum Pananglicum was held at Calchyth in which many Canons were made de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus This Council was held Coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus Regionis seu Senatoribus Ducibus Populo terrae who All confirmed them After these Ecclesiastical Laws had been thus enacted by Aelfwald King of Northumberland the Legates carried them into the Council or Parliament of the Mercians where the glorious King Offa cum Senatoribus Terrae una cum c. convenerat There they were read in Latin and Teutonick that All might understand and All promised to observe them and the King and his Princes the Archbishop and his Companions signed them with the Sign of the Cross Spelm. Conc. Vol. 1. Fol. 291 292 c. Many Instances of this kind might have been added as particularly that of the Council at Hatfield An. 680. wherein the Canons of five General Councils were received which was a Witena Gemote a Conventus Sapientum But I spare time am endeavouring only to open a Door By these Instances it is apparent that the same Body of Men that enacted the Temporal Laws of the Kingdom did in the very same Councils make Laws for the Government of the Church Indeed the whole Fabrick of the English Saxon Church was built upon Acts of Parliament nothing in which the whole Community was concerned was enacted decreed or established but by that Authority For whose reads impartially the Histories of those times and compares them with one another will find that as most of those Antient Councils commonly so called were no other than to speak in our Modern Language Parliaments so not any thing whatsoever in Religion obligatory to the People whether in matters of Faith Discipline Ceremonies or any Religious Observances was imposed but in such Assemblies as no Man can deny to have been Parliaments of those Times that has not a Fore-head of Brass For the Presence not of the King 's only but of the Duces Principes Satrapae Populus terrae c. shews sufficiently that neither the Kings nor the Kings and the Clergy without the concurrent Authority of the same Persons that enacted Temporal Laws could prescribe General Laws in matters of Religion I do not dispute what Orders of Men among the Saxons were described by Duces Principes c. but sure I am that they were Lay-men and as sure that they assented to and confirmed those Laws without whose assent they had been no Laws So that the Kings of those Times had no greater Legislative Power in Ecclesiastical Matters than in Temporal The tearing the Ecclesiastical Power from the Temporal was the cursed Root of the Kingdom of Antichrist It was that that mounted the Papacy Those Powers never were distinct in England nor most other Nations till that See got the ascendant And it is a strange inconsistency to argue one while that whatever the Pope de facto formerly did by the Canon Law that of right belongs to our Kings and another while that the several Acts that restore the Ecclesiastical Jurisdiction to the Crown are but Declarative It shews how little the Supremacy is understood by Modern Asserters of it and how little they are acquainted with the antient Government of England The Third Period of Time to be considered shall be from the uniting of the several Kingdoms of the Saxons under one Monarchy to the Norman Conquest In this Division we find a Letter from Pope Formosus to King Edward the Elder wherein the Pope complains that the Country of the West-Saxons had wanted Bishops for seven whole Years Upon the receipt of this Letter the King calls Synodum Senatorum Gentis Anglorum who
Which any one may have recourse to in Spelm. Concil Eadmer Hist Mat. Paris and others In the beginning of King Henry the Second's Reign there was another Schism in the Popedom between Alexander and Victor upon which a great Council of Clergy and Laity out of the Kingdoms of England and France met to determine whether of the two should be acknowledged Pope within those Realms The matter was debated in Conspectu Regum Praesulum coram universâ quae convenerat multitudine Cleri Populi And Alexander was received for Pope and the Schismaticks Excommunicated The History is in Nubrig Lib. 2. c. 9. Pursuant to which President when there hapned in King Richard the Second's time to be another Schism in the Papacy and Act. of Parliament was made to declare who should be received Pope in England and a Law made for punishing any of the Clergy that should acknowledge the other Pope Vide Catt Records Ann. 2. Rich. 2. p. 180. What thing can be more purely Ecclesiastical than the determining who it lawfully chosen to be the Vniversal Bishop And yet neither the King nor the King and the Clergy would settle the point without the Laity By what has been said it appears That the Ancient Supremacy of the Kings of England in Ecclesiastical Matters was a very different thing not so much from what it is now by Law as from what it is apprehended to be by many amongst us The Error is fundamental and consists in ascribing Things Acts Powers c. to the King in person which belonged to were done and exercised by him no otherwise than in his Courts Appeals are said to have been to the King at Common Law And so an Abridgment of Law has it so Fox Rolls cap. 8. vid. Chron. Gerv. p. 1387. Speed and others And the Authority quoted is the Assize of Clarendon which in one Chapter directs that Appeals shall be from the Bishop to the Archbishop from the Archbishop to the King. But another Act of Parliament made about 12 years after clears the matter Sir Roger Twisden For in the mean time Becket was Murdered and King Henry the Second being put to hard Pennance for it part of his satisfaction was that he should agree not to hinder Appeals to Rome in Causes Ecclesiastical Mat. Paris p. 126. yet so as the party going was to give Security that he would not endeavour Malum Regis nec Regni But within Four Years after the Nation Assembled in Parliament would not quit their interest But the Assize of Clarendon was again renewed and a more close expression used concerning Appeals and such persons as had prosecuted any Justitiae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infra terminum nominatum stare Juri in Curiâ Domini Regis utlagentur c. This Gervas Dorobern who well understood it tells us was but renewing the Assize of Clarendon Rex Angliae Henricus convocatis Regni Primoribus apud Northamptoniam renovavit Assizam de Clarendon Here we see that such as were aggrieved by a Sentence given by the Archbishop were pursuant to the Statutes of Clarendon not to appeal to Rome but to the King Which the Statute of Northampton made but twelve years after explains to be to the Curia Regis By this and by what has been said before upon this Subject it appears that the ultimate Appeal in Causes Ecclesiastical as well as Temporal was to the Curia Regis or Parliament and that as the same Assemblies made Laws both for the Government of Church and State so the Supreme Judicature Ecclesiastical and Temporal was one and the same After that time Appeals were sometimes prosecuted in the Court of Rome that Statute and the Assize of Clarendon notwithstanding but this was only by connivance At last when the Pope got the better of King John who lay under great Disadvantages as all our Historians tell us and that in his Magna Charta these words were inserted V. Matth. Paris Pag. 258. Liceat unicuique de caetero exire de Regno nostro redire salvò securè per terram aquam salvâ fide nostra c. Then Appeals to Rome multiplyed for every little Cause and the Master-piece of Papal Encroachments was wrought effectually But it cannot be too often inculcated that the Laws of Clarendon which gave the ultimate Appeal to the Curia Regis as aforesaid are so often stiled the Avitae Consuetudines Regni Which shews sufficiently where the Supreme Judicature resided according to our old Constitution It appears by what has been said that King William the Conqueror was acknowledged to be God's Vicar appointed to govern his Church and yet that neither He nor his Successors pretended to make any Ecclesiastical Laws to bind the whole Kingdom but in a General Council of the Kingdom That the King's Supremacy was so far from being Personal that an Archbishop did as it were appeal from himself in Person to himself in Parliament and that the King submitted and owned the Jurisdiction That the same Archbishop understood the Law to be that the Assent of the Laity was necessary to the making of Ecclesiastical Laws by which they were to be bound That the King could not of his own Authority permit a Legate to exercise his Office within the Realm That leave to exercise his Office could not be given him but in Parliament That the King could not part with Investitures if he would without the Assent of the People That Parliaments determined who ought to be received as Pope within the Realm That Appeals were to the Curia Regis by the Avitae Consuetudines Regni And that Bishops were elected in Parliament Whence I conclude that a Personal Supremacy has no warrant from Antiquity The clearing the Antient Supremacy and stating the Matter aright is of great use in this present Age in which as one sort of Men over-stock us with Jure Divino's so the Lawyers accost us often with the Common Law and the King's Perogative at Common Law and that this and the other Act is but declarative of the Common Law and gives the King no new Power And yet as the Divines have little or no ground for their Jure Divine's no more have the Lawyers in these Matters of the Supremacy any thing to warrant their late Hyperbole's but Shadows and Imaginations They found a Power exercised by the Pope which they had good reason to think injurious to the Crown they had heard that from the beginning it was not so And thus far they were right But how it was exercised before the Court of Rome and the Clergy invaded it they had forgot it having been usurpt upon Four hundred years before they were born For it is in vain to look for a true Scheme of the Antient Legal Supremacy at a nearer distance than from the Reigns of King John King Richard the First King Henry the
