although he had the King's Assent to it and he exercised it several Years by his Permission Stephen Gardiner in his Letter to the Protector saith That he obtained his Legatine Power by the King's Assent From whence he observes What Danger they may fall in who break the Law with the King's Consent for in the Cardinal's Case he saith That because his Legatine Power was against the Laws of the Realm the Judges conclude the Offence to be such as incurred the Praemunire And this he Asserts was the Sense of the Lawyers of that Time and for confirmation of it he brought the Case of the Lord Tiptoft who sufferd on Tower-Hill because in execution of the King's Commission he had offended against the Laws of the Realm And of many Judges who had Fines set on their Heads in like Case for acting against the Law of the Realm by the King's Commandment But it is pleaded on the other side That the Commons 1 H. 5. n. 22. put in the saving the King's Prerogative into their Petition concerning the Statute of Provisors that it may stand in full Force And this was an owning the King's Dispensing Power by all the Commons in Parliament when they were in a high Debate with the Crown This seems to have a good shew of Reason to any one that doth not consider the Practice of those Times in Acts of Parliament for the Petitions of the Commons before 2 H. 5. were not taken entire and just as they delivered them but several Clauses were inserted by the Court especially such as seemed to preserve the King's Prerogative which the Commons found so inconvenient That the next Year as Serjeant Glanvil observed and probably on the Occasion of these Savings 1 H. 5. n. 15 and n. 22. the Course was altered and hath so continued Therefore methinks so great Weight should not be laid on these Savings as if they implied the owning the Dispensing Power when the Design of the Law was against it And the King's Answer is Let the Statutes be held and kept I appeal to any Man's Understanding whether the saving the King's Prerogative can be any other than a General Clause put in without respect to the Dispensing Power since the Petition is against the Exercise of it and the Answer That the Statutes should be observed If they were observed what Use of the Dispensing Power for that lay in giving leave not to observe them What strange Sense is this The King promises The Statutes shall be kept saving his Prerogative that they may not be kept for they feared the not keeping them from such a Prerogative and when the King therefore Yields they shall be kept he doth give up any such Prerogative or else he doth not answer their Petition The Truth is when the Kings had got this Power into their Hands though it were with such Limitations at first yet they found Arts from time to time to keep it till at last they were unwilling to part with it as appears by H. 4. but upon the restless Importunity of the Commons it was laid down by him And now in the beginning of H. 5. the Commons took Care to prevent its Rising in a new Reign but he being a Prince not ready to part with any thing which looked like Power was in probability not easie to be brought to confirm the Statute of Provisors without some general Words of saving his Prerogative which the Commons might yield to that they might gain the main Point since those Words could signifie nothing against the very Intention and Design of the Law. IV. The Precedents in Law do contradict this Rule as will appear by those which are produced by the Lord Chief Justice Vaughan in the Case of Thomas and Sorrel 1. The King cannot Dispense with a Common Nusance for The King he saith cannot Pardon continuing Nusances but the Penalty he may The King cannot Dispense with a Nusance to the High Ways by 11 H. 7. he cannot Pardon or Discharge the Nusance or the suit for the same the High-ways being necessary for such as Trawel but Common Nusances are not mala in se which are not Evils at Common Law as some understand them but things so intrinsecally Evil that no Circumstances can make them lawful Malum in se is a Moral Evil in its own Nature and therefore can never be Dispensed with but a Nusance at Common Law is but a Natural Evil and all the Moral Evil of it lies in the Prohibition by Law And yet in these it is granted That the King cannot Dispense And the Year-Book saith That a Licence to make a Nusance in the High Way were void For what Reason Is it a thing forbidden by the Natural or Divine Law Cannot the King for his Will and Pleasure License the Making a Nusance and yet is it possible for Men of Sense to imagin That he can by his Dispensing Power give leave to do such things as in consequence overthrow our Laws and Religion Doth the Law take greater Care of the High-Way than of our Liberties and Religion This would seem strange Doctrine to People of another Country viz. That by the Law of England the King hath no Power over the High-Way to Dispense with a Common Nusance therein but he hath over the Laws made for the most Publick Good and Security of the Nation And truly this cannot but seem strange to as many among our selves as allow themselves the Liberty of thinking Doth the Law only take care of Oxen and High-Ways But it is well observed by the Learned Chief Justice Vaughan That Publick Nusances are not mala in se but mala politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found 2. The King cannot Pardon the Damage done to particular Persons saith the same Chief Justice where the Suit is only the Kings but for the Benefit and Safety of a third Person the King cannot Dispense with the Suit but by Consent and Agreement of the Party concerned And again Penal Laws the Breach whereof are to Men's particular Damage cannot be Dispensed with And the Chief Justice Herbert owns That the King cannot Dispense with Laws which vest the least Right or Property in any of his Subjects Here we see the Prerogative bounded where the Interest of particular Persons is concerned but doth the Law take more Care of them than of the Publick Interest and the concernment of the whole Nation But I find another Distinction in this Case viz. There is Bonum Publicum and Laws made for that may be Dispensed with And there is Bonum singulorum Populi and with Laws that concern that the King cannot Dispense This is admirable Learning if it be brought out of these Terms And the meaning is The King can do nothing to the Prejudice of the People in
their Private Capacities but he can do what he will with the Publick I had thought a Prince had been in the first Place bound to regard the Good of the Publick and to take Care of the salus Populi complicati as it is called i. e. as they are imbodied together and not of the Private Interests of particular Men which can never be preserved when the Publick Safety is not secured 3. It is granted That in Penal Laws by Act of Parliament where the Offenders are punishable at the King's Suit but where the Offence is to the immediate Wrong of Particular Persons and for which the Law gives them special Actions the King cannot Dispense Never was Law more tender of the Interest of Particular Persons than ours But suppose a Penal Law by Act of Parliament relates immediately to the Publick and gives no particular Persons any Special Actions is such a Law therefore Dispensable because only the Publick Good and the Safety of the Nation are concerned which are not it seems to be valued with the Private Interests of Particular Men. They who affirm such things may be very learned in Book Cases but they do not seem to have studied the Jus Publicum as Bracton calls it which concerns Statum Reipub. or the Political Law of this Nation which shews the great Respect which the Good of the Community ought to have above Private Interests But when Persons take up their Notions and Maxims from Laws relating to Meum and Tuum they are very apt to judge of Publick Laws according to those Measures 4. It is granted That the King cannot license a Baker Brewer or Victualler to break the Assize of Bread or Ale nor a Miller to take more Toll than the Law appoints therefore these are mala prohibita nor a Taverner to break the Assize of Wine Nor a Butcher to sell measled Swines-Flesh or Murrain Flesh nor any Man to forestal the Market by a non obstante of the Statute de Pistoribus which prohibits all these under several Penalties Nor can he licence Butchers Fishmongers Poulterers or other Sellers of Victuals nor Hostlers to sell Hay and Oats at what Price they please by a non obstante of the Statute of 23 E. 3. c. 6. and 13 R. 2. c. 8. Still the Law is extreamly tender of us as to Meat and Drink and not only for our selves but for our Horses too so that the King cannot Dispense with the Laws about them And yet can we think so meanly of the Wisdom of our Ancestors that they would take such Care of Bread and Wine and Horse-Meat that the King himself could not inhance the Price of them but that as to their Laws which relate to the Publick they were content to leave them to the Will and Pleasure of their Prince No one that reads the History of our Ancestors and the Contests they had with Kings to obtain their Publick Liberties could ever entertain such a Thought concerning them 5. If Foreign Manufactures or Foreign Corn be prohibited for support of the Natives a Licence to one or more to bring them in if General is void by the Case of Monopolies notwithstanding a non obstante This is certainly Malum prohibitum and yet the King cannot Dispense with it And it is really a very hard Case if the King cannot Dispense with a Monopoly in Trade and may Dispense with a Monopoly in Religion i. e. That notwithstanding all the Laws for setling our Religion at Home he may grant a Licence to Foreigners to introduce another although never so repugnant to our Laws for none who understood our Affairs could imagine That this Dispensing Power was set up for any other End. But what shall we say to the Precedents on the other side I shall pass by others which have been sufficiently answered already and only speak to that which above all others hath been declared to be the Foundation of the Dispensing Power and therefore deserves to be farther cleared and that is The Case of Dispensing with the Statutes about Men's continuing Sheriffs more than a Year which is urged as plain and concluding because it was for a Publick Good and preventing great Mischiefs yet the King's Power of Dispensing in this Case was allowed by all the Judges of England 2 H. 7. and this hath been cited as adjudged in several Books of great Authority Fitz-Herbert Plowden Coke c. and the Practice hath ever since been accordingly This is the whole strength of the Argument And I shall not repeat what others have already said to shew that this was not the Reason of the Judicial Sentence then given but the particular Ground of one of the Judges after they had declared the Patent to be good But however that were it cannot be denied that great Lawyers since that time have taken it to have been the Sense of the Judges then For Coke's Words are express in Calvin's Case It is Enacted by the Parliament of 23. H. 6. That no man should serve the King as Sheriff of any County above one Year and that notwithstanding of any Clause of Non-obstante to the contrary that is to say notwithstanding that the King should expresly dispense with the said Statute howbeit it is agreed in 2 H. 7. That against the express purview of that Act the King may by a special Non-obstante dispense with that Act. Here it is plain that in Coke's Opinion at least the Judges did agree that although King and Parliament had made an Act which made void any Grant with a Non obstante yet that such a Grant made afterwards with a special Non obstante was good I am not much concerned whether it were their Opinion or not because I think there is much greater Reason and stronger Authority on the other side 1. As to Reason If a Non-obstante from the King be good when by Act of Parliament a Non-obstante is declared void what doth an Act of Parliament signifie in such a Case Must we say It is a void Clause But then to what purpose was it put in Did they who made the Act understand it to be a void Clause when they put it in Certainly it was then thought otherwise and if it were so we have the Authority of the Parliament against the Opinion of the Judges If it were not a void Clause then how came it to be so afterwards What Alteration was made in the Law of England in that Interval and by whom How comes a Clause that had force in 23 H. 6. to have none 2 H. 7 Could Radcliff or the rest by their Opinions destroy the Force of an Act of Parliament No But Coke saith No Act can bind the King from any Prerogative which is sole and inseparable from his Person but he may dispense with it by a Non-obstante as a Sovereign Power to command any of his Subjects to serve him for the Publick Weal and this solely and inseparably is annexed to his
