For he can appoint no Commissioners to determine Matters of civil Right but where special Acts empower him and no Act had yet impowered him to do so in Ecclesiastical Matters nor did his Predecessors or himself practise it till afterwards For his divers sundry old Histories and Chronicles afforded him no president of any such thing and therefore it could not be either in the nature of the thing or in the sense and meaning of the King and his Parliament any essential part of his Legal Supreme Headship to have a Personal Supremacy either independant of the Estates of the Realm or which might be administred otherwise than in the Course setled by Law i. e. by proper Officers appointed thereunto either by express Act of Parliament or the Original Constitution of the Government or both The Body of the Act prohibits Appeals to the See of Rome and enacts That in such Cases where heretofore any of the King's Subjects and Resiants have used to pursue c. any Appeal to the See of Rome and in all other cases of Appeals in and for the Causes aforesaid they may and shall from henceforth take have and use their Appeals within this Realm and not elsewhere in manner and form as hereafter ensueth and not otherwise that is to say First From the Arch-deacon or his Official if the Matter or Cause be there begun to the Bishop Diocesan of the said See if in any case the Parties be aggrieved And in like wise if it be commenced before the Bishop Diocesan or his Commissary from the Bishop Diocesan or his Commissary within fifteen days next ensuing the Judgment or Sentence thereof there given to the Archbishop of the Province of Canterbury if it be within his Province and if it be within the Province of York then to the Archbishop of York and so likewise to all other Archbishops within the King's Dominions c. there to be Definitively and Finally ordered decreed and adjudged according to Justice without any other appellation or provocation to any Person or Persons Court or Courts By the next Clause Matters or Contentions to be commenced before the Archdeacon of any Bishop or his Commissary are appointed in case either Party be aggrieved to be brought by Appeal to the Court of Arches or Audience of the same Archbishop of the Province there to be Definitively and Finally determined The next Clause appoints that Causes to be commenced before any of the Archbishops shall before the same Archbishop be definitively determined saving always the Prerogative of the Archbishop and Church of Canterbury in all the aforesaid Causes of Appeals in such and like wise as they have been accustomed and used heretofore Then it is Enacted that Causes touching the King his Heirs and Successors shall be finally decreed by the Prelates Abbots and Priors of the Vpper House of Convocation Hitherto no Appeal lay to the King in Person or in Chancery You have heard already that originally the ultimate Appeal in Ecclesiastical and Temporal Matters was to one and the same Tribunal Afterwards the See of Rome gained Appeals by Usurpation and Connivance Now they are lodged in the Diocesan the Archbishop and Vpper House of Convocation and their Sentences respectively are appointed to be final and definitive And therefore neither the Clergy in their Submission wherein they Recogniz'd the King to be the Supreme Head of the English Church V. Burnet's Collect. ad Vol. 1. p. 128 129. nor this Parliament who had been inform'd by Old Authentick Histories and Chronicles that the Spiritualty and Laity of this Realm are governed by One Supreme Head and King did so much as imagine that by vertue of that Office or Title the Supreme Cognisance of Appeals belonged to him personally If Appeals to the King in Person or in Chancery or Commissions of Review had then been dreamt of there needed not another Act in the Year ensuing to take off the odium of these definitive Sentences from the Archbishops It is the Stat. of 25. H. 8. cap. 19. Wherein it is Enacted That for lack of Justice at or in any of the Courts of the Archbishops of this Realm or in any of the King's Dominions it shall be lawful to the parties grieved to Appeal to the King's Majesty in the King's Court of Chancery And that upon every such Appeal a Commission shall be directed under the Great Seal to such persons as shall be named by the King's Highness his Heirs or Successors like as in case of Appeals from the Admiral 's Court to hear and Definitively to determine such Appeals By a subsequent Clause Appeals from the Jurisdiction of any Abbots Priors or other Heads and Governours of Monasteries c. and places exempt c. shall be made immediately to his Majesty into the Court of Chancery which Appeals so made shall be Definitively determined by Authority of the King's Commission It looks like a blemish to the Notion of Supreme Head in the modern acceptation of the Word to have the final Judgment in Causes Ecclesiastical referr'd by the Parliament to the Bishops Archbishops or to Commissioners appointed by vertue of an Act of Parliament c. and yet the Parliament in 25 Hen. 5. cap. 21. takes Notice of and allows the Clergy's Recognition nor was it till many Years after to wit the 39 of Eliz. that the Lawyers found out a way to make these Acts consistent with their imaginary personal Supreme Headship and that was by introducing Commissions of Review Which they tell us the King after such a definitive sentence may grant as Supreme Head Ad revidendum 4 Instit p. 341. Where two reasons are given for it First For that it is not restrained by the Act which seems to be a mistake For it is restrain'd by the Act as much as it was capable of being restrain'd and that by these words viz. that such Judgment and Sentence as the said Commissioners shall make and decree in and upon such Appeals shall be good and effectual and also definitive How could Commissions of Review be restrain'd more expresly than by these words They are not nam'd indeed and good reason why viz. because there never had been any such things in our Law before For he that will apply to this Case that common Rule of Law viz. that where the King is not named in a Statute he is not intended to be bound by it must prove that Appeals lay to the King in Person or in Chancery before these Acts were made And then perhaps I may yield that such Commissions of Review are not hereby restrained How comes it to pass V. Cr. Car. 40 Jones Rep. p. 147. Duke's Law of Char. Uses p. 62. Windsor and Hilton's Case that the Chancellor's Decree upon Complaint of a person aggrieved by a Decree of the Commissioners of Charitable Vses is final upon which no Bill of Review is to be allow'd Why because the Statute of 43 Eliz. cap. 4. gives an Appeal to him
This Prerogative that our Kings now have in the Election of Bishops stands upon the foundation of this Act of Parliament and other it has none The Supreme Headship it seems did not include the power of appointing Bishops for that had been allow'd two Years ago and is acknowledged by way of recital in this Session cap. 21. and yet the Election and Consecration of Bishops is appointed by Act of Parliament so that the title of Supreme Head did not then imply any such exorbitant Power as some have imagin'd Next comes the Act entituled No Imposition shall be paid to the Bishop of Rome c. It recites That where this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any Man's Law but only to such as have been devised made and ordained within the same for the Wealth of the said Realm or to such other as by sufferance of your Grace and your Progenitors the People of this Realm have taken at their free Will and Liberty by their own Consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consent and custom and none otherwise These other Laws which the People of this Realm are said to have taken at their free Will and Liberty by their own Consent and are said to have bound themselves to as to the Established Laws of the Realm by the said sufferance consent and custom and none otherwise are the Canon Laws Which here the Parliament disclaim any Obligation to the observance of otherwise than as they had bound themselves by their own sufferance and consent And consequently they did not look upon any Ecclesiastical Laws as obligatory to themselves and their Posterity but what themselves had or for the time to come should Consent to This would never have proceeded from them if they had imagin'd that the Legislative Power in Ecclesiastical Matters was or ever had been vested in the King's Person as some amongst us have not stuck to assert of late But the Act goes on It standeth therefore with natural equity and good Reason that in all and every such Laws humane made within this Realm or induced into this Realm by the said sufferance consent and custom your Royal Majesty and your Lords Spiritual and Temporal and Commons representing the whole state of your Realm in this your most high Court of Parliament have full Power and Authority not only to dispense but also to authorize some Elect Person or Persons to dispense with those and all other humane Laws of this your Realm c. and also the same to abrogate amplifie or diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament meet and convenient c. Here is no dispensing Power acknowledged to be personal in the King. Nor is the Parliament so much a stranger to Matters of Religion as not to have a share even in the dispensing as well as the abrogating Power with respect to Ecclesiastical Laws You see as soon as ever the foreign Yoke was cast off they put in for their share of the Supremacy nor did the King look upon it as any diminution to his own legal right to admit their claim It was in concurrence with them and with their assent that the method of prosecuting Appeals had been settled they joyn'd with him in tying up the hands of the Clergy from promulging any Constitutions without the Royal Assent their Authority concurr'd in appointing how Bishops should be Elected Invested and Consecrated and here they impower the Archbishop and the King to grant Dispensations Then they proceed to Enact how and by whom and in what cases Dispensations shall be granted for the future And first they impower the Archbishop of Canterbury for the time being and his Successors to grant Dispensations to the King his Heirs and Successors for causes not contrary to the Scriptures and the Laws of God. How Could not the King by vertue of his inherent Prerogative dispense with himself Dr. Hicks Was not this involv'd in the formal conception of Imperial Soveraignty No. If he will act contrary to Law he must have a Dispensation and that Dispensation granted by a Subject impowered by Act of Parliament so to do This is the first and only Act that gives the King a power of dispensing in Ecclesiastical Matters and the Archbishop of Canterbury may dispense in all cases which the King by vertue of this Act may dispense in only in cases unwont to be dispensed in at Rome he must advertise the King or his Councel who if they determine that such Dispensation shall pass then the Archbishop having the King's Licence shall dispense accordingly But who ever heard of the King 's Licensing an Archbishop to dispence with an Act of Parliament How would it found in our Ears if Divinâ Providentiâ Cantuariensis Archiepiscopus should issue a Non Obstante to an Act of the King Lords and Commons in Parliament And yet the Archbishop may grant Dispensations with the King's allowance in all Cases whatsoever that that Act extends to Therefore I say the King's Power of dispensing by vertue of that Act is with the Canon Law only which in effect was no Law at all To say that the King is not restrain'd by this Act Hob. p 146. in Colt and Glovers Case but his power remains full and perfect as before and he may grant them still as King for all Acts of Justice and Mercy flow from him is a sound of words only vox praetereà nihil And yet we find by Experience that hae nugae seria ducunt in mala there is likewise a strange Expression in Moor's Reports 542. cs 719. Al tierce point ils semblont que la Royne poit granter dispensations come le Pape puissoit en cases lou l'Archevesque n'ad authority per le Stat. de 25 H. 8. de granter dispensations quia tout l'authority que le Pape usoit est done al Corone But these and many other scattered Cases and extravagant Expressions of Reporters which have been made use of as Judgments in after times there may possibly be some account given hereafter in a Discourse by it self The latter part of the Statute of 25 H. 8. c. 21. concerns the visiting of Colleges Hospitals and places exempt It is enacted that the Archbishop of Canterbury or any other person or persons shall have no Power and Authority by reason of this Act to visit or vex any Monasteries Abbeys Priories Colleges Hospitals Houses or other places Religious which be or were exempt before the making of this Act but that Redress Visitation and Confirmation shall be had by the King's Highness