21. They tell the King That this his Grace's Realm recognising no Superiour under God but only his Grace hath been and is free from subjection to any Man's Laws but only to such as have been devised made and ordained within this Realm for the wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free Liberty by their own consent to be used amongst them and have bound themselves by long use and custom to the observance of the some not as to the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and anoient Laws of this Realm originally establisht as Laws of the same by the said sufferance consent and custom and none otherwise By those other Laws not ordained within the Realm they mean the Canon Law. For the Clergy extended the bounds of it daily and always got ground But the Sufferance and Cousent here spoken of was not a bare tacit Submission to it by the People but a Consent in Parliament Where they not only received foreign Canons into the body of our Municipal Laws but also from time to time came to a Compremise with the Clergy with respect to several Matters of which the Clergy claimed Cognisance as appertaining to what they called Spiritual Jurisdiction First For our Records of Parliament yet extant go no higher by the Statute De Circumspecte agati◠but that would not satisfie them In King Edward the Second's time they got Jurisdiction in many other Causes as you may see in the Statute of Articuli Cleri And in King Edward the Third's time they went yet farther Nine new Points were gained 25 Edw. 3. by the Statutum pro Clero The Conusance of these Matters which by these Statutes were left to the Clergy belonged before to the King's Courts as part of the Common Laws of the Realm by which the King governed his People and which he administred in his ordinary Courts of Justice and by the ordinary proceedings of Law. And therefore before they were allowed to the Cognisance of the Ecclesiastical Courts by Act of Parliament Prohibitions were granted * The King 's Right of Indulgence page 28. The granting of Prohibitions in these Cases is urged by a late Author as an instance of the King 's Ancient Supremacy and urged amongst other things to prove a right in the King's Person to dispense with Civil Laws about Ecclesiastical Matters Whereas Prohibitions were granted then no otherwise than as they are now to Spiritual and other Courts when they exceed the bounds of their Jurisdiction When the Spiritual Jurisdiction broke in upon the Temporal and the Ecclesiastical Courts assum'd an Authority in Cases not allowed by the Laws of the Realm to be within their Cognisance this was an Offence against the King's Crown and Regality as the Statutes of Premunire run and Contra Coronam Dignitatem Regis as the forms of some Prohibitions in the Register run and yet the Kings Temporal Jurisdiction was not personal In this period of time it was that Dispensations brake forth They began in King Henry the Third's time which is not old enough to give the Crown a title to them by Prescription for it is within the time of Memory The History of their Nativity may be read in Matth. Paris The Pope led up the Dance taking upon him by Non Obstante's to revoke his own Grants and to dispense with the Canons upon a pretence of some plenitudo potestatis or other derived to him as Pastor of the Vniversal Church by Succession from St. Peter And Secular Princes Writ after his Copy in taking upon them to dispence with their own Penal Laws Which before were religiously observed as the Laws of the Medes and Persians Sir John Daries Case De Commenda which could not be dispensed with And therefore a Canonist says that Dispensatio vulnerat jus commune And another says that all Abuses would be reformed Si duo tantum verba viz. Non Obstante non impedirent And Matthew Paris Anno Dom. 1246. having recited certain Decrees made in the Council of Lyons which were beneficial to the Church of England Sed omnia haec alia says he per hoc repagulum Non Obstante infirmantur Dav. Rep. 69 70. c. Secular Princes it seems had not learnt that part of their Prerogative till they were taught it by their Ghostly Father Nor could they well have any notion of it since as Sir Henry Spelman tells us in his Glossary tit Assisa Reges Proceres in condendis Legibus earum olim jurabant observantiam Hence Bracton calls the Laws of England Leges Juratas Now the taking of an Oath to observe them and the being allowed a power by Law to break them seem to me very inconsistent things It 's observable to this purpose what Bracton tells us concerning the Laws of England Legis vigorem habet quicquid de Consilio Consensu Magnatum Reipublicae Communi sponsione authoritate Regis sive Principis praecedente justè fuerit definitum approbatum So that a Statute of the Kingdom of England is an Agreement betwixt all parties concerned Which for any one of them to set aside is against Natural Reason And Fortescue who was Lord High Chancellor of England in the Reign of King Henry the Sixth cannot be supposed to have known of any such Prerogative in the King by the account that he gives us of the Solemnity of Enacting Laws here in England and of the course that was to be taken when any of them were found by Experience to be inconvenient Pag. 39 40. Statuta tunc Angliae bona sunt necne solum restat explorandum Non enim emanant illa Principis solùm voluntate ut Leges in Regnis quae Regaliter tantum gubernantur ubi quandoque Statuta ità constituentis procurant commodum singulare quod in ejus subditorum ipsa redundant dispendium jacturam Quandoque enim inadvertentiâ Principum hujusmodi sibi consulentium inertiâ ipsa tam inconsultè eduntur quòd corruptelarum potiùs quà m Legum nomina mereantur Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed totius Regni assensu ipsa conduntur quo Populi laesuram illa essicere nequeunt vel non eorum commodum procurare Prudentiâ enim Sapientiâ necessariò ipsa esse referta putandum est dum non unius aut centum solùm consultorum virorum prudentiâ sed plusquam trecentorum electorum hominum quali numero olim Senatus Romanorum regebatur ipsa edita sunt Et si Statuta haec tanta solemnitate prudentia edita efficaciae tantae quantae conditorum cupiebat intentio non esse contingant concito reformari ipsa possunt non sine Communitatis Procerum Regni illius assensu quali ipsa primitùs emanarunt A Power in the Prince to suspend Laws
by whole-sale is altogether needless in a Constitution wherein Concitò reformari possunt by the same Authority that made them In Forty days time a Parliament may be summoned to consent to what alteration they shall think fit to be made And it is the constant practice observed to this day that at the beginning of every Parliament a Committee is appointed to consider what Laws are inconvenient and have need to be altered continued or repealed If the Parliament shall not think fit to make any alteration the Laws must remain in force and ought to be put in execution for there can be no Reformation of them made Sine Communitatis Procerum assensu And the reason is because by such assent Primitus emanârant The Repealing of a Law or which is all one a total Suspension of a Law is making a new Law whatever quibbles and foolish distinctions may be pretended to be made in the Case Now the Laws of England do not oriri Principis voluntate and rherefore a Repeal or total Suspension of a Law grounded upon the voluntas Principis only is not warranted by that model of the English Government that Fortescue presents us with He that asserts such a Power in the King to Suspend Laws Enacted by the Consent of the whole Kingdom turns the Government of this Nation topsie turvie Lord Chief Justice Herbert in Sir Edward Hales his Case And makes the Laws of England indeed the King's Laws contrary to the style of all Antiquity of all History and contrary to the forms of Legal Proceedings even to this day Lex terrae and Leges terrae Leges Consuetudines Angliae Leges Angliae Statuta Angliae Assiza Regni are known and common Expressions Leges Regis sounds harsh the phrase is uncouth because the Notion included in it is false nor was ever thought of by our Forefathers The Statutes of Praemunire and Provisors and the method of dispensing with them before the Reformation will abundantly disclose to us where the power of dispensing with Acts of Parliament even