Cases besides those which depended on the Canon-Law For saith he the Pope usurped such a Power in derogation of the Authority Royal and then that Power must be originally in the King otherwise in the Construction of the Act it could be no Usurpation But this is a very false way of Reasoning The Pope usurped such a Power on the Crown therefore the Crown hath it of Right For the Popes Usurpations were many of them unreasonable his Primacy according to Canons being allowed and our Law did restore to the King the ancient Right and Jurisdiction of the Crown and not put him into the Possession of all the extravagant Power which the Pope usurped For this Law charges the Pope with intolerable Exactions of great Sums of Money in Pensions Censes Peter-Pence Procurations Fruits Suits for Provisions and Expeditions of Bulls for Arch-Bishopricks and Bishopricks and for Delegates and Rescripts in Causes of Contentions and Appeals Jurisdictions Legantine as well as Dispensations Licenses Faculties Grants Relaxations Writs called Perinde valere Rehabilitations Absolutions c. Now all these were Usurpations in Derogation of the Crown but doth it therefore follow that the Crown hath a Right to them all But to go no further than the Business of Dispensations Hath the King a Right by this Statute to dispense as far as the Pope The Pope usurped a Power of dispensing in Matrimonial Contracts in Oaths in Vows in some positive Divine Laws which I suppose H. 8. by vertue of the Supremacy never pretended to So that it is a very mistaken Notion of some Men That the King had all the Power which the Pope usurped And as to the Act it is plain by the Words of it That the Original Power of Dispensing was lodged in the King Lords and Commons and the Ministerial Execution of it with the Arch Bishop of Canterbury even with respect to the King himself But if the King had pretended to all the Power which the Pope usurped he must have dispensed with himself But this Author offers to Prove That there is a Power in the Crown to dispense with Acts of Parliament even such as concern the Consecration of Bishops because it is said 8 Eliz. That the Queen by her Supreme Authority had dispensed with all causes or Doubts of any Imperfection or Disability in the Persons c. To give a clear Answer to this we must consider these Things 1. That 1 Eliz. 1. The Act of 25 H. 8. for the Order and Form of Electing and Making Arch-Bishops and Bishops was revived as appears by the same Act 8. Eliz. 1. 7. 2. That by another Act 1 Eliz. 2. The Book of Common-Prayer and Administration of Sacraments and other Rites and Ceremonies of the Church of England which were in use in the time of 6 E. and repealed by Queen Mary were re-inforced 1 Eliz. 2. 2. and the Repeal annulled But by the Act 5 and 6 E. 6. c. 1. § 5. the Form and Manner of making Arch-Bishops Bishops Priests and Deacons was added to the Book of Prayer as of like Force and Authority with it 3. That the Act of E. 6. being revived with the express mention of the Alterations and Additions made to it there was ro Necessity apprehended 1 Eliz. to make a distinct Act for that which was in force already by the Name of Additions therein added and appointed by that Statute And this I conceive was the true Reason why a Bill did not pass 1 Eliz. to that purpose For I find by the Journals of the House a Bill was prepared and read the third time in the House of Lords but upon Consideration it was laid a side as superfluous 4. That the Popish Party took Advantage of this and pretended That the Book of Consecration c. was not established by Law being not expresly mentioned and therefore the Bishops made by it were not Legal Bishops And upon this Bonner resolved to stand the Trial against Horn Bishop of Winchester as may be seen in Dyer R. f. 234. So that the Papists then stood upon it That the Crown could not dispense with Laws otherwise Bonner's Plea signified nothing For if there were such an Inherent Right in the Crown to Dispense with Laws in Ecclesiastical Matters then these were Legal Bishops having all the Queen 's Dispensing Power for them 5. The Clause in the Queen's Letters Patents for Dispensing with Imperfections and Disability was put in out of abundant Caution and not for any Necessity that we can find But it was Customary in the Popes Bulls to put in such kind of Clauses and therefore they would omit no Power in that Case which the Pope did pretend to which the Act faith was for avoiding all Ambiguities and Questions 6. But after all lest there should be any Colour for Disputing this Matter left according to the express Letter of the Law therefore it was declared 8 Eliz. 1. 3. That not only the Book of Common-Prayer but the Form of Consecrating Archbishops Bishops c. which was set sorth in Edward the Sixth's Time and added to the Common Prayer shall stand and be in full Force and Effect And all Acts done by it are declared to be Good and Perfect to all Intents and Purposes So that this Act of Parliament doth rather overthrow a Dispensing Power for if there were then such a Supreme and Absolute Power in the Crown as to Ecclesiastical Matters what need such an Act of Parliament to Confirm and Ratifie what our Author supposes done by virtue of it But to return to the 25th of H. 8. In the same Act of Parliament care is taken for the Visiting Exempt Places as Monasteries Colledges and Hospitals by a particular Commission under the Great Seal But that which comes nearest to our Business is That 26 H. 8. c. 1. another Act passed wherein the King's Supremacy is acknowledged and a Power given by Act of Parliament for him to Visit Redress and Amend all Errors Heresies Abuses Contempts and Enormities whatsoever which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed in any Usage Custom Foreign Laws Foreign Authority Prescription or any Thing or things to the contrary hereof notwithstanding If the King had this Power by virtue of his Supremacy and Prerogative Royal can we imagin H. 8. so weak a Prince and so little a valuer of his own Prerogative as to have that given him by Act of Parliament which was acknowledged to be in him before But the Words are express And that our Sovereign Lord c. shall have full Power and Authority from Time to Time to Visit c. From whence it follows That in the Judgment of H. 8. and the Parliament such a Power was not personally inherent in him but that it did belong to the Legislative Power and therefore an Act of Parliament was required for it so that the Supremacy as then setled by Law lay in a total rejecting any Foreign Jurisdiction
was saith Florentius Wigorniensis congregata Synodo sub praesentia Regis Egfridi The Archbishop Theodore likewise deposed Winfred Bishop of the Mercians saith the same Author after Bede for some Disobedience and consecrated Saxulphus the first Abbot of Peterborough in his Place This Winfred had been present at the Council at Herudford and there consented to the Canons then first received in the English Church and there they submitted to Ecclesiastical Censures upon the Violation of them At this Council saith Matt. Westminster were present not only all the Bishops but all the Kings and Great Men of the Nation so that the first Canons were received in a full Parliament One of these Canons was for increasing the Number of Bishopricks as the Number of Believers increased And upon this Canon Theodore proceeded against both Wilfred and Winfred For not long after Theodore divided his Bishoprick into five but it was done saith Florentius consensu ejusdem Regis Principum illius as Ina divided the Western Province into two Bishopricks Synodali Decreto saith Mat. Westminster which then was the same as by Act of Parliament And the opposing such a Division seems to have been the Crime of Disobedience for which he was deprived by the Archbishop For as Bede observes of him He first exercised Ecclesiastical Jurisdiction over all England In the great Council at Beâ—anceld where King Withred was present A. D. 694. with his Nobles Ducibus Satrapis in unum glomeratis together with the Clergy He there disowrs any Ecclesiastical Jurisdiction and leaves it to the