Anselm's contempt consist in Disobeying the Law and not the King 's Personal and Arbitrary Will and Pleasure If any Man depart the Realm at this Day after a Writ of Ne Exeat Regnum served upon him he becomes a Fugitive and the King may seize his Estate as he did the Archbishops Temporalities And yet we have no Act of Parliament for this now upon Record but Custom Time out of Mind which we call Common-Law Yet among the Laws of Clarendon this is one VIZ. Archiepiscopis Episcopis Personis Regni non liceat Exire Regnum absque Licentia Domini Regis Decem Scriptores pag. 1386 1387. Matth. Paris pag. 100. And Polydore Virgill pag. 171. carries this Law up as high as to the Reign of King William Rufus Publico Edicto Vetuit says he Vnumquemque sine Licentiâ suâ Ex Angliâ egredi qui mos lexve dicitur Ne Exeas Regnum Quae adhuc cùm ita res requirit usurpatur And it appears by the Register Fol. 193 194. That Religious Persons purchased Licences to go beyond the Sea. And Bracton tells us Lib. Quinto Fol. 413. b. That those Writs were de Communi Consilio totius Regni Concessa Approbata Of which more hereafter And great Reason there was that they who were then strugling with the Government to Introduce a Foreign Jurisdiction should when they went beyond Sea Assecurare Regem quod nec in eundo vel redeundo vel moram faciendo perquirerent malum sive damnum Domino Regi Constitution Clarend Suprad But as Mr. Selden says in his Metamorphosis Anglorum pag. 237. Huc referas Scil. ad temp Henrici Secundi an cum Polydoro ad Rufum an ad posteriora tempora rescriptum quod in Regesto NE EXEAS REGNVM habetur haud ità multùm interest nec quaestionem accurare operae pretium est Quis enim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 verum potis est elicere It being almost impossible to find out the Original of this Law and it appearing by the Register that whenever it did begin it began by Authority of Parliament and since nothing is known to the contrary but that it might begin in King William Rufus his Time to whose Time Polydere Virgill refers it and if it did not since Parliaments were frequently held then and One famous one at Rochingham during this very Controversie betwixt the King and Anselm Eadmer pag. 38. about his going to Rome in which he asked leave to depart and was denyed it Who knows but there might then be a particular Prohibition to him by the King in that Great Council But be that how it will the Truth in this Matter lies too deep by reason of the loss of almost all the Civil Laws made in the Reigns of Our First Norman Kings through the Embezelment of Records and the Carelessness of the Monks of those times for the Doctor to draw a good Argument from hence of the Danger of disobeying the King 's Personal Command Nay further if this Instance were never so much for him First It was in King William Rufus his Reign the Irregularities and Tyranny of whose Government was such and the Matters of Fact so lamely Reported to us that no Argument drawn from what he might do will be very conclusive to the Legality or Illegality of any thing And Secondly There is a very good Law made since VIZ. Ann. 14 Edwardi 3. cap. 6. to Protect the Clergy from incurring any such prejudice for the future for not doing whatsoever they are bid to do We Will and Grant for Vs and our Heirs that from henceforth We nor our Heirs shall not take nor cause to be taken into our Hands the Temporalities of Archbishops Bishops Abbots Priors nor other People of Holy Church of what Estate or Condition they be without a Just and True Cause according to the Law of the Land and Judgment thereupon given The Doctor makes account pag. 146 147. that the Oath which he says Anselm had taken whereby he promised the King Eadmer pag. 39. lib. 2. se usus ac leges suas usquequaque deinceps servaturum eas sibi contra omnes homines fideliter defensurum was no ways like the present Oath of Supremacy Whereby he would represent the Supremacy as a quite other thing and much more Exorbitant since the Reformation than it was in King William Rufus his Time Which is a great Errour For the Ecclesiastical Jurisdiction of the Kings of England was then almost entire and in puris naturalibus Foreign Jurisdiction had not then grown upon our Constitution The Bishops indeed were warping Rome-wards which caused the Government to have a watchful Eye upon them and to enjoyn Oaths upon them for security against Vsurpations then feared because attempted as after the Reformation they were enjoyned to prevent the return of them But the Oath of Supremacy prescribed by primo Elizabeth being only to Assist and Defend all Jurisdictions Priviledges Preheminencies and Authorities Granted or Belonging to the Queen's Highness her Heirs and Successors Or Vnited and Annexed to the Imperial Crown of this Realm is the same in Substance with Swearing in King William Rufus his Time to Keep and Defend the Laws and Vsages of the Realm For those Jurisdictions Priviledges Preheminencies and Authorities which having been torn from the Crown were restored by the primo Elizabeth and by the several Acts of King Henry the Eighth thereby revived were in being and actually enjoyed in King William Rufus his Time and before and for some time after He was the Supreme Governour of the Realm in Spiritual or Ecclesiastical Things and Causes as well as Temporal Witness that Law of King Edward the Confessor revived and confirmed by King William the First Rex quia Vicarius summi Regis est ad hoc est Constitutus ut Regnum terrenum populum Domini super omnia Sanctam Veneretur Ecclesiam ejus Regat ab injuriosis defendat maleficos ab eâ evellat destruat penitùs disperdat Lambard leg pag. 142. And the several Branches afterwards lopped off from the King's Supremacy were endeavoured to be preserved and secured by the Laws of Clarendon The Third Chapter of which provides against the Exemption of Clerks from the King's Justice The Eighth against Appeals to Rome The Twelfth secures the King's Right and Interest in the Elections of Archbishops Bishops Abbots and Priors c. These Constitutions then called the Avitae Consuetudines Regni Archbishop Becket promisit in verbo sacerdotali de plano se velle custodire Similiter Episcopi promiserunt Juraverunt Gerv. Dorob Coll. pag. 1366. This was no other than the Modern Oath of Supremacy without any material difference The Archbishop did not pretend that the Laws of Clarendon as Wicked and Unjust as he might think them were any other than Explanations and Assertions of the Ancient Vsages of the Realm His Suffragans tell him in a Letter
SOME OBSERVATIONS UPON THE Ecclesiastical Jurisdiction OF THE KINGS of ENGLAND WITH AN APPENDIX In Answer to part of a Late Book Intitled The KING' 's Visitatorial Power Asserted LONDON Printed for William Battersby at Thavies-Inn Gate in Holborn and Thomas Basset at the George in Fleet-street 1689. To the Reader A Late Declaration for Liberty of Conscience whereby the King Assum'd a Power of Suspending All Penal Laws in matters of Religion The Ecclesiastical Commission and suspending by vertue of it the Bishop of London and depriving the Fellows of Magdalen-Colledge occasioned a general dissatisfaction in the Nation and produc't some Pamphlets to justifie all those Proceedings viz. One Entituled The King 's Right of Indulgence in Spiritual Matters with the Equity thereof Asserted Another A Vindication of the Proceedings of his Majestie 's Ecclesiastical Commissioners against the Bishop of London and the Fellows of Magdalen-Colledge A Third The Legality of the Court held by his Majestie 's Ecclesiastical Commissioners Defended And last of all The King 's Visitatorial power asserted Perusing these Pamphlets I could not but observe that one and the same inveterate error ran through them All viz. Their ascribing to the King all such power Jurisdiction and Authority as by the Law of England and the very Original Constitution of our Government is lodged in the Legislative body of the Kingdom and which the King is intrusted onely with the Administration of and that in his Courts of Justice I had attempted the answering more than one of those Pamphlets but I found that at every turn I met with that mistake in the Authors who either through Ignorance or Design or both argue for the King's Prerogative from whatever they find to have been done in Great Councils of the Realm or in Ordinary Courts of Justice this one mistake together with some rash and unwarranted expressions glean'd out of a few late Writers will be found to be the main strength of their Cause I thought therefore that it might be a work of some use especially at this time to endeavour the removal of this rubbish and the laying open in some measure the nature of the Ecclesiastical Jurisdiction of the Crown of England both because we have lately seen how dangerous and fatal these mistakes are and because although much has been written since the Reformation by Mr. Prynn Sir Roger Twisden and others to vindicate the Ecclesiastical Supremacy from Forein Pretensions and Vsurpations yet I know not whether any has yet taken in hand to give an Account of it as stands by Law here at home I do therefore offer these few Observations upon it to the publick desiring the Judicious Reader 's pardon for what slips and imperfections he may find herein and have added in an Appendix an Answer to a Section in the Book concerning Visitatorial Power wherein I hope the Reader will be satisfied how groundless and weak most of the arguments are which our Prerogative-mongers pretend to draw from Antiquity These following Observations are brought down no lower then to the latter end of King Henry the eighth's Reign I design a Continuation with Remarks upon some Judicial Presidents that have pass't since the Reformation if these Papers are well received if not I shall save time and be eas'd of trouble SOME OBSERVATIONS Upon the Ecclesiastical Jurisdiction Of the King 's of ENGLAND IT is obvious enough to judicious and intelligent Persons by what unhappy Circumstances it comes to pass that one great Mean of our Preservation seems at present in a manner hid from our Eyes But since Experience is said to be the Mistress of Fools it is hoped that at least in this our Day we may see the things that belong to our Peace Luke 19.42 and remember that the reason why the Ostrich leaveth her Eggs in the Dust Job 39.13 14 15 17. forgetting that the Foot may crush them is because God hath deprived her of Wisdom neither hath he imparted to her Vnderstanding If Interest or Ambition have swayed with some of us Prov. 22.28 as far as in them lay to remove the antient Land-Marks which our Fore-Fathers have set Josh 7.19 let such give Glory to God and take Shame to themselves In the mean time what effect soever these ensuing Papers may have upon our Friends at least let our Adversaries see that there is a Remnant left in Israel 1 Kings 19.18 that have not bowed their Knees to Baal An Arch-Bishop may tell us The Legality of the Ecclesiastical Commission defended pag. 6 7. that the King may take what Causes he pleases to determin from the Determination of the Judges and determin them himself and that it is clear in Divinity that such Authority belongs to the King by the Word of God. But as we are not to receive even the Word of God it self under the Sanction of a Human Law from the Mouth of an Arch-Bishop or from the whole Body of the Clergy much less are we bound to submit to any Courtly Glosses upon that Sacred Text concerning the Power of Kings whose Authority as we suppose it to be grounded wholly upon Municipal Laws so we know the Law to be a better Foundation and a better Security than any imaginary Authority pretended from Scripture And if the Defender would have observed what the Lord Coke in the Presence and with the clear consent of all the Judges and Barons of the Exchequer Coke 12. Rep. pag. 63 64 65. answered upon that occasion before the King himself both from Reason and Authority he would have silenced the Arch-Bishops Divinity and saved me the trouble of taking notice of that part of his Discourse It was their Opinion that the King could not in Person adjudge any Case Which they confirm with such Reasons and Authorities from judicial Records and Acts of Parliament that it seems very imprudent in the Defender to urge that as an Authority which received so solid so learned and so honest an Answer Judges and Serjeants may entertain themselves with what Discourse they please post prandium Legality of c. defended pag. 10 11. Coke 12. Rep. pag. 19 c. and in their mooting upon one extrajudicial Point may talk of another by the by and if one of the Company put this transient Discourse into Paper so that afterwards it gets into the Press Good God! what condition are we come into when Tablechat must be obtruded upon us for Law To go a little further Judges in Courts of Justice may pretend to resolve what Points of Law they please but if their Resolutions are not pertinent to the Matter depending before them in Judgment and necessary for the deciding it such Resolutions go for nothing because the Judges had no Authority so to resolve And I am fully assured that this Point Legality of c. defended Pag. 8.9 Coke 5. Rep. Cawdry's Case viz. Whether any King or Queen of England for the time being might issue an