in Ecclesiastical Matters was vested In the 16th Year of King Richard the Second the Archbishop of Canterbury declared the Causes of the Parliament The second of which was to provide some remedy touching the Statute of Provisors for eschewing debate betwixt the Pope and the King and his Parliament Cot. Records p. 346. King Richard needed not have put himself to the trouble of convening his Parliament in order to provide a Remedy in such case if by the Law as it was then understood he might by his Perogative have dispensed with the Statutes of Provisors and all other Laws concerning Ecclesiastical Matters In the 17th R. 2. It was enacted in Parliament that Tydeman late Abbot of Beawliew and Elect of Landaffe by the Popes Provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no Example Ibid. p. 354. So that tho Tydeman had a Dispensation from the King he durst not trust to it without getting his Title to his Abby confirmed in Parliament The like President occurs in 18 H. 6. The Archbishop of Roan had the Profits of the Bishoprick of Ely granted to him by the Pope and confirmed in Parliament Ibid. p. 623. But in the Fifteenth year of King Richard the Second the Commons for the great Affiance which they reposed in the King granted that the King by the Advice of his Lords might make such Toleration touching the Statute of Provision as to him should seem good until the next Parliament so as the Statute be repealed in no Article thereof nor none disturbed of his lawful Possession So also as they may disagree thereto at the next Parliament with this Protestation That this their Assent being in truth a Novelty be had or taken for no Example Ibid. p. 342. And in the Sixteenth year of the same King the Commons grant to the King that he by the Advice of his Lords should have power to moderate the Statute of Provisions to the Honour of God and saving the Rights of the Crown and to put the same in execution so as the same be declared in the next Parliament to the end the Commons may then agree to the same or no. Ibid. pag. 347. The occasions of these Concessions were the then circumstances of the Kings Affairs who was often at enmity with France and made advantage of the Pope's Friendship which he obtained by this and other Methods of the like kind The like Instances occur in the same Collection p. 362 In the Twentieth year of the same King. p. 393 In the First year of King Henry the Fourth p. 406 In the Second year of King Henry the Fourth From hence it appears that those Times had no notion of any absolute Power any inseparable Perogative in the King himself of dispensing with those Laws without his Parliaments consent For they grant the King such Power and that but for a time and so as they may disagree to it at their next Meeting and with a protestation that this their Assent be not drawn into Example and declare their giving the King such Power to be a Novelty And all this they do with a saving to the Rights of the Crown which let them if they can explain the meaning of who imagine that the uniting of Ecclesiastical Jurisdiction to the Crown of England by the Statute of 1 Eliz. is a vesting of it in the King's Person In this same interval of Time the Statutes of Praemunire were enacted viz. 27 Edw. 3. cap. 1. and 38 Edw. 3. cap. 1. 16 R. 2. and some others with which how far it was lawful for the King to dispense take an account from what hapned to Cardinal Wolsey in King Henry the Eighths time He had a Commission from the Pope to exercise his Office of Legate here in England he had the King's leave so to do he exercised that Office many years without controul and was submitted to almost universally I remember but one Obstruction offered to have been made to him and that was by Hunne a Merchant-Taylor in London The History of which may be read at large in Fox and Dr. Burnet's History of the Reformation And yet the whole Clergy were afterwards attainted of a Praemunire for submitting to such Foreign Authority as the same Authors the Lord Herbert and others abundantly testifie But Stephen Gardiner's Letter to the Duke of Somerset concerning that Matter as it is very remarkable for many other Passages so this ensuing part I think proper to be here inserted because it will save me the trouble of relating the History and of endeavouring to open the Reasons of that Proceeding Now whether the King may command against an Act of Parliament and what Danger they may fall in that break a Law with the King's consent I dare say no Man alive at this day hath had more Experience with the Judges and Lawyers than I First I had experience in my
and goes no higher And since there were no such Commissions of Charitable Vses before that Statute therefore the Statute being introductive of a new Law must be pursued and where the Statute does not provide a Remedy there is none Now the Statute of 24 H. 8. cap. 12. and 25 Hen. 8. cap. 19. So far forth as they concern Appeals are for the most part introductive of New Laws too And the latter of them gives Appeals to the King in Chancery which never lay before And therefore as the Act gives them he ought to take them and no otherwise for the Act is his title and it has negative words But the Lord Coke's Error in ascribing that Power Jurisdiction and Authority to the King in person which was ab origine in King Lords and Commons runs through almost all that he has written upon that Subject And our Lawyers who look upon him as an Oracle for his Learning and Judgment in the Controversial profitable part of the Law in which he was unquestionably a very great Man follow him blind-fold in some mistakes They study Resolutions of Judges in cases of Property and till of late have gone by that lazy rule that the latest authorities are the best So they forget Antiquity and hardly cast their thoughts further backward than Dyer and Plowden Those of them that are more inquisitive go as high as to the Quadragesms and Book of Assizes But the Government is not so much beholden to them as were to be wisht They deserve worse of it than other Men for it being the only honour of their Profession to support it by understanding and asserting it and the natural bent of their Studies carrying them into it their narrow Spirits private Interests Et illud quod dicere nolo prevail with too many of them to betray it by neglecting it The Lord Coke's second Reason for a Commission of Review to examine a definitive Sentence given by the Delegates is because the Pope as Supreme Head by the Canon Law us'd to grant a Commission ad revidendum and such Authority as the Pope had claiming as Supreme Head doth of right belong to the Crown and is annexed thereunto by the Statutes of 26 Hen. 8. cap. 1. and 1 Eliz. cap. 1. And so it was resolved says he in the King's Bench Trin. 39 Eliz. You see the English on't is the King may do so because the Pope did so for the Pope was Supreme Head then or claimed to be so and the King is acknowledged to be so now This pretended Translation of the Pope's Power to the King is another fiction that has contributed exceedingly to raise the Supremacy in some Mens Imaginations But it will appear by running through the several Acts made in King Henry the Eighth's King Edward the Sixth's and Queen Elizabeth's Reigns concerning Religion and Church Government that no Power given to the King or acknowledged to be in him has any respect or relation whatsoever to the Pope's pretended Power heretofore exercised The Pope's Power was abolish'd and abrogated Stat. 28. Hen. 8. cap. 10. The Ancient Jurisdiction of the Crown which by the Common Law and Fundamental Constitution of our Government was inherent in it was restored only some branches of it put into another method of Administration And that by the Supreme Power of the Nation from whose Authority and Jurisdiction nothing within this Kingdom is exempted That such Authority as the Pope had does of right belong to the King he would prove by the Statutes of 26 Hen. 8. cap. 1. 