Archbishop of Canterbury Metropolitani Episcopi est Ecclesias Dei regere gubernare c. and then follows Presbyteros Diaconos eligere statuere sanctificare firmare amovere And he makes this an inviolable Law as far as his Words could make it Si quis autem Rex post nos levatus in Regnum aut Episcopus aut Abbas vel Comes vel ulla potestas hominum contradicat huic Chartuae aut infringere tentaverit sciat se sequestratum à Corpore Sanguine Domini c. And after it follows Haec Lex inviolabilis usque ad consummationem Saeculi permaneat c. Mr. Prynn out of his old Kindness to the Archbishops of Canterbury in his vast Heap of Collections would have this rejected as Spurious but Sir H. Spelman whose Judgment was far beyond the others saith He had perused five MSS. of iâ— whereof one was with a mixture of Saxon Letters and he had â—o Mistrust of its Sincerity And the Learned and Judicious Editors of the Decem Scriptores Sir Roger Twisden and Mr. Selden have thought fit to insert it after them out of a MS. in CCC But Mr. P. thinks it is contradicted by the Council of Berghamstead about Ecclesiastical Affairs under King Withred But I can find nothing like it It is true there are Laws made concerning Ecclesiastical Matters by common consent of the King the Nobles and Bishops but the very first is Ecclesia libera sit fruaturque suis judiciis c. But besides in the Great Council at Clovesho where AEthelbaldus King of Mercia was present and Cutbert Arch-Bishop of Canterbury with the other Bishops this Charter of Withred's was read and approved and consirmed with the like Sanction annexed to it In the Council at Clovesho A. C. 787. The extent of the Jurisdiction of the Archbishop of Canterbury was very much lessened by the means of King Offa who caused another Archbishoprick to be set up in Mercia and the Archbishop of Canterbury gave his Consent saith Matt. Paris But his former Jurisdiction was restored in the Council of Clovesho A. D. 803. by a general Consent But in the former Council the Ecclesiastical Jurisdiction was strenuously asserted in these Words Sicut Reges omnibus dignitatibus praesunt ita Episcopi in his quae ad Deum attinent And in the latter there is a severe denunciation against all that should lessen the Honour or take away the Jurisdiction of that See. From henceforward I find no Diminution of the Archbishop's Ordinary Jurisdiction through the Saxon times The King had the Political Supremacy in him by which he erected and divided Bishopricks and nominated Bishops and summoned Councils and confirmed their Proceedings as he saw Cause but the immediate Ecclesiastical Jurisdiction was left to the Archbishop of Canterbury in the first place and to the rest of the Bishops As to any Publick Acts which related to Ecclesiastical Affairs they were not dispatched by particular Commissions but in the Parliamentary Assemblies In which the custom was to begin with what related to the Church and then to proceed to other Business Of this Ingulphus gives us an Instance in Ceolnothus Archbishop of Canterbury for in the Parliament Assembled at Kingsbury A. C. 851. in Hebdomada Pasch. which was chiefly assembled pro Regni negotiis yet even then he proposed That Church Affairs might be first dispatched Divina Negotia debere primitus proponi to which they all assented And so Bertulphus his Charter of Crowland then passed as Withlasius his did before at a time when the Bishops and Nobles attended the King at London to consult about the Danish Pyrates which very much infested our Coasts Thus AEthelwolfus passed his Famous Grant of the Tenth of all the Lands to the Church in a Council at Winchester himself and the Kingâ— of Mercia and East-Angles being present and all the Nobility and Bishops giving their free Consent as Ingulphus relates it Several others might be produced but these are sufficient And the Saxon Laws are a plain Evidence That Church-Matters were in those times determined in the same Assemblies wherein the other Laws of the Kingdom were passed In the Reign of King Edward the Confessor The next Instance is of Edward the Confessor who saith in his Laws That he is Vicar of the highest King and he is ordained to this end that he should Govern and Rule the People of the Land and above all things the Holy Church and that he defend the same from Wrong-doers and root out Workers of Mischief F. Parsons saith All this was by Commission from the Pope such as the Kings of Sicily had But in my Opinion this is a very bad Answer For it supposes Persons otherwise uncapable to be made capable of the same Jurisdiction which follows Orders provided they have a Delegation from the Pope Which is in effect to confound all Ecclesiastical Jurisdiction in any but the Pope himself and those to whom he commits it But those who assert the Right of Jurisdiction to follow the Power of Order must first suppose a Person duly qualified before he can receive from the Pope himself the Power of Ecclesiastical Jurisdiction If therefore a Prince hath not an inherent Right to it he cannot receive it by Commission from the Pope And the Powers which the King of Sicily challenges relating to
Ecclesiastical Jurisdiction are either such as other Princes have an equal Right to or else they must imply such proper Eclesiastical Jurisdiction as follows the Power of Order and then how can the Pope give the one without the other Such a Gift is like an Appropriation of a Benefice with a Cure to a Nunnery which the Lord Hobart saith is void in Law by reason of the incapacity of the Persons But the Supremacy which our Law gives is not any proper immediate spiritual Jurisdiction like that of Bishops but an Authoritative and Legislative Supremacy without any foreign Appeals as will appear afterwards But the Rights which the Kings of Sicily challenge are these 1. That they have the same Powers which Legates a Latere have and may judge of the same Causes and proceed in the same manner with Ecclesiastical Censures 2. That no Appeal lies from the King's Commissioner even to Rome it self and it is common to appeal from the Censure of the Bishop to him The former is a Power which our Kings never pretended to by vertue of their Supremacy for it is a Delegation of the Power of the Keys which the Legates à Latere exercise by vertue of their Function as well as their Commission But the Legal Supremacy with us is a Right to govern all sorts of Men by our own Laws without any foreign Jurisdiction and that with respect to Ecclesiastical Matters as well as Temporal But to prevent Mistakes and Cavils about this Matter it will be necessary to clear the Notion of Supremacy as it hath been owned and received in the Church of England And for this we have two Authentic Declarations of it to rely upon The first is mentioned 5 Eliz. c. 1. § 14. Where the Supremacy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions published in the first year of her Reign And the Words there are That the Queen neither doth nor will challenge any Authority but such as was of ancient time due to the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all manner of Persons born within these her Realms Dominions and Countries of what Estates either Ecclesiastical or Temporal soever they be so as no other foreign Power shall or ought to have any superiority over them The Second is in the 37th Article wherein it is declared That by the Supremacy is meant that only Prerogative which we see to have been always given to all Godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers So that granting a Commission for proceeding by Ecclesiastical Censures is no part of that Supremacy which our Church owns And thus the Divines of our Church have understood it By the Supremacy saith Bishop Andrews we do not attribute to the King the Power of the Keys or Ecclesiastical Censures R. Thompson in his Desence against Becanus saith The Supremacy is not to be defined by Ecclesiastical Jurisdiction but by Supream Government Becanus urged this as an Argument against the Kings Supremacy That he had no Ecclesiastical Jurisdiction Dr. Burrhil answered That the Supremacy implied many other things as the Power of calling