them not warrantable by the Laws and Statutes of the Realm Now what use the Doctor can make of this Particular viz. of the King 's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law I cannot discover Sir Roger's eighteenth and last particular is an observation in Matth. Paris where the Ecclesiasticks having enumerated several cases in which they held themselves hardly dealt with add That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition he was attached and appearing before the Justices constrained to produce his proceedings that they might determine to which Court the Cause belonged By which says he it is manifest how the King's Courts had the superintendency over the Ecclesiastick This makes nothing for any Extrajudicial Personal Arbitrary power in the King in the Ecclesiastical matters and is so far from impugning that it corroborates my hypothesis That the Temporal and Ecclesiastical Courts often quarrel'd about their Jurisdiction and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm thereby endeavouring to usurp and encroach upon many matters which apparently belonged to the Common Laws as the tryal of Limits and Bounds of Parishes the Right of Patronage the tryal of right of Tythes by Indicavit Writs to the Bishop upon a recovery in a Quare impedit the tryal of Titles to Church-Lands concerning Distresses and Attachments within their own Fees and many other things which belonged to the King 's Temporal Courts That the Temporal Courts granted Prohibitions in these and other like cases that the Clergy hereupon complain'd not to the King but to the Parliament Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes 599 600 601 c. So that the King determined to which Court Causes belonged either in his Courts of Ordinary Justice or if the Clergy remain'd unsatisfied with the Opinions of the Judges in his High Court of Parliament and no otherwise But we need not wonder that such a Prelate as Arch bishop Bancroft whose Divinity had taught him that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself and that such Authority belonged to Kings by the Word of God in the Scripture we need not wonder I say to find him in King James the First 's time Exhibiting Articles of Abuses in granting Prohibitions against the Judges to the Lords of the Privy Council As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst 601 602 c. 12 Co. p. 63 64 65. By what has been said I hope it appears sufficiently that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction and no other than they had in Temporal matters viz. in their Great Councels and in their Ordinary Courts of Justice And that not only our Mercenary Doctor but more learned and wiser men than he have unwarily confounded that Jurisdiction with a Fiction of their own brains by which they have ascribed to the King a Personal Supremacy without any warrant from Antiquity Law or History Witness these loose Expressions in Sir Roger Twiden's Historical Vindication c. It cannot be denyed but the necessity of being in union with the true Pope at least in time of schism did wholly depend on the King pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals that is quae sui sunt ordinis without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione in other things as points of Government the Ordering that of Right and Custom ever to have belonged to the King assisted with his Councel of Bishops and others of the Clergy who was therefore called Vicarius Christi c. pag. 21. The King and the Arch bishop or rather the Arch-bishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy as the Erection of Bishopricks disposing and translating of Bishops c. p. 24. and innumerable others But to go on with Dr. Johnston and draw to a conclusion he acknowledges pag. 157 that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time And if no such thing can be found then what authority can our Kings now have to exercise such a Jurisdiction unless by vertue of some Act of Parliament made in or since his time But says he we have sufficient grounds to judge that whatever was done was by the King's Power and Authority which is a wild extravagant ignorant expression and hardly common sense And therefore says he Sir Edward Coke in Cawdrie's case Lays it down for a Rule That as in Temporal Causes the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proed approved and allowed here by and with general consent are aptly and rightly called the King's Ecclesiastical Laws and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects c. pag. 157. which that he has he proves by the Preamble of stat 24 Hen. 8. cap. 12. And what then May the King therefore erect New Courts directly contrary to positive Laws Command things arbitrarily upon pain of suspension deprivation c. and Command things contrary to Law by vertue of his Ecclesiastical Laws The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy which now stands Repealed And with 1 Eliz. by which he says all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governour But the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to shew hereafter that the Doctor understands the Act of 1 Eliz. as little as any thing else that he pretends to write upon FINIS
cum aliis Proceribus Normanniae simul adesse praecepit ut Rex jussit factum est Igitur 8. Anno Papatus Domini Gregorii Papae 7. Celebre Concilium apud Jullam bonam Celebratum est Et de Statu Ecclesiae Dei totiusque Regni Providente Rege cum Baronum suorum consilio utiliter tractatum est Then he inserts the Laws made there all concerning Ecclesiastical Matters In the next Reign that of King William Rufus there was a Schism in the Popedom between Clement and Vrban Anselme whilst he was Abbot of Bec in Normandy had Sworn Obedience to Vrban and being Elected Archbishop of Canterbury desired leave to go out of the Realm to fetch his Pall from him This the King opposed for that Vrban had not been received for Pope in England and told the Archbishop he could not keep his Fealty to him his Prince saving the Obedience which he owed to Vrban Anselme upon this referred himself to the Judgment of the Archbishops Bishops Proceres c. in Parliament who accordingly were Convened at Rochingham Ex Regia Sanctione and the matter discussed before them If the Archbishop had had any Notion of a Personal Supremacy in the King separate from and independant of the Great Council of the Realm it had been absurd in him not to acquiesce in the King's Judgment but Appeal to a Parliament If the King himself had been possessed with an opinion of any Legislative or Supreme Judicial Power in Ecclesiastical Matters lodged in his Person he would never have consented to call a Parliament to determine a cause which himself as far as in him lay had determined already The History may be read at large in Eadmer Hist Nov. Lib. 2 page 24 25 26 c. In King Henry the First 's time Anno Dom. 1102. A Council was held at London in which at Anselm's request to the King the Laity were present Quatenus quicquid ejusdem Concilii authoritate decerneretur utriusque Ordinis curâ sollicitudine ratum servaretur Sic enim necesse erat Quum multis retro annis Synodali culturâ cessante vitiorum vepribus succrescentibus Christianae Religionis fervor in Angliâ nimis tepuerat This is a clear Testimony that the Assent of the Laity was necessary to the Enacting such Ecclesiastical Laws as they were to be bound by And that neither the King by his Prerogative nor the King and the Clergy could impose any Constitutions upon them without their Assent Eadmer Histor Nov. Lib. 3. Will. Malmesb. De Gest Pontif. Anglor Lib. 1. p. 129. But tho' the King could not make Laws Himself could he not permit a Legate to exercise his Legatine Power here King Henry the Eight indeed permitted Wolsey to exercise his Office here and afterward brought the whole Clergy under a Premunire for submitting to him and owning his Authority But the Statutes of Praemunire were then in being Could not our ancient Kings that Reigned before any Act of Parliament now upon Record was extant they that must needs have had all the inherent Prerogatives that are involved in the Notion of Imperial Soveraignty Doctor Hicks they that understood their power somewhat better perhaps than it is now understood because they lived nearer to the creation of it and exercised it before it was sophisticated could not they I say by vertue of their Ecclesiastical Supremacy permit the Popes Legate to domineer a while within the Realm Why King Henry the First was very well satisfied that himself had no such power For when Petrus Monachus Cluniacensis was sent hither by Calixtus the Pope to exercise his Office of Legate within this Realm the King would not suffer him so much as to Lodg upon the Road in any Religious House And when he came into his presence and had told him his Errand Rex obtensâ expeditione So Anno Dom. 1225. Magister Otto Domini Papae nuncius in Angliam veniens promagnis Ecclesiae Rom. negotiis Regi literas praesentavit sed Rex cognito literarum tenore Respondit quod solus non potuit definire nec debuit negotium quod omnes Clericos laicos totius Regni tangebat Matth. Paris p. 325. in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Hist Nov. p. 138. And so the Legate went back as he came He tells it him as a known truth Constaret that the giving him leave to exercise his Office here was too great a work for him to go about as his affairs then stood for that it could not be done but in and by the Parliament If the Parliament had not a share in the Ecclesiastical Jurisdiction how came their Assent to be necessary If they had when did they lose it If the King's Supremacy was personal why might not he if he would have licensed him himself If it was not personal then but is so now then do not assert over and over that the late Acts of Restitution are all declarative and give no new power If the Pope's power de facto exercised be translated to the King shew the conveyance This same King in a Letter to Pope Paschall about Investitures tells him that if himself should be so mean in tantâ me dejectione ponerem as to part with them yet Optimates mei imò totius Angliae Populus id nullo modo pateretur Decem Scriptores 999. The Investitures were performed by the King in person but subsequent to an Election by the Parliament and yet the Parliament were so concerned in them that they were not nor could be parted with but by an Act of Parliament Which accordingly ensued notwithstanding the King's resoluteness at first for when Anselme came from Rome the King was perswaded to with-draw his claim and it was granted in a Parliament held at London Astantibus Archiepiscopis caeteraque multitudine maxima Procerum Magnatum ut ab eo tempore in anteâ nullus electus per dationem Baculi pastoralis vel Annuli de Episoopatu vel Abbathia investiretur per Regem vel aliam quamcunque personam secularem Ibid. Et Sim. Mon. Dun. 228 229 230. But tho' Investitures were lost Elections remained as they were at least of right till King John's time Concessit Rex Johannes liberas in omnibus Ecclesiae Anglicanae electiones Matth. Par. p. 262 263. The Charter it self which was certainly an Act of Parliament See Presidents of many Bishops and Abbots Elected in Parliament in the Reigns of King Stephen and King Henry the Second In Spelm. Conc. Second Part. p. 42 119. Innumerable are the instances of Canons and Constitutions made in the Reigns of the first Norman Kings in their Great and General Councils concerning Churchmen and Church Matters
21. They tell the King That this his Grace's Realm recognising no Superiour under God but only his Grace hath been and is free from subjection to any Man's Laws but only to such as have been devised made and ordained within this Realm for the wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free Liberty by their own consent to be used amongst them and have bound themselves by long use and custom to the observance of the some not as to the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and anoient Laws of this Realm originally establisht as Laws of the same by the said sufferance consent and custom and none otherwise By those other Laws not ordained within the Realm they mean the Canon Law. For the Clergy extended the bounds of it daily and always got ground But the Sufferance and Cousent here spoken of was not a bare tacit Submission to it by the People but a Consent in Parliament Where they not only received foreign Canons into the body of our Municipal Laws but also from time to time came to a Compremise with the Clergy with respect to several Matters of which the Clergy claimed Cognisance as appertaining to what they called Spiritual Jurisdiction First For our Records of Parliament yet extant go no higher by the Statute De Circumspecte agati◠but that would not satisfie them In King Edward the Second's time they got Jurisdiction in many other Causes as you may see in the Statute of Articuli Cleri And in King Edward the Third's time they went yet farther Nine new Points were gained 25 Edw. 3. by the Statutum pro Clero The Conusance of these Matters which by these Statutes were left to the Clergy belonged before to the King's Courts as part of the Common Laws of the Realm by which the King governed his People and which he administred in his ordinary Courts of Justice and by the ordinary proceedings of Law. And therefore before they were allowed to the Cognisance of the Ecclesiastical Courts by Act of Parliament Prohibitions were granted * The King 's Right of Indulgence page 28. The granting of Prohibitions in these Cases is urged by a late Author as an instance of the King 's Ancient Supremacy and urged amongst other things to prove a right in the King's Person to dispense with Civil Laws about Ecclesiastical Matters Whereas Prohibitions were granted then no otherwise than as they are now to Spiritual and other Courts when they exceed the bounds of their Jurisdiction When the Spiritual Jurisdiction broke in upon the Temporal and the Ecclesiastical Courts assum'd an Authority in Cases not allowed by the Laws of the Realm to be within their Cognisance this was an Offence against the King's Crown and Regality as the Statutes of Premunire run and Contra Coronam Dignitatem Regis as the forms of some Prohibitions in the Register run and yet the Kings Temporal Jurisdiction was not personal In this period of time it was that Dispensations brake forth They began in King Henry the Third's time which is not old enough to give the Crown a title to them by Prescription for it is within the time of Memory The History of their Nativity may be read in Matth. Paris The Pope led up the Dance taking upon him by Non Obstante's to revoke his own Grants and to dispense with the Canons upon a