1 Elizabeth cap. 1. The first of which to wit that of 26 Hen. 8. cap. 1. was repealed long before the Case in 39 Eliz. came in question and consequently is there alledged to no purpose As for the Second that of 1 Eliz. cap. 1. how far that goes we shall have occasion to enquire hereafter when we come to it in order of time He gives us a Corollary viz. that upon a Sentence given by the High Commissioners a Commission of Review may be granted by vertue of an express Clause in the Commission and if no such Clause had been says he yet a Commission of Review might have been granted Quia sicut fontes Communicant aquas fluminibus cumulativè non privative sic Rex subditis suis Jurisdictionem communicat in causis Ecclesiasticis vigore Statuti in ejusmodi casibus editi provisi cumulativè non privativè by construction upon that Act. But a Commission of Review upon a Sentence given by the High Commissioners is not now disputed The High Commission was erected long after the 25 Hen. 8. And consequently a Review of their Sentences which it seems some construction upon that Act gave colour for was not provided against by that Statute But by what Law a Review should be granted of a Sentence given by the Delegates which by the Act is to be Definitive I am yet to seek I would fain know whether a Cause determined by Virtue of this Act in the Vpper House of Convocation for there Ecclesiastical Causes in which the King himself is concerned are to be definitively determined may be drawn in question ever after before Commissioners ad revidendum or not And if not why is a Sentence of the Delegates liable to be examined any more than that Do these Men really believe that the Judicial Authority of the Nation is by the Law lodg'd in the King's Person What means then the Act of 16 Car. 1. cap. 10. That neither his Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary Way whatsoever to examine or draw in question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any the Subjects of this Realm but that the same ought to be tryed and determined in the Ordinary Courts of Justice and by the Ordinary Course of Law. If it be said the King appoints the Judges and hath formerly sate in the King's Bench in Person For his appointing the Judges since the time is known when it was otherwise that cannot be urged as a Perogative originally inherent in the King That our Kings have sometimes sate in the King's Bench in Person I yield and will agree to all the Inferences that can be drawn from it do but allow me which cannot be deny'd that Writs of Error lye from the Court of King's Bench and Appeals out of Chancery whoever sits there before the Lords in Parliament who whether the King be present or absent agreeing with or disagreeing from the Sense of the House affirm or reverse the Judgments and Decrees as they see Cause And were it not more honourable to ascribe no Judicial Power at all to the King in Person than to make him Judge of an Inferior Court. But you 'l find that our Kings never sate in the King's Bench or the Starr Chamber Juridically The Courts gave the Judgments
Kings did not scruple to own that they were under the obligation of their Coronation Oath to see to the Execution of them Anno Grat. 1225. Magister Otto Domini Papae Nuncius in Angliam veniens pro magnis Ecclesiae Romanae negotiis Regi litteras praesentavit sed Rex cognito litterarum tenore Respondit Quod solus non potuit definire nec debuit negotium quod omnes Clericos Laicos Generaliter totius Regni tangebat Matth. Par. pag. 325. It was an Old Rule of Law in this Nation the very Foundation upon which our Government is built and the only thing that differences Freedom from Slavery that Quod omnes tangit ab omnibus tractari debet And the Commons tell the King in Statute Twenty fifth of Henry 8. cap. 21. That his Graces Realm Recognizing no Superior under God but his Grace hath been and is free from Subjection to any Mans Laws but only to such as have been devised within the same for the Wealth thereof or to such other as by Sufferance of his Grace and his Progenitors the People of his Realm had taken at their free Liberty by their Own Consent to be used amongst them and had bound themselves by long Vse and Custom to the Observance of the same as to Laws Established by the said Sufferance Consent and Custom and none otherwise And the Judges Resolved in 12 Jacobi primi that the King could not change the Ecclesiastical Laws of the Realm 12 Co. Reports pag. But if he could let in Foreign Canons and by his Allowance give them the force of Laws here then he could change the Ecclesiastical Laws of the Realm and then might the People be bound to other Laws than such as by their own Sufferance and Consent they had submitted to and then could the King do things Solus which concern generally all the Clergy and Laity of England If the King's Allowance could Subject his People to Processes from Rome then he could by Law depart with the Rights of his Crown which by his Coronation Oath he is bound to maintain as he hath so often and so publickly acknowledged The Doctor tells us pag. 145. out of Eadmerus Lib. primo pag. 6. That King William the Conqueror introduc'd this here That none in his Dominions should own the Pope but by his Command Nor receive his Letters Vnless shewed first to him And if the Archbishop of Canterbury called and presided in a General Synod of the Bishops he allowed nothing to be appointed or forbidden unless they were accommodated to his Will and were first Ordain'd by him Nor suffered any of his Barons or Officers to undergo any Ecclesiastical Censure but by his Precepts These things he would represent to us as Arbitrary Constitutions made by the Sole Authority of that King whom a few Men of late have endeavoured to represent under a strange Vizor But these were really Laws made in his time by the same Authority that made Laws in this Nation before he was Born and after his Death He caused Leges Episcopales to be amended But how did he do it Of his own Head or by the Advice of such only as himself thought fit to consult with No it was done Communi Consilio Consilio Archiepiscoporum Episcoporum Abbatum omnium Procerum Regni sui V. Seldeni Not. Specileg ad Eadmerum pag. 167 168. And the same Author in his Titles of Honour pag. 580 581 hath these Words viz. In the Fourth Year of his King William the Conqueror's Reign or Anno Domini MLXX. which was the Year wherein he first brought the Bishops and Abbots under the Tenure of Barony Consilio Baronum suorum saith Hoveden out of a Collection of Laws written by Glanvill as also the Author of the Book of Litchfield fecit summoneri per universos Consulatus Angliae Anglos Nobiles Sapientes in sua lege eruditos ut eorum Jura Consuetudines ab ipsis audiret And Twelve were returned out of every County who shewed what the Customs of the Kingdom were which being written by the Hands of Aldred Archbishop of York and Hugo Bishop of London were with the Assent of the same Barons for the most part confirmed in that Assembly which was a Parliament of that time And so much also is shewed by that Law of King Henry the First viz. Lagam Regis Edwardi vobis reddo cum illis Emendationibus quibus Pater meus illam emendavit Consilio Baronum suorum He goes on to shew other Instances of Parliaments in King William the First 's Time. And a few pages after pag. 583. calls one of these very Constitutions which Eadmerus blames him for A Law made by King William the First Indeed the several General Councils held in his Time of the Clergy and the Laity for the making of Laws and determining Great Controversies the Confirming of King Edward the Confessor's Laws of which one was as hath been said that all things were to be done per Judicium Consilium Procerum Regni and the tenor of such Charters of his as are extant shew undeniably that what Constitutions are said to have been made by him must be understood to have been made by him More Anglico cum Assensu Ordinum Regni As Mr. Selden expresseth himself in his Book de Synedriis The First of these Four Constitutions complained of by Eadmerus as Innovations is That none in his Dominions should own the Pope but by his Command And yet afterwards when in King Henry the Second's Time there was a Schism in the Popedom between Alexander and Victor of whom the latter having been Elected and Declared Pope by a Council of German and Italian Bishops at Papia the Emperour Illustres Francorum Anglorum Reges omnibus modis sollicitare curavit ut ad perpetuandam amicitiam mutuam sibi hâc in parte concordes existerent Illi celebrem ex utroque Regno Episcoporum Nobilium loco tempore congruo conventum fecêre where the Matter was debated in Conspectu Regum Praesulum coram Vniversâ quae convenerat multitudine Cleri Populi And Alexander was admitted as Pope and the Schismaticks Excommunicated Nubrig lib. 2. cap. 9. And after that in King Richard the Second's Time When there was another Schism betwixt Vrban and Clement This Memorable Act of Parliament passed to declare Vrban the true Pope VIZ. Pur ceo que nostre Seignor le Roy ad entendus cybien per certains Letters Patents novelment venus de certain Cardinalx rebells contre nostre Saint Pere Vrban a ore Pape come auterment per comen fame que division discord sont parenter nostre dit Saint Pere les dits Cardinals les queux s'afforcent a tout lour poar de deposer nostre dit Saint Pere de l'Estate de Pape d'Exciter commover per lour meyns verrois suggestions les Roys Princes le Peuple Chrestien encounter luy a grand perill de lour aulms
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