Convocations of confirming Canons of giving Commissions of Delegates of taking Cognizance of the Misdemeanors of Church-men as well as others but for proper Ecclesiastical Jurisdiction he denies it to belong to Supremacy And after asserts That the King's Supremacy is preserved if he takes care that those who have the Power of Ecclesiastical Censures do exercise them and not as though it belonged to the Supremacy to give an immediate Power to proceed by Ecclesiastical Censures which was not supposed to belong to it but a supreme Right of governing all sorts of Persons by our Laws The King's Supremacy in Ecclesiastical Matters doth not saith Mason imply the Power of the Keys which the King hath not but he may command those who have them to use them rightly All these wrote in King James I. his Reign when the Point of Supremacy was throughly sifted on both sides And the King himself who very well understood these Matters saith That the Oath of Supremacy only extended to the King's Power of Judicature over all Persons as well Civil as Ecclesiastical excluding all foreign Powers and Potentates to be Judges within his Dominions Not as though the King hereby challenged to himself a Power of inflicting Ecclesiastical Censures on Persons but leaving the Spiritual Jurisdiction to those who have the Power of the Keys it belonged to him to exercise his Supreme Authority over Ecclesiastical Persons and Causes as he did over Temporal For saith Archbishop Bramhal our Laws never invested the King with any Spiritual Power or Jurisdiction witness the Injunctions of Q. Eliz. witness the Publick Articles of Our Church witness the Professions of King James witness all our Statutes themselves The King of England saith he by the Fundamental Constitution of the Monarchy hath plenary Power without the Licence or Help or Concurrence of any Foreign Prelate or Potentate to render final Justice that is to receive the last Appeals of his own Subjects without any Fear of any Review from Rome or at Rome for all Matters Ecclesiastical and Temporal Ecclesiastical by his Bishops Temporal by his Judges And thus our Laws were in the Right when they called the Act of Supremacy Restoring the Rights of the Crown for if we take away all the Papal Usurpations as to Appeals Exemptions of Persons Dispensations Provisions making Canons sending Legates to hold Courts to call Convocations c. we may easily understand what the Supremacy is viz. a Power of Governing all Sorts of Men according to the Laws Ecclesiastical and Temporal without any Foreign Jurisdiction But as in Temporal Matters the King 's Supreme Authority is exercised in his Ordinary Courts so likewise in Ecclesiastical Which deriving their Jurisdiction from the King as Supreme his Supremacy is preserved in the ordinary Ecclesiastical Courts but as to extraordinary Jurisdiction that deper ds on the Legislative Power And whether that be not now taken away by it is the thing in Question Having endeavoured to set this Matter in as clear a Light as I could I now return to the Instance of Edward the Confessor And those Words of his as they are in Hoveden signifie no more than a General Right of Protecting and Defending the Church which is not denied to belong to Kings where the Pope's Authority is the most owned I cannot but take notice of a different Reading in the Lord Cokes Copy from all that I have seen for where he hath it Sanctam Ecclesiam regat defendat Lambard veneretur regâ—t but Hoveden revereatur ab
Principum suorum confirmavit saith the Textus Roffensis He likewise confirmed Charters as the Saxons had done that to Battel Abby was Consilio Episcoporum Baronum meorum But the most considerable thing he did as to Ecclesiastical Jurisdiction was separating the Courts Ecclesiastical from the Hundred Courts by his Charter to Remigius and others which he saith was granted in a great Council and by the Advice of the Archbishops Bishops and all the Great Men of his Kingdom So that still extraordinary Acts relating to Church Matters were passed in Parliament by General consent And what now doth the Appropriation of a Church with a Cure of Souls signifie to prove his Ecclesiastical Jurisdiction When those things in his Time were not brought under such strict Rules as they were afterwards but Appropriation might have been made by any Lay Person that never pretended to the least Ecclesiastical Jurisdiction and he might as well have brought his demolishing so many Churches in the New Forest for an Instance of his Ecclesiastical Jurisdiction In the Reign of William the Second In William Rufus his time a great Heat arose between him and Anselm Archbishop of Canterbury about owning the Pope Whether the Archbishop could do it without the King's Consent the Business was referred to Parliament which the King called on purpose at Rockingham saith Eadmerus who was there present The Bishops declared they could not deprive him as the King would have had them to whom they had promised Obedience After which it was again referred to Parliament but Anselm not yielding he went out of the Land. In the Reign of King Henry the First In the Reign of Henry the First a new Controversie arose between the King and the same Archbishop about the Ancient Right of the Crown as to Investiture of Bishops the King calls a Parliament about it wherein the Bishops and Lords joyned with the King afterwards Anselm desired The Advice of the Bishops and Nobles might be heard at Easter which shews that both Sides referred it to the Parliament In his Time a Council was called and several Canons passed and the Archbishop desired of the King That the Primates Regni might sit with them that all things might pass utriusque Ordinis concordi cura with the Consent of both Estates The King afterwards takes the Advantage of these Canons and prosecutes the Breakers of them and raises Money upon Pretence of Forfeitures to the great Grievance of the Clergy Anselm although then in Disfavour writes to the King about it and tells him This was a new Method of Proceeding because it belonged to the Bishops in their Diocesses to call the Clergy to an Account or if they neglected to the Archbishop and Primate The King Answers That his Barons were to meet him on Ascension-day and by their Advice he would give an Answer but upon Anselms Return this Prosecution ceased Other Affairs of the Church were then referred to the Parliament at Easter from thence to Pentecost and by reason of Anselm's Sickness to August and then the Bishops Abbots and Lords of the Kingdom met in the King's Palace at London and by Consent of Parliament Investiture was turned into Homage In his time the Bishoprick of Ely was erected by the King's Consent in Parliament Regi Archiepiscopo caeterisque Principibus Regni visum fuit saith Eadmerus The Consecration of an elect Archbishop of York was transacted in Parliament the King advising with the Bishops and Nobles about it for Anselm before his Death had sent an Inhibition to the Bishops Not to consecrate him unless he made the Profession of Obedience to the Archbishop of Canterbury The Bishops resolved to adhere to Anselm's Inhibition and the King yielded After Anselm's Death the King advised with his Parliament at Windsor about a Successor to him and the Bishop of Rochester at the Request of the Bishops was agreed upon And the King filled the Abbies before he went into Normandy consisto Principum Episcoporum suorum In the latter End of Henry the First many Disputes hapned about Ecclesiastical Jurisdiction as between the Bishops of S. Davids and Glamorgan which were debated in magno Placito apud London saith Henry of Huntingdon And for such Causes saith he another Assembly was held in the beginning of Lent and again in Rogation Week In all this time when the Norman Kings asserted all the Rights of Sovereignty with great Zeal yet they never pretended to appoint any Commissioners for Ecclesiastical Causes but still referred them to Parliaments In the Reign of King Henry the Third The next Instance the Lord Coke brings falls as low as the Time of Henry the Third The first whereof is the King 's granting a Writ of Prohibition if any man sued in the Ecclesiastical Court for any thing of which by Allowance and Custom it had not lawful Cognizance But how doth the King's Power of granting Prohibitions prove his Ecclesiastical Jurisdiction It effectually proves the King 's Right to preserve his Crown and Dignity as the Prohibition implies but how doth it hence appear that the Ecclesiastical Jurisdiction comes from his Crown and Dignity The contrary seems rather to follow viz. That the Ecclesiastical Courts were held from another Power but all Matters of Temporal Cognizance did belong to the Crown There is no Question but since the Acts for restoring Jurisdiction to the Crown the supream Jurisdsction both in the Ecclesiastical and Civil Courts is derived from the Crown And in whose-soever Names the Courts are kept the Authority of keeping them is from the King. For it is declared by Act of Parliament 1 Eliz. 1. 