pretence of some plenitudo potestatis or other derived to him as Pastor of the Vniversal Church by Succession from St. Peter And Secular Princes Writ after his Copy in taking upon them to dispence with their own Penal Laws Which before were religiously observed as the Laws of the Medes and Persians Sir John Daries Case De Commenda which could not be dispensed with And therefore a Canonist says that Dispensatio vulnerat jus commune And another says that all Abuses would be reformed Si duo tantum verba viz. Non Obstante non impedirent And Matthew Paris Anno Dom. 1246. having recited certain Decrees made in the Council of Lyons which were beneficial to the Church of England Sed omnia haec alia says he per hoc repagulum Non Obstante infirmantur Dav. Rep. 69 70. c. Secular Princes it seems had not learnt that part of their Prerogative till they were taught it by their Ghostly Father Nor could they well have any notion of it since as Sir Henry Spelman tells us in his Glossary tit Assisa Reges Proceres in condendis Legibus earum olim jurabant observantiam Hence Bracton calls the Laws of England Leges Juratas Now the taking of an Oath to observe them and the being allowed a power by Law to break them seem to me very inconsistent things It 's observable to this purpose what Bracton tells us concerning the Laws of England Legis vigorem habet quicquid de Consilio Consensu Magnatum Reipublicae Communi sponsione authoritate Regis sive Principis praecedente justè fuerit definitum approbatum So that a Statute of the Kingdom of England is an Agreement betwixt all parties concerned Which for any one of them to set aside is against Natural Reason And Fortescue who was Lord High Chancellor of England in the Reign of King Henry the Sixth cannot be supposed to have known of any such Prerogative in the King by the account that he gives us of the Solemnity of Enacting Laws here in England and of the course that was to be taken when any of them were found by Experience to be inconvenient Pag. 39 40. Statuta tunc Angliae bona sunt necne solum restat explorandum Non enim emanant illa Principis solùm voluntate ut Leges in Regnis quae Regaliter tantum gubernantur ubi quandoque Statuta ità constituentis procurant commodum singulare quod in ejus subditorum ipsa redundant dispendium jacturam Quandoque enim inadvertentiâ Principum hujusmodi sibi consulentium inertiâ ipsa tam inconsultè eduntur quòd corruptelarum potiùs quà m Legum nomina mereantur Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed totius Regni assensu ipsa conduntur quo Populi laesuram illa essicere nequeunt vel non eorum commodum procurare Prudentiâ enim Sapientiâ necessariò ipsa esse referta putandum est dum non unius aut centum solùm consultorum virorum prudentiâ sed plusquam trecentorum electorum hominum quali numero olim Senatus Romanorum regebatur ipsa edita sunt Et si Statuta haec tanta solemnitate prudentia edita efficaciae tantae quantae conditorum cupiebat intentio non esse contingant concito reformari ipsa possunt non sine Communitatis Procerum Regni illius assensu quali ipsa primitùs emanarunt A Power in the Prince to suspend Laws
by whole-sale is altogether needless in a Constitution wherein Concitò reformari possunt by the same Authority that made them In Forty days time a Parliament may be summoned to consent to what alteration they shall think fit to be made And it is the constant practice observed to this day that at the beginning of every Parliament a Committee is appointed to consider what Laws are inconvenient and have need to be altered continued or repealed If the Parliament shall not think fit to make any alteration the Laws must remain in force and ought to be put in execution for there can be no Reformation of them made Sine Communitatis Procerum assensu And the reason is because by such assent Primitus emanârant The Repealing of a Law or which is all one a total Suspension of a Law is making a new Law whatever quibbles and foolish distinctions may be pretended to be made in the Case Now the Laws of England do not oriri Principis voluntate and rherefore a Repeal or total Suspension of a Law grounded upon the voluntas Principis only is not warranted by that model of the English Government that Fortescue presents us with He that asserts such a Power in the King to Suspend Laws Enacted by the Consent of the whole Kingdom turns the Government of this Nation topsie turvie Lord Chief Justice Herbert in Sir Edward Hales his Case And makes the Laws of England indeed the King's Laws contrary to the style of all Antiquity of all History and contrary to the forms of Legal Proceedings even to this day Lex terrae and Leges terrae Leges Consuetudines Angliae Leges Angliae Statuta Angliae Assiza Regni are known and common Expressions Leges Regis sounds harsh the phrase is uncouth because the Notion included in it is false nor was ever thought of by our Forefathers The Statutes of Praemunire and Provisors and the method of dispensing with them before the Reformation will abundantly disclose to us where the power of dispensing with Acts of Parliament even in Ecclesiastical Matters was vested In the 16th Year of King Richard the Second the Archbishop of Canterbury declared the Causes of the Parliament The second of which was to provide some remedy touching the Statute of Provisors for eschewing debate betwixt the Pope and the King and his Parliament Cot. Records p. 346. King Richard needed not have put himself to the trouble of convening his Parliament in order to provide a Remedy in such case if by the Law as it was then understood he might by his Perogative have dispensed with the Statutes of Provisors and all other Laws concerning Ecclesiastical Matters In the 17th R. 2. It was enacted in Parliament that Tydeman late Abbot of Beawliew and Elect of Landaffe by the Popes Provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no Example Ibid. p. 354. So that tho Tydeman had a Dispensation from the King he durst not trust to it without getting his Title to his Abby confirmed in Parliament The like President occurs in 18 H. 6. The Archbishop of Roan had the Profits of the Bishoprick of Ely granted to him by the Pope and confirmed in Parliament Ibid. p. 623. But in the Fifteenth year of King Richard the Second the Commons for the great Affiance which they reposed in the King granted that the King by the Advice of his Lords might make such Toleration touching the Statute of Provision as to him should seem good until the next Parliament so as the Statute be repealed in no Article thereof nor none disturbed of his lawful Possession So also as they may disagree thereto at the next Parliament with this Protestation That this their Assent being in truth a Novelty be had or taken for no Example Ibid. p. 342. And in the Sixteenth year of the same King the Commons grant to the King that he by the Advice of his Lords should have power to moderate the Statute of Provisions to the Honour of God and saving the Rights of the Crown and to put the same in execution so as the same be declared in the next Parliament to the end the Commons may then agree to the same or no. Ibid. pag. 347. The occasions of these Concessions were the then circumstances of the Kings Affairs who was often at enmity with France and made advantage of the Pope's Friendship which he obtained by this and other Methods of the like kind The like Instances occur in the same Collection p. 362 In the Twentieth year of the same King. p. 393 In the First year of King Henry the Fourth p. 406 In the Second year of King Henry the Fourth From hence it appears that those Times had no notion of any absolute Power any inseparable Perogative in the King himself of dispensing with those Laws without his Parliaments consent For they grant the King such Power and that but for a time and so as they may disagree to it at their next Meeting and with a protestation that this their Assent be not drawn into Example and declare their giving the King such Power to be a Novelty And all this they do with a saving to the Rights of the Crown which let them if they can explain the meaning of who imagine that the uniting of Ecclesiastical Jurisdiction to the Crown of England by the Statute of 1 Eliz. is a vesting of it in the King's Person In this same interval of Time the Statutes of Praemunire were enacted viz. 27 Edw. 3. cap. 1. and 38 Edw. 3. cap. 1. 16 R. 2. and some others with which how far it was lawful for the King to dispense take an account from what hapned to Cardinal Wolsey in King Henry the Eighths time He had a Commission from the Pope to exercise his Office of Legate here in England he had the King's leave so to do he exercised that Office many years without controul and was submitted to almost universally I remember but one Obstruction offered to have been made to him and that was by Hunne a Merchant-Taylor in London The History of which may be read at large in Fox and Dr. Burnet's History of the Reformation And yet the whole Clergy were afterwards attainted of a Praemunire for submitting to such Foreign Authority as the same Authors the Lord Herbert and others abundantly testifie But Stephen Gardiner's Letter to the Duke of Somerset concerning that Matter as it is very remarkable for many other Passages so this ensuing part I think proper to be here inserted because it will save me the trouble of relating the History and of endeavouring to open the Reasons of that Proceeding Now whether the King may command against an Act of Parliament and what Danger they may fall in that break a Law with the King's consent I dare say no Man alive at this day hath had more Experience with the Judges and Lawyers than I First I had experience in my
old Master the Cardinal who obtained his Legacy by our late Sovereign Lord's request at Rome and in his sight and knowledge occupied the same with his two Crosses and Masses born before him many years yet because it was against the Laws of the Realm the Judges concluded it the Offence of the Praemunire which conclusion I bare away and take it for the Law of the Realm because the Lawyers so said but my Reason digested it not The Lawyers for confirmation of their Doings brought in a Case of the Lord Tiptoft as I remember a jolly Civilian he was Chancellor to the King who because in the Execution of the King's Commission he had offended the Laws of the Realm he suffered on Tower-Hill they brought in many Examples of many Judges that had Fines set on their Heads in like Cases for doing against the Laws of the Realm by the King's Commandment and then was brought in the Judge's Oath not to stay any Procesâ— or Judgment for any Commandment from the King's Majesty And one Article against my Lord Cardinal was that he had granted Injunctions to stay the Common Law and upon that occasion Magna Charta was spoken of and it was made a great matter the stay of the Common Law and this I learned in that Case sithence that time being of the Council when many Proclamations were devised against the Carriers out of Corn at such time as the Transgressors should be punished the Judges would answer It might not be by the Laws whereupon ensued the Act of Proclamations in the passing of which Act many liberal Words were spoken and a plain Proviso that by Authority of the Act for Proclamations nothing should be made contrary to an Act of Parliament or Common Law. A known and notorious Judgment has been lately given in favour of a Dispensation with an Act of Parliament Sir Edward Hales's Case in a cause of extraordinary great consequence and the Court grounded themselves upon a Case pretended to have been adjudged in the Second year of King Henry the Seventh concerning Sheriffs It had been enacted by several Statutes That no Sheriff Vnder-Sheriff c. should abide in his Office above one whole year as by the 14 Edw. 3. cap. 7. and the 42 Edw. 3. cap. 9. And in King Richard the Second's time it was enacted That no Man who had been Sheriff of any County by one whole year should be another time chosen into the said Office within three years ensuing c. Notwithstanding which Statutes the contrary was often practised by colour of Dispensations with those Laws Which Dispensations of what validity they were in Law in the Judgment of Parliaments may be seen by divers Instances in Cotton's Abridgment of the Records of the Tower V. Cott. Abr. p. 387. Anno 1. H. 4â— One Artic. of Impeachment against King Rich. 2. some of which are very untoward To obviate the mischief of these Non Obstante's the Parliament in the Twenty Third year of King Henry the Sixth enacts That the said Statutes above recited shall be duly observed and inflicts the Penalty of 200 l. upon any Sheriff Under-Sheriff c. that shall hold the said Office longer than a year And farther enacts That every Pardon thereafter to be made for such Offence or Occupation or forseiture of Sums before recited shall be void and not available and that all Patents made or to be made of any of the said Offices for term of Years for term of Life or in Fee Simple or in Fee Tail shall be void and of no value by the same Authority any Clause or Word of Non Obstante in any wise put or to be put in any such Patents notwithstanding And moreover that whosoever shall take upon him to have or occupy the said Office of Sheriff by vertue of such Grants or Patents now to be made for term of Years for term of Life Fee Simple or Fee Tail shall stand for ever and at all times disabled to bear the Office of Sheriff within any County of England That that Statute was ever after looked on as a Law binding to the King and restraining any Non Obstante's in such case for the future will appear by considering some Statutes