de maximis una erat quae Regnum Angliae liberum ab omni legati ditione constituerat donec ipse vitae praesenti superesset So that this Patria Consuetudo of the Kingdoms being free from the Jurisdiction of any Legate and which had been confirmed by the Pope was not a Priviledge Granted to the King himself nor was he the Object of that Papal pretended Indulgence but the Kingdom whom he declares that himself could not deprive of the Benefit thereof without their own Consent And therefore the King's Assent and the King's Leave so frequently mentioned in the Monks upon this occasion must be understood of his Assent in a Great Council or Parliament Hence it was that when Johannes Cremensis came Legate hither Anno Domini 1125. And was permitted so to do by the King being then in Normandy for what private considerations betwixt the Pope and himself I know not it was look'd upon by the Wise Men of the Nation as a notorious breach of the Antient and known Laws and Liberties of the Kingdom Quam gravi multorum mentes scandalo vulneravit inusitata negotii Novitas Antiqui Regni Anglorum detrita libertas satis indicat Toti enim Regno Anglorum circumjacentibus Regionibus cunctis notissimum est eatenùs à primo Cantuariensi Metropolitano Sanctissimo Augustino usque ad istum Wilhelmum Cantuariensem Archiepiscopum omnes ipsius Augustini Successores Monachos Primates Patriarchas nominatos habitos nec ullius unquam Romani legati ditioni addictos Gervas Dorob Collect. pag. 1663. And when afterwards in King Henry the Third's Time Circa festum Apostolorum Petri Pauli Otto sancti Nicholai in carcere Tulliano Diaconus Cardinalis nesciebatur ad quid per Mandatum Regis venit Legatus in Angliam Nescientibus Regni Magnatibus plures adversus Regem Magnam conceperunt indignationem dicentes Omnia Rex pervertit Jura fidem promissa in omnibus transgreditur Nota bend Nunc se matrimonio sine suorum amicorum hominum naturalium consilio Alienigenae copulavit Nunc Legatum Regni totius immutatorem clam vocavit c. Dictum est autem quod Archiepiscopus Cantuariensis Edmundus Regem talia facientem increpavit praecipuè de Vocatione Legati sciens inde in suae dignitatis praejudicium magnam Regno imminere Jacturam Matth. Par. 440. The Historian blames those that went to meet this Legate and that made him Honourable Presents of Scarlet Cloath c. In quo facto says he nimis à multis meruerunt reprehendi tam pro dono quà m pro dandi modo quia in panno ejus colore videbatur legationis Officium Adventum acceptari Which is a remarkable testimony that the King 's calling in a Legate did not in the judgment of those times give him any Legal Authority here if it were done Nescientibus Regni Magnatibus i. e. to speak in Eadmerus his Words if he were otherwise admitted than per Conniventiam Episcoporum Abbatum Procerum totius Regni conventum The same Historian Matth. Par. speaking afterward pag. 446. of the same Legate Rex says he spreto naturalium hominum suorum consilio magis magis ut caepit deliravit Et se voluntati Romanorum praecipuè Legati quem inconsultiùs advocaverat mancipavit c. And again His aliis deliramentis Rex omnium Nobilium suorum corda cruentavit Consiliarios quoque habuit suspectos infames qui hujus rei fomentum esse dicebantur quos idcircò magis habebant Nobiles Angliae exosos But the Instance which the Doctor himself gives pag. 154. of Henry Beaufort Bishop of Winchester and Great Unkle to King Henry the Sixth is as full against him as any thing that he could have pitch'd upon For that Bishop being Cardinal of St. Eusebius was sent Legate into England Anno 1429. Which was Anno Octavo of King Henry the Sixth And was fain to be beholden to an Act of Parliament for his Pardon for having offended against the Laws made against Provisors by bringing in and Executing Papal Bulls within the Realm For Anno 10. Henr. 6. The King by the Common Assent of all the Estates pardoneth to the said Cardinal all Offences Punishments and Pains incurred by him against the Statutes of Provisors Vid. Cotton 's Abridgement of Records 10. Henr. 6. nu 16. Which would have been needless if either the King 's giving leave to his Entrance or Assent to his Decrees could have justified his Proceedings and added any Legal Authority to them By what has been said I conceive it to be very clear that all Foreign Jurisdiction being utterly against the Law of the Realm and an intolerable Usurpation upon the King's Crown and Regality and upon the Rights and Liberties of his Subjects it was never conceived that the King could by his own Personal Authority without the Consent of his People in Parliament subject them to it no more than he could subject himself and his Crown in Temporal Matters Which that he could not do we have these two Remarkable Authorities When after the Death of Alexander the Third King of Scots the Succession to that Crown was in dispute and Ten several Competitors claim'd it and that Edward the First King of England challenged a Jurisdiction of determining to which of them the Right of Succession appertained the Pope that then was pretended that it belonged to him in Right of his Apostleship to decide the Controversie and Wrote to the King a Letter requiring him to desist any further Proceeding therein In answer to which Letter of the Pope the King wrote a long Letter containing Historical Proofs of his being Supreme Lord of Scotland and that the King of Scots was his Homager and at the same time the Parliament of England then Assembled at Lincoln wrote another Letter to the Pope upon the same Subject In which are these Words VIZ. Ad observationem defensionem Libertatum Consuetudinum Legum Paternarum ex debito praestiti Sacramenti adstringimur quae manutenebimus toto posse totisque viribus cum Dei Auxilio defendemus nec etiam permittimus aut aliquatenùs permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia alià inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare praecipuè cùm praemissa cederent in exhaeredationem juris Coronae Regis Angliae Regiae Dignitatis ac subversionem Status Ejusdem REgni notoriam necnon in praejudicium Libertatum Consuetudinum ac Legum Paternarum Sealed by One hundred and four Earls and Barons and in the Name of all the Commonalty of England V. Co. 2d Inst pag. 196. and Fox his Book of Martyrs Vol. 1. pag. 387 388 389. By which it appears that the King could not legally if he would have given way to the Pope's determining the Controversie about the Succession in Scotland since it belonged to himself in
jure Coronae as directus Dominus Scotiae The Second Authority shall be that of Rott Parl. 40 Edw. 3. nu 7 8. Where it was resolved in full Parliament by the Praelates the Earls and the Commons that neither the King nor any other could put the Realm nor People thereof into such subjection sans Assent d'Eux The Occasion was King John's having surrendred his Crown to the Pope and received it back again to hold it as a Feudatary to the Papal See. And it appeared to them by many Evidences that he had done so sans lour Assent and contrary to his Coronation Oath Mr. Selden in his dissertatio ad Fletam pag. 552 553. gives this Account of it Cum sub Edwardo Tertio in Ordinum consessu quaestio habebatur de donatione illâ decantatissimâ Johannis Regis factâ Innocentio Papae Tertio Successoribus Ejus unde Vrbanus Quintus tum annuum inde natum mille Marcarum Angliae simul Hiberniae nomine Censum sibi tunc solvi petebat tum Regnum utrumque jure tantum beneficiario atque ut sedis Romanae Feudum à Regibus nostris contendebat possideri Ordines Vniversi idque tam Generis Hieratici quod mirere quà m Proceres seu Senatus Populusque in Comitiis illis solemni initâ deliberatione responderunt unanimes irritam planè fuisse Johannis Donationem illam utpote tam sine Ordinum Assensu quà m juramento ejus Inaugurali Adversam Et outre ceo sic loquuntur Archiva Les Ducs Counts Barons Grands Comens accorderent Granterent que en cas que le Pape se afforceroit ou rien attempteroit per proces ou en autre manner de faire de constreindre le Roy ou ses subgitts de perfaire ceo que est dit qu'il voit claimer cell partie qu'ils resisterent Contreesterent ove tout lour Puissance And with this agreed the Scottish Laws Et idem Rex Scotiae dicit sicut prius quod de aliquo Regnum suum contingente non est Ausus nec Potest hic Respondere Inconsultis probis hominibus Regni sui Plac. Parl. Inter. Johann Reg. Scotiae Magdulph 21 Edw. 1. pag. 157. He mentions pag. 155. the Claims which our Antient Kings made to Investitures and the Interposing their Authority even in Allowing or Disallowing the Persons of Bishops And it is very true that till the beginning of King Henry the First his Reign they not only Claim'd but actually did Invest Bishops and Arch-bishops per Traditionem Annuli Baculi And subjects in antient time that Founded Churches had the same Right of Collation or Investiture whereby the Incumbents received full Possession without Aid of the Bishop or other Church-man Vid. Selden 's History of Tythes cap. 6. sect 3. And the Kings Right of Investing Bishops because all Bishopricks were Royal Foundations was such as could not be parted with but by Act of Parliament For that the Kings were bound by their Coronation-Oaths as hath been said Jura Regni servar illibata nec aliquid quod Diadema tangit Regni absque Praelatorum Procerum requisito Concilio facere And therefore King Henry the First in a Letter to Pope Paschal upon this Subject of Investitures which the Pope then contended hard to gain from him tells him plainly Si Ego quod absit in tantâ me dejectione ponerem viz. as to forego them Optimates mei imò totius Angliae Populus id nullo modo pateretur Collect p. 999. And therefore when afterwards they were given up it was done in Parliament Postmodum Kalend. Augusti Clero Populo ad Concilium Londoniae Congregato Adstantibus Archiepiscopis Episcopis caeterâque multitudine maximâ Procerum Magnatum statuit Rex concessit ut ab eo tempore in anteà nullus electus per dationem Baculi Pastoralis vel Annuli de Episcopatu vel Abbathiâ Investiretur per Regem vel quamcunque aliam persenam saecularem Collect. pag. 