17. That all Ecclesiastical Power is united and annexed to the Imperial Crown of this Realm which all Bishops do own in taking the Oath of Supremacy and therefore the old Form continuing can signifie nothing against the Law of this Realm and their own Oaths But as long as the main Points were secured by the Laws there was no necessity apprehended of altering the Forms for on the other side it was objected that since the Laws had placed all Jurisdiction in the Crown it seemed as unreasonable to continue the old Form of Prohibitions in laesionem Coronae Dignitatis Regiae how can this be say they when the Jurisdiction Ecclesiastical as well as Civil is owned to be from the Crown It is said in Answer That a Prohibition implies that the thing is drawn into aliud Examen than it ought to be and this is contra Coronam Dignitatem Regiam Why not then as well when an Ecclesiastical original Cause is brought into a Temporal Court for that is aliud Examen then by Confession on that side and if Ecclesiastical Jurisdiction be derived from the Crown the aliud Examen must relate only to the Court and not to the Crown All that I infer from hence is that the old Forms were thought fit to be continued both Parties reconciled them as well
Statutes And it cannot be supposed that at that time when the Pope was allowed to be Head of the Church and consequently Supreme Patron of the Benefices of it that the Acceptance of a Title to an Ecclesiastical Benefice from him should be thought Malum in se. But these Statutes being in force I shall make it appear that the King did own he had no Power to Dispense with them but as the Parliament thought fit to allow it I begin with 15 R. 2 at a time when the Kingdom was in quiet and however could not be in any disturbance on the Account of the Statute of Provisors which the Nation desired and only those who depended on the Court of Rome opposed But the court-Court-Bishops suggested that it was for the Kings Interest in dealing with the Court of Rome to have a Power to Relax and to Dispense with these Statutes as he saw Cause Therefore the Arch-Bishop of York then Chancellor proposed it in the opening of the Parliament as one of the things for which it was called viz. To find out a Temperament in that Matter so as the Pope might not lose his Right nor the King his After this Matter was debated the Commons declare their Assent en plein Parliament That without prejudice to the Rights of those who were in Possession by virtue of the Statute the King by the Advice and Consent of the Lords might Dispense with the said Statute so as should seem reasonable and useful till the next Parliament but so as the said Statute be repealed in no Article of it And they reserve to themselves the Liberty of disagreeing the next Parliament And they conclude with a solemn Protestation That this was a Novelty not practised before and ought not to be drawn into an Example and Precedent for the future and they desire this Protestation might be Entred and Recorded in the Rolls of Parliament which the King commanded to be done Doth this now look like a Declaratory Act and made in Affirmance of the Kings Dispensing Power It might as well be said That an Act for Restraining the Prerogative is made in Affirmance of it It is true there is a Dispensing Power granted but with such Restrictions and Limitations as shew that such a Power was not then thought to be inherent in the Crown For 1. Why should it be proposed to the Parliament to grant it if the King had it before Did the King ever put it to the Parliament to grant him a Power to Pardon Malefactors But in the case of Dispensing with a Law it was not only proposed but assigned as one Reason of calling the Parliament 2. Why till the next Parliament if it were owned to be an inherent Right of the Crown Would the Parliament go about to bound and limit an inseparable Prerogative in such a manner 3. Why is it called a Novelty and a thing not to be drawn into example Was ever any thing like this said of a Declaratory Act The Natural Consequence whereof is just contrary that whereas some just Right of the Crown hath been contested and denied for the future it ought to be owned and submitted to by all Persons It is hard to think of Words more inconsistent with a meer Declaratory Act than those Ne soit trait en ensample nen Consequence en temps avenir 4. If this were a Declaratory Act what need it be repeated so often in Parliament afterwards Were the Commons so forgetful of the Kings Prerogative as to need making so many Declaratory Acts about the same thing Yet thus we find it about this Dispensing Power as to the Statutes of Provisors For 16 R. 2. The Archbishop of York again declared in the opening of the Parliament That one Cause of calling it was to settle this Matter about Provisors And the Commons again yielded The King should have such a Power to moderate it as he should with his Council judge expedient but so as it be all laid open before the next Parliament that they might upon good Advice agree to it 17 R. 2. Tydeman Abbot of Beauley was by the Popes Provision made Bishop of Landaff But the King notwithstanding the former Proceedings did not take upon him to dispense with the Statute but left it to the Parliament and his Dispensation was passed by Act of Parliament the King Lords and Commons assenting thereto 20 R. 2. The Commons in Parliament do again Assert de bon gre de leur parte en plein Parlement That the King with his Council may dispense with the Statute of Provisors as shall seem fit so as the same be heard and examined the next Parliament and so corrected as shall be thought convenient by the King with the Advice of his Council in Parliament 1 H. 4. The Commons in like manner give their Assent That the King should have the same Power of Dispensing with the Statute which his Predecessors had and to Repeal and Annul it as should seem expedient to him Which was no more than a General Dispensation Yet notwithstanding this was recorded in Parliament 2 H. 4. The Commons appearing before the King and the Lords it was declared That the Dispensation should not extend to Cardinals or other Strangers At the same Parliament a Petition was presented to the King That if any one did accept a Benefice by Papal Provision against the Statute and had his Pardon from the King for it yet if he went about to disturb the present Possessor by virtue of his Provision then his Pardon should be void and he should incur the Penalty of the Statute To which the King gave his Assent 3 H. 4. The King having granted particular Licenses for Dispensations as to this Statute and finding the great Inconveniences which came by them he generally and universally revovoked them and promised in Parliament to find out some proper Remedy in this Matter 7 H. 4. The King was moved in Parliament to confirm that Revocation but he then took time to consider But 9 H. 4. c. 8. the King reinforced in Parliament all the Statutes against Provisors as it is in Print 1 H. 5. The Commons pray That the Statutes may stand in full force against Provisors and that no Protection or Grant made by the King to hinder the Execution of the said Statutes shall be allowable or of any force and whatever is done contrary to them shall be null The Answer is Let the Statutes be observed and kept But if the Statutes were to be strictly observed what saving can there be to the King's Prerogative since the Statutes were Universal and the King 's particular Grants in this Case were the great Motive of the Commons Desire to have them reinforced in the beginning of this King's Reign And these Statutes continued in full Force to the Time of H. 8. insomuch that Cardinal Woolsey was prosecuted by the King's Attorney for offending against them by his Legatine Power