subsequent to the Law it self both before and after the pretended Judgment in 2 H. 7. The first is that of 28 Hen. 6. cap. 3. Whereby it is ordained and granted that the Sheriffs c. which were for the year last passed shall be quit and discharged against our Soveraign Lord the King and all his Liege People of the Penalties and Forfeitures of 200 l. which they or any of them might fall in or incur by force of the said Statute made in the 23d Year of the said King as for the occupation or exercise of the Office of Sheriff longer than by a Year c. So that such Sheriffs as had exercised their Office longer than a Year contrary to the said Statute of 23 Hen. 6. could not be safe by any Dispensation granted by the King without an Act of Parliament to indemnifie them against him and his People In the Eighth Year of King Edw. 4. cap. 4. the Parliament reciting the Statute of the 14th of King Edward 3. and of the 42 of the said King above-mentioned and that of the 23th of King Hen. 6. concerning Sheriffs and that contrary to the said Ordinances divers Sheriffs c. in the First Second and Third Years of the said King Edward the 4th that then was the Realm then being in great trouble and the Peace not fully established did occupy over a Year the said King by Advice and Assent of the Lords Spiritual and Temporal and at the Request of the Commons ordained and established That no manner of persons being Sheriffs Vnder-Sheriffs c. in the said Three first Years of his Reign or any space within the same for the occupation of the Office of Sheriff c. in the said Three Years or any part or space within the same or of the same or any of the same above a Year altho their Occupation were against the Ordinances above recited be damnified nor in any wise hurt by any Action Pain or Forfeiture in the same Ordinances or any of them comprised c. Yet nevertheless the said Ordinances and every of them to remain in their strength and force against all Sheriffs Vnder-Sheriffs c. for their occupation all other Years than the said Three Years as aforesaid If the King's Pardon could have saved them harmless the Act of 26 H. 6. notwithstanding which provided that all such Pardons should be void then these Offenders had not need to have recourse to an Act of Parliament for their Security These two Laws subsequent to the said Act of 23 H. 6. cap. 8. and prior to the said pretenced Judgment of 2 H. 7. shew it to have been the Sense of the Parliaments and People of those times that all Pardons and Dispensations with the said Statute were
either allowed or condemned The principal Cases in our Modern Books in which the conceits of latter times are display'd are these following Coke's 8th Report the Princes Case The Case of the City of London 11th Report the Case of the Taylors of Ipswich and the Case of Monopolies Dyer 52. a. 54. a. 224. b. 270. a. 303. a b. Plo. Com. Grendon against the Bishop of Lincoln Vaughan's Reports Thomas and Sorell's Case V. Roll's Abridgment Second Part p. 179 180. Lett. Y. Co. 12th Report p. 18 19. Sir John Davie's Reports Le Case de Commenda p. 68 c. Moor's Reports p. 244 245 c. cs 384. But how correspondent the reason of some of these Judgments is to the sense of former Parliaments and consequentially to the Judgment of the whole Nation and the very Constitution of this Government take a hint from a notable Record in the Fiftieth Year of King Edward the Third whereby it appears That Richard Lyons Merchant of London was impeached and accused by the Commons of many Deceits Extortions and other evil Deeds committed by him against our Lord the King and his People as well in the time that he had been belonging to the House and Council of the King as otherwise during the time that he was Farmer of the Subsidies and Customs of the King and more especially for that the said Richard by Covin had between him and some of the Privy Council of our Lord the King for their singular Profit and Advantage had procured and gotten many Patents and Writs of Licence to be made to carry great Faith and Credit whereby Skins Wool and other Merchandizes were transported otherwise than to the Staple of Calice against the Ordinances and Defences made in that behalf concerning the same before time in Parliament He was charged with other particular Crimes to some of which he offered to make a Defence but to others and this amongst the rest he made no answer Wherefore the said Richard was a warded to Prison during the King's pleasure and distrained to Fine and Ransom according to the quantity of his Trespass and that he should lose his Freedom of the City of London and be no more in Office under the King and to incur other Penalties and Forfeitures as may be seen at large in the Record printed by Mr. Selden in a Book entituled The Priviledges of the Baronage of England pag. 34 35 36 c. So that Licences for the shipping of Wool contrary to an Act of Parliament tho mentioned by Rocliffe in the Book of King Henry the Seventh as legal and grantable by the King with a Non Obstante and countenanced sufficiently by latter Judicial Authorities Vide Dyer 52. a 54. a c. Yet appeared otherwise to antient Parliaments and if the Judgment of a Parliament be of greater Authority than that of a Court in Westminster-Hall or indeed than that of all the Judges put together and if Judicial Presidents do not make the Law but ought to declare it only then is the Legal Perogative in dispensing with Acts of Parliament much straiter if any at all than modern Opinions would represent it to us And that Parliamentary Presidents are of the highest Authority in this Nation will appear by considering that in former Times it was very frequent with the Judges in Westminster-Hall if any Case of Difficulty came before them especially if it depended upon the Construction of an Act of Parliament to be so cautious of making any new unwarranted Presidents that they frequently adjourned the Matter ad proximum Parliamentum By the Statute of Westminster the Second made Anno 13. Edwardi primi cap. 23. It 's enacted That Quotiescunque de caetero evenerit in Cancellaria quod in uno Casu reperitur breve in consimili casu cadente sub eodem Jure simili indigente Remedio non reperitur concordent Clerici de Cancellariâ in brevi faciendo vel atterminent querentes in proximum Parliamentum escribantur Casus i◠quibus concordare non possunt referant eos ad proximum Parliamentum My Lord Coke in his Second Institutes pag. 407. tells us That before this Act the Justices did punctually hold themselves to the Writs in the Register because they could not change them without an Act of Parliament And pag. 408. That Matters of great Difficulty were in antient Times usually adjourned into Parliament to be resolved and decided there And that this was the antient Custom and Law of the Kingdom Bracton bears witness Si aliqua nova inconsueta emerserint quae nunquam priùs evenerunt obscurum difficile sit eorum judicium tunc ponantur judicia in respectu usque ad Magnam Curiam ut ibi per Concilium Curiae terminentur And hereof the Lord Coke says There are infinite Presidents in the Rolls of Parliament and quotes in his Margent many Presslents out of the Year Books Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mischiefs have hapned for that in the Chancery King's Bench Common Bench and Exchequer Judgments have been delayed sometimes by Difficulty and sometimes by divers Opinions of the Judges and sometimes for some other Cause It is assented established and accorded That from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and Power of the King to hear by Petition delivered to them the Complaints of all those that will complain them of such Delays and they shall have power to cause to come before them at Westminster or elsewhere the Tenor of Records and Processes of such Judgments so delayed and cause the same Justices to come before them which shall be then present to hear the cause of such Delays Which Cause and Reason so heard by good Advice of themselves the Chancellor Treasurer the Justices of the one Bench and of the other and other of the King's Council as many and such as they shall think convenient shall proceed to take a good Accord and make a good Judgment So that our Parliaments of antient Time looked upon the Judges not as absolute Oracles of the Law but as Men that were both liable to Mistakes and under the Regulation and Direction of Parliaments even in their Ordinary Proceedings The Nation did not so far intrust them as they themselves would persuade us of late In the Three and thirtieth of H. 6. a Question arose in the Exchequer Chamber Whether a Record then and there certified as an Act of Parliament were really an Act of Parliament or no Fortescue who gave the Rule says They would be well advised before they annulled an Act of Parliament and the Matter was adjourned to the next Parliament that they might be certified by them of the certainty of the Matter 33 Hen. 6. Fol. 18. Indeed the Question Whether such or such a Record certified were an Act of Parliament or no may seem too high for
and goes no higher And since there were no such Commissions of Charitable Vses before that Statute therefore the Statute being introductive of a new Law must be pursued and where the Statute does not provide a Remedy there is none Now the Statute of 24 H. 8. cap. 12. and 25 Hen. 8. cap. 19. So far forth as they concern Appeals are for the most part introductive of New Laws too And the latter of them gives Appeals to the King in Chancery which never lay before And therefore as the Act gives them he ought to take them and no otherwise for the Act is his title and it has negative words But the Lord Coke's Error in ascribing that Power Jurisdiction and Authority to the King in person which was ab origine in King Lords and Commons runs through almost all that he has written upon that Subject And our Lawyers who look upon him as an Oracle for his Learning and Judgment in the Controversial profitable part of the Law in which he was unquestionably a very great Man follow him blind-fold in some mistakes They study Resolutions of Judges in cases of Property and till of late have gone by that lazy rule that the latest authorities are the best So they forget Antiquity and hardly cast their thoughts further backward than Dyer and Plowden Those of them that are more inquisitive go as high as to the Quadragesms and Book of Assizes But the Government is not so much beholden to them as were to be wisht They deserve worse of it than other Men for it being the only honour of their Profession to support it by understanding and asserting it and the natural bent of their Studies carrying them into it their narrow Spirits private Interests Et illud quod dicere nolo prevail with too many of them to betray it by neglecting it The Lord Coke's second Reason for a Commission of Review to examine a definitive Sentence given by the Delegates is because the Pope as Supreme Head by the Canon Law us'd to grant a Commission ad revidendum and such Authority as the Pope had claiming as Supreme Head doth of right belong to the Crown and is annexed thereunto by the Statutes of 26 Hen. 8. cap. 1. and 1 Eliz. cap. 1. And so it was resolved says he in the King's Bench Trin. 39 Eliz. You see the English on't is the King may do so because the Pope did so for the Pope was Supreme Head then or claimed to be so and the King is acknowledged to be so now This pretended Translation of the Pope's Power to the King is another fiction that has contributed exceedingly to raise the Supremacy in some Mens Imaginations But it will appear by running through the several Acts made in King Henry the Eighth's King Edward the Sixth's and Queen Elizabeth's Reigns concerning Religion and Church Government that no Power given to the King or acknowledged to be in him has any respect or relation whatsoever to the Pope's pretended Power heretofore exercised The Pope's Power was abolish'd and abrogated Stat. 28. Hen. 8. cap. 10. The Ancient Jurisdiction of the Crown which by the Common Law and Fundamental Constitution of our Government was inherent in it was restored only some branches of it put into another method of Administration And that by the Supreme Power of the Nation from whose Authority and Jurisdiction nothing within this Kingdom is exempted That such Authority as the Pope had does of right belong to the King he would prove by the Statutes of 26 Hen. 8. cap. 1. 1 Elizabeth cap. 1. The first of which to wit that of 26 Hen. 8. cap. 1. was repealed long before the Case in 39 Eliz. came in question and consequently is there alledged to no purpose As for the Second that of 1 Eliz. cap. 1. how far that goes we shall have occasion to enquire hereafter when we come to it in order of time He gives us a Corollary viz. that upon a Sentence given by the High Commissioners a Commission of Review may be granted by vertue of an express Clause in the Commission and if no such Clause had been says he yet a Commission of Review might have been granted Quia sicut fontes Communicant aquas fluminibus cumulativè non privative sic Rex subditis suis Jurisdictionem communicat in causis Ecclesiasticis vigore Statuti in ejusmodi casibus editi provisi cumulativè non privativè by construction upon that Act. But a Commission of Review upon a Sentence given by the High Commissioners is not now disputed The High Commission was erected long after the 25 Hen. 8. And consequently a Review of their Sentences which it seems some construction upon that Act gave colour for was not provided against by that Statute But by what Law a Review should be granted of a Sentence given by the Delegates which by the Act is to be Definitive I am yet to seek I would fain know whether a Cause determined by Virtue of this Act in the Vpper House of Convocation for there Ecclesiastical Causes in which the King himself is concerned are to be definitively determined may be drawn in question ever after before Commissioners ad revidendum or not And if not why is a Sentence of the Delegates liable to be examined any more than that Do these Men really believe that the Judicial Authority of the Nation is by the Law lodg'd in the King's Person What means then the Act of 16 Car. 1. cap. 10. That neither his Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary Way whatsoever to examine or draw in question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any the Subjects of this Realm but that the same ought to be tryed and determined in the Ordinary Courts of Justice and by the Ordinary Course of Law. If it be said the King appoints the Judges and hath formerly sate in the King's Bench in Person For his appointing the Judges since the time is known when it was otherwise that cannot be urged as a Perogative originally inherent in the King That our Kings have sometimes sate in the King's Bench in Person I yield and will agree to all the Inferences that can be drawn from it do but allow me which cannot be deny'd that Writs of Error lye from the Court of King's Bench and Appeals out of Chancery whoever sits there before the Lords in Parliament who whether the King be present or absent agreeing with or disagreeing from the Sense of the House affirm or reverse the Judgments and Decrees as they see Cause And were it not more honourable to ascribe no Judicial Power at all to the King in Person than to make him Judge of an Inferior Court. But you 'l find that our Kings never sate in the King's Bench or the Starr Chamber Juridically The Courts gave the Judgments