Person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesi nor in Hypothesi but that the King by his Royal Power may dispense with it for upon the Commandment of the King and Obedience of the Subject does his Government consist as it is provided by the Statute of 23 H. 6. c. 8. That all Patents made or to be made of any Office of a Sheriff c. for Term of years or for Life in Fee-simple or in Tail are void and of none effect any Clause or Parol of Non-obstante put or to be put into such Patents to be made notwithstanding And further Whosoever shall take upon him or them to accept or occupy such Office of Sheriff by vertue of such Grants or Patents shall stand perpetually disabled to be or bear the Office of Sheriff within any County of England by the same Authority And notwithstanding that by this Act 1. The Patent is made void 2. The King is restrained to grant a Non-obstante 3. The Grantee disabled to take the Office yet the King by his Royal Sovereign Power of commanding may command by his Patent for such Causes as he in his Wisdom doth think meet and profitable for himself and the Commonwealth of which he himself is sole Judge to serve him and the Weal Publick as Sheriff for such a County for years or for Life c. And so was it resolved by all the Justices of England in the Exchequer Chamber ' 2 H. 7. Here the Point is resolved into an inseparable Prerogative in the King which no Act of Parliament can restrain although made with his own Consent Is there no Act of Parliament then which this great Lawyer will allow to restrain the King's Prerogative so as he cannot disperse with it What saith he to the Case of Buying Offices at Court Cannot the King by vertue of his Prerogative order his Houshold as he pleases to dispose of Offices about him as he thinks fit No. The same Lawyer saith That no Non obstante could dispense with the Act against buying of Offices And yet one would think that the King had as great a Prerogative in the Court as over the Kingdom But how comes he to say That the King can dispense notwithstanding the Disability when elsewhere he saith The King cannot dispense in the Case of a Disability by Law For the Reason he gives why the King cannot present a Man to a Living who is convict of Simony is because the Law hath disabled him Very well And yet in this Case although the Law hath disabled him the King may dispense Where are we now The King can dispense with a Disability and he cannot dispense with it This is indeed a very dark learning of Dispensations as C. Justice Vaughan well called it for we cannot yet find the way through it Can the King dispense with a Disability in Law or not If not the Case of Sheriffs is gone If he can then why not in the case of Symony Why not as to sitting in Parliament without taking the Oaths No here is a Disability in Law. What then Cannot the K. dispense with a Disability in one Case as well as the other Bu the same Person saith That in that Case because the Words amount to a Disability the King cannot dispense and here where the Disability is expressed he may But we are lately told there are two sorts of Disabilities one is actually incurred as that upon the Members who sit without taking the Oaths and the other is a Disability annexed to the Breach of a Law as a penalty and that penalty not to be incurred before a Legal Conviction and in this Case the King's Dispensation coming before the Conviction doth prevent it by making that lawful which would not have been so without it But when a Disability is actually-incurred it cannot be taken off but by Act of Parliament I Answer That if the Law which makes the Disability doth allow of a Dispensation antecedent to the Conviction then I grant that the Dispensation before Conviction prevents the Disability As in Digby's Case if the Dispensation had come before Institution the Disability as to holding the former Living had been prevented because the Law doth expresly allow of a Dispensation in the Case But here is no such thing The Act of Parliament supposes no Dispensation but makes an utter Disability as to the holding the Office in Sir Edward Hales his Case but a dispensing Power is set up against the Act of Parliament and such a Dispensation neither before nor after Conviction can prevent a Disability If it could I can by no means see why it might not as well hold as to Members of Parliament at least as to the Oath of Supremacy if they take their Dispensation before Sitting in the House For the Disability doth not take place till they enter the Parliament 5 Eliz. c. 1. And he that entreth the Parliament without taking the said Oath shall be deemed no Knight Citizen Burgess or Baron nor shall have any Voice but shall be as if he had been never Returned or Elected The Intention of the Law for the Test was a disability to hold the Office but it allows time for Persons to qualifie themselves as appears by the Act for the Test. Is not this plain overthrowing the design of the Law for Persons instead of doing what the Law requires to take out a Dispensation for not doing it and so prevent the Disability And what doth a Law signifie when the very design of it is overthrown And what is the Power of making Laws by common Consent in Parliament if without such Consent the whole force of the Law may be taken away by a dispensing Power So that this doth not meerly make Laws to signifie nothing but according to Will and Pleasure but it makes our very Constitution insignificant which requires to every Law the Consent of the People in Parliament As for Instance By the first Constitution of the Roman Government the King had the custody of the Laws but no Laws were to be made but by the Consent of the Roman People in the Curiae thence called Leges Curiatae Would any one have thought this any Privilege if after these Laws were passed the King should claim an inseparable Prerogative of dispensing with them as he sees Cause For it is implied in such a Fundamental Contract as this that Laws when made should not lose their Force without their Consent who made them Else it is not Contractus bonae Fidei I will not dispute whether this were the Original Contract of our Nation or not but this I may say That when our Government came to a Settlement after long struglings this was one of the Fundamental Articles of it That no Laws should pass or Burdens should be laid upon the People but by their own Consent in arliament Bracton saith That a Law among us supposes the Authority of
the Prince and the Council and Consent of the great Men and Agreement of the Common-wealth And he adds further That our Laws being thus made and established mutari non poterunt nec destrui sine communi Consensu Consilio eorum omnium quorum Consilio Consensu fuerunt promulgatae Which are very remarkable Words against a dispensing power For that doth imply a Power to change the Law and in effect to destroy it without the Advice or Consent of those that made it He saith indeed The Law may be improved without their Consent i. e. by the Judges Interpretation as to parallel Cases not expressed But if any new or hard Case happens it ought he saith to be respited usque ad magnam Curiam i. e. to the Parliament ut ibi per Concilium Curiae terminentur that being the Supreme Judicature of the Nation Fortescue who very well understood our Constitution saith That the King although he be the Head of the Political Body can neither change our Laws nor take away Property without Consent And that our Laws are made not by the Princes Will but by General Consent Totius Regni Assensu He saith They may be changed but it must be Non sine Communitatis Procerum Regni Assensu quali ipsae primitus emanarunt He takes notice That several of our Kings did not like our Constitution but affected a more Arbitrary and therefore approved the Civil Law for that Maxim Quod Principi placuit Legis habet vigorem But he shews our Constitution to be better for King and People For here he saith The King levies no Taxes nor alters Laws or makes new ones sine Concessione vel Assensu totius Regni sui in Parliamento suo expresso But certainly dispensing with Laws is altering them not as to their Words but as to the Intention and Design of them which is the main thing in a Law and he that alters the Law as to any one whose Case is common with others may alter it as to all others in equal Circumstances And what doth such a Law then signifie In the Charter of King John the Commune Consilium Regni was to pass all Aids and besides particular Summons to the Great Men general Summons were to be given to others to appear within forty days and if they did not Matters were to go on however This very Charter as appears by Matt. Paris was renewed 9 H. 3. But he had learned the Trick of a Non obstante from his good Friend the Pope and when he was urged with his own Grants he said Doth not the Pope void his Grants with a Non-obstante Why may not I do the same by the Grants of my Self and my Predecessors To whom a sharp Reply was made As long as he observed Justice in his Actings he would be King and no longer Which I only mention to shew that the Use of a Non obstante was then looked on as a Violation of Justice And so it must needs be if our Laws as Bracton saith be Communis Reipub. Sponsio for then they are of the Nature of Contracts and when Laws are so it is agreed by those who write of these Matters although otherwise no Enemies to a Dispensing Power That they are not to be Dispensed with by a non obstante If a Prince makes a Grant of any thing wherein he hath Power to oblige himself in Justice it becomes saith Baselius Pontius of the Nature of a Contract which gives a Right to those to whom it is made and lays an Obligation of Justice upon him Where a Grant is made for the Benefit of others and is ac cepted by them it is not in the Granter's Power to revoke it as Sanchez shews from many Authorities And the Lawyers are of the same Mind as appears by what is already produced out of Baldus and others but I shall mention some who declare the Opinion of others Explorati juris est eas Constitutiones quae in contractum transeunt ita ligare Principes ut iis derogare nequeant saith Gerl. Buxtorffius Gail saith That Princes are bound by all Grants made per modum contractus de Jure Communi and that is the general Opinion One of the latest Writers de Jure Gentium saith That Princes are more strongly bound by Laws which pass by way of Contracts than by any positive Laws made by Absolute Power Although they relate to the weightiest Points of Government That a Prince cannot grant a non obstante to such Laws as he hath sworn to observe is not only the Opinion of other Lawyers but of some of the highest Canonists And it is a Rule among them That no Clause of non obstante can take away Constitutionem Juratam Where there is therefore not only a Contract with others in the passing of a Law but an Oath to observe the Laws I do not see how a non obstante or a Dispensing Power can take Place 2. We have the Advantage in Point of Authority as well as Reason as to this very Case of Dispensing with the Statute of 23 H. 6. For I take it for granted That the Authority of Parliament is more to be regarded than the Opinion of Judges And I think we have good Reason to believe That the Parliament did not think this Act could be voided by a non obstante 1. The Parliament that declared any non obstante against the Act to be void was certainly of that Opinion or else they did a ridiculous thing to put in a Clause which was void of it self 2. The Parliament 28 H. 6. c. 3. was of that Mind for what need an Indemnity by Act of Parliament if the King could by his Dispensing Power have made it lawful for the Sheriffs to continue 3. The Parliament 8 E. 4. 4. continued in the same mind for whereas in the beginning of his Reign Sheriffs were continued more than a Year by reason of the Troubles it was not then thought though in a Case of such Necessity That the King could Dispense with this Law but they were indemnified by Act of Parliament and the Act declared to stand in full Force 4. the Parliament 6 H. 8. c. 18. after the supposed Judgment 2 H. 7. And in the time of a Prince who would lose none of his Prerogatives was still of the same Judgment for it not only recites the Statute but particularly takes notice of the voiding all Pardons and non obstante's and by Act of Parliament indemnisies the Under-Sheriffs of Bristow and gives them the same Priviledge which those of London had What need all this if it had been thought good Law at that time that the King might by his Dispensing Power have given Sheriffs leave to have acted against that Statute And now I leave any Man of Reason to judge Whether this famous Case be a sufficient Foundation for the seting up a Dispensing Power either as to a
deprived by it whereas in Fact there were but Fourteen deprived and that for not doing what they had done before in Henry the 8th's Time viz. for refusing to take the Oath of Supremacy which they had all taken in the time of H. 8. And as far as I can learn they were not deprived by the High Commission but by a particular Commission for that purpose as appears by the best Account we have of it in the Historians who lived nearest the time In the Month of July says Stow the old Bishops of England then living were called and examined by certain of the Queens Majesties Council where the Bishops of York Ely and London with others to the Number of Thirteen or Fourteen for refusing to take the Oath touching the Queens Supremacy and other Articles were deprived from their Bishopricks What he means by the other Articles I know not for there seem to be no other at that time for which they could be deprived by Law but refusing the Oath of Supremacy and so much Saunders himself owns for the other faults were not punishable with deprivation The Bishops being deprived by a special Commission of the Council then saith Stow Commissioners were appointed for all England For London Sir Richard Sackvile Dr. Horn Dr. Huick and Mr. Savage who called before them divers Persons of every Parish and swore them to enquire and present upon certain Injunctions With him Hollingshead agrees only adding that these Commissioners were sent according to an Act passed and confirmed last Parliament This was the Act for the High-Commission which then extended to particular Parishes with such such Powers of the Common Law as are already mentioned but are not of the Essence of the Commission according to the Act of Parliament and therefore the taking away those additional Powers doth not destroy the High Commission but the Repealing the Act of Parliament on which it was built takes away any such Court-Proceeding by Ecclesiastical Censures To make this more plain by a Parallel Instance The Court of Star-Chamber was taken away at the same time the High-Commission was and both determined the same day 17 Car. 1. Aug. 1. This Court was erected for extraordinary Civil Jurisdiction as the High Commission was for Spiritual but by the Act 17 Car. 1. c. 10. it was taken away much in the same manner with the Court of High-Commission For there is a Recital of the Statutes on which it was grounded 3 Hen. 7. c. 1. 