upon themselves to be sole Judges in it and for all that I can see the Act 2 H. 4. owns this to be part of their Spiritual Jurisdiction And this is one Reason alledged for the Repeal of this Act 25 H. 8. c. 14. because there is no Declaration of Heresie made in it but it is left to the Judgment of the Ordinary And therefore this Act was ill thought upon to prove the King 's Ecclesiastical Jurisdiction In Henry the Seventh's time the King is said to be persona mixta because he hath both Ecclesiastical and Temporal Jurisdiction But this Argument is drawn only from some occasional Talk mentioned in the Year Books 10 Hen. 8. 18. Brian said That a sage Doctor of Law said one time to him That Priests might be tried at Common Law Car il dit quod Rex est persona mixta car est persona unita cum sacerdotibus saint Eglyse If all this be granted it proves no more than that the King hath Jurisdiction by his Law over Ecclesiastical Persons which is not disputed CHAP. III. Whether the King's Supremacy by Law extends to the Dispensing with Laws Of the Nature and Original of the Power The Inconsistency of such a Dispensing Power with the Frame of our Government HAving thus far proceeded in clearing the ancient Legal Supremacy I am now come to an Instance of greater Weight and Difficulty and which will therefore require more Pains and Care in the Examination of it viz. 11 H. 7. 12. By the Ecclesiastical Laws allowed with in this Realm a Priest cannot have two Benefices nor a Bastard can be a Priest but the King may by his Ecclesiastical Power and Jurisdiction dispense with both these because they be mala prohibita and not mala per se. Here we are to enquire into these things 1. How far the King's Power and Jurisdiction did extend in the Cases mentioned 2. How far the Reason here given will justifie a Power of Dispensing with Laws 1. As to the Cases here mentioned there is no doubt but the Canonists made the Power of Dispensing in these to be an Argument of the Pope's Supremacy or the Plenitude of his Power But doth it hence follow That what Princes did to their own Subjects as to the qualifying them for a Legal Possession of Benefices must argue a Supremacy in them over Ecclesiastical Persons and Causes And there is a difference to be made between not Receiving the Pope's Canons in particular Cases and a Power of Dispensing with Ecclesiastical Laws If the Law were so then as is noted by Fineax in 11 H. 7. 12. the plain Consequence is That the contrary were no part of the Ecclesiastical Laws allowed within this Realm As in the famous Case about the Canon Law concerning Bastardy when the Barons said Noluleges Angliae mutari no man can say That the Barons dispensed with the Pope's Ecclesiastical Laws but that they refused to execute them for as it is well observed in Standish's Case in Kelway's Reports 7 H. 8. Ecclesiastical Laws have no force where the General Practice hath been contrary If this were no more than a private Opinion of Fineux of what he thought the King might do although there were no Precedent for it then it signifies little but if from hence it appears What the Common Law of England was then it follows That this was not received at that time for the Ecclesiastical Law of this Kingdom And so Hobart in Colt and Glover's Case understands it f. 147. for he produces this as an Instance That the Crown always kept a Possession of its Natural Power And to this he adds a Power of Commendam or Retaining a Benefice with a Bishoprick 11 H. 4. 60. This he calls a Power of Dispensation in Spiritualibus But with submission to two such great Men in the Law If the Crown always kept a Possession of these Rights there could be no Dispensation with the Ecclesiastical Law in these Matters but an Exclusion of it As for Instance The Kings of France do challenge many Priviledges to themselves in their Kingdoms in plain Derogation to the Canon Law and for these Priviledges they plead an Ancient Right of the Crown or an immemorial Custom As in the great Controversic of late Years about the Regale the Canon Law is express That upon Pain of Excommunication no Lay Person what soever shall presume to meddle with the Profits of Vacant Bishopricks which was decreed by two Popes in several Councils Urban II in a Council at Awergn MXCV and Innocent II in Lateran Council MC XXXIX both entred in the Body of the Canon Law And yet the Kings of France insist to this Day on the Rights of Vacant Sees as belonging to them But can this be pleaded as a Dispensing with the Ecclesiastical Laws allowed in that Realm No but that this Part of the Ecclesiastical Law was not received there for that partly by the Feudal Right partly by the Right of the Crown partly by Immemortal Custom the Profits of Vacant Bishopricks accrue to the King. It is a harder Point to defend the Regale where the Custom hath gone along with the Canon but if the Rights of the Crown be defended in France against Custom and Canon too our Kings cannot be blamed for resuming other Rights after so long Usurpation by the Popes But where the Canon Law was not received in any Part of it there it hath no Force to oblige and where there is no Ecclesiastical Law in Force there can be no Dispensing with it for although the later Canon Law doth void all Customs against the Liberties and Priviledges of the Church Non debet in hac parte Canonibus ex aliqua consuetudine praejudiâ—ium generari Yet when these Canonists come to explain it they tell us That an immemorial Custom hath Force against a Canon but how Not as a Custom but as it is a Proof of an Ancient Priviledge granted by the Pope although there be not the least â—ootsteps of it And so this Instance of H. 7. will prove according to this Way only some Ancient Priviledge our Kings had and no Ecclesiastical Jurisdiction by the Right of the Crown But whether the King could Dispense with the Ecclesiastical Laws in these Cases or not it is certain the Pope challenged to himself the Power of doing it For after that the Third Council of Lateran liad strictly forhidden Pluralities which were then so common and scandalous upon pain of Forfeiture Innocent the Third complained in the Fourth Lateran That he saw little or no Benesit come by that severe Canon and therefore he seems to make one more severe That whosoever takes another Benefice shall be deprived of the former ipso jure and if he seeks to keep it to lose the other Yet after all this ends only in the Popes Power to dispense as he saw Cause with Persons of greater Rank or Merit and greater Preferments The Words are Circa sublimes tamen