his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same c. This Act of Parliament having abrogated the Pope's Power here in England those places that had been exempt from ordinary Jurisdiction would naturally have fallen back within the Visitation of the Diocesan I mean such places as had been exempt by vertue of any Bulls Licences or Dispensations from Rome only if it had not been especially and expresly provided that nothing in the said Act should be taken nor expounded to the derogation or taking away of any grants or confirmations of any Liberties Priviledges or Jurisdiction of any Monasteries Abbies Priories or other Houses or places exempt which before the making of this Act have been obtained at the See of Rome and if the Visitation of them by Commission under the Great Seal had not been provided for In the next Year Ann. 26 H. 8. The Statute was made which enacts that the King our Soveraign Lord his Heirs and Successors Kings of this Realm shall be taken accepted and reputed the Only Supreme Head on Earth of the Church of England called Anglicana Ecclesia and shall have and enjoy united and annexed to the Imperial Crown of this Realm as well the title and stile thereof as all Honours Dignities Preheminences Jurisdictions Priviledges Authorities Immunities Profits and Commodities to the said Dignity of Supream Head of the same Church belonging and appertaining What was then meant understood recognis'd c. by the word Supreme Head will appear by these following Considerations First that the recital of the Act shews they intended not by that recognition to invest him with any new Power For they recite that the King's Majesty justly and rightfully is and ought to be the Supreme head of the Church of England and so is recognised by the Clergy of the Realm in their Convocations yet nevertheless for corroboration and confirmation thereof c. So that this Act so far forth as it gives or acknowledges the Title of SUPREME HEAD is but Declarative And consequently they that upon this Act ground a Translation of the Pope's Power by the Canon-law to the King utterly mistake the matter For our King 's Ecclesiastical Jurisdiction was not grounded upon the Canon Law but the Common Law of the Realm it was a Native of our own and not of any foreign extraction Secondly That this Supreme Head-ship of the Church consists only in his being Supreme head of that Church of England which then was called Anglicana Ecclesia and who they were appears First by the Statute of 24. Henr. 8. cap. 12. aforementioned The body Spiritual whereof of the Realm of England having Power when any Cause of the Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shew'd by that part of the said body Politick called the Spiritualty now being usually called the English Church So that the Spiritualty are the Ecclesia Anglicana of whom the King is here declar'd the supreme head Secondly It appears by the Recognition of the Clergy who having no Authority to declare a Supreme Head in Ecclesiastical matters for the Laity did but by that Submission acknowledge themselves to be to all intents and purposes the King's Subjects and not the Pope's But Thirdly This same Parliament in this very Session tells us that the King had of right always been so It is in the third Chapt. for the payment of first-fruits to the King. The words are Wherefore his said humble and obedient Subjects as well the Lords Spiritual and Temporal as the Commons in this present Parliament Assembled c. do pray that for the more surety continuance and augmentation of his Highness Royal estate being not only now recognis'd as he always indeed hath heretofore been the only Supreme Head in Earth next and immediately under God of the Church of England but also their most assured and undoubted natural Lord and King having the whole Governance of this his Realm c. They tell him That he was not only the Supreme Head of the Church of England but their viz. the Temporalties Lord and King so that he had the Governance of the whole Realm and Subjects of the same What can be more plain than first That by Supreme Head of the Church of England was meant the Supreme Head of the Spiritualty which was necessary to be recogniz'd because they had acknowledged formerly another Supreme Head. Secondly That they gave no new Power by that word since they tell us that indeed he had always been so And Thirdly That his Supremacy consists only in a power of Governance Fourthly This title of Supreme Head does not give the King any power of dispensing with Acts of Parliament in Matters of Religion or Ecclesiastical Affairs whatsoever That power was never yielded to the Pope himself during that whole time that he was uncontroulably submitted to as Head of the Church That power they complain of in the Act of 25 H. 8. cap. 21. as an Vsurpation an Abuse a Cheat. They declare it to be in the King and themselves Fifthly Dr. Burnet in his History of the Reformation p. 142 143. First Part has these words But at the same time that they pleaded so much for the King's Supremacy and power of making Laws for restraining and coercing his Subjects it appears that they were far from vesting him with such an absolute Power as the Popes had pretended to for they thus defined the extent of the King's Power Institution of a Christian Man. To them speaking of Princes and Magistrates specially and principally it appertaineth to defend the Faith of Christ and his Religion to conserve and maintain the True Doctrine of Christ and all such as be true Preachers and setters forth thereof and to abolish Heresies Abuses and Idolatries and to punish with corporal pains such as of Malice be the occasion of the same And finally to oversee and cause that the said Bishops and Priests do execute their Pastoral Office truly and faithfully and speally in these Points which by Christ and his Apostles were given and committed to them and in case they shall be negligent in any part thereof or would not diligently execute the same to cause them to double and supply their lack and if they obstinately withstand their Prince's kind monition and will not amend their faults then and in such case to put others in their rooms and places And God hath also commanded the said Bishops and Priests to obey with all humbleness and reverence both Kings and Princes and Governors and all their Laws not being contrary to the Laws of God whatsoever they be and that not only propter iram but also propter conscientiam Thus it appears that they both limited obedience to the King's Laws with the due caution of not being contrary to the Law of God and acknowledged the Ecclesiastical Jurisdiction in discharge of the
That the King desired only dignitates Regibus ante debitas sibi exhiberi Hoved. pag. 292. b. And in another Letter to the Pope on the King's behalf they declare the same ibid. pag. 292 293. Our Archbishops indeed used to fetch their Palls from Rome but that Entitled the Pope to no Jurisdiction here So that the Subject Matters of the Laws of Clarendon then Enacted into Statute-Laws were in King William Rufus his Time the Laws and Vsages of the Realm and therefore Anselm's and Becket's Oaths were in Substance the same And those Laws and Vsages having been usurp'd upon since and the Usurpation purged by the Laws made about the time of the Reformation the Oath of Supremacy is now the same in Substance with those Ancient Oaths aforementioned Not but that the Ecclesiastical Jurisdiction in some of its Branches may now be settled in another course of Administration than it was so long ago But those Alterations which yet are not very considerable have been made by Acts of Parliament by which if Men had been content to stand or fall many Notions that are now too rise amongst us would never have been hatched The Writ from R. de Glanville to the Abbot of Battle mentioned by the Doctor pag. 148. whereby he Commands him on the King's behalf by the Faith which he owed him not to proceed in the Cause that was depending betwixt the Monks of Canterbury and the Archbishop donec indè mecum fueris locutus was no other than a Probibition to him to proceed in a Cause depending before him and the Abbots of Feversham and St. Augustine as Judges appointed by the Pope to hear and determine it They had cited the Archbishop to appear before them they had sent him Comminatoriam Epistolam eique diem peremptorium praefixerant They had no Legal Authority to Exercise Jurisdiction within the Realm for the Pope could give them none And therefore the Chief Justice prohibits them in the King's Name The Writ may be Read in Chron. Gervas Coll. pag. 1503. from whence the Doctor Quotes the Story Though he relates it Knavishly enough We find a Writ saith he to the Abbot of Battle c. wherein he Commands him on the part of the King by the Faith which he owes him and by the Oath which he made to him to do what he then enjoyned Never telling us that the thing enjoyn'd was the keeping of his Oath and observing the Law and that the Method observed by the King in sending him this Injunction was according to the Ordinary course of Justice and of proceedings at Law in the like Cases But the Doctor would raise a little Dust by this and a few other such pitiful Scraps to amuse his Readers and create an Opinion that the King may enjoyn any thing As to the Legantine Power he says pag. 148. It is apparent by several Instances that none Exercised any here without the King's leave whether by the Grant of Pope Nicholas to Edward the Confessor he disputes not But the Doctor takes for granted that with the King's leave a a Legate might be sent and Exercise his Office here Though what he Quotes for it out of Eadmerus pag. 125 126. concerning what passed betwixt King Henry the First and Pope Calixtus at Gisors makes nothing for his purpose Rex à Papa impetravit ut omnes Consuetudines quas Pater suus in Angliâ habuerat in Normanniâ sibi concederet maximè ut neminem aliquando legati Officio in Angliâ fungi permitteret si non ipse aliquâ praecipuâ querelâ exigente quae ab Archiepiscopo Cantuariorum caeterisque Episcopis Regni terminari non posset hoc fieri à Papâ postularet The coming in of a Legate at the King's Request to determine some great and difficult Controversie in particular which could not be decided by all the Bishops of England is one thing and the coming in of a Legate with a General Power to Exercise Jurisdiction over all the King's Subjects and to hold a Legantine Court is a quite other thing The Doctor says pag. 151. that Anno Domini 1138 Tertio Regis Stephan Albert or Alberic Cardinal of Hostia was the Pope's Legate and Consecrated Theobald Archbishop of Canterbury and called the Clergy to a Colloquium by Apostolical Authority by which it appears says he That the Canons of the Church now obtained and the King Assented to the Powers the Legate had so that what was Decreed had the King's Allowance It seems provided what was Decreed had the King's Allowance all was well and there needed no more But Gerv. Dorobern Coll. pag. 1344. tells us that Praedictus Albericus Apostolicâ Legatione functus venit in Angliam Domini Papae litteras ad Regem deferens lectis itaque litteris coram Rege Primoribus Angliae licèt non in primis vix tandèm pro Reverentiâ Domini Papae susceptus est So that this Legate was admitted by the Consent of the Primores Angliae as well as of the King. And consequently his Exercising his Office here with such Assent as aforesaid is no Argument that the King 's Personal Assent to his Powers without the Concurrence of his Primores would have made them ever a whit the better And when this Legate Celebrated his Synod at Westminster there were present Episcopi diversarum Provinciarum Numero XVII Abbates ferè XXX Cleri Populi Multitudo Numerosa See Spelman's Councils Volume the Second pag. 39. and Gerv. Dorobern Collect. pag. 1347. So that as the Assent of the Primores was had to his Entry so the Multitudo Numerosa Cleri Populi Assented to the Canons then made And the King 's single Assent to either would not have been sufficient Besides this I shall take leave to oppose the Judgement and Opinion of King Henry the First to that of the Doctor concerning the King's having or not having Authority to Admit a Legate hither from Rome When in his Reign Petrus Monachus Cluniacensis came hither from Pope Calixtus with a Legantine Power perductus ad Regem dignè ab eo susceptus est Et expositâ sui adventûs causâ Rex obtensâ expeditione in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem Authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Lib. 6. pag. 137 138. He tells it him as a known Truth constaret that his Legacy could not be of any validity in this Nation without the Consent of the whole Kingdom in Parliament Which by reason of his Wars with the Welsh he was not then at leisure to call The Words following are Remarkable VIZ. Super haec patrias Consuetudines ab Apostolicâ sede sibi concessas nunquam se aequanimiter amissurum fore testabatur in quibus haec