21 Hen. 8. c. 20. And then it is alledged That they had exceeded the Bounds which the Law had given them in these Words But the said Judges have not kept themselves to the Points limited by the said Statute but have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and to inflict heavier punishments than by any Law is warranted And so by this very same way of Reasoning which the Vindicator uses another Court of Star-Chamber may be set up if it keeps it self within the Bounds of the Statutes But we are not to judge of the force of a Law by the particular Reason assigned but by the Enacting Clause Be it Ordained and Enacted by the Authority of this present Parliament That the said Court commonly called the Star-Chamber and all Jurisdictions Power and Authority belonging unto or exercised in the same Court c. be from the first of August 1641. clearly and absolutely dissolved taken away and determined If another Star-Chamber cannot be set up with some Limitations for Extraordinary Civil Jurisdictions how can another Ecclesiastical Court for extraordinary Spiritual Jurisdiction which is taken away after the same manner Only the Act against the High Commission is more express in the Conclusion against Setting up any other Court with like Power Jurisdiction or Authority for it was then foreseen that some other Court might be set up with some Alterations and to prevent any thing of that Nature the last Clause was annexed 2. The prohibiting Clause 17 Car. 1. c. 11. is very considerable to the purpose For the Force of the former Act was taken away by the Repealing Clause but that was not thought sufficient to prevent another Court rising up which might be like to it A Court may be like although not altogether the same It may be like in Jurisdiction although not in a Power to Fine and imprison But the Act saith That no new Court shall be Erected which shall or may have the like Power Jurisdiction or Authority as the said High-Commission now hath or pretendeth to have but that all and every such Letters Patents made or to be made by his Majesty or Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby ana all Asts Sentences and Decrees to be made by vertue or colour thereof shall be utterly void and of none effect Was all this meant only of such a Court as should proceed to Fine and Imprison Why was not this set down in as plain a manner as such a Law required But we are to observe 1. It not only voids the Letters Patents but declares the Constitution of the Court it self to be illegal but that doth not depend upon the Power to Fine and Imprison If it had been said No New Court shall be erected with a Power to Fine and Imprison the Matter had been clear for a New Court might have been erected proceeding by Ecclesiastical Censures without a Power to Fine and Imprison But the Act takes no notice here of any such Power but absolutely forbids any Court with the like Power Jurisdiction or Authority Had the High-Commission no Power Jurisdiction or Authority but only to Fine and Imprison Their Power and Authority by Act of Parliament was general to reform Abuses c. In case there had been no such Clause as Fining and Imprisoning in the Letters Patents had there been no Court no Power Jurisdiction or Authority belonging to it If then there be a Power Jurisdiction or Authority of a High Commission Court without a Power to Fine and Imprison then all such Power and Authority is taken away by the Prohibiting Clause 2. It forbids the Jurisdiction of such a Court But Jurisdiction is quite another thing from a Power to Fine and Imprison Jurisdictio saith Bracton is Authoritas judicandi sive juris dicendi inter partes and to the same purpose Fleta They both distinguish two kinds of Jurisdiction Ecclesiastical and Civil Ecclesiastical saith Bracton is that which belongs to Ecclesiastical Causes Which shews That they looked on Ecclesiastical Proceedings by Censures as part of the Ecclesiastical Jurisdiction The first General Exception saith Fleta is against the Jurisdiction of a Court which is allowed to be made to those quibus deficit autoritas judicandi From hence it appears That the Power and Authority of medling in Ecclesiastical Causes is that which is implied in the Jurisdiction of the Court if it
hath no Jurisdiction it is no Court if it have Jurisdiction it is void in Law for the Act of Parliament takes away all Power Jurisdiction and Authority from any such Court. 3. The Explanatory Act 13 Car. 2. c. 12. makes this more evident for there being a Clause inserted 17 Car. 1. c. 11. which seemed to take away the Ordinary Jurisdiction of the Ecclesiastical Courts it was thought fit to make that Act on purpose to clear that Matter by repealing that Clause But that Clause being part of the Act which took away the High-Commission Court lest by such a Repeal the Act it self should be thought repealed therefore there is only an Exception put in not barely as to the Old High-Commission but as to the new erecting some such like Court by Commission And a particular Proviso is added That neither this Act nor any thing herein contained shall extend or be construed to revive or give force to the said Branch of the said Statute made in the said first Year of the Reign of the said late Queen Elizabeth mentioned in the said Act of Parliament made in the seventeenth Year of the Reign of the said King Charles but that the said Branch of the said Statute made in the said first Year of the Reign of the said late Queen Elizabeth shall stand and be repealed in such sort as if this Act had never been made Now it ought to be considered That even this Parliament doth not fix upon the Power to Fine and Imprison to take that away but upon the Original Clause in the Act which gave Power to erect such a Court. And this Parliament was zealous to assert the Ordinary Jurisdiction and as zealous to prevent any such extraordinary Jurisdictions as was in the High-Commission which it shewed by continuing the Repeal of that Power by which it was established CHAP. II. The King's Supremacy by common-Common-Law enquired into Coke 's fifth Report de Jure Regis Ecclesiastico examined BUT against this it is pleaded with some Appearance of Reason That in Caudry 's Case the Judges resolved That the Act of the first Year of the late Queen was not introductory of a new Law but declaratory of the Old and that the King by the Ancient Law might make such an Ecclesiastical Commission And since the Act 13 Car. 2. c. 12. saith That we are not to abridg or diminish the King's Supremacy in Ecclesiastical Matters and Affairs Therefore we are still to suppose That the King hath a Power by Law to appoint such a Commission for Ecclesiastical Matters This is the Substance of what is pleaded for the Legality of the Court And since the Argument is confined to Matter of Law to clear this Matter it will be necessary to give an Account of these two things I. What the Ancient Law was as to this Matter II. How far the Legal Supremacy is abridged by these Statutes I. As to the Ancient Law in this matter It 's true that the Lord Coke in Caudry's Case hath endeavoured to prove That the Statute 1 Eliz. was not introductory of a new Law but declaratory of the Old but the Instances he produces fall very short of being Demonstrative Proofs as he calls them For the true Case is not 1. Whether the King ought not to interpose in Ecclesiastical Matters so far as the Peace and good Government of his Realm was concerned Nor 2. Whether he might not order things which concerned the Right of Ecclesiastical Possessions as in Bishopricks Commendams Right of Patronage Pleas of Tiths c. Nor 3. Whether the King by his Supreme Authority might not limit the Proceedings of ordinary Ecclesiastical Courts in Matters concerning his Crown and Dignity by granting Prohibitions Nor 4. Whether the King by Common Law cannot grant a Commission of Review after the Proceedings of the Ecclesiastical Courts which Judge Hutton affirmed Was all that was determined in Caudry 's Case Nor 5. Whether the King in Parliament may not make Law for Reformation of Religion and establishing good Order therein Nor 6. Whether the Supreme Coactive Jurisdiction were not always a Right of the Crown however it were in a great Measure usurped by the Pope after King John 's Resignation But Whether our Ancient Law doth give the King a Power by virtue of his Ecclesiastical Jurisdiction to appoint Commissioners by an extraordinary way of Jurisdiction to proceed in prima instantia against Persons by Ecclesiastical Censures And to prove this I cannot find one sufficient Example as I shall make appear by a short Account of the Instances he produces and the Ecclesiastical Jurisdiction exercised at that time In the Time of the Saxons In the Saxon Times he brings first an Instance of Kenulphus King of Mercia granting an Exemption to the Abbot of Abingdon But what does this signifie to Ecclesiastical Jurisdiction to prove That the King gave the Abbot an Exemption from the Temporal Jurisdiction of the Bishops for in those Days there were great Disputes between the Bishops and Abbots about the Temporal Jurisdiction over the Lands of their Abbies which the Bishops claimed and the Abbots refused and put themselves under the Protection of Princes and Great Men as appears by the Councils of Cloveshoo and Becanceld in the time of Kenulphus But Stamford puts this Matter out of Dispute in the Confirmation of the Charter of Kenulphus by Edwin for the Words are Quod praefatum Monastrium omnis terrenae servitatis esset liberum And what is this now to Ecclesiastical Jurisdiction But we have manifest Proof in the Saxon Times That the Ecclesiastical Jurisdiction was never exercised by such a Commission but that all extraordinary Cases were dispatched in Parliamentary Assemblies and the Ordinary Jurisdiction was exercised by the Archbishop of Canterbury in Chief and by the rest of the Bishops The first extraordinary Instance of proceeding against an Ecclesiastical Person in the Saxon Times was that of Wilfred Archbishop of York who because he would not consent to the making three Bishopricks in his Province was deposed by Theodore Archbishop of Canterbury the King himself being present and the great Council of the Nation For so King Alfrith saith that he was bis à toto Anglorum Concilio damnatus as the Words are in Malmsbury and Eddius who lived at that time saith That King Alfrith gave this Reason against restoring him because he had been condemned by the Kings his Predecessors with their Council the Archbishop assisting and himself had judged him cum omnibus pene Britanniae vestrae Praesulibus all the Bishops almost being present In the Council of Nester field in his Case it is said The King was present and Berthwaldus Archbishop of Canterbury cum totius pene Britanniae Episcopis In the Council at Nid it is said sedentibus Rege Episcopis cum Principibus eorum in loco Synodali which was a Parliamentary Assembly Not long after Tunbert was deposed from his Bishoprick but it
as they could to the Laws in force But the Judges confessed That although de jure both the Jurisdictions were ever in the Crown yet the one was sometimes usurped by the See of Rome which is a plain acknowledgment that by the Matters of Fact in those times the Right could not be proved and especially in the times of H. 3. when the Popes Usurpations here were at so great a height that the King upon Writs of Enquiry sent into the several Counties found That the Revenues of the Roman Court by Provisions Extortions c. exceeded the Kings And the King had so little Authority left that the Pope put Bishops upon him Rege penitus irrequisito saith Matt. Westm. so that he was so far from Ecclesiastical Jurisdiction that he had not the Nomination of his Bishops nor so much as a Consent to their Election unless the Pope thought fit sometimes to gratifie him in it For the Pope pretended to the Right of Disposal of Church Preferments by Vertue of his Ordinary Jurisdiction which was said to be twofold 1. Voluntary in the Collation of Benefices 2. Judicial in the hearing of Causes the former might be done at Rome but the other in the Ordinary Ecclesiastical Courts And Bracton who was a Judge in his time owns the Pope as much to have the Ecclesiastical Jurisdiction as the King had the Temporal but yet he adds That if an Ecclesiastical Judge did meddle with Matters out of their Cognizance the King's Prohibition did lye against him and he ought to supersede his Proceedings till it were tryed in the King's Court to whom the Jurisdiction belonged But it is still harder to prove the King's Ecclesiastical Jurisdiction because the Spiritual Courts were to certifie the Kings Courts in case of Bigamy Bastardy and such like For the Question is not about their Temporal Subjection to the King in signifying the Sentence of the Court but whence they derived their Authority of holding the Ecclesi astical Courts over which Bracton saith the Pope had the ordinary Jurisdiction the Power to delegate others to execute it What doth it signifie to the Kings Ecclesiastical Jurisdiction that the Barons of England would not receive that part of the Canon Law which concerned the Legitimation of Children born before Wedlock For it depended upon the Barons Consent Whether a Canon of the Church should be made the Law of the Land concerning the Rights of Inheritance In the Reign of King Edward I. In the Time of Ed. I. we may expect some brisker Sallies towards the Kingdoms Deliverance from the Popes Usurpations which were thought so intolerable even by the Monkish Historians in his Fathers Reign What that Bull was the bringing whereof the Law-Books say was then adjudged Treason it would have