he is not Lord over the Community but Governour 2. That for him to Dispense in a Law made for the Community without a just Cause is not only malum quia prohibitum sed ex se ex natura rei semper malum Therefore Suarez was far from thinking a Prince might Dispense with any thing that was not malum in se for he makes it to be so for him to dispense with a malum quia prohibitum if it be prohibited by a Law made for a Publick Good and there be no just Cause for it 3. That although a Prince sins in Dispensing with such a Law yet his Dispensation holds as to the Force of the Law which he supposes to depend on the Will of the Prince and therefore his Will being altered the Obligation ceaseth as to the Persons Dispensed with 4. That although such a Dispensation holds as to the Law yet he thinks a Prince bound in Conscience to Revoke such a Dispensation because it is unlawful for him to persist in such a Will it being repugnant to the Common Good and the Obligation of his Duty 5. That if such a Dispensation be to the Injury of a third Person then it is void in it self as being repugnant to Justice Vasquez saith They are all agreed That no Prince hath a Power to Dispense with his Laws according to his Pleasure or because they are his Laws But he saith There is a Dispute Whether an unlawful Dispensation be valid or not And he thinks not and that a Man's Action after the Dispensation is as faulty as if there had been none His Reason is because a Prince is bound by his own Laws so that he cannot Dispense with himself as to the Obligation of them for if he could at Pleasure Dispense with himself he could never be bound for how can a Man be bound to keep a Law in which he can Dispense with himself when he pleases And if he cannot Dispense with himself much less with any under him Having thus endeavoured to clear the Nature and Original of the Dispensing Power I now come 2. To the Reason assigned by Sir E. Coke from the Year Books why the King may Dispense with Laws because they be mala prohibita and not mala per se. My Lord Vaughan said Right concerning it That this Rule hath more confounded Men's Judgments on this Subject than rectified them Which I shall make appear by shewing I. That it alters the Frame of our Government II. That it takes away all Security by Law. III. That it contradicts the Sense of our Nation in former Ages IV. That the Rule is contrary to the Precedents in Law. I. That it alters the Frame of our Government For it goes upon a very false Ground viz. That the King may Dispense with any thing which is not Evil in its own Nature or antecedently to any Human Laws which is to suppose the whole Legislative Power to be lodged in the Person of the King For all who understand these Matters do agree That a Power to Dispense with Laws is the same with a Power to make them Dispensare hoc est lege solvere is solus potest qui ferendae abrogandaeque leg is potestatem habet saith H. Grotius Suarez saith He hath the Power of Dispensing qui legem tulit quia ab ejus voluntate potentia pendet Vasquez That the Dispensing Power lies in him qui habet Potestatem condendi abrogandi legem Pufendorf That none can Dispense with a Law but such as have the Power of making it But we need no Authorities in this Matter For to Dispense in the Sense it is here taken is to take away the Obligation of a Law and whoever takes it away must have the Power of laying it on And there is no Difference between the Dispensation with a Law and the Abrogation of it but that a Dispensation is an Abrogation of it to particular Persons while others are under the Force of it and an Abrogation is a General Dispensation that being no more than a Relaxation of the whole Law to those Persons who were bound by it before But if a part of the Law be taken away as to the whole Community then it is called a Derogation of it But if the Law be Relaxed only for a limited Time and under certain Conditions then it is not an Abrogation but an Indulgence or Suspension of the Law. To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law for he that Inteprets a Law supposes his Interpretation to agree with the Sense and Design of the Law he that Dispenses owns that which he dispenses with to be against the Intention of the Law but that he hath Power to take away the Force of it so far as he thinks fit He that saith Thou shalt not kill doth not reach to Legal Executioners of Justice interprets the Law according to Reason and Equity But when God said to Abraham Go and Sacrifice thy Son he must be supposed by virtue of his Supreme Authority to Dispense with the Law in his Case so as to make that Lawful upon his Command which would not have been so without it Some will not allow this to be called a Dispensation but an alteration of the Matter of the Law but when that Alteration comes from the Authority of the Law Makers it is the same so that to Interpret a Law is an Act of Discretion and Judgment but to Dispense with it of Authority and Jurisdiction And none can therefore Dispense in the Law of God but he that made it all that the Wisest and greatest Men can justly pretend to is no more than to give the true Sense of it and it is intolerable Prsumption for any Creature to pretend to more An Equitable Sense as to Human Law is not always that which seems to be most favourable to those who go against the Letter of it but that which most enforces the End and Design of the Law although it be not comprehended in the Words of it If a Law mentions a Crime of a lesser nature in regard of Circumstances and in regard of those Circumstances promises some Favour as Benefit of the Clergy it can be no Equitable Sense to extend it to such Acts which have worse Circumstances because the Ground of the Favour was the extenuation of the Fact by the Circumstances so that the chief Rule of Equity in the Interpretation of a Law is to attend to the Intention and Design of it more than to the bare Words The Intention and Design of the Law is not to be measured by Particular and Accidental Cases wherein some Inconveniencies are to be born but by the Publick and General Good which more than makes amends for them which is the Reason of that Maxim Better a Mischief than an Inconvenience which is false unless taken in such an Equitable Sense There are
certain Ways of Reason which Mankind do allow in the Equitable Interpretation of Laws as That no positive Law must be interpreted against Natural and Divine Laws That if Laws contradict each other one or the other must lose its Force That no Case which overthrows a Law by necessary Consequence was ever intended to be allowed by it For that were to make a Law and to give a Liberty to break it at the same Time. If a Law be designed for a Publick Good and an Exception be afterwards made against it as to the Incapacity of some Persons by it for Publick Service which could not but be foreseen and considered at the Time of making the Law there is no Reason that should be alledged as a Reason for Dispensing with the Law which was intended at first by the Law For however the Case may be put as to such things which could not be foreseen at the making of a Law yet what was intended to be prevented by the making it cannot in Reason be alledged against it Because if there had not been other things to have over-ballanced that Inconvenience the Law had never been passed There is no doubt but the same Power which makes a Law may Dispense with it if it sees Cause for if it can Abrogate a Law as to the whole Community it may as well Dispense with it as to particular Persons and leave it in Force to all others The Question then is Whether a Prince assuming to himself a Dispensing Power doth not thereby assume the Legislative too Since it appears That there can be no Power to take off the Obligation of a Law but that which causes it although it be with respect to particular Persons but if it amount to a General Suspension of a Law there can be no Question to those who understand what these things mean. Our present Business was to shew That if the King can dispense with Mala prohibita as such the Legislative Power must be resolved into him because a Dispensing Power can be refer'd to no other And if the King may Dispense with all Mala prohibita he may Dispense with all just human Laws For no Law can be just which requires Malum in se and therefore such a Law being void of it self there can be no Exercise of a Dispensing Power but concerning Mala prohibita And if the King can therefore Dispense because they are only prohibited then from a Parity of Reason he may Dispense with all Laws that concern only such things and we cannot be secure of any Laws but such as forbid things that are evil in themselves II. And this is my Second Reason against it That it takes away all Security by our Laws both as to our Religion and Liberties 1. As to our Religion I grant that to take away all Religion is Malum in se to take away the true Religion is Malum in se but in a Nation divided about the true Religion and where the Prince is of one Opinion and the main Body of the Nation of another concerning it what Security can the People by this Rule have as to the enjoying that which they account the true Religion