1000. And for the King 's interposing his Authority in Allowing or Disallowing the Persons of Bishops Before the Reign of King William the First Nulla erat Electio Prelatorum merè Libera Canonica sed omnes Dignitates tam Episcoporum quà m Abbatum Regis Curia pro suâ Complacentia conferebat Ingulphus pag. 509. And in King William the Conqueror's time Lanfrank was chosen Archbishop of Canterbury Consensu Consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque populi Angliae Brev. Relat. de Will. Com. Normann Auth. Anonym Eligentibus eum senioribus ejusdem Ecclesiae cum Episcopis Principibus Clero Populo Angliae in Curiâ Regis in Assumptione sanctae Mariae Gervas Dorob Col. pag. 1653. In the Reign of his Successor King William Rufus Anselm was chosen in like manner Vid. Eadmer lib. 1. And in King Henry the First 's time Radulphus who succeeded Anselm was chosen Archbishop at Windsor whither Rex instinctu Dei permotus Episcopos Principes Angliae in unum fecit venire corum Consilium in Constituendo Archiepiscopo Cantuariensi volens habere Vid. Eadmer Lib. 5. cap. 109 110. Many Examples occur of other Bishops and Abbots elected either in Parliaments or which is all one in Ecclesiastical Assemblies consisting of the same Members that Parliaments of those times were composed of betwixt the Conquest and King John's time Vid. Spelm. Councils Tome 2. pag. 39. ibid. pag. 119. But Elections were not uniform in those days The Clergy strugled hard to gain them wholly to themselves And the Kingdom was sometimes disquieted about the matter especially in King John's time Sometimes Elections were by the Chapter sometimes by the Clergy and People of the Diocess sometimes in Great Councils King Henry the Second endeavoured to have settled them by the Laws of Clarendon cap. 12. Vid. Collect. pag. 1387 1388. But the Pope broke in upon them by forcing him to swear when he was absolv'd for Becketi's Death Quod Consuetudines quae suis temporibus contrà Libertatem Ecclesiae fuerant introductae revocarentur in irritum Radulph de Dioeto Coll. pag. 560. This altered no Right but it gave the Clergy a colour to innovate upon him But in King John's time the pretended Right of Election was yielded up to the Clergy by a Law Consensu Baronum Only a Congé d'eslire was to issue and Electi post Electionem celebratà m debebant Domino Regi praesentari post confirmationem ante administrationem in spiritualibus vel temporalibus faciendam ei Juramentum fidelitatis praestare Matth. Paris pag. 635. And so the Right continued till King Henry the Eighth's Time that it was altered by Parliament Hence it appears that Our Kings had no Personal Inherent Right and Prerogative in these Elections since all were of Old to be made in Parliament and since the several Legal Alterations that have been made therein have been made in and by Parliaments Nor is it to be wondred that
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
Election being willing to receive the Persons so collated and the King to admit them as any Private Patron might admit a Clerk to be collated to a Church of his own Gift by Provision it was very reasonable that the King should require a renunciation of such Clauses in their Bulls of Provision as interser'd with the Jurisdiction which the Law gave him over his Spiritual Subjects And this appears by Sir Roger Twisden's third quotation upon this Head compar'd with an Act of Parliament in Queen Mary's time The quotation is out of Coke's 3 Instit pag. 27. where the Form of the Renunciation is set down viz. I renounce all the words comprized in the Pope's Bull to me made of the Abby of c. the which be contrary or prejudicial to the King our Sovereign Lord and to his Crown c. A true and Gonuine Explanation of which take from an Act of a Popish Parliament viz. 1 2 Phil. Mar. cap. 8. Be it Enacted by Authority of this present Parliament That all Bulls Dispensations and Privileges obtained before the Twentieth Year of King Henry the Eighth or which shall hereafter be obtained of the See of Rome not containing matter contrary or prejudicial to the Authority Dignity or Preheminence Royal or Imperial of the Realm or to the Laws of the Realm now being in force may be put in execution c. So that such Bulls as were not contrary to the known Laws of the Realm were allowed to be valid so long as the Pope was acknowledged to be the Head of the English Church But such Bulls or clauses in Bulls as were contrary to the Laws were to be renounced as Prejudicial to our Sovereign Lord the King and his Crown i. e. as this Law of Phil. and Mary explains it to the Preheminence Imperial of the Realm and the Laws of the same Sir Roger's third Particular is That Our Kings permitted No Councils but by their liking to assemble which gained the name of Convocations as that always had been and ought to be assembled by the King 's Writ For this Sir Roger quotes Eadmer pag. 24 and the statute of 25 Henry the 8. c. 19. Upon this Head I have no Controversie with the Doctor nor Sir Roger I only assert that such things as are the proper Business of Convocations cannot be transacted by the King alone without them His fourth particular is That Our Kings caused some to sit in them sc in his Ecclesiastical Councils to supervise their Actions and prohibit them on the behalf of the King and Kingdom ne quid ibi contra Regiam Coronam aut dignitation statuere attentarent Here the Reader is to observe that the Authority quoted for this is in Anno Dom. 1237. which was about the twentieth year of King Henry the Third before which time the Clergy had turn'd the King and the Laity out of their Synods And therefore it stood the King in stead to prohibit them who were but a small number of his Subjects and scarce half-Subjects from attempting any thing to the prejudice of the Rights of his Crown or the Liberties of his People and the Laws of the Realm which they had already made too great inrodes upon As no such Prohibitions as these can be produc'd in former times so they were altogether useless and unnecessary when the Kings themselves and all such of their Subjects as were admitted into Parliaments sat and had Votes in Ecclesiastical Synods as is undeniably evident by almost all the Ancient Councils collected by Sir Henry Spelman till within the Reign of King Steven Who owing his Crown to the Clergy was fain to suffer this and other Usurpations to secure his crack'd Title But after the Clergy took upon them to meet in Convocations neither assembled by the Kings Writ nor consisting as the Ancient Synods had done of the King and all the Estates of the Realm Prohibitions to them are frequent not to attempt any thing against the Law of the Land. Vid. Patt 8. Reg. Johan nu 1. Rex Archiepiscopis Episcopis Abbatibus Archidiaconis omni Clero apud sanctum Albanum ad Concilium convocato salutem Conquerente Vniversitate Militum Baronum aliorum sidelium nostrorum audivimus quod non solum in laicorum grave praejudicium sed etiam in totius Regni nostri intolerabile dispendium super Romescot praeter consuetudinem solvendo aliis perpluribus inconsuctis exactionibus Authoritate summi pontificis Concilium inire Concilium celebrare decrevistis Nos vero c. Vobis precise mandamus expresse prohibemus ne super praedictis vel aliquibus aliis Concilium aliquod in Authoritate aliquâ in fide qua nobis tenemini teneatis vel contrae Regni nostri Consuetudinem aliquid novi statuatis à celebratione hujusmodi Concilii supersedeatis quousque cum Vniversitate nostra super hoc Colloquium habuerimus This Writ appears to have been granted at the Complaint of the whole Parliament and Commands the Clergy not to proceed in their Exactions nor any other business contra consuetudinem Regni till the King had spoken with his Parliament about the matter But I lay no stress at all upon the Parliament's being here a party I produce this Writ only to confirm Sir Roger's fourth particular of the Kings prohibiting the Clergy to attempt any thing against the Rights of his Crown or the Law of the Land. It is a known Rule that whatever is forbidden by Law the King may forbid by his Proclamation and that whensoever any Court assumes an Authority not warranted by Law the King may prohibite them by his Writ What more natural then for the supreme Magistrate to whom the Law has committed the Execution of it self to prohibite all things that are contrary to Law As here we see the King at the complaint of the Vniversitas prohibits the Clergy from attempting any thing contrary to the Consuetudo Regni so in King Henry the Eighth's time there appears a prohibition to the King himself and the Clergy not to do any thing contrariant or repugnant to the King's prerogative Royal or the Customs Laws and Statutes of the Realm The Statute of 25 Hen. 8. cap. 19. which all men agree to be but declarative of the Common Law enacts that No Canons Constitutions or Ordinances of the Clergy shall be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the Kings prerogative Royal or the Customs Laws or Statutes of the Realm This Act had before provided that the Clergy should not make promulge or execute any Canons Constitutions or Ordinances in their Convocations without the Kings Licence and Assent under the Penalty of a Premunire so that without the Kings Assent their Canons would be Nullities and themselves under a premunire for making or Executing them And therefore when the Act provides in an after-clause that they shall make no