been worth our while to have known For it is hard to imagine that at that time the meer bringing a Bull should be so Capital a Crime when so many were brought without danger both before and after But it seems by the Certificate of the Judges concerning it still in the Tower the Matter of it was very prejudicial to the Crown And it argues no Spiritual Jurisdiction for Princes to examine and refuse when they see cause Bulls that come from Rome For this is practised in those Countries which profess Obedience to the Popes Jurisdiction Covarruvias affirms it of Spain In Portugal when John the Second would have given up that Right to the Pope the Estates of the Kingdom would not permit him Peter the Second Duke of Britain forbad receiving any Bull before Examination by his Council under pain of Corporal Punishments and Confiscation of Goods Ant. Faber saith in Savoy No Bulls have Authority there till they are approved by the Senate and an Appeal lies from them tanquam ab Abusu Even in Naples it self Ferdinand the Catholick King gave a severe Reprimand to his Vice-Roy for not hanging up a Person who would have executed a Bull without his Authority The Letter it self is Published in the Jus Belgarum where many other things may be seen to the same purpose The Right of Patronage is a Civil Right in Princes as well as others and therefore E. 1. Without pretending to Ecclesiastical Jurisdiction might justly punish the Archbishop of York for his obstinate refusing to admit the Kings Clerk because of a Papal Provision The Statute of Bigamy might very well be interpreted in Parliament and yet the King have no Ecclesiastical Jurisdiction For it was no more than declaring in what sense a Law should be taken i. e. Whether it should extend to Bigamy before the Constitution of the Council of Lyons or after The Act of Parliament made at Carlisle 35 E. 1. against Aliens possessing Benefices is no more than hath been done in Countries where the Popes Jurisdiction is the most owned As in Spain Covarruvias saith They have Prescription and Pragmatical Sanctions against Aliens possessing Benefices The Laws of Poland and many Edicts in France exclude Strangers But I shall now produce some considerable Precedents in the time of Ed. 1. to shew that the Proceedings against the Arch-Bishops and Bishops for Misdemeanors or Contempts was in Parliament and not by Commissioners the inferior Clergy being left to the Jurisdiction of their Ordinaries 3 Ed. 1. E. Warren complained to the King That the Archbishop of Canterbury had contemned his Orders in not taking off Excommunication from some of his Servants The King sends to him to proceed no further against the Earl or his Servants usque ad Parliamentum where the Matter of Contempt might be debated But in the mean time the Archbishop sends to the King a true Account of the Matter and how far he was from Contempt which is still extant in the Records of the Tower. 7 E. 1. John Peckam Archbishop of Canterbury was summoned to Parliament to answer to a Charge of Misdemeanors against him for some Passages in the Council at Reading which he was fain to revoke and to declare that no Articles there passed should create any Prejudice to the Crown or Kingdom 8 E. 1. The Archbishop went about to Visit the Kings Free Chappels The King hearing of it sent a Writ to him to forbear usque ad proximum Parliamentum ut tunc ex unamini mutuo consensu provideamus quid fieri debeat in Praemissis 21 E. 1. John Roman Archbishop of York was Attached upon a Contempt for Excommunicating the Bishop of Durham while he was in the King's Service And after a full hearing in pleno Parliamento he was condemned and upon Submission was Fined to the King sour thousand Marks 28 E. 1. A Controversie arose between the King and the Bishop of Chichester about his refusing to admit a Person Presented to a Prebend in the Free Chappel of Hastings the King sends his Writ to the Warden of Cinque-Ports extant in the Tower among the Writs of that Time to enquire into this Matter
Statutes And it cannot be supposed that at that time when the Pope was allowed to be Head of the Church and consequently Supreme Patron of the Benefices of it that the Acceptance of a Title to an Ecclesiastical Benefice from him should be thought Malum in se. But these Statutes being in force I shall make it appear that the King did own he had no Power to Dispense with them but as the Parliament thought fit to allow it I begin with 15 R. 2 at a time when the Kingdom was in quiet and however could not be in any disturbance on the Account of the Statute of Provisors which the Nation desired and only those who depended on the Court of Rome opposed But the Court-Bishops suggested that it was for the Kings Interest in dealing with the Court of Rome to have a Power to Relax and to Dispense with these Statutes as he saw Cause Therefore the Arch-Bishop of York then Chancellor proposed it in the opening of the Parliament as one of the things for which it was called viz. To find out a Temperament in that Matter so as the Pope might not lose his Right nor the King his After this Matter was debated the Commons declare their Assent en plein Parliament That without prejudice to the Rights of those who were in Possession by virtue of the Statute the King by the Advice and Consent of the Lords might Dispense with the said Statute so as should seem reasonable and useful till the next Parliament but so as the said Statute be repealed in no Article of it And they reserve to themselves the Liberty of disagreeing the next Parliament And they conclude with a solemn Protestation That this was a Novelty not practised before and ought not to be drawn into an Example and Precedent for the future and they desire this Protestation might be Entred and Recorded in the Rolls of Parliament which the King commanded to be done Doth this now look like a Declaratory Act and made in Affirmance of the Kings Dispensing Power It might as well be said That an Act for Restraining the Prerogative is made in Affirmance of it It is true there is a Dispensing Power granted but with such Restrictions and Limitations as shew that such a Power was not then thought to be inherent in the Crown For 1. Why should it be proposed to the Parliament to grant it if the King had it before Did the King ever put it to the Parliament to grant him a Power to Pardon Malefactors But in the case of Dispensing with a Law it was not only proposed but assigned as one Reason of calling the Parliament 2. Why till the next Parliament if it were owned to be an inherent Right of the Crown Would the Parliament go about to bound and limit an inseparable Prerogative in such a manner 3. Why is it called a Novelty and a thing not to be drawn into example Was ever any thing like this said of a Declaratory Act The Natural Consequence whereof is just contrary that whereas some just Right of the Crown hath been contested and denied for the future it ought to be owned and submitted to by all Persons It is hard to think of Words more inconsistent with a meer Declaratory Act than those Ne soit trait en ensample nen Consequence en temps avenir 4. If this were a Declaratory Act what need it be repeated so often in Parliament afterwards Were the Commons so forgetful of the Kings Prerogative as to need making so many Declaratory Acts about the same thing Yet thus we find it about this Dispensing Power as to the Statutes of Provisors For 16 R. 2. The Archbishop of York again declared in the opening of the Parliament That one Cause of calling it was to settle this Matter about Provisors And the Commons again yielded The King should have such a Power to moderate it as he should with his Council judge expedient but so as it be all laid open before the next Parliament that they might upon good Advice agree to it 17 R. 2. Tydeman Abbot of Beauley was by the Popes Provision made Bishop of Landaff But the King notwithstanding the former Proceedings did not take upon him to dispense with the Statute but left it to the Parliament and his Dispensation was passed by Act of Parliament the King Lords and Commons assenting thereto 20 R. 2. The Commons in Parliament do again Assert de bon gre de leur parte en plein Parlement That the King with his Council may dispense with the Statute of Provisors as shall seem fit so as the same be heard and examined the next Parliament and so corrected as shall be thought convenient by the King with the Advice of his Council in Parliament 1 H. 4. The Commons in like manner give their Assent That the King should have the same Power of Dispensing with the Statute which his Predecessors had and to Repeal and Annul it as should seem expedient to him Which was no more than a General Dispensation Yet notwithstanding this was recorded in Parliament 2 H. 4. The Commons appearing before the King and the Lords it was declared That the Dispensation should not extend to Cardinals or other Strangers At the same Parliament a Petition was presented to the King That if any one did accept a Benefice by Papal Provision against the Statute and had his Pardon from the King for it yet if he went about to disturb the present Possessor by virtue of his Provision then his Pardon should be void and he should incur the Penalty of the Statute To which the King gave his Assent 3 H. 4. The King having granted particular Licenses for Dispensations as to this Statute and finding the great Inconveniences which came by them he generally and universally revovoked them and promised in Parliament to find out some proper Remedy in this Matter 7 H. 4. The King was moved in Parliament to confirm that Revocation but he then took time to consider But 9 H. 4. c. 8. the King reinforced in Parliament all the Statutes against Provisors as it is in Print 1 H. 5. The Commons pray That the Statutes may stand in full force against Provisors and that no Protection or Grant made by the King to hinder the Execution of the said Statutes shall be allowable or of any force and whatever is done contrary to them shall be null The Answer is Let the Statutes be observed and kept But if the Statutes were to be strictly observed what saving can there be to the King's Prerogative since the Statutes were Universal and the King 's particular Grants in this Case were the great Motive of the Commons Desire to have them reinforced in the beginning of this King's Reign And these Statutes continued in full Force to the Time of H. 8. insomuch that Cardinal Woolsey was prosecuted by the King's Attorney for offending against them by his Legatine Power
Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the Deâ—retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other
Cases besides those which depended on the canon-Canon-Law For saith he the Pope usurped such a Power in derogation of the Authority Royal and then that Power must be originally in the King otherwise in the Construction of the Act it could be no Usurpation But this is a very false way of Reasoning The Pope usurped such a Power on the Crown therefore the Crown hath it of Right For the Popes Usurpations were many of them unreasonable his Primacy according to Canons being allowed and our Law did restore to the King the ancient Right and Jurisdiction of the Crown and not put him into the Possession of all the extravagant Power which the Pope usurped For this Law charges the Pope with intolerable Exactions of great Sums of Money in Pensions Censes Peter-Pence Procurations Fruits Suits for Provisions and Expeditions of Bulls for Arch-Bishopricks and Bishopricks and for Delegates and Rescripts in Causes of Contentions and Appeals Jurisdictions Legantine as well as Dispensations Licenses Faculties Grants Relaxations Writs called Perinde valere Rehabilitations Absolutions c. Now all these were Usurpations in Derogation of the Crown but doth it therefore follow that the Crown hath a Right to them all But to go no further than the Business of Dispensations Hath the King a Right by this Statute to dispense as far as the Pope The Pope usurped a Power of dispensing in Matrimonial Contracts in Oaths in Vows in some positive Divine Laws which I suppose H. 8. by vertue of the Supremacy never pretended to So that it is a very mistaken Notion of some Men That the King had all the Power which the Pope usurped And as to the Act it is plain by the Words of it That the Original Power of Dispensing was lodged in the King Lords and Commons and the Ministerial Execution of it with the Arch Bishop of Canterbury even with respect to the King himself But if the King had pretended to all the Power which the Pope usurped he must have dispensed with himself But this Author offers to Prove That there is a Power in the Crown to dispense with Acts of Parliament even such as concern the Consecration of Bishops because it is said 8 Eliz. That the Queen by her Supreme Authority had dispensed with all causes or Doubts of any Imperfection or Disability in the Persons c. To give a clear Answer to this we must consider these Things 1. That 1 Eliz. 1. The Act of 25 H. 8. for the Order and Form of Electing and Making Arch-Bishops and Bishops was revived as appears by the same Act 8. Eliz. 1. 7. 2. That by another Act 1 Eliz. 2. The Book of Common-Prayer and Administration of Sacraments and other Rites and Ceremonies of the Church of England which were in use in the time of 6 E. and repealed by Queen Mary were re-inforced 1 Eliz. 2. 