whereas Subjects might Collate in those Days Churches of their own Foundation to any Clerk in Orders and give him the Investiture even without so much as a Presentation to the Bishop yet our Antient Kings Collated Bishopricks no otherwise than in Curia suâ For though Bishopricks were Royal Foundations yet they were Founded by Acts of Parliament as will appear by and by And one Great Reason why our Kings at least in those Days could not Erect Bishopricks and endow them otherwise was because they could not in those Days Alien their Crown Lands without the Assent of their Barons Non poterat Rex distrahere Patrimonium Regni And though King John told Pandulphus the Legate Omnes Praedecessores mei contulerunt Archiepiscopatus Episcopatus Abbathias in thalamis suis Monast Burton pag. 264. That must be understood to have been done since the Norman Conquest only though the contrary was frequently practised even in those Days and especially since the Constitutions of Clarendon For the Instance that he there gives of Wolstan's being made Bishop of Worcester in King Edward the Confessor his Time was far from a Collation in Thalamo if we believe himself when he resigned his Pastoral Staff at the Confessor's Tomb There concurred Electio Plebis Petitio Voluntas Episcoporum Gratia Procerum a full Parliament as well as the Authoritas Voluntas of the King himself Matth. Paris pag. 20 21. As for our Kings seizing the Temporalties of Bishops into their Hands and so suspending them à beneficio which the Doctor speaks of pag. 155. of which he says many Instances may be found in Mr. Prynn 's Historical Collections I suppose he would not be understood as if our Kings either might or used to seize them ad Libitum but by legal process and for some contempt for which by the Law they were liable to Seizure They were held of the King by Barony and though the Bishops pretended to an Exemption as to their Persons from the Laws of the Land yet their Temporalties which were held of the King and for which they did him Fealty were no-wise Exempted but that if they should commit Offences for which the King might by Law capere se ad Baronias suas they as well as the Laity that held by the same Tenure were equally liable to the Course and Rigour of the Law. What use this is of to the Doctor for the setting up some Notional Supremacy lodged in the King Personally I know not as yet Irregularities and Oppressions might well be used upon such occasions and Seizures made when there was no cause but the Statute of the fourteenth of Edward the Third cap. 6. aforementioned was provided to prevent such Mischiefs for the future But the Doctor was very ill advised in quoting pag. 155. to clear the point the Statutes of Provisions For those Statutes which every body knows and the Doctor will not deny to be only new Bullwarks to secure Old Rights were yet such as the King could never dispense with But when the Circumstances of his Affairs were such that to gratify the Pope and tye him to his Interest he found it convenient to have some Relaxation made of those Laws then were Parliaments called and at their first meeting one cause of their Convention declared to be to provide remedy touching the Statutes of Provisions for eschewing debate between the Pope and the King and his Realms And then we find leave given to the King from time to time to dispense with those Laws and that but for a time and this declar'd to be a Novelty Vid. Cotton's Abridgment pag. 341. 346. Annis 15. 16. Rich. 2. And the Complaints of the English Nation in Matth. Paris against the Pope's Provisions were grounded upon this VIZ. That Patroni Ecclesiarum ad eas cum Vacaverint Clericos idoneos praesentare non poterant sed conferebantur Ecclesiae Romanis qui penitùs Idioma Regni ignorabant pecuniam extra Regnum asportabant These Oppressions fell chiefly upon the Clergy as appears by most of the Laws against Provisions of which hereafter for the Pope assum'd a greater Power over them and Churches of which they were Patrons then he could pretend to over the Laity and they sometimes comply'd with his Provisions and submitted to collate Italians and Foreigners as at other times they did to heavy Exactions insomuch that in the year 1240. misit Dominus Papa praecepta sua Domino Cantuariensi Archiepiscopo Edmundo Sarisberiensi Lincolniensi Episcopis ut trecentis Romanis in primis beneficiis Vacantibus providerent scientes se suspensos à beneficiorum Collatione donec tot competenter providerentur Matth. Paris pag. 532. And it appears by the same Author that these and more were provided of Ecclesiastical Benefices in England Praebendas Ecclesias varios redditus opimos plusquam trecentos ad suam vel Papae contulerat legatus Otto voluntatem id p. 549. But many grievous Complaints and Petitions in Parliaments and in Letters to the Pope occur in Mr. Prynne's Historical Collections and in the Parliament Rolls against these Provisions as intolerable Grievances and contrary to all Law and Reason If at some times they were comply'd with upon condition that the Persons recommended by the Pope were of good condition and worthy of Promotion how does that relate to its being in the King's power even to admit the persons to the Dignity and Office as the Doctor ignorantly and childishly asserts But his conclusion VIZ. That the Exercise of their Government was according to the King's Laws I do not Quarrel with him about for it was or ought to have been so But not according to the King's Pleasure Nor would any unbyassed Man in Reading King Alfred's Laws have readily made such an Inference as the Doctor does pag. 155 156 telling us out of L. l. Alvredi that King Alfred reserved to himself the liberty even of Dispensing with the Marriage of Nuns Which he would represent as a thing prohibited by the Canons only and that the King reserved to himself a Power of Dispensing with it though without his Especial Dispensation he suffered the Canon to take place Now the Marriage of Nuns was really prohibited by a Law of the State by an Act of Parliament of that Age For Brompton giving us an Account of King Alfred's Laws says thus Ego Alfredus West-Saxonum Rex ostendi haec omnibus sapientibus meis dixerunt Placet ea Custodire And many Temporal Laws are amongst them all Enacted by the same Authority And the same Law or Canon that prohibits Nuns from Marrying gives the King and not only him but the Bishop of the Diocess leave to Dispense so that the Doctor might as well have argu'd for the Bishops as the Kings reserving a Power to himself of Dispensing The Words are Si quis Sanctimonialem ab Ecclesiâ abduxerit sine Licentia Regis vel Episcopi c. Then he says That our Kings Presided sometimes
would have us believe was an Act of the King 's Personal Authority in Ecclesiastical Affairs was a Parliamentary Charter or an Act of Parliament Willielmus Dei gratiâ c. Sciatis c. quod leges Episcopales quae non benè nec secundum sanctorum Canonum praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Procerum Regni mei emendandas Judicavi Propterea mando praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneat c. This Mr. Selden understood to be an Act of Parliament for having given an account of his Diaploma to Battle-Abbey and recited it at length in his Notes Specilegium ad Eadmerum p. 165 166. which was granted Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Concilio etiam Episcoporum Baronum meorum says he id genus etiam est sancitum ejus quo Sacrum à Civili discriminavit Forum The same Author speaking in another of his Works of King William the Conquerour's bringing the Possessions of the Church under Military Service of which though Roger Wendover out of whom Matthew Paris took the Relation says that Episcopatus Abbathias omnes quae Baronias tenebant in purâ perpetuâ Eleemosynâ eatenus ab omni servitute Seculari Libertatem habuerant sub servitute statuit Militari irrotulans singulos Episcopatus Abbathias pro Voluntate suâ quot milites sibi successoribus suis hostilitatis tempore voluit à singulis exhiberi Yet says Mr. Selden how it is likely he brought them to this kind of Tenure may be conjectured by other circumstances of the stories of the the same time And observe especially That he held a Parliament the same Year so that perhaps this Innovation of their Tenures was done by an Act of that Parliament Seld. Titles of Honour p. 578. Which I mention only to shew that things said to have been done by the Conquerour and especially Laws and Constitutions mention'd to have been made by Him must not presently be suppos'd to have proceeded from his own single personal Authority but to have been made More Anglico cum assensu Ordinum Regni as has been even now observed out of Mr. Selden What follows in the Doctor p. 156 157 concerning the King 's Temporal Courts being Judges whether a Cause belonged to the Jurisdiction of the Temporal or Ecclesiastical Courts is very true And so is the Account that he gives of King William the First his settling many particulars to belong to the Jurisdiction of the Ecclesiastical Judges in a Council at Illibon in Normandy Anno 1080. But it is an inveterate Error of the Doctor 's to confound the King 's personal Authority with his Authority in his Courts and his Authority in and with the Assent of his Great Councils or Parliaments That Councel of Illebon mention'd by the Doctor is related by Ordericus Vitalis in this manner viz. Anno ab Incarnatione Domini MLXXX Rex Gulielmus in festo Pentecostes apud Illebonam resedit ibique Gulielmum Archiepiscopum omnes Episcopos Abbates Comitesque cum aliis Proceribus Normanniae simul adesse praecepit Vt Rex jussit factum est Igitur Octavo Anno Papatus Domini Gregorii Papae septimi Concilium apud Jullam bonam celebratum est de statu Ecclesiae Dei totiusque Regni providentiâ Regis cum Baronum suorum consilio utiliter tractatum est And then follow the Canons all being concerning matters Ecclesiastical Now what use the Doctor makes of this Paragraph I know not For the Jurisdiction of the King in his Courts where the Law of the Land is the Judges rule to restrain All Inferiour Courts within their proper bounds no man denies And the King's Authority to limit erect and appoint Consilio Baronum suorum And unà cum Episcopis Comitibus Proceribus Regni sui what Causes shall belong to the cognisance of Ecclesiastical Judges and what not no man that is a Protestant questions How many Acts of Parliament in every Age might be reckon'd of this nature vid. Stat. de Circumspecte agatis temp Edwardi 1. Stat. de Articulis Cleri tempore Edward 2. Statutum pro Clero tempore Edw. 3. and innumerable others Then the Doctor refers his Readers for farther satisfaction how far the Kings of England have exercised Jurisdiction in Ecclesiastical matters to Sir Roger Twiselen pag. 108 109 c. who instanceth in eighteen particulars I will not stand with the Dr. for the number but referr him to Mr. Prynn's second Tome of his Chronological Vindication of the King 's Supreme Ecclesiastical Jurisdiction out of the Introduction to which Volume he might have named five and twenty But because he has chosen to quote Sir Roger Twisden's eighteen let us examin those Particulars and Sir Roger's Authorities upon which he grounds them and it will presently appear how far they make for his Hypothesis 1. The first is that they permitted none to be taken for Pope but by the King's appointment For which he quotes Eadmerus pag. 26. But of this matter having spoken already I shall say no more of it in this place The Second is That none were to receive Letters from the Pope without shewing them to the King who caused all words prejudicial to him or his Crown to be renounced For which he quotes Eadmerus pag. 113. In whom are these words in a Letter from Pope Paschal to King Henry the First viz. Sedis eni◠Apostolicae Nuntii vel Literae praeter jussum sum Regiae Majestatis nullam in potestate tuâ susceptionem aut aditum promerentur This was but the Law of England not to be subject to any Foreign Power asserted by a Law in King William the Conquerour's time and afterwards over and over in opposition to Papal Encroachments and Usurpations confirm'd by the Statutes of Praemunire and Provisors and effectually secured by the Laws made at and since the Reformation and particularly by that Remarkable Statute of 14 Henr. 8. cap. 12. concerning Appeals And that the King could not of himself let in a Forein Power upon his People appears sufficiently by what has been said already The two Passages quoted by Sir Roger out of Thorn Collect pag. 2151 2152 and 2194 shew that two Persons to whom the Pope had conferr'd by Provisions the Monastery of St. Austin in Canterbury were enforced before their Admittance to renounce all such words in their Bulls of Provision as were prejudicial to the King and his Crown i.e. to the Laws of the Realm in and over which the King was Supreme Magistrate and Governour After which renunciation made they did fealty to the King and were by the Escheator put into possession of their Temporalties The King might by Law have oppos'd these Provisions but the Monks who had the Right of