Canons c. contrary to the Kings prerogative or the Laws of the Realm this is a prohibition to the King and them not to make any such Canons Constitutions or Ordinances as are contrary to Law. Sir Roger's fifth particular is That our Kings suffered no synodical decree to be of force but by their Allowance and Confirmation For which he quotes Florentius Wigornensis Anno 1127. Where 't is said Rex auditis Concilii Gestis consensum praebuit authoritate Regia potestate concessit confirmavit statuta Concilii à Gulielmo Cantuariensi Archiepiscopo sanctae Romanae Ecclesiae legato apud Westmonasterium celebrati Now that Council consisted not of the Clergy only but as Ecclesiastical Synods did in those days of the Clergy and Laity Confluxerunt quoque illic magnae multitudines Clericorum Laicorum tam divitum quam mediocrium fact us est conventus grandis inestimabilis ibidem And this we have heard before out of Malmesbury was necessary quatenus quicquid ejusmodi Concilii Authoritate decerneretur utriusque Ordinis cura sollicitudine ratum servaretur Now that the Acts of such Synods were of no force within the Realm without the Kings Assent I agree as his Assent is necessary to make an Act of Parliament a binding Law in Temporals so his Assent is and till the Clergy had turn'd him out of their Synods always was necessary and Essential to an Ecclesiastical Law. But what inference can be drawn from hence to prove any personal Supremacy in the King separate and distinct from the Assent of his People in their Synods and Councils I do not apprehend But one Observation I cannot omit upon this Council compar'd with that other held Anno Dom. 1175. Ann. 21. Hen. 2. For whereas in the former the Laity were present as well as the Clergy we find the King gave his Royal Assent to their Canons and so they became Ecclesiastical Laws binding to the whole Nation In the latter the Laity were not present by any account that I can find of it and therefore to make their Canons general Laws the Kings Assent would not have been sufficient nor was it singly had for Gervas Dorob Anno Dom. 1175. pag. 1429. Collect tells us in hoc Concilio ad Emendationem Anglicanae Ecclesiae assensu Domini Regis primorum Regni haec subscripta promulgata sunt Capitula And that the Clergy in those days when they took upon them to hold Synods apart from the Laity did not imagine that the King alone could give their Canons any Validity in Law where they entrench'd upon or interser'd with the Laws of the Land will appear by observing that when in King Henry the Third's Time the Clergy in opposition to the Gravamina Laicorum had made many provisional Articles for the enlarging their own Jurisdiction pro quibus Episcopi Angliae fuerant pugnaturi Mathew Paris says thus of them viz. Formati sunt Articuli circiter quinquaginta quos praelati in seripta redegerunt ut apto tempore coram Rege magnatibus praelatis lecti effectum debitum sortirentur Additamenta ad Math. Paris pag. 199 c. so that it was the magnates praelati as well as the King and not the King without them that could give life to them Sir Roger's sixth particular is That our Kings permitted no Bishops to Excommunicate or inflict any Ecclesiastical Censure on any Baron or Officer nisi praecepto suo concerning which I have spoken already The seventh is That they caused the Bishops to appear in their Courts to give an Account why they Excommunicated the Subject This makes nothing for any personal Authority in the King. Whatever he does in his Courts he does by his Judges who have the Law of the Realm for their guide and Rule And ought to keep all inferiour Courts within their Bounds and therefore might and do yet every day grant Prohibitions when the Bishops and their Officials proceed to Excommunicate where the Law does not allow that Censure to be apply'd And if the Writ of Prohibition be not obey'd but that the Bishop or other Ecclesiastical Judge proceeds notwithstanding an Attachment is the next process Vid. Fitz. Nat. Br. tit prohibition For Excommunication whatever pretence of Divine Right the Clergy may have for their Jurisdiction was always regulated by the Laws of the Realm but never by the Kings Arbitrary Will and Pleasure The Eighth is That they caused such as were imprisoned after forty days standing Excommunicate to be free'd by Writ without the assent of the prelate or satisfaction giving the King and his Judges communicating with them tam in Divinis quam profanis and commanding none to shun them though by the ordinary denounced Excommunicate Now the ground of this is no other then the Writ de cautione admittenda by which the Bishops are commanded quod accepta ab A. B. the Person Excommunicate cautione ipsum à prisona quâ occasione praedict detinetur deliberari mandent alioqui quod nostrum est in hac parte exequemur To which Writ if the Bishop did not yield Obedience then a Writ went to the Sheriff to deliver the Prisoner if the Bishop should persist in his refusal to accept Caution v. Regist fol. 66. a. Fitz. Nat. Brev. Fol. 63. Now these Writs in the Register were made in Parliament as Bracton tells us Lib. 5. Fol. 413. b. sunt quidem brevia formata de certis casibus de communi consilio totius Regni concessa approbata And therefore says he and the Lord Coke out of him 2 Instit 407.8 Rep. fol. 48 49. nullatenus mutari possunt absque consensu voluntate eorum The Acts indeed by which most of the Writs in the Register are appointed are lost as all the Records of Parliament are before Magna Charta but by Acts of Parliament yet upon record many writs are directed and the forms of them express'd in the body of the Acts. So that Writs in the Register are the very Law of England they are Statute-Law and the oldest Statute-Law we have And consequently the King 's commanding the Bishops to discharge persons that were in prison upon a Capias Excommunicatum and commanding the Sheriff to deliver them in the Bishop's default is no Act of Personal Prerogative in them But the ordinary course of the Law of the Realm and warranted by Acts of Parliament though the Records of those Acts being lost we now call it Common-Law Sir Roger's ninth Instance is That our Kings suffer'd no Legates to come into England without their leave Of which has been discours'd already The tenth is That they determin'd Matters of Episcopacy Inconsulto Romano Pontifice Which is true they did and had good Right to do but not Inconsultis Magnatibus Witness the Degradation of Stigand Arch-bishop of Canterbury temp Willielmi primi And the intended deprivation of Wolstan Bishop of Worcester The Controversie betwixt King William Rusus and
Anselm about Anselm's going to fetch his Pall from Vrban And that betwixt Lanfrank Arch-bishop of Canterbury and Thomas Arch-bishop of York concerning the Profession of Canonical Obedience which the former required of the Latter the Chusing Bishops and Arch-Bishops the Controversies betwixt King Henry the 2d and Thomas Becket all heard debated and determined in General Assemblies of Clergy and Laity and not by our Kings apart from their Great Councels The Eleventh is That they permitted No appeals to Rome 'T is true nor did they ever determine them themselves either in person or by Commission And therefore the Statute of Clarendon which gives Appeals from the Arch-Bishop to the King was never understood to be to the King in person but to the King in his Court. As we may see by what Ger. Dorobern Anno 1176. Coll. p. 1433 And Hoveden fol. 313 314 tell us of the statute made at Northampton in King Henry the second 's time Which both of them call a renewing of the Assize of Clarendon Now in these Laws made at Northampton there is this close Expression concerning Appeals Justiciae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infrà terminum nominatum stare ad Rectum in Curià Domini Regis Vtlagentur So that though King Henry as far as in him lay had given ways to Appeals to Rome for when he was absolv'd of the Guilt that he was supposed to have contracted by having occasioned the death of Thomas Becket part of the satisfaction enjoyn'd him was quod licebit Appellationes libere fieri Radulph de Diceto p. 560 yet the Kingdom afterward meeting in Parliament at Northampton would not quit their interest But renew'd the Laws of Clarendon against forein Appeals And explain the Appeals ad Regem to be meant of Appeals ad Curiam Regis But it is a common errour with Men that are ignorant of our Laws wherever they find they King's name in any Acts of Parliament or Judicial Proceedings to imagine that the King has some Personal Authority out of his Courts But for the present I will give but one Instance to detect that mistake The Stat. of Westm 1. Enacts cap. 15. what persons shall be replevisable and what not Amongst others those that are taken by Commandement le Roy are appointed not to be bayl'd by that Statute My Lord Coke in his Commentary upon that Law 2d Institut pag. 186. says thus viz. 1. The King being a body Politick cannot command but by matter of Record