2. and the Repeal annulled But by the Act 5 and 6 E. 6. c. 1. § 5. the Form and Manner of making Arch-Bishops Bishops Priests and Deacons was added to the Book of Prayer as of like Force and Authority with it 3. That the Act of E. 6. being revived with the express mention of the Alterations and Additions made to it there was ro Necessity apprehended 1 Eliz. to make a distinct Act for that which was in force already by the Name of Additions therein added and appointed by that Statute And this I conceive was the true Reason why a Bill did not pass 1 Eliz. to that purpose For I find by the Journals of the House a Bill was prepared and read the third time in the House of Lords but upon Consideration it was laid a side as superfluous 4. That the Popish Party took Advantage of this and pretended That the Book of Consecration c. was not established by Law being not expresly mentioned and therefore the Bishops made by it were not Legal Bishops And upon this Bonner resolved to stand the Trial against Horn Bishop of Winchester as may be seen in Dyer R. f. 234. So that the Papists then stood upon it That the Crown could not dispense with Laws otherwise Bonner's Plea signified nothing For if there were such an Inherent Right in the Crown to Dispense with Laws in Ecclesiastical Matters then these were Legal Bishops having all the Queen 's Dispensing Power for them 5. The Clause in the Queen's Letters Patents for Dispensing with Imperfections and Disability was put in out of abundant Caution and not for any Necessity that we can find But it was Customary in the Popes Bulls to put in such kind of Clauses and therefore they would omit no Power in that Case which the Pope did pretend to which the Act faith was for avoiding all Ambiguities and Questions 6. But after all lest there should be any Colour for Disputing this Matter left according to the express Letter of the Law therefore it was declared 8 Eliz. 1. 3. That not only the Book of Common-Prayer but the Form of Consecrating Archbishops Bishops c. which was set sorth in Edward the Sixth's Time and added to the Common Prayer shall stand and be in full Force and Effect And all Acts done by it are declared to be Good and Perfect to all Intents and Purposes So that this Act of Parliament doth rather overthrow a Dispensing Power for if there were then such a Supreme and Absolute Power in the Crown as to Ecclesiastical Matters what need such an Act of Parliament to Confirm and Ratifie what our Author supposes done by virtue of it But to return to the 25th of H. 8. In the same Act of Parliament care is taken for the Visiting Exempt Places as Monasteries Colledges and Hospitals by a particular Commission under the Great Seal But that which comes nearest to our Business is That 26 H. 8. c. 1. another Act passed wherein the King's Supremacy is acknowledged and a Power given by Act of Parliament for him to Visit Redress and Amend all Errors Heresies Abuses Contempts and Enormities whatsoever which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed in any Usage Custom Foreign Laws Foreign Authority Prescription or any Thing or things to the contrary hereof notwithstanding If the King had this Power by virtue of his Supremacy and Prerogative Royal can we imagin H. 8. so weak a Prince and so little a valuer of his own Prerogative as to have that given him by Act of Parliament which was acknowledged to be in him before But the Words are express And that our Sovereign Lord c. shall have full Power and Authority from Time to Time to Visit c. From whence it follows That in the Judgment of H. 8. and the Parliament such a Power was not personally inherent in him but that it did belong to the Legislative Power and therefore an Act of Parliament was required for it so that the Supremacy as then setled by Law lay in a total rejecting any Foreign Jurisdiction
is not the Kings Law. For taking one Example for many every Leet or view of Frank Pledge holden by a Subject is kept in the Lords Name and yet it is the Kings Court and all the Proceedings therein are directed by the Kings Laws and many Subjects in England have and hold Courts of Record and other Courts and all their Proceedings be according to the Kings Laws and Customs of the Realm But there is a Material Objection or two yet to be answered 1. It is Objected That 2 Jac. the Judges declared in the Star-Chamber That the Deprivation of Non-conformists was lawful because the King had supreme Ecclesiastical Power which he hath delegated to the Commissioners whereby they had Power of Deprivation by the Canon Law of this Realm and the Statute of 1 Eliz. doth not confer any new Power but explain and declare the ancient Power And therefore they held it clear that the King without a Parliament might make Orders and Constitutions for the Government of the Clergy and might deprive them if they obeyed not To which I answer 1. Our Question is not Whether the King without a Parliament may not require the Observation of Canons passed the Convocation so as to deprive the Obstinate by Vertue of his Supreme Power in Ecclesiastical Matters but whether he may appoint a Commission with Power to deprive against an Act of Parliament which hath taken away the Legal Power of any such Commission 2. In matters of this nature it is safer trusting the Supreme Judicature of the Nation in Parliament than the Extrajudicial Opinion of the Judges And in this Case the Parliament hath declared it self another way as appears by the Canons 1640. which were not only condemned in Parliament afterwards which then might be imputed to the heat of the Times but in the most Loyal Parliament after the King's Return particular care was taken that neither the Canons of 1640. should be confirmed nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the Established Laws of the Land as they stood in the Year of the Lord 1639. Which implies that the Sense of the Parliament then was that we are not to own any Canons but such as were confirmed allowed or Enacted by Parliament or by the Established Laws of the Land before 1639. And therefore no new Injunctions without a Parliament or Convocation can make the Clergy liable to a Legal Deprivation No not that which the Defender is so pleased with the thoughts of viz. to give their Assent and Consent to the King's Declaration on pain of Deprivation 3. The Temporalties of the Clergy especially the Bishops are secured by several Acts of Parliament without a Tryal at Law. Which because I see none of our great Lawyers take notice of I shall here set down 14 Edward the Third c. 3. We Will and Grant for us and for our Heirs that from henceforth We nor Our Heirs shall not take nor cause to be taken into Our Hands the Temporalties of Archbishops Bishops c. or other People of Holy Church of what Estate or Condition they be without a true and just Cause according to the Law of the Land and Judgment thereupon given 25 Edward the Third c. 6. The Title of the Statute is A Bishops Temporalties shall not be seized for a Contempt And this was received for good Law 9 E. 4. 28. Br. Ord. 12. Reg. f. 32. But a very late Writer tells the World That the Possessions of Ecclesiastical Persons are but Conditional Freeholds and although Absolute Freeholds require a due Course of Law yet Conditional do not so that if a Man chance to be deprived of his Office his Freehold is gone This is touching Clergymen's Freeholds to purpose and no doubt out of pure Zeal to the Church of England But see the Equity and Impartiality of this Man He had undertaken before to give Publick Assurance of Abby-Lands to the present Possessors And for what Reason Because the Pope granted a Dispensation with a non obstante to the Canon Law And yet in this Book he proves That a non obstante is no ways binding to the Supreme Power so that no Man could more effectually overthrow his own Assurance than he hath done himself For saith he Present Sovereigns whether King or Pope cannot bind their Successors And again Acts of Graces and Favours are alterable and suspendible at the Pleasure of the Succeeding Sovereign Why then should any be so weak as to think the Plenitude of the Pope's Power as to Abby-Lands can be bound up by the Act of any former Pope I confess the comparing these two Books together hath extreamly lessened his Assurance of Abby Lands with me And his Answers to the Power of Revocation are so weak that they come at last to no more than this It is a thing which cannot well be done at present therefore there is no fear it ever should be done Here is some Security at least till it can be done But as to the Possessions of the Ecclesiastical Persons of the Church of England he endeavours to prove That they can have no Security at all of their present Possessions notwithstanding any Promise or a Legal Title For if as he saith The King by his Paramount Jurisdiction can make any Exceptions null and so void a solemn Oath not to accept a Dispensation from that Oath why should he not as well make void any Promise of his own when it hinders as he thinks a greater Good especially if the Prerogative cannot be bound But then as to a Legal Title that is the vainest thing imaginable as to such Conditional Freeholds which Clergymen have for if the Commissioners deprive them by their Power ab Officio Beneficio their Attendent Frehold saith he is gone without any Course of Law. And the Defender saith The Commissioners may deprive if Clergymen should not assent and consent to all contained in the King's Declaration if he required it But it is to be hoped That Princes will not take the Measures of Justice and Wisdom and Honour from such Men We will therefore set aside the Omnipotent Engine of a non obstante which doth not batter so much as it undermines and consider the Legal Security of these Conditional Freeholds I. All Freeholds are in some Sense Conditional or else they could never be forfeited Which shews that there are none Absolute with Respect to the Law. And as to their Original among us it is agreed That by the Ancient Right of Tenures all Fees are Conditional for they suppose Fealty the non-performance whereof is Felony Which is not that which is done felleo animo as Sir Edward Coke trifles but it is the same with Falshood or Treachery The Laws of H. 1. c. 5. Si Dominus de Felonia vel Fide mentitus compellat hominem suum And in another Law the punishment of Felony is Forfeiture of the
of the same That the aforesaid Branch Clause Article or Sentence shall from henceforth be repealed annulled revoked annihilated and made void for ever any thing in the said Act to the contrary in any wise notwithstanding Then after a Clause relating to ordinary Jurisdiction repealed 13 Car. 2. c. 12. the Act concludes thus And be it further enacted That from and after the said first Day of August no new Court shall be erected ordained or appointed within this Realm of England or Dominion of Wales which shall or may have the live Power Jurisdiction or Authority as the said High-Commission-Court now hath or pretendeth to have but that all and every such Letters Patents Commissions and Grants made or to be made by his Majesty his Heirs and Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby and all Acts Sentences and Decrees to be made by virtue or colour thereof shall be utterly void and of none effect By the Act 13 Car. 2. c. 12. This Repeal stands good in the first Proviso and in the second Clause where that which concerns Ordinary Jurisdictions is repealed an Exception is put in in these Words Excepting what concerns the High-Commission-Court or the new erecting some such like Court by Commission The Case which arises from hence is Whether these Acts of Parliament only take away the Power of Fining and Imprisoning from any Ecclesiastical Commission granted by the King so that notwithstanding these Repeals the King may still constitute a Commission proceeding by Ecclesiastical Censures And for the same Ends which are expresly mentioned in the Statu te repealed viz. To exercise use occupy and execute all manner of Jurisdictions Privileges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within this Realm of England and Dominion of Wales and to visit reform order correct and amend all Abuses Offences Contempts and Enormities whatsoever which by the Spiritual and Ecclesiastical Laws of this Realm can or may lawfully be reformed ordered redressed corrected restrained or amended to the Pleasure of Almighty God the Increase of Vertue and the Conservation of the Peace and Unity of this Realm These are the Powers of the present Commission and are the same which are mentioned in the Act of Repeal 17 Car. 1. c. 11. only Errors Heresies and Schisms being left out It cannot be denied That the Power of Fining and Imprisoning is most expresly taken away and that is assigned as one Reason and Occasion of repealing the Clause of 1 Eliz. 1. which establishes the Court but I cannot be satisfied that this was all that was intended by the Act 17 Car. 1. c. 11. And that for these Reasons 1. If no more had been intended then it had been sufficient to have destroyed the Letters Patents by which the Power of Fining and Imprisoning was granted without mentioning the Act of Parliament which gives no such Power But the Act of Repeal 17 Car. 1. c. 12. begins with the Act of Parliament Whereas in the Parliament holden in the first Year of Queen Eliz. there was an Act made and established c. In which Act among other things there is contained one Clause Branch Article or Sentence whereby it was Enacted to this effect c. Then follows all the Enactin Clause and after it the Abuses of the Power by the Letters Patents are reckoned up viz. Fining and Imprisoning and other great Mischiefs and Inconveniences Therefore for the repressing and preventing of them not meerly the Power to Fine and Imprison but the whole Clause and all things contained in it are from thenceforth repealed annulled revoked annihilated and utterly made void for ever What need all this if no more were designed than to take away the Power of Fining and Imprisoning It is plausibly argued by the Lord Coke That the Power to Fine and Imprison was not agreeable to the Design of the Act. 1. Because the Title of it is An Act restoring to the Crown the Ancient Jurisdiction but the Ancient Jurisdiction Ecclesiastical had not a Power to Fine and Imprison but proceeded only by Ecclesiastical Censures 2. Because the Power to reform order and correct all Errors