as they could to the Laws in force But the Judges confessed That although de jure both the Jurisdictions were ever in the Crown yet the one was sometimes usurped by the See of Rome which is a plain acknowledgment that by the Matters of Fact in those times the Right could not be proved and especially in the times of H. 3. when the Popes Usurpations here were at so great a height that the King upon Writs of Enquiry sent into the several Counties found That the Revenues of the Roman Court by Provisions Extortions c. exceeded the Kings And the King had so little Authority left that the Pope put Bishops upon him Rege penitus irrequisito saith Matt. Westm. so that he was so far from Ecclesiastical Jurisdiction that he had not the Nomination of his Bishops nor so much as a Consent to their Election unless the Pope thought fit sometimes to gratifie him in it For the Pope pretended to the Right of Disposal of Church Preferments by Vertue of his Ordinary Jurisdiction which was said to be twofold 1. Voluntary in the Collation of Benefices 2. Judicial in the hearing of Causes the former might be done at Rome but the other in the Ordinary Ecclesiastical Courts And Bracton who was a Judge in his time owns the Pope as much to have the Ecclesiastical Jurisdiction as the King had the Temporal but yet he adds That if an Ecclesiastical Judge did meddle with Matters out of their Cognizance the King's Prohibition did lye against him and he ought to supersede his Proceedings till it were tryed in the King's Court to whom the Jurisdiction belonged But it is still harder to prove the King's Ecclesiastical Jurisdiction because the Spiritual Courts were to certifie the Kings Courts in case of Bigamy Bastardy and such like For the Question is not about their Temporal Subjection to the King in signifying the Sentence of the Court but whence they derived their Authority of holding the Ecclesi astical Courts over which Bracton saith the Pope had the ordinary Jurisdiction the Power to delegate others to execute it What doth it signifie to the Kings Ecclesiastical Jurisdiction that the Barons of England would not receive that part of the Canon Law which concerned the Legitimation of Children born before Wedlock For it depended upon the Barons Consent Whether a Canon of the Church should be made the Law of the Land concerning the Rights of Inheritance In the Reign of King Edward I. In the Time of Ed. I. we may expect some brisker Sallies towards the Kingdoms Deliverance from the Popes Usurpations which were thought so intolerable even by the Monkish Historians in his Fathers Reign What that Bull was the bringing whereof the Law-Books say was then adjudged Treason it would have been worth our while to have known For it is hard to imagine that at that time the meer bringing a Bull should be so Capital a Crime when so many were brought without danger both before and after But it seems by the Certificate of the Judges concerning it still in the Tower the Matter of it was very prejudicial to the Crown And it argues no Spiritual Jurisdiction for Princes to examine and refuse when they see cause Bulls that come from Rome For this is practised in those Countries which profess Obedience to the Popes Jurisdiction Covarruvias affirms it of Spain In Portugal when John the Second would have given up that Right to the Pope the Estates of the Kingdom would not permit him Peter the Second Duke of Britain forbad receiving any Bull before Examination by his Council under pain of Corporal Punishments and Confiscation of Goods Ant. Faber saith in Savoy No Bulls have Authority there till they are approved by the Senate and an Appeal lies from them tanquam ab Abusu Even in Naples it self Ferdinand the Catholick King gave a severe Reprimand to his Vice-Roy for not hanging up a Person who would have executed a Bull without his Authority The Letter it self is Published in the Jus Belgarum where many other things may be seen to the same purpose The Right of Patronage is a Civil Right in Princes as well as others and therefore E. 1. Without pretending to Ecclesiastical Jurisdiction might justly punish the Archbishop of York for his obstinate refusing to admit the Kings Clerk because of a Papal Provision The Statute of Bigamy might very well be interpreted in Parliament and yet the King have no Ecclesiastical Jurisdiction For it was no more than declaring in what sense a Law should be taken i. e. Whether it should extend to Bigamy before the Constitution of the Council of Lyons or after The Act of Parliament made at Carlisle 35 E. 1. against Aliens possessing Benefices is no more than hath been done in Countries where the Popes Jurisdiction is the most owned As in Spain Covarruvias saith They have Prescription and Pragmatical Sanctions against Aliens possessing Benefices The Laws of Poland and many Edicts in France exclude Strangers But I shall now produce some considerable Precedents in the time of Ed. 1. to shew that the Proceedings against the Arch-Bishops and Bishops for Misdemeanors or Contempts was in Parliament and not by Commissioners the inferior Clergy being left to the Jurisdiction of their Ordinaries 3 Ed. 1. E. Warren complained to the King That the Archbishop of Canterbury had contemned his Orders in not taking off Excommunication from some of his Servants The King sends to him to proceed no further against the Earl or his Servants usque ad Parliamentum where the Matter of Contempt might be debated But in the mean time the Archbishop sends to the King a true Account of the Matter and how far he was from Contempt which is still extant in the Records of the Tower. 