injuriatoribus defendat Which is that Right of Protection which is allowed by all The Spanish Lawyers hold That there lies an Appeal to the Kings Courts by his Right of Protection in Case of any violent Proceedings in the Ecclesiastical Courts Which Violences are so many as make such Appeals so frequent and necessary that whole Volumes have been written about them And this they say Is not Introductory of a New Law but only declaratory of a Natural Right The French Lawyers allow Appeals from the Ecclesiastical Courts tanquam ab abusu which must be founded on an Original Right in the King to defend the Church both from Injuries and Abuses And as to the Church it self it is fully expressed in the Writ de Excommunicato capiendo in these Words Quia vero Potestas Regia Sacrosanctae Ecclesiae in querelis suis deesse non debet But such a Right of Protection and Assistance is different from that of Jurisdiction unless it be that which is only Coactive which is not the Jurisdiction we now enquire into But it is most considerable that King Edward saith He is God's Vicar and therefore could not look on himself as acting by Commission from the Pope It is true that in the third Charter of Westminster there is a Bull of Nicholas the Second wherein he gives to the King and his Successors the Protection and Defence of that Place and of all the Churches of England and a Power in his stead to make good Laws with the Advice of the Bishops and Abbots But I do not find that King Edward owned that he acted in these Matters by any Commission from the Pope but from God himself And this Law in Hoveden and others overthrows any such pretended Commission And yet the Pope himself doth not give him a Power to delegate his Authority to others but to act in it himself and that only with the Advice of Bishops and Abbots The Point then which was to be proved was not that the King had a Right to protect the Church from Injuries but such an Inherent Right of Ecclesiastical Jurisdiction which he might delegate to others whether Bishops or not and impower them to proceed by Ecclesiastical Censures against Offenders summoned to appear before them And the Question now is not Whether by the Supreme Legislative Power of the Nation such an Authority might not in an extraordinary Case be Committed to particular Persons by Act of Parliament but Whether such an Act of Parliament being granted to be taken away the King by the Ancient Law of the Realm may appoint such Commissioners as he thinks fit Laymen or Bishops to proceed against the King's Subjects by Ecclesiastical Censures And this very stating of the Case as it ought to be shews how impertinent the remainder of his Examples are But to proceed In the Reign of King William the First In the time of William the Conqueror he only mentions a Case out of Fitz-Herbert That he made an Appropriation of Churches with Cure to Ecclesiastical Persons viz. to a Prebend of the Church of York now this saith he was agreed by all could not be done without Ecclesiastical Jurisdiction It is too common a Fault in some great Lawyers that what they find once setled for Law in their Books they imagine was never otherwise Thus Appropriations after Diocesses were setled being looked on as chiefly the Act of the Ordinary who is to take Care of the whole Diocess From hence they infer That in all Times an Appropriation must argue Ecclesiastical Jurisdiction But before the Parochial Rights were established there were many Volantary Appropriations made by particular Persons who thought there was no more Ecclesiastical Jurisdiction in the Appropriation of Churches than in the Endowments of them and in the Right of Patronage only the one is setled on a Spiritual Corporation as perpetual Incumbent and the other on particular Persons in Succession It s true since the Acts for restoring Jurisdiction to the Crown the Power of making Appropriations in the King is said to be from his Supreme Ecclesiastical Authority Grindon's Case in Pl. f. 448. But then we are told It was because the Pope as Supreme Ordinary had such a Power without the Bishops which Reason will not hold as to such Times when the Pope was not owned to be Supreme Ordinary as he was not in the Conqueror's Time the Canon-Law not being then received in England But what a mean Proof is this in such a busie Time as that of William the Frst when so many great Churchmen were deprived of their Bishopricks being English and the Normans put in their Places Was this done by