Heresies c. was to be such as may be lawfully reformed corrected restrained or amended by any manner of Spiritual Ecclesiastical Power Authority or Jurisdiction which did not extend to Fine and Imprisonment 3. The Tenor of the Letters Patents was to exercise use and execute all the Premises Since therefore the Premises go no further than Ecclesiastical Jurisdiction the Letters Patents could give no such Power being in pursuance of the Act. But it is agreed saith he That before this Act no Man could be punished by Fine and Imprisonment by any Ecclesiastical Power unless it were by force of some Act of Parliament But because the Act saith They are to use and execute all the Premises according to the Tenor and Effect of the Letters Patents Others have thought That the Power to Fine and Imprison being within the Letters Patents the Act of Parliament did bear them out in pursuing what was in the Tenor of them But in my Opinion this Matter ought to be a little further cleared and therefore we must distinguish between the Original Commission and the Supplemental Power added to enforce it The Original Commission extended no farther than Ecclesiastical Jurisdiction as is plain from tho reading of the Statute and that of it self could go no further than Ecclesiastical Censure But because of the Circumstance of that Time when as the Lord Hobart in a M. S. Discourse of the High Commission observes The Persons most concerned did slight the Ecclesiastical Censures therefore it was thought necessary in the Letters Patents to grant them a new Commission to enforce the former and that extended to Fine and Imprisonment For in the High Commission for the Province of York which is preserved distinct Powers are granted which are not in the Act. For whereas the Act goes no further than the Ecclesiastical Jurisdiction the Commission gives them Power to proceed after another manner than by Ecclesiastical Censures for the Words are Contumaces autem Rebelles si quos invenerint tam per Censuras Ecclesiasticas quam Personarum apprehensionem Incarcerationem c. ac quaecunque alia Juris Regni nostri Remedia compescendum c. Here we see plainly a Conjunction of the Power of Common Law added to that of the High Commission by virtue of the Act of Parliament and so in all probability it was in the Letters Patents for the High Commission in this Province which bore equal Date with the former And although the Date of the High Commission was before the Depriving of the Bishops I Eliz. Yet I see no ground for my Lord Coke 's Assertion which the Defendant takes for granted p. 13. That this Commission was first granted for depriving the Popish Bishops and that about Twenty were
Ecclesiastical Jurisdiction are either such as other Princes have an equal Right to or else they must imply such proper Eclesiastical Jurisdiction as follows the Power of Order and then how can the Pope give the one without the other Such a Gift is like an Appropriation of a Benefice with a Cure to a Nunnery which the Lord Hobart saith is void in Law by reason of the incapacity of the Persons But the Supremacy which our Law gives is not any proper immediate spiritual Jurisdiction like that of Bishops but an Authoritative and Legislative Supremacy without any foreign Appeals as will appear afterwards But the Rights which the Kings of Sicily challenge are these 1. That they have the same Powers which Legates a Latere have and may judge of the same Causes and proceed in the same manner with Ecclesiastical Censures 2. That no Appeal lies from the King's Commissioner even to Rome it self and it is common to appeal from the Censure of the Bishop to him The former is a Power which our Kings never pretended to by vertue of their Supremacy for it is a Delegation of the Power of the Keys which the Legates à Latere exercise by vertue of their Function as well as their Commission But the Legal Supremacy with us is a Right to govern all sorts of Men by our own Laws without any foreign Jurisdiction and that with respect to Ecclesiastical Matters as well as Temporal But to prevent Mistakes and Cavils about this Matter it will be necessary to clear the Notion of Supremacy as it hath been owned and received in the Church of England And for this we have two Authentic Declarations of it to rely upon The first is mentioned 5 Eliz. c. 1. § 14. Where the Supremacy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions published in the first year of her Reign And the Words there are That the Queen neither doth nor will challenge any Authority but such as was of ancient time due to the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all manner of Persons born within these her Realms Dominions and Countries of what Estates either Ecclesiastical or Temporal soever they be so as no other foreign Power shall or ought to have any superiority over them The Second is in the 37th Article wherein it is declared That by the Supremacy is meant that only Prerogative which we see to have been always given to all Godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers So that granting a Commission for proceeding by Ecclesiastical Censures is no part of that Supremacy which our Church owns And thus the Divines of our Church have understood it By the Supremacy saith Bishop Andrews we do not attribute to the King the Power of the Keys or Ecclesiastical Censures R. Thompson in his Desence against Becanus saith The Supremacy is not to be defined by Ecclesiastical Jurisdiction but by Supream Government Becanus urged this as an Argument against the Kings Supremacy That he had no Ecclesiastical Jurisdiction Dr. Burrhil answered That the Supremacy implied many other things as the Power of calling Convocations of confirming Canons of giving Commissions of Delegates of taking Cognizance of the Misdemeanors of Church-men as well as others but for proper Ecclesiastical Jurisdiction he denies it to belong to Supremacy And after asserts That the King's Supremacy is preserved if he takes care that those who have the Power of Ecclesiastical Censures do exercise them and not as though it belonged to the Supremacy to give an immediate Power to proceed by Ecclesiastical Censures which was not supposed to belong to it but a supreme Right of governing all sorts of Persons by our Laws The King's Supremacy in Ecclesiastical Matters doth not saith Mason imply the Power of the Keys which the King hath not but he may command those who have them to use them rightly All these wrote in King James I. his Reign when the Point of Supremacy was throughly sifted on both sides And the King himself who very well understood these Matters saith That the Oath of Supremacy only extended to the King's Power of Judicature over all Persons as well Civil as Ecclesiastical excluding all foreign Powers and Potentates to be Judges within his Dominions Not as though the King hereby challenged to himself a Power of inflicting Ecclesiastical Censures on Persons but leaving the Spiritual Jurisdiction to those who have the Power of the Keys it belonged to him to exercise his Supreme Authority over Ecclesiastical Persons and Causes as he did over Temporal For saith Archbishop Bramhal our Laws never invested the King with any Spiritual Power or Jurisdiction witness the Injunctions of Q. Eliz. witness the Publick Articles of Our Church witness the Professions of King James witness all our Statutes themselves The King of England saith he by the Fundamental Constitution of the Monarchy hath plenary Power without the Licence or Help or Concurrence of any Foreign Prelate or Potentate to render final Justice that is to receive the last Appeals of his own Subjects without any Fear of any Review from Rome or at Rome for all Matters Ecclesiastical and Temporal Ecclesiastical by his Bishops Temporal by his Judges And thus our Laws were in the Right when they called the Act of Supremacy Restoring the Rights of the Crown for if we take away all the Papal Usurpations as to Appeals Exemptions of Persons Dispensations Provisions making Canons sending Legates to hold Courts to call Convocations c. we may easily understand what the Supremacy is viz. a Power of Governing all Sorts of Men according to the Laws Ecclesiastical and Temporal without any Foreign Jurisdiction But as in Temporal Matters the King 's Supreme Authority is exercised in his Ordinary Courts so likewise in Ecclesiastical Which deriving their Jurisdiction from the King as Supreme his Supremacy is preserved in the ordinary Ecclesiastical Courts but as to extraordinary Jurisdiction that deper ds on the Legislative Power And whether that be not now taken away by it is the thing in Question Having endeavoured to set this Matter in as clear a Light as I could I now return to the Instance of Edward the Confessor And those Words of his as they are in Hoveden signifie no more than a General Right of Protecting and Defending the Church which is not denied to belong to Kings where the Pope's Authority is the most owned I cannot but take notice of a different Reading in the Lord Cokes Copy from all that I have seen for where he hath it Sanctam Ecclesiam regat defendat Lambard veneretur regâ—t but Hoveden revereatur ab
injuriatoribus defendat Which is that Right of Protection which is allowed by all The Spanish Lawyers hold That there lies an Appeal to the Kings Courts by his Right of Protection in Case of any violent Proceedings in the Ecclesiastical Courts Which Violences are so many as make such Appeals so frequent and necessary that whole Volumes have been written about them And this they say Is not Introductory of a New Law but only declaratory of a Natural Right The French Lawyers allow Appeals from the Ecclesiastical Courts tanquam ab abusu which must be founded on an Original Right in the King to defend the Church both from Injuries and Abuses And as to the Church it self it is fully expressed in the Writ de Excommunicato capiendo in these Words Quia vero Potestas Regia Sacrosanctae Ecclesiae in querelis suis deesse non debet But such a Right of Protection and Assistance is different from that of Jurisdiction unless it be that which is only Coactive which is not the Jurisdiction we now enquire into But it is most considerable that King Edward saith He is God's Vicar and therefore could not look on himself as acting by Commission from the Pope It is true that in the third Charter of Westminster there is a Bull of Nicholas the Second wherein he gives to the King and his Successors the Protection and Defence of that Place and of all the Churches of England and a Power in his stead to make good Laws with the Advice of the Bishops and Abbots But I do not find that King Edward owned that he acted in these Matters by any Commission from the Pope but from God himself And this Law in Hoveden and others overthrows any such pretended Commission And yet the Pope himself doth not give him a Power to delegate his Authority to others but to act in it himself and that only with the Advice of Bishops and Abbots The Point then which was to be proved was not that the King had a Right to protect the Church from Injuries but such an Inherent Right of Ecclesiastical Jurisdiction which he might delegate to others whether Bishops or not and impower them to proceed by Ecclesiastical Censures against Offenders summoned to appear before them And the Question now is not Whether by the Supreme Legislative Power of the Nation such an Authority might not in an extraordinary Case be Committed to particular Persons by Act of Parliament but Whether such an Act of Parliament being granted to be taken away the King by the Ancient Law of the Realm may appoint such Commissioners as he thinks fit Laymen or Bishops to proceed against the King's Subjects by Ecclesiastical Censures And this very stating of the Case as it ought to be shews how impertinent the remainder of his Examples are But to proceed In the Reign of King William the First In the time of William the Conqueror he only mentions a Case out of Fitz-Herbert That he made an Appropriation of Churches with Cure to Ecclesiastical Persons viz. to a Prebend of the Church of York now this saith he was agreed by all could not be done without Ecclesiastical Jurisdiction It is too common a Fault in some great Lawyers that what they find once setled for Law in their Books they imagine was never otherwise Thus Appropriations after Diocesses were setled being looked on as chiefly the Act of the Ordinary who is to take Care of the whole Diocess From hence they infer That in all Times an Appropriation must argue Ecclesiastical Jurisdiction But before the Parochial Rights were established there were many Volantary Appropriations made by particular Persons who thought there was no more Ecclesiastical Jurisdiction in the Appropriation of Churches than in the Endowments of them and in the Right of Patronage only the one is setled on a Spiritual Corporation as perpetual Incumbent and the other on particular Persons in Succession It s true since the Acts for restoring Jurisdiction to the Crown the Power of making Appropriations in the King is said to be from his Supreme Ecclesiastical Authority Grindon's Case in Pl. f. 448. But then we are told It was because the Pope as Supreme Ordinary had such a Power without the Bishops which Reason will not hold as to such Times when the Pope was not owned to be Supreme Ordinary as he was not in the Conqueror's Time the Canon-Law not being then received in England But what a mean Proof is this in such a busie Time as that of William the Frst when so many great Churchmen were deprived of their Bishopricks being English and the Normans put in their Places Was this done by any Commission from William to his Great Lords and others to proceed against them by Ecclesiastical Censures nothing like it Stigand Archbishop of Canterbury if Spot's Story be true was too great a Friend to the English Liberties to be endured by him But he was too great a Dissembler to seem to have any thing to do in it himself and therefore knowing he was of the opposite Party to the prevailing Pope he privatly sends to him To send a Legate for that Purpose wherein the Pope and He had their several Ends and then in Parliament Time the King keeping his Easter at Winchester Stigand was deposed and Agilmarus Bishop of the East Angles and several others without any evident Reason saith Hoveden but only to make way for the Normans This was in Concilio Magno saith he and the rest for Easter was one of the three Seasons for the Parliamentary Meeting in the Year which William kept up in Imitation of the Saxons who at Christmas Easter and Pentecost held their Publick Courts and did wear their Crowns till the Times of H. 2. and then they did dispatch Publick Affairs Thus far he complied with the Saxon Customs but he had a new Work to do The Archbishop he could not rely upon and therefore was put to find out a new way by sending for a Legate from the Pope to serve his turn And thus William for his own Ends having so hard a Game to play here called in the Pope's Assistance who knew well enough how to draw his own Advantage out of it But William would go no further than his Interest carried him for afterwards he declared That he would maintain his own Rights which he enjoyed in Normandy viz. That nothing should be done without him in Convocation no Legate come but as he pleased c. But still he seemed to let them enjoy their Saxon Liberties in Matters of Ecclesiastical Proceedings so far as to have them debated in Parliament Thus the Controversie between the two Archbishops was referred to Parliament the King and the Great Men as well as the Bishops being present The Controversie between Lanfrank Archbishop of Canterbury and Odo Bishop of Baieux was referred saith Eadmerus to a Conventus Principum at Pinnedenen and when the King heard their Resolution cum consensu omnium