but the Prince doth not The utmost we can suppose in this Case is for such Laws to be made as they apprehend to be most effectual for this Purpose But what Security can these Laws afford if the Prince assume a Power of Dispensing with Ecclesiastical Laws It is not possible they can have any unless they can be secure he shall never exercise this Dispensing Power for by it he may equally suspend all Laws which relate to it he may give a Dispensation to such as are unqualified by our Laws and put them not only into Places of Authority and Trust but into all Ecclesiastical Preferments as soon as he thinks fit and that without any Check upon his Conscience because those whose Office it is to interpret the Laws tell him he hath such a Power by Law to Dispense with Ecclesiastical Laws although passed in the solemnest manner and with a Design to give Security to the People concerning the preserving their Religion And the higher this Point is carried still the less Security For if it be thought such a Prerogative of the Crown as voids all that is made against it then Laws signifie just nothing For every Law is a Limitation of unbounded Will and Power and therefore Laws afford no manner of Security for either they are void of themselves or may be made void when a Sovereign Prince pleases And I think as Men are meer Will and Pleasure will never be taken for an infallible Security But it may be said That taking away the true Religion is Malum in se and therefore by this Rule such Laws cannot be dispensed with Very true we think so But suppose a King of another Opinion and that he should think it good Service to destroy Heresie and Schism and those are Mala in se what Security can there be then from this Rule For the same Persons who assert the Dispensing Power make the King to be Judge not meerly of the Necessity and urgent Occasions but of what is Malum in se and what not Suppose then he should look on our Religion as Heresie and Schism what possible Security can this Distinction afford us 2. As to our Civil Liberties Which are founded upon our Laws made by the Consent of King and People But if there be such an inseparable Prerogative in the Crown as enables the King to Dispense with all Mala prohibita what becomes of all the Ancient Charters of Liberties For no one can pretend that the contrary to them all are Mala in se. And if there be no farther Security than what this Distinction affords we are in a very precaridus Condition as to all our Liberties I confess the Case is different as to the Ecclesiastical Laws mentioned in 11 H. 7. 12. and as to our Civil Liberties because these Ecclesiastical Laws had their Force as such from a foreign Power and as far as they were the Laws of the Kingdom it was by a Tacit Consent and Acceptation and not by any solemn Enacting of them And as to such as these where the Laws were not received and the things were no farther evil than as they were prohibited by such a Foregin Power there is nothing but what is reasonable in the Case of 11 H. 7. 12. as it is in the Books But when this hath been extended to Laws which have passed in the most solemn manner by the King in Parliament it is time not only to take notice of but to set forth the mischievous Consequences of this Distinction as it is so applied for it leaves us under no manner of Security by our Laws 3. It contradicts the Sense of our own Nation in former Ages Which I shall shew in a remarkable Instance about the Statutes of Provisors 35 E. 1. 25 E. 3. 13 R. 2. which were Prohibitory
is not the Kings Law. For taking one Example for many every Leet or view of Frank Pledge holden by a Subject is kept in the Lords Name and yet it is the Kings Court and all the Proceedings therein are directed by the Kings Laws and many Subjects in England have and hold Courts of Record and other Courts and all their Proceedings be according to the Kings Laws and Customs of the Realm But there is a Material Objection or two yet to be answered 1. It is Objected That 2 Jac. the Judges declared in the Star-Chamber That the Deprivation of Non-conformists was lawful because the King had supreme Ecclesiastical Power which he hath delegated to the Commissioners whereby they had Power of Deprivation by the Canon Law of this Realm and the Statute of 1 Eliz. doth not confer any new Power but explain and declare the ancient Power And therefore they held it clear that the King without a Parliament might make Orders and Constitutions for the Government of the Clergy and might deprive them if they obeyed not To which I answer 1. Our Question is not Whether the King without a Parliament may not require the Observation of Canons passed the Convocation so as to deprive the Obstinate by Vertue of his Supreme Power in Ecclesiastical Matters but whether he may appoint a Commission with Power to deprive against an Act of Parliament which hath taken away the Legal Power of any such Commission 2. In matters of this nature it is safer trusting the Supreme Judicature of the Nation in Parliament than the Extrajudicial Opinion of the Judges And in this Case the Parliament hath declared it self another way as appears by the Canons 1640. which were not only condemned in Parliament afterwards which then might be imputed to the heat of the Times but in the most Loyal Parliament after the King's Return particular care was taken that neither the Canons of 1640. should be confirmed nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the Established Laws of the Land as they stood in the Year of the Lord 1639. Which implies that the Sense of the Parliament then was that we are not to own any Canons but such as were confirmed allowed or Enacted by Parliament or by the Established Laws of the Land before 1639. And therefore no new Injunctions without a Parliament or Convocation can make the Clergy liable to a Legal Deprivation No not that which the Defender is so pleased with the thoughts of viz. to give their Assent and Consent to the King's Declaration on pain of Deprivation 3. The Temporalties of the Clergy especially the Bishops are secured by several Acts of Parliament without a Tryal at Law. Which because I see none of our great Lawyers take notice of I shall here set down 14 Edward the Third c. 3. We Will and Grant for us and for our Heirs that from henceforth We nor Our Heirs shall not take nor cause to be taken into Our Hands the Temporalties of Archbishops Bishops c. or other People of Holy Church of what Estate or Condition they be without a true and just Cause according to the Law of the Land and Judgment thereupon given 25 Edward the Third c. 6. The Title of the Statute is A Bishops Temporalties shall not be seized for a Contempt And this was received for good Law 9 E. 4. 28. Br. Ord. 12. Reg. f. 32. But a very late Writer tells the World That the Possessions of Ecclesiastical Persons are but Conditional Freeholds and although Absolute Freeholds require a due Course of Law yet Conditional do not so that if a Man chance to be deprived of his Office his Freehold is gone This is touching Clergymen's Freeholds to purpose and no doubt out of pure Zeal to the Church of England But see the Equity and Impartiality of this Man He had undertaken before to give Publick Assurance of Abby-Lands to the present Possessors And for what Reason Because the Pope granted a Dispensation with a non obstante to the Canon Law And yet in this Book he proves That a non obstante is no ways binding to the Supreme Power so that no Man could more effectually overthrow his own Assurance than he hath done himself For saith he Present Sovereigns whether King or Pope cannot bind their Successors And again Acts of Graces and Favours are alterable and suspendible at the Pleasure of the Succeeding Sovereign Why then should any be so weak as to think the Plenitude of the Pope's Power as to Abby-Lands can be bound up by the Act of any former Pope I confess the comparing these two Books together hath extreamly lessened his Assurance of Abby Lands with me And his Answers to the Power of Revocation are so weak that they come at last to no more than this It is a thing which cannot well be done at