for Rex praecipit and lex praecipit are all one For the King must command by matter of Record according to Law. 2. When any Judicial Act is by Act of Parliament referred to the King it is to be understood to be done in some Court of Justice according to Law. The words of the Statute of Rich. 2. cap. 12. are si non que il sort per briefe ou auter maundement del Roy. And yet it was resolved by all the Judges of England that the King cannot do it by any Commandment but by Writ or by Order or Rule of some of his Courts of Justice where the Cause dependeth And Fortescue speaking to the Prince to instruct him against he should be King Melius says he per alios quà m per teipsum Judicia reddes quo proprio ore Nullus Regum Angliae usus est tamen sua sunt omnia Judicia Regni licet per alios ipsa reddantur sicut judicum â—lim sententias Josaphat asseruit esse judicia Dei. The Great Case in tertio Caroliprimi of Habeas Corpus turn'd upon this point The Judges indeed betray'd the Nation in that cause as they have done in others in these Hundred years last past as far as in them lay but how that Judgment was resented in Parliament the Reader may inform himself out of the 1st Vol. of Rushworth's Collections and the 1st part of Doctor Nalson The Law was declared upon that occasion to be that Voluntas Regis est secundum legem et Justiciarios suos in Guriâ suâ non in Camerâ according to 2 R. 3. f. The Twelfth particular is that Our Kings bestowed Bishopricks on such as they liked and translated Bishops from one See to another concerning our Kings bestowing Bishopricks something has been said already As for their translating Bishops from one See to another I desire to hear any one Instance in any age of any Bishop translated by the King against his own will. The Pope pretended to such a power and sometimes Exercised it and that was one of the mischiefs which occasioned the making of the Statutes of Provisors But could never yet find that any of our Kings attempted it The Thirteenth particular is Erecting New Bishopricks The Instances given by Sir Roger are 1st the erecting of the Bishoprick of Ely by King Henry the 1st Anno 1009. taking it out of Lincoln-Diocess And yet nothing is more evident then that this was done by Act of Parliament The Instrument Runs thus viz. In Nomine sanctae individuae Trinitatis Patris Filii spiritus sancti Anno ab Incarnatione Domini MCVIII Indictione Anno Pontificatus Domini Paschalis Papae 2. decimo Regni quoque mei similiter decimo Ego Henricus Providente Divina Clementia Rex Anglorum Normannorum Dux Wilhelmi Magni Regis Filius qui Edwardo Regi Haereditario jure successit in Regnum videns Ecclesiae messem in Regno meo multam esse Agricolas quidem paucos et ab hoc plurimum laborantes in Messe et in ipsa Lincolniensem Ecclesiam multa plebe foecundam ex Authoritate Consilio predicti Papae Paschalis Assenfu simul prece Roberti Lincolniensis Episcopi totius Capituli sui cum ipso annuente Domino Anselmo Beatae memoriae Cantuariensi Archiepiscopo Thoma secundo Venerabili Eboracensium Archiepiscopo Universis Episcopis Abbattibus totius Angliae sed omnibus Ducibus Comitibus Principibus Regni mei Elyense Monasterium c. in Episcopalem sedem sicut caeteros Episcopatus Regni mei liberam absolutam perenniter statuo confirmo vid. Mr. Selden 's Notas Spicilegium ad Eadmer Et Dugdale's Monasticon And what if All the Bishopricks of England Erected both before and after were Erected by Acts of Parliament and not by the King's Letters Patents only In King Edward the Elder 's time upon the Letter of Pope Formosus Congregata est synodus Senatorum Procerum Populorum Nobilium Gentis Angliae In quâ Presidebat Plegmundus Archiepiscopus Tum sibi Rex cum suis et Plegmundus Archiepiscopus salubre Concilium iniverunt and Constituted and Elected five Bishops in the Province of the Gewissi where there had till then been but two dividing those two Bishopricks into five by Act of Parliament Spelman's Counc Volum 1. pag. 387 388. Malmesbury de Gestis
them not warrantable by the Laws and Statutes of the Realm Now what use the Doctor can make of this Particular viz. of the King 's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law I cannot discover Sir Roger's eighteenth and last particular is an observation in Matth. Paris where the Ecclesiasticks having enumerated several cases in which they held themselves hardly dealt with add That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition he was attached and appearing before the Justices constrained to produce his proceedings that they might determine to which Court the Cause belonged By which says he it is manifest how the King's Courts had the superintendency over the Ecclesiastick This makes nothing for any Extrajudicial Personal Arbitrary power in the King in the Ecclesiastical matters and is so far from impugning that it corroborates my hypothesis That the Temporal and Ecclesiastical Courts often quarrel'd about their Jurisdiction and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm thereby endeavouring to usurp and encroach upon many matters which apparently belonged to the Common Laws as the tryal of Limits and Bounds of Parishes the Right of Patronage the tryal of right of Tythes by Indicavit Writs to the Bishop upon a recovery in a Quare impedit the tryal of Titles to Church-Lands concerning Distresses and Attachments within their own Fees and many other things which belonged to the King 's Temporal Courts That the Temporal Courts granted Prohibitions in these and other like cases that the Clergy hereupon complain'd not to the King but to the Parliament Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes 599 600 601 c. So that the King determined to which Court Causes belonged either in his Courts of Ordinary Justice or if the Clergy remain'd unsatisfied with the Opinions of the Judges in his High Court of Parliament and no otherwise But we need not wonder that such a Prelate as Arch bishop Bancroft whose Divinity had taught him that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself and that such Authority belonged to Kings by the Word of God in the Scripture we need not wonder I say to find him in King James the First 's time Exhibiting Articles of Abuses in granting Prohibitions against the Judges to the Lords of the Privy Council As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst 601 602 c. 12 Co. p. 63 64 65. By what has been said I hope it appears sufficiently that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction and no other than they had in Temporal matters viz. in their Great Councels and in their Ordinary Courts of Justice And that not only our Mercenary Doctor but more learned and wiser men than he have unwarily confounded that Jurisdiction with a Fiction of their own brains by which they have ascribed to the King a Personal Supremacy without any warrant from Antiquity Law or History Witness these loose Expressions in Sir Roger Twiden's Historical Vindication c. It cannot be denyed but the necessity of being in union with the true Pope at least in time of schism did wholly depend on the King pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals that is quae sui sunt ordinis without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione in other things as points of Government the Ordering that of Right and Custom ever to have belonged to the King assisted with his Councel of Bishops and others of the Clergy who was therefore called Vicarius Christi c. pag. 21. The King and the Arch bishop or rather the Arch-bishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy as the Erection of Bishopricks disposing and translating of Bishops c. p. 24. and innumerable others But to go on with Dr. Johnston and draw to a conclusion he acknowledges pag. 157 that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time And if no such thing can be found then what authority can our Kings now have to exercise such a Jurisdiction unless by vertue of some Act of Parliament made in or since his time But says he we have sufficient grounds to judge that whatever was done was by the King's Power and Authority which is a wild extravagant ignorant expression and hardly common sense And therefore says he Sir Edward Coke in Cawdrie's case Lays it down for a Rule That as in Temporal Causes the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proed approved and allowed here by and with general consent are aptly and rightly called the King's Ecclesiastical Laws and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects c. pag. 157. which that he has he proves by the Preamble of stat 24 Hen. 8. cap. 12. And what then May the King therefore erect New Courts directly contrary to positive Laws Command things arbitrarily upon pain of suspension deprivation c. and Command things contrary to Law by vertue of his Ecclesiastical Laws The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy which now stands Repealed And with 1 Eliz. by which he says all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governour But the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to shew hereafter that the Doctor understands the Act of 1 Eliz. as little as any thing else that he pretends to write upon FINIS