Anselm about Anselm's going to fetch his Pall from Vrban And that betwixt Lanfrank Arch-bishop of Canterbury and Thomas Arch-bishop of York concerning the Profession of Canonical Obedience which the former required of the Latter the Chusing Bishops and Arch-Bishops the Controversies betwixt King Henry the 2d and Thomas Becket all heard debated and determined in General Assemblies of Clergy and Laity and not by our Kings apart from their Great Councels The Eleventh is That they permitted No appeals to Rome 'T is true nor did they ever determine them themselves either in person or by Commission And therefore the Statute of Clarendon which gives Appeals from the Arch-Bishop to the King was never understood to be to the King in person but to the King in his Court. As we may see by what Ger. Dorobern Anno 1176. Coll. p. 1433 And Hoveden fol. 313 314 tell us of the statute made at Northampton in King Henry the second 's time Which both of them call a renewing of the Assize of Clarendon Now in these Laws made at Northampton there is this close Expression concerning Appeals Justiciae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infrà terminum nominatum stare ad Rectum in Curià Domini Regis Vtlagentur So that though King Henry as far as in him lay had given ways to Appeals to Rome for when he was absolv'd of the Guilt that he was supposed to have contracted by having occasioned the death of Thomas Becket part of the satisfaction enjoyn'd him was quod licebit Appellationes libere fieri Radulph de Diceto p. 560 yet the Kingdom afterward meeting in Parliament at Northampton would not quit their interest But renew'd the Laws of Clarendon against forein Appeals And explain the Appeals ad Regem to be meant of Appeals ad Curiam Regis But it is a common errour with Men that are ignorant of our Laws wherever they find they King's name in any Acts of Parliament or Judicial Proceedings to imagine that the King has some Personal Authority out of his Courts But for the present I will give but one Instance to detect that mistake The Stat. of Westm 1. Enacts cap. 15. what persons shall be replevisable and what not Amongst others those that are taken by Commandement le Roy are appointed not to be bayl'd by that Statute My Lord Coke in his Commentary upon that Law 2d Institut pag. 186. says thus viz. 1. The King being a body Politick cannot command but by matter of Record for Rex praecipit and lex praecipit are all one For the King must command by matter of Record according to Law. 2. When any Judicial Act is by Act of Parliament referred to the King it is to be understood to be done in some Court of Justice according to Law. The words of the Statute of Rich. 2. cap. 12. are si non que il sort per briefe ou auter maundement del Roy. And yet it was resolved by all the Judges of England that the King cannot do it by any Commandment but by Writ or by Order or Rule of some of his Courts of Justice where the Cause dependeth And Fortescue speaking to the Prince to instruct him against he should be King Melius says he per alios quà m per teipsum Judicia reddes quo proprio ore Nullus Regum Angliae usus est tamen sua sunt omnia Judicia Regni licet per alios ipsa reddantur sicut judicum â—lim sententias Josaphat asseruit esse judicia Dei. The Great Case in tertio Caroliprimi of Habeas Corpus turn'd upon this point The Judges indeed betray'd the Nation in that cause as they have done in others in these Hundred years last past as far as in them lay but how that Judgment was resented in Parliament the Reader may inform himself out of the 1st Vol. of Rushworth's Collections and the 1st part of Doctor Nalson The Law was declared upon that occasion to be that Voluntas Regis est secundum legem et Justiciarios suos in Guriâ suâ non in Camerâ according to 2 R. 3. f. The Twelfth particular is that Our Kings bestowed Bishopricks on such as they liked and translated Bishops from one See to another concerning our Kings bestowing Bishopricks something has been said already As for their translating Bishops from one See to another I desire to hear any one Instance in any age of any Bishop translated by the King against his own will. The Pope pretended to such a power and sometimes Exercised it and that was one of the mischiefs which occasioned the making of the Statutes of Provisors But could never yet find that any of our Kings attempted it The Thirteenth particular is Erecting New Bishopricks The Instances given by Sir Roger are 1st the erecting of the Bishoprick of Ely by King Henry the 1st Anno 1009. taking it out of Lincoln-Diocess And yet nothing is more evident then that this was done by Act of Parliament The Instrument Runs thus viz. In Nomine sanctae individuae Trinitatis Patris Filii spiritus sancti Anno ab Incarnatione Domini MCVIII Indictione Anno Pontificatus Domini Paschalis Papae 2. decimo Regni quoque mei similiter decimo Ego Henricus Providente Divina Clementia Rex Anglorum Normannorum Dux Wilhelmi Magni Regis Filius qui Edwardo Regi Haereditario jure successit in Regnum videns Ecclesiae messem in Regno meo multam esse Agricolas quidem paucos et ab hoc plurimum laborantes in Messe et in ipsa Lincolniensem Ecclesiam multa plebe foecundam ex Authoritate Consilio predicti Papae Paschalis Assenfu simul prece Roberti Lincolniensis Episcopi totius Capituli sui cum ipso annuente Domino Anselmo Beatae memoriae Cantuariensi Archiepiscopo Thoma secundo Venerabili Eboracensium Archiepiscopo Universis Episcopis Abbattibus totius Angliae sed omnibus Ducibus Comitibus Principibus Regni mei Elyense Monasterium c. in Episcopalem sedem sicut caeteros Episcopatus Regni mei liberam absolutam perenniter statuo confirmo vid. Mr. Selden 's Notas Spicilegium ad Eadmer Et Dugdale's Monasticon And what if All the Bishopricks of England Erected both before and after were Erected by Acts of Parliament and not by the King's Letters Patents only In King Edward the Elder 's time upon the Letter of Pope Formosus Congregata est synodus Senatorum Procerum Populorum Nobilium Gentis Angliae In quâ Presidebat Plegmundus Archiepiscopus Tum sibi Rex cum suis et Plegmundus Archiepiscopus salubre Concilium iniverunt and Constituted and Elected five Bishops in the Province of the Gewissi where there had till then been but two dividing those two Bishopricks into five by Act of Parliament Spelman's Counc Volum 1. pag. 387 388. Malmesbury de Gestis
out of Parliament endow Bishopricks because they could not distrahere patrimonium Regni And a further Consideration to this purpose may be drawn from the Exemptions which the possessions of the Church enjoy'd from all secular service Except the Trinoda necessitas Which Exemptions were all Granted by Charters Assented to in Parliament as appears undeniably by the several Charters Granted in divers Kings Reigns successively to the Abby of Crowland All inserted in haec verba into Ingulphus his History of that Monastery and by the Monasticon In which it appears further that all Exemptions from Episcopal Jurisdiction Except of the King 's free Chappels which were of his own Foundation were granted in Parliament I mean all such Exemptions granted by our Kings For the Pope used to grant Exemptions by Bulls and those Papal Exemptions were confirm'd by Parliament temp Henr. 8. King William the Conquerour Founded Battle-Abby in Sussex in the place where he overcame Harald and Exempted it from Episcopal Jurisdiction But whether he did it in Parliament or not let the Charter it self testifie viz. Willielmus Dei Gratia Rex Anglorum c. Notum sit Vobis me Concessisse confirmasse cum Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Consilio etiam Episcoporum Baronum meorum ut Ecclesia Sancti Martini de Bello quam Fundavi ex voto ob Victoriam quam mihi Deus in eodem loco concessit libera sit quieta in perpetuum ab omni servitute omnibus quaecunque humana mens excogitare potest c. Nec liceat Episcopo Cicestrensi quamvis in illius Dioecesi sit in Ecclesia illa vel Maneriis ad illam pertinentibus ex consuetudine hospitari contra voluntatem Abbatis nec Ordinationes aliquas facere ibidem nec Abbatiam in aliquo gravare sed neque super illam Dominationem aliquam aut vim aut potestatem exerceat sed sicut mea Dominica Capella libera sit omnino ab omni ejus Exactione c. Hoc etiam Regali Authoritate Episcopolum Baronum meorum Attestatione constituo quatenus Abbas Ecclesiae suae leugae circumjacentis per omnia Judex sit Dominus The Fourteenth Particular is that our Kings have by their Writs commanded Bishops to keep resident Which considering that it was their Duty incumbent on them by Law what great Power does it argue in the King to command his Subjects to do what the Law enjoyns them The Sixteenth is That they have commanded their Bishops by reason of Schism or Vacancy in the Popedom c. not to seek Confirmation from Rome but the Metropolitans to be charged by the King 's Writ to bestow it on the Elected For this Sir Roger quotes Rot. Parl. 16. Mart. 3 Hen. 5. nu 11. Anno Domini 1414. Now that was done by Act of Parliament Which because it is observable to many purposes shall be transcrib'd at large Our Lord the King considering the long Vacancy of the Apostolick See by reason of the damnable Schism which has now continued a long time in Holy Church and is not known how long it may yet last And that certain Cathedral Churches within the Kingdom which are of the Foundation of his Noble Progenitors and belong to his Patronage have been for some while and are yet destitute of Parochial Government because the Persons that are elected into the same cannot be confirmed in Parts beyond the Sea for want of an Apostle Altho' our said Lord the King bath thereunto given his Royal Assent to the Great decrease of Divine Service in the said Churches substraction of Hospitality Great peril of many Souls Devastation and Destruction of the Lordships and Possessions belonging to the same and the Impoverishment of such Bishops Elect And that by possibility all the Cathedral Churches within the Realm may become void in like manner and so be destitute of Government and the King and his Realm of Council Comfort and Aid which they ought to have of the Prelacy And considering also that in divers foreign Parts since the Voidance of the said See divers Confirmations have been and are daily made by the Metropolitans of the places as he is credibly informed and Willing for that cause for ousting the said Mischiefs chiefs to provide such remedy as it behoves By the full and deliberate Advice and Assent of the Lords and Commons of his Realm in this present Parliament Wills and Ordains that the persons so chosen and to be chosen within his Kingdom during the Vacancy of the said See Apostolick shall be comfirmed by the Metropolitans of the Places without Excuse or further delay in that behalf And that the King's Writs if need be be directed to the Metropolitans straitly charging them to make the said Confirmations And to perform all that to their Office belongeth As also to the Bishops Elect that they on their part Effectually prosecute their Confirmations that through default of such Metropolitans or Bishops Elect dammage or prejudice may not ensue to our Lord King and his Kingdom and to his Realm and to the said Churches for the Cause aforesaid which God forbid Here it is plain that what Sir Roger ascribes to the King was really done by the full and deliberate Advice and Assent of the Lords and Commons of his Kingdom in Parliament And therefore that the supreme Jurisdiction in matters Ecclesiastical was not in the notion of that Age Lodg'd personally in the King but in the King by Law in the King with his Parliament about him Pursuant to this President we find in King Henry the Eighth's time a Notable Act in the 28th Year of his Reign cap. 16. In which there is this clause viz. And that it may be also Enacted by Authority of this present Parliament that all Arch bishops and Bishops of this Realm or of any the King's Dominions Consecrated and at this present time taken and reputed for Arch-bishops and Bishops may by Authority of this Present Parliament and not by vertue of any Provision or other Forein Authority Licence Faculty or Dispensation keep enjoy and retain their Arch-bishopricks in as large and ample manner as if they had been promoted Elected and consecrated according to the due course of the Laws of this Realm And that every Arch-bishop and Bishop of this Realm and of other the King's Dominions may minister use and Exercise all and every thing and things pertaining to the Office or Order of an Arch bishop and Bishop with all Tokens Ensigns and Ceremonies thereunto Lawfully belonging This Act in the 2d paragraph had made void all Bulls Dispensations Breves c. obtain'd at Rome contrary to the statutes of Premunire Provisors whereby many Bishopricks would have become void To prevent which the Clause here recited makes them legal Bishops notwithstanding and supplies all the Ceremonies of Election and Consecration Which I suppose no man will take upon him to say that the King might then