7 E. 1. John Peckam Archbishop of Canterbury was summoned to Parliament to answer to a Charge of Misdemeanors against him for some Passages in the Council at Reading which he was fain to revoke and to declare that no Articles there passed should create any Prejudice to the Crown or Kingdom 8 E. 1. The Archbishop went about to Visit the Kings Free Chappels The King hearing of it sent a Writ to him to forbear usque ad proximum Parliamentum ut tunc ex unamini mutuo consensu provideamus quid fieri debeat in Praemissis 21 E. 1. John Roman Archbishop of York was Attached upon a Contempt for Excommunicating the Bishop of Durham while he was in the King's Service And after a full hearing in pleno Parliamento he was condemned and upon Submission was Fined to the King sour thousand Marks 28 E. 1. A Controversie arose between the King and the Bishop of Chichester about his refusing to admit a Person Presented to a Prebend in the Free Chappel of Hastings the King sends his Writ to the Warden of Cinque-Ports extant in the Tower among the Writs of that Time to enquire into this Matter
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
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
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
Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the Deâ—retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other
Cases besides those which depended on the Canon-Law For saith he the Pope usurped such a Power in derogation of the Authority Royal and then that Power must be originally in the King otherwise in the Construction of the Act it could be no Usurpation But this is a very false way of Reasoning The Pope usurped such a Power on the Crown therefore the Crown hath it of Right For the Popes Usurpations were many of them unreasonable his Primacy according to Canons being allowed and our Law did restore to the King the ancient Right and Jurisdiction of the Crown and not put him into the Possession of all the extravagant Power which the Pope usurped For this Law charges the Pope with intolerable Exactions of great Sums of Money in Pensions Censes Peter-Pence Procurations Fruits Suits for Provisions and Expeditions of Bulls for Arch-Bishopricks and Bishopricks and for Delegates and Rescripts in Causes of Contentions and Appeals Jurisdictions Legantine as well as Dispensations Licenses Faculties Grants Relaxations Writs called Perinde valere Rehabilitations Absolutions c. Now all these were Usurpations in Derogation of the Crown but doth it therefore follow that the Crown hath a Right to them all But to go no further than the Business of Dispensations Hath the King a Right by this Statute to dispense as far as the Pope The Pope usurped a Power of dispensing in Matrimonial Contracts in Oaths in Vows in some positive Divine Laws which I suppose H. 8. by vertue of the Supremacy never pretended to So that it is a very mistaken Notion of some Men That the King had all the Power which the Pope usurped And as to the Act it is plain by the Words of it That the Original Power of Dispensing was lodged in the King Lords and Commons and the Ministerial Execution of it with the Arch Bishop of Canterbury even with respect to the King himself But if the King had pretended to all the Power which the Pope usurped he must have dispensed with himself But this Author offers to Prove That there is a Power in the Crown to dispense with Acts of Parliament even such as concern the Consecration of Bishops because it is said 8 Eliz. That the Queen by her Supreme Authority had dispensed with all causes or Doubts of any Imperfection or Disability in the Persons c. To give a clear Answer to this we must consider these Things 1. That 1 Eliz. 1. The Act of 25 H. 8. for the Order and Form of Electing and Making Arch-Bishops and Bishops was revived as appears by the same Act 8. Eliz. 1. 7. 2. That by another Act 1 Eliz. 2. The Book of Common-Prayer and Administration of Sacraments and other Rites and Ceremonies of the Church of England which were in use in the time of 6 E. and repealed by Queen Mary were re-inforced 1 Eliz. 2. 