present therefore there is no fear it ever should be done Here is some Security at least till it can be done But as to the Possessions of the Ecclesiastical Persons of the Church of England he endeavours to prove That they can have no Security at all of their present Possessions notwithstanding any Promise or a Legal Title For if as he saith The King by his Paramount Jurisdiction can make any Exceptions null and so void a solemn Oath not to accept a Dispensation from that Oath why should he not as well make void any Promise of his own when it hinders as he thinks a greater Good especially if the Prerogative cannot be bound But then as to a Legal Title that is the vainest thing imaginable as to such Conditional Freeholds which Clergymen have for if the Commissioners deprive them by their Power ab Officio Beneficio their Attendent Frehold saith he is gone without any Course of Law. And the Defender saith The Commissioners may deprive if Clergymen should not assent and consent to all contained in the King's Declaration if he required it But it is to be hoped That Princes will not take the Measures of Justice and Wisdom and Honour from such Men We will therefore set aside the Omnipotent Engine of a non obstante which doth not batter so much as it undermines and consider the Legal Security of these Conditional Freeholds I. All Freeholds are in some Sense Conditional or else they could never be forfeited Which shews that there are none Absolute with Respect to the Law. And as to their Original among us it is agreed That by the Ancient Right of Tenures all Fees are Conditional for they suppose Fealty the non-performance whereof is Felony Which is not that which is done felleo animo as Sir Edward Coke trifles but it is the same with Falshood or Treachery The Laws of H. 1. c. 5. Si Dominus de Felonia vel Fide mentitus compellat hominem suum And in another Law the punishment of Felony is Forfeiture of the
Bracton observes several things which are material to this purpose 1. The first General Exception which is allowed he saith is contra Jurisdictionem Exceptions are either dilatory or Peremptory Some that are only dilatory as to the Action may be peremptory as to the Jurisdicton And these are to be put in ante Litem contestatam ad perimendum Judicium ne procedat And the first of this sort are the Exceptions contra Jurisdictionem contra Personas Judicantium quibus deficit Autoritas judicandi So that he supposes that such who do not deny the Kings Supreme Authority may have a Legal and just Exception against the Authority of a Court. 2. It was an allowable Exceptio Fori then if any Lay-Persons did take upon them to proceed by Ecclesiastical Censures In Ecclesiastical Causes saith he a Secular Judge hath no Cognizance because he hath not the Power of Coercion proper to them viz. by Ecclesiastical Censures therefore he saith in his Causis pertinet Cognitio ad Judices Ecclesiasticos His Reason is Because those only are the competent Judges who have the Power of Coercion proper to the Court. And for the same Cause Ecclesiastical Judges are not to interpose in Secular Causes cum jura sint separata limitata And although the Exemption of Ecclesiastical Persons from the Civil Courts be certainly taken away by the Acts of Supremacy yet it hath been still alledged by our Divines That the Ecclesiastical Censures were still reserved to the Ecclesiastical Functions either in the way of Ordinary or Delegate Jurisdiction If the High Commission did seem to go further then that Power being taken away by Act of Parliament it must return to the Ancient Course 3. There must be a Legal Authority to constitute a Legal Jurisdiction Ad hoc quod rata sint judicia videre oportet a◠Justic. Warrantum habeat à Rege quod judicare possit Si Warrantum non habuerit non valebit quod coram eo actum fuerit quasi coram non suo judice quia primo legi debet Breve Originale postmodum Breve per quod Justiciar constitutus est si nullum omnino habuerit aut si habuerit non tamen ad manum non erit ei parendum nisi it a forte sit quod Breve Originale de Justiciaria sua faciat mentionem Bracton l. 5. De Except c. 14. 1. There must be a Commission from the King which must be read and if either they have it not or it be not at hand the Jurisdiction is not to be owned unless it be mentioned in the Original Writ For Commissions in those days were most commonly granted by Writ saith the Lord Coke But by Bracton's Words it appears That commonly there was an Original Writ and a Commission besides but sometime the Commission was in the Original Writ and then the reading of that was sufficient The Mirror saith That the Jurisdiction may be denied if the seeing or hearing the Commission be denied 2. The Bounds of the Jurisdiction must be expressed and if those be exceeded he saith an Exception lies Which signifies nothing unless the Commission be known 3. The Commission must be according to Law For that is Bracton's standing Rule Nihil aliud potest Rex in Terris cum sit Dei Minister Vicarius nisi id solum quod Jure potest So that a Commission against Law is void in Law. He mentions the Common Saying in the Civil Law Quod Principi placet Legis habet Vigorem and answers it thus Quod Principi placet is not to be understood of his Presumptive but his Legislative Will Animo condendi Jura and with the Advice of his Magistrates the King himself giving Authority which is the Description of an Act of Parliament as we now call it Which he more fully expresses elsewhere Legis vigorem habet quicquid de Consilio de Consensu Magnatum Reipublicae Communi sponsione Authoritate Regis sive Principis praecedente juste fuerit Definitum Approbatum If this were the Ancient Law of England how comes the Exception against a Court to be a Denial of the King's Supremacy unless it be supposed impossible That there should be an Illegal Court with the King's Commission But we may suppose it possible for a new kind of Star-Chamber or Court of Wards to be set up must no Man question the Legality of such a Court without denying the King's Authority For this is a Question in Point of Law. And the King's Authority always goes with the Law and therefore to suppose it to be in any thing against Law is to suppose it to be contradictory to it self But our Author saith It is necessary for every Court to assert its own Jurisdiction Very true and to clear it too if it be liable to a just Exception I am very far from denying the King's Supremacy yet I may be as far from thinking such a Court to be Legal if an Act of Parliament can make a Court Illegal and to say no more for it but that every Court must assert its own Jurisdiction is to level it with the Infamous High Court of Justice which when King Charles the First of Blessed Memory denied their Authority all the Reply was That the Court was satisfied of its own Authority Which could give Satisfaction to no Body else And if this be all can be said for the Legality of it for all that I can see there is just Reason to deny it FINIS A Catalogue of Books Published by the Reverend EDWARD STILLINGFLEET D. D. Dean of St. Paul 's and Sold by Henry Mortlack at the Phoenix in St. Paul 's Church-yard A Rational Account of the Grounds of the Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. Wherein the true Grounds of Faith are cleared and the False discovered the Church of England vindicated from the Imputation of Schism of the most important particular Controversies between us and those of the Church of Rome throughly examined the Second Edition Folio Sermons Preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae Or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph By Edward Stillingfleet D. D. Dean of St. Pauls Folio Irenicum A Weapon-Salve for the Churches Wounds Quarto Origines Sacrae or A Rational Account of the Grounds of Christian Faith as to the Truth and Divine Authority of the Scriptures and Matters therein contained Quarto The Unreasonableness of Separation or an impartial Account of the History Nature and Pleas of the present Separation from the Communion of the Church of England to which several late Letters are annexed of eminent Protestant