own Contracts no man could trust them and consequently all Society with them would be dissolved And whatever Supreme Power may do as to such Acts as are properly its own yet where there is Jus quaesitum alteri as in all Contracts there is that cannot be taken away by it But all this was answered on the other side by the Plenitude of the Popes Power for it was a Contradiction they said to own that and to say That there was any Engagement by Oath or otherwise which he could not Dispense with For as Hank 11 H. 4. 37. says Papa omnia potest And therefore all such Oaths and Promises as limit the Popes Dispensing Power are void in themselves And as to Ecclesiastical Laws or Constitutions they easily resolved all Difficulties about them upon such Principles as these 1. That the Popes have the supreme Power in the Church 2. That the Ecclesiastical Laws were the Popes Laws 3. That it is an inseparable Prerogative in the Pope to Dispense with Ecclesiastical Laws upon Necessity and urgent Occasions 4. That the Pope is the sole Judge of that Necessity 5. That this was not a Trust given to the Pope by Councils or Conclaves but by God and St. Peter and therefore cannot be taken away from her But I shall endeavour to give a clearer Light into this Matter by shewing the several Steps and Degrees how this Dispensing Power came into the World and how it passed from the Ecclesiastical to other Laws when Princes assumed such a Plenitude of Power in Civils which the Popes practised in Ecclesiasticals The first time we read of Dispensations was with respect to the Ancient Canons of the Church and it implied a Relaxation of the Rigour of them not with respect to their Force or binding Power but as to the Penance which Persons were to undergo for the Violation of them And herein the Notion of Dispensing was very different from what the Canonists made it afterwards when they declared it to be a Relaxation of the Law it self so that it should not have that Force upon the Conscience which it otherwise had For a Dispensation with them is a Licence to do that which they cannot lawfully do without it and that with a non-obstante to that which otherwise makes it Unlawful De Jure illicitum fit ex Dispensatione licitum hic est proprie effectus Dispensationis saith Pyrrhus Corradus who gives a large Account of the Practice of Dispensations in the Court of Rome which conclude with a non-obstante to any former Constitutions or Canons of Councils But no such thing can be found in the Ancient Practice of the Church because the Popes themselves were then believed to be under the Canons But when it was supposed That the severe Execution of the Canons would rather hinder than advance the Good of the Church the Governours of it thought they had sufficient Authority to abate the Rigorous Execution of them As about the Times of Penance the Translation of Bishops from one See to another the Intervals of Orders and such like But the Popes then pretended to be strict Observers of the Canons when the particular Bishops took upon them to Dispense with the Execution of them as appears by Ivo's Preface to his Collection of Canons where he distinguisheth the Immoveable or Moral Precepts from the Canonical which he calls Moveable In the former saith he no Dispensation is to be allowed But in those things which only concern Discipline the Bishops may Dispense provided there be a Compensation i. e. That the Church's Interest may be better secured or advanced thereby as he there discourses at large And his Rule is Ibi Dispensatio admittenda est ubi rigor periculosus est But by this means the Severity of the Primitive Discipline was quite lost The Bishops of Rome observing this thought it a proper time for them to appear zealous for the Ancient Canons which gained them a great Reputation in the World and by this means the Custody of the Canons was looked on as their particular Province Which they improved so well that at last they turned the Guardianship of the Canons into a Power over them and then they found Fault with the Bishops Dispensing with them for another Reason viz. Because the Dispensing Power was a Prerogative of the Roman See and Inferior Bishops could act no farther in it than they had Authority from it We find that in S. Bernard's time the Pope did take upon him to Dispense too far to his great Dissatisfaction for by his Dispensing Power he saith he overthrew the Order of the Church Murmur loquor saith he querimoniam Ecclesiarum The Pope dispensed with the Ecclesiastical Laws in Exemptions of Abbots and others from that Subordination they stood in to their proper Superiors He saith He could not see how this Dispensing Power could be justified You do indeed shew a plenitude of Power but it may be not of Justice you shew what you can do but it is a Question whether you ought or not and you ought to consider First Whether it be lawful then whether it be decent and lastly whether it be expedient At last he allows a Dispensing Power in two Cases Urgent Necessity and Common Good otherwise he saith It is not fidelis Dispensatio sed crudelis Dissipatio an overthrow of all Order and Government In one of his Epistles he speaks sharply against getting a Dispensation to do that which it was not lawful to do without one And he thinks he hath disproved it by invincible Reason For a Licence from the Pope can never make that Lawful which without it were Unlawful When the Practice of the Dispensing Power grew more common there were two great Questions raised concerning it Whether if a Dispensation were granted without Just Cause it were Lawful or not And Whether if it were not Lawful yet it was valid There were some who flattered the Dispensing Power so much that they allowed it in all Cases whether there were a just Cause or not These were the high-flown Canonists who resolved all Laws into Will and Pleasure But others who allowed a Dispensing Power upon a Just Cause yet thought it repugnant to the Original Design of Government for those who are entrusted with Care of the Laws to Dispense with them without such a Cause as answers the End of Government And some went so far as to deny any Validity in a Dispensation granted upon Pleasure for as an unjust Law hath no Force so said they an unjust Dispensation of a Good Law hath none Upon this Point two great Schoolmen differ Suarez whom the Lord Chief Justice Vaughan commends for his Learning in this Matter goes upon these Grounds 1. That a Prince is not Dominus sed Dispensator Legum although the Force of a Law depends upon his Authority and therefore in Dispensing with a Law he doth not act by Absolute Power but by Administration For
he is not Lord over the Community but Governour 2. That for him to Dispense in a Law made for the Community without a just Cause is not only malum quia prohibitum sed ex se ex natura rei semper malum Therefore Suarez was far from thinking a Prince might Dispense with any thing that was not malum in se for he makes it to be so for him to dispense with a malum quia prohibitum if it be prohibited by a Law made for a Publick Good and there be no just Cause for it 3. That although a Prince sins in Dispensing with such a Law yet his Dispensation holds as to the Force of the Law which he supposes to depend on the Will of the Prince and therefore his Will being altered the Obligation ceaseth as to the Persons Dispensed with 4. That although such a Dispensation holds as to the Law yet he thinks a Prince bound in Conscience to Revoke such a Dispensation because it is unlawful for him to persist in such a Will it being repugnant to the Common Good and the Obligation of his Duty 5. That if such a Dispensation be to the Injury of a third Person then it is void in it self as being repugnant to Justice Vasquez saith They are all agreed That no Prince hath a Power to Dispense with his Laws according to his Pleasure or because they are his Laws But he saith There is a Dispute Whether an unlawful Dispensation be valid or not And he thinks not and that a Man's Action after the Dispensation is as faulty as if there had been none His Reason is because a Prince is bound by his own Laws so that he cannot Dispense with himself as to the Obligation of them for if he could at Pleasure Dispense with himself he could never be bound for how can a Man be bound to keep a Law in which he can Dispense with himself when he pleases And if he cannot Dispense with himself much less with any under him Having thus endeavoured to clear the Nature and Original of the Dispensing Power I now come 2. To the Reason assigned by Sir E. Coke from the Year Books why the King may Dispense with Laws because they be mala prohibita and not mala per se. My Lord Vaughan said Right concerning it That this Rule hath more confounded Men's Judgments on this Subject than rectified them Which I shall make appear by shewing I. That it alters the Frame of our Government II. That it takes away all Security by Law. III. That it contradicts the Sense of our Nation in former Ages IV. That the Rule is contrary to the Precedents in Law. I. That it alters the Frame of our Government For it goes upon a very false Ground viz. That the King may Dispense with any thing which is not Evil in its own Nature or antecedently to any Human Laws which is to suppose the whole Legislative Power to be lodged in the Person of the King For all who understand these Matters do agree That a Power to Dispense with Laws is the same with a Power to make them Dispensare hoc est lege solvere is solus potest qui ferendae abrogandaeque leg is potestatem habet saith H. Grotius Suarez saith He hath the Power of Dispensing qui legem tulit quia ab ejus voluntate potentia pendet Vasquez That the Dispensing Power lies in him qui habet Potestatem condendi abrogandi legem Pufendorf That none can Dispense with a Law but such as have the Power of making it But we need no Authorities in this Matter For to Dispense in the Sense it is here taken is to take away the Obligation of a Law and whoever takes it away must have the Power of laying it on And there is no Difference between the Dispensation with a Law and the Abrogation of it but that a Dispensation is an Abrogation of it to particular Persons while others are under the Force of it and an Abrogation is a General Dispensation that being no more than a Relaxation of the whole Law to those Persons who were bound by it before But if a part of the Law be taken away as to the whole Community then it is called a Derogation of it But if the Law be Relaxed only for a limited Time and under certain Conditions then it is not an Abrogation but an Indulgence or Suspension of the Law. To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law for he that Inteprets a Law supposes his Interpretation to agree with the Sense and Design of the Law he that Dispenses owns that which he dispenses with to be against the Intention of the Law but that he hath Power to take away the Force of it so far as he thinks fit He that saith Thou shalt not kill doth not reach to Legal Executioners of Justice interprets the Law according to Reason and Equity But when God said to Abraham Go and Sacrifice thy Son he must be supposed by virtue of his Supreme Authority to Dispense with the Law in his Case so as to make that Lawful upon his Command which would not have been so without it Some will not allow this to be called a Dispensation but an alteration of the Matter of the Law but when that Alteration comes from the Authority of the Law Makers it is the same so that to Interpret a Law is an Act of Discretion and Judgment but to Dispense with it of Authority and Jurisdiction And none can therefore Dispense in the Law of God but he that made it all that the Wisest and greatest Men can justly pretend to is no more than to give the true Sense of it and it is intolerable Prsumption for any Creature to pretend to more An Equitable Sense as to Human Law is not always that which seems to be most favourable to those who go against the Letter of it but that which most enforces the End and Design of the Law although it be not comprehended in the Words of it If a Law mentions a Crime of a lesser nature in regard of Circumstances and in regard of those Circumstances promises some Favour as Benefit of the Clergy it can be no Equitable Sense to extend it to such Acts which have worse Circumstances because the Ground of the Favour was the extenuation of the Fact by the Circumstances so that the chief Rule of Equity in the Interpretation of a Law is to attend to the Intention and Design of it more than to the bare Words The Intention and Design of the Law is not to be measured by Particular and Accidental Cases wherein some Inconveniencies are to be born but by the Publick and General Good which more than makes amends for them which is the Reason of that Maxim Better a Mischief than an Inconvenience which is false unless taken in such an Equitable Sense There are