2. and the Repeal annulled But by the Act 5 and 6 E. 6. c. 1. § 5. the Form and Manner of making Arch-Bishops Bishops Priests and Deacons was added to the Book of Prayer as of like Force and Authority with it 3. That the Act of E. 6. being revived with the express mention of the Alterations and Additions made to it there was ro Necessity apprehended 1 Eliz. to make a distinct Act for that which was in force already by the Name of Additions therein added and appointed by that Statute And this I conceive was the true Reason why a Bill did not pass 1 Eliz. to that purpose For I find by the Journals of the House a Bill was prepared and read the third time in the House of Lords but upon Consideration it was laid a side as superfluous 4. That the Popish Party took Advantage of this and pretended That the Book of Consecration c. was not established by Law being not expresly mentioned and therefore the Bishops made by it were not Legal Bishops And upon this Bonner resolved to stand the Trial against Horn Bishop of Winchester as may be seen in Dyer R. f. 234. So that the Papists then stood upon it That the Crown could not dispense with Laws otherwise Bonner's Plea signified nothing For if there were such an Inherent Right in the Crown to Dispense with Laws in Ecclesiastical Matters then these were Legal Bishops having all the Queen 's Dispensing Power for them 5. The Clause in the Queen's Letters Patents for Dispensing with Imperfections and Disability was put in out of abundant Caution and not for any Necessity that we can find But it was Customary in the Popes Bulls to put in such kind of Clauses and therefore they would omit no Power in that Case which the Pope did pretend to which the Act faith was for avoiding all Ambiguities and Questions 6. But after all lest there should be any Colour for Disputing this Matter left according to the express Letter of the Law therefore it was declared 8 Eliz. 1. 3. That not only the Book of Common-Prayer but the Form of Consecrating Archbishops Bishops c. which was set sorth in Edward the Sixth's Time and added to the Common Prayer shall stand and be in full Force and Effect And all Acts done by it are declared to be Good and Perfect to all Intents and Purposes So that this Act of Parliament doth rather overthrow a Dispensing Power for if there were then such a Supreme and Absolute Power in the Crown as to Ecclesiastical Matters what need such an Act of Parliament to Confirm and Ratifie what our Author supposes done by virtue of it But to return to the 25th of H. 8. In the same Act of Parliament care is taken for the Visiting Exempt Places as Monasteries Colledges and Hospitals by a particular Commission under the Great Seal But that which comes nearest to our Business is That 26 H. 8. c. 1. another Act passed wherein the King's Supremacy is acknowledged and a Power given by Act of Parliament for him to Visit Redress and Amend all Errors Heresies Abuses Contempts and Enormities whatsoever which by any manner of Spiritual Authority or Jurisdiction ought or may lawfully be Reformed in any Usage Custom Foreign Laws Foreign Authority Prescription or any Thing or things to the contrary hereof notwithstanding If the King had this Power by virtue of his Supremacy and Prerogative Royal can we imagin H. 8. so weak a Prince and so little a valuer of his own Prerogative as to have that given him by Act of Parliament which was acknowledged to be in him before But the Words are express And that our Sovereign Lord c. shall have full Power and Authority from Time to Time to Visit c. From whence it follows That in the Judgment of H. 8. and the Parliament such a Power was not personally inherent in him but that it did belong to the Legislative Power and therefore an Act of Parliament was required for it so that the Supremacy as then setled by Law lay in a total rejecting any Foreign Jurisdiction
is not the Kings Law. For taking one Example for many every Leet or view of Frank Pledge holden by a Subject is kept in the Lords Name and yet it is the Kings Court and all the Proceedings therein are directed by the Kings Laws and many Subjects in England have and hold Courts of Record and other Courts and all their Proceedings be according to the Kings Laws and Customs of the Realm But there is a Material Objection or two yet to be answered 1. It is Objected That 2 Jac. the Judges declared in the Star-Chamber That the Deprivation of Non-conformists was lawful because the King had supreme Ecclesiastical Power which he hath delegated to the Commissioners whereby they had Power of Deprivation by the Canon Law of this Realm and the Statute of 1 Eliz. doth not confer any new Power but explain and declare the ancient Power And therefore they held it clear that the King without a Parliament might make Orders and Constitutions for the Government of the Clergy and might deprive them if they obeyed not To which I answer 1. Our Question is not Whether the King without a Parliament may not require the Observation of Canons passed the Convocation so as to deprive the Obstinate by Vertue of his Supreme Power in Ecclesiastical Matters but whether he may appoint a Commission with Power to deprive against an Act of Parliament which hath taken away the Legal Power of any such Commission 2. In matters of this nature it is safer trusting the Supreme Judicature of the Nation in Parliament than the