and governing this Church and Kingdom by our own Laws Which is well expressed in the Preamble to the Act against Appeals viz. That this Realm of England is an Empire governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto 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 ought to bear next to God a Natural and Humble Obedience By virtue of this Act Cromwel was made Vicegerent and Vicar General for both are in the same Commission and the King gave to him omnem omnimodam Jurisdictionem Authoritatem sive Potestatem Ecclesiasticam quae nobis tanquam supremo Capiti hujusmodi competit c. which are the Words of his Commission It 's true That the Power of granting a Commission to exercise this Power is not expressed in the Act of Parliament but it being vested in the King by the Act he might appoint One or more Commissioners to do it in his name but the Case is very different where that very Power of Delegation is taken away by Act of Parliament for that is the present Case To make this clear we must consider the Words of this Act and compare them with 1 Eliz. 1. the 17 Car. 1. 12. and the present Commission The Words 26 H. 8. 1. are the same in effect with those 1 Eliz. 1. But with this observable Difference That whereas the Statute of H. 8. gives the King his Heirs and Successors full Power and Authority from Time to Time to Visit c. That of 1 Eliz. 1. unites the Jurisdiction to the Imperial Crown of this Realm but then it doth not proceed as the other did To give full Power and Authority to her her Heirs and Successors to visit c. but the Words are And that your Highness your Heirs and Successors Kings or Queens of this Realm shall have full Power and Authority by this Act by Letters Patents under the Great Seal of England to Assign Name and Authorise when and as often as your Highness your Heirs and Successors shall think meet to Exercise Use Occupy and Execute under your Highness your Heirs and Successors all manner of Jurisdictions Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction c. so that the Administration of this Extraordinary Jurisdiction is by this Act limited to such who are nominated and appointed by the Letters Patents The Fountain of all Jurisdiction is acknowledged to be in the Imperial Crown of this Realm but the Administration is twofold Ordinary in the Archbishops Bishops and Ecclesiastical Courts and to secure their Dependance on the Crown the Oath of Supremacy is required by this Act to be taken by every Archbishop Bishop and all Ecclesiastical Persons and Officers But besides this it was then thought fit That there should be an Extraordinary Administration of it which is limited by this Act to such as should be nominated and appointed in Letters Patents c. and no other Reason can be given of the Change from what it was in the Time of Henry the Eighth for it is not now placed absolutely as then in the Queen her Heirs and Successors but the Jurisdiction is annexed to the Crown and the Extraordinary Administration to be by Commission under the Broad Seal Now since this Power of nominating Commissioners for Extraordinary Jurisdictions is taken away by Act of Parliament the only Question is Whether notwithstanding the Right of Jurisdiction being still in the Crown a new Commission may not be granted for Extraordinary Jurisdiction There had been no Question in this Case if the Administration of Extraordinary Jurisdiction had not been setled 1 Eliz. 1. to be by Commission and that very Power of granting such a Commission had not been taken away by Act of Parliament But as the Matter now stands the only Pretence left for it is That the same Act which confirms the Repeal hath a Salvo for the King's Supremay in these Words Provided always That this Act shall not extend or be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters or Affairs If these Words be taken strictly with Respect to the same Matter they make the Act inconsistent with it self For then the meaning would be The King's Supremacy shall not extend to the setting up such a Court always provided that his Supremacy notwithstanding this Act may extend to the setting up such another Court. Is it consistent with the Wisdom of a Parliament to make such delusory Acts Therefore we must understand the King's Supremacy in other Matters And there was this Reason for it All the Acts of Parliament touching the Supremacy in Henry the Eighth's Time were repealed by Queen Mary and the Restoring the Supremacy to the Crown was by the same Act which set up the High Commission and therefore when part of that Act was Repealed and that Repeal confirmed it was fitting to add a Clause That there was no intention to abridg or diminish the Supremacy setled by Law especially since by that Act the Ordinary Jurisdiction of the Bishops in their Courts was revived And it is very well known what Clamors had been made As though the Bishops Courts being held in their own Names were inconsistent with the King's Supremacy and although the Judges had declared July the first 1637. That there was no necessity that Processes Ecclesiastical should be in the King's Name and the King August the eighteenth in 13 Car. 1. published a Proclamation to that purpose Yet all this did not satisfie some but the Bishops were still thought by them in their Ordinary Jurisdiction to usurp upon the King's Supremacy and to abridg and diminish it therefore when this Act passed to revive their Jurisdiction it was no more than reasonable to add such a Clause to prevent Misconstruction viz. That this Act nor any thing in it be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters as the Ordinary Jurisdiction of the Bishops had been thought to do And the Vindicator of the Ecclesiastical Commission could not forbear a Marginal Note to that purpose The Court held by his Majesties Ecclesiastical Commissioners is more legal than the Bishops Courts This is in the Kings Name theirs in their own Name only As though the new setting up a Court forbidden by Law did not make it illegal in whose Name soever it were and as though Courts expresly owned and allowed by Law were illegal meerly because the Forms of their Proceedings do not run in the Kings Name But I desire him to take an Answer from his own Oracle the L. Ch. J. Coke Now albeit the Proceedings and Process in the Ecclesiastical Courts be in the Name of the Bishops c. it followeth not therefore that either the Court is not the Kings or the Law whereby they proceed
Land c. 43. and therefore the Feudists say That Felony is delictum Vasalli adversus Dominum From the Gothick Fell or Fehl which signifies in general a Fault And in this Case the Breach of Trust towards his Lord Of which sort of Felonies the Feudists reckon up some twenty some thirty any one of which makes a Forfeifeiture So that here is no such mighty Difference that the poor Clergymen must only have Conditional and Attendant Freeholds as though other Men's were Absolute whereas Sir Thomas Smith affirms all in England are Fiduciary i. e. Conditional Freeholders beside the King. It is easie enough for any one to frame such a Distinction of Freeholds and to say That these who have but such a Freehold may be ejected without any Trial at Common Law But he ought to have shewed That Magna Charta or the Ancient Laws made such a Difference between Ecclesiastical Freeholds and others which he hath not preended to do and therefore such a Distinction ought not to be allowed especially since I have produced an Act of Parliament 14 Edward 3. c. 3. which saith That Clergymen shall not be ejected out of their Temporalties without a True and Just Cause according to the Law of the Land This was none of those Statutes which are in Print but never enrolled for Sir Robert Cotton owns the enrolment of it and that it was made into a Statute and Mr. Pryn himself had nothing to object against it But now it seems their Conditional Freholds may be taken from them without any due Course of Law. II. There is more to be said concerning the Rights of Ecclesiastical Persons in Colledges because they are Lay Corporations For in Appleford's Case it was declared to be the Opinion of all the Judges in Pattrick 's Case That a Colledge was a Temporal Corporation And therefore some notable Difference in Point of Law must be shewed Why Men may be deprived of some Freeholds without due Course of Law and not of others for I cannot imagine That Colledges being founded for the encouragement of Learning should lay Men more open to Arbitrary Proceedings than any other Legal Societies are However Deprivation in Coveney's Case was agreed to be a Temporal Thing and for that Reason his Appeal was rejected as not relating to a Matter of Ecclesiastical Jurisdiction which was only provided for 24. and 25. Henr. 8. But it was allowed That he might bring an Action at Common Law. Our Author several times mentions this Case but puts it off till he comes to Treat of Appeals i. e. to the Place he knew it to be improper in For the Question is not Whether an Appeal doth lie to the King in Chancery in a Case of Deprivation but Whether there be not a Remedy at Common Law if a Person be deprived of a Free-hold without due form of Law And after a great deal of Impertinency about the manner of Appeals he at last concludes The Remedy had been at Common Law only which is clear giving up the Point For then in case a Person be deprived without due course of Law of his Free-hold he grants that he is to have his Remedy at Law and consequently that a Deprivation of such a Free-hold without due Course of Law is not sufficient For the Law provides no Remedy where there is no Injury done nor just Cause to seek for Redress And so I come to the second Objection which is this 2. That to deny the Jurisdiction of this Court is to deny the King's Supremacy and that is a dangerous thing by the Law. The Case was this Dr. F. of Magdalen College in Oxford being summoned before the Commissioners denied the Authority of the Court and persisted in so doing which our Author saith in another Kings Reign perhaps might have been interpreted a Questioning the very Supremacy it self which how fatal it was to John Fisher Bishop of Rochester and Sir Thomas Moor is worthy to be considered both as a Demonstration of our Kings Clemency and that the Doctor hath not so much reason to complain of his hard Usage The Meaning whereof is this That if they had proceeded in Justice against him he ought to have suffered as Bishop Fisher and Sir Thomas Moor did This is more than a bare Insinuation That to deny the Jurisdiction of this Court is to deny the Kings Supremacy and that it is meer Clemency not to deal by them who do it as H. 8. did by Bishop Fisher and Sir Thomas Moor. But 1. It is by no means evident That those two Persons suffered meerly on that Account For their Attainder in Parliament was for refusing the Oath of Succession and King James I. mentions the Words of Sir Thomas Moor to that purpose which he spake to the Lords when he was condemned And their Attainder if I mistake not was in the same Parliament which made it Treason to deprive the King of his Dignity Title or Name of his Royal Estate and therefore could not be by an Act not then passed But 2. Suppose that they were at last proceeded against on the Act then passed what is this to the present Case when Coke saith This Act was twice Repealed And it is no extraordinary Clemency not to be proceeded against by a Law that hath no force 3. The Statute in Force 5 Eliz. c. 1. is against those who defend or maintain the Authority Jurisdiction or Power of the Bishop of Rome or of his See heretofore claimed used or usurped within this Realm or by any Speech open Deed or Act advisedly wittingly attribute any such manner of Jurisdiction Authority or Preheminence to the said See of Rome or any Bishop of the same for the time being within this Realm So that it cannot be denied that there is occasion for his Majesties Clemency but it is to another sort of Men. 4. It is very hard straining to make the denying the Jurisdiction of this Court to be denying the Kings Supremacy when a Person hath done all which the Law requires him to do towards owning the Supremacy If he had said Dr. F. had taken Possession of his Fellowship there without taking the Oath of Supremacy which the Law requires he had then indeed given ground to suspect him for denying the Kings Supremacy but to take no notice of those who refused to do as the Law requires and to talk thus of what Severity might be used to one that hath done it looks in him neither like Clemency nor Justice 5. It was always looked on as a Legal Right to make Exception to the Jurisdiction of a Court especially when newly established without Act of Parliament and to any ordinary Understanding in flat Contradiction to it It is very new Doctrine that in a Legal Government Exceptio Fori shall be interpreted a Denial of supreme Authority which was not only allowed by the Canon and Civil Laws but by the most Ancient Common Lawyers we have