Extrajudicial Opinion of the Judges And in this Case the Parliament hath declared it self another way as appears by the Canons 1640. which were not only condemned in Parliament afterwards which then might be imputed to the heat of the Times but in the most Loyal Parliament after the King's Return particular care was taken that neither the Canons of 1640. should be confirmed nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the Established Laws of the Land as they stood in the Year of the Lord 1639. Which implies that the Sense of the Parliament then was that we are not to own any Canons but such as were confirmed allowed or Enacted by Parliament or by the Established Laws of the Land before 1639. And therefore no new Injunctions without a Parliament or Convocation can make the Clergy liable to a Legal Deprivation No not that which the Defender is so pleased with the thoughts of viz. to give their Assent and Consent to the King's Declaration on pain of Deprivation 3. The Temporalties of the Clergy especially the Bishops are secured by several Acts of Parliament without a Tryal at Law. Which because I see none of our great Lawyers take notice of I shall here set down 14 Edward the Third c. 3. We Will and Grant for us and for our Heirs that from henceforth We nor Our Heirs shall not take nor cause to be taken into Our Hands the Temporalties of Archbishops Bishops c. or other People of Holy Church of what Estate or Condition they be without a true and just Cause according to the Law of the Land and Judgment thereupon given 25 Edward the Third c. 6. The Title of the Statute is A Bishops Temporalties shall not be seized for a Contempt And this was received for good Law 9 E. 4. 28. Br. Ord. 12. Reg. f. 32. But a very late Writer tells the World That the Possessions of Ecclesiastical Persons are but Conditional Freeholds and although Absolute Freeholds require a due Course of Law yet Conditional do not so that if a Man chance to be deprived of his Office his Freehold is gone This is touching Clergymen's Freeholds to purpose and no doubt out of pure Zeal to the Church of England But see the Equity and Impartiality of this Man He had undertaken before to give Publick Assurance of Abby-Lands to the present Possessors And for what Reason Because the Pope granted a Dispensation with a non obstante to the Canon Law And yet in this Book he proves That a non obstante is no ways binding to the Supreme Power so that no Man could more effectually overthrow his own Assurance than he hath done himself For saith he Present Sovereigns whether King or Pope cannot bind their Successors And again Acts of Graces and Favours are alterable and suspendible at the Pleasure of the Succeeding Sovereign Why then should any be so weak as to think the Plenitude of the Pope's Power as to Abby-Lands can be bound up by the Act of any former Pope I confess the comparing these two Books together hath extreamly lessened his Assurance of Abby Lands with me And his Answers to the Power of Revocation are so weak that they come at last to no more than this It is a thing which cannot well be done at present therefore there is no fear it ever should be done Here is some Security at least till it can be done But as to the Possessions of the Ecclesiastical Persons of the Church of England he endeavours to prove That they can have no Security at all of their present Possessions notwithstanding any Promise or a Legal Title For if as he saith The King by his Paramount Jurisdiction can make any Exceptions null and so void a solemn Oath not to accept a Dispensation from that Oath why should he not as well make void any Promise of his own when it hinders as he thinks a greater Good especially if the Prerogative cannot be bound But then as to a Legal Title that is the vainest thing imaginable as to such Conditional Freeholds which Clergymen have for if the Commissioners deprive them by their Power ab Officio Beneficio their Attendent Frehold saith he is gone without any Course of Law. And the Defender saith The Commissioners may deprive if Clergymen should not assent and consent to all contained in the King's Declaration if he required it But it is to be hoped That Princes will not take the Measures of Justice and Wisdom and Honour from such Men We will therefore set aside the Omnipotent Engine of a non obstante which doth not batter so much as it undermines and consider the Legal Security of these Conditional Freeholds I. All Freeholds are in some Sense Conditional or else they could never be forfeited Which shews that there are none Absolute with Respect to the Law. And as to their Original among us it is agreed That by the Ancient Right of Tenures all Fees are Conditional for they suppose Fealty the non-performance whereof is Felony Which is not that which is done felleo animo as Sir Edward Coke trifles but it is the same with Falshood or Treachery The Laws of H. 1. c. 5. Si Dominus de Felonia vel Fide mentitus compellat hominem suum And in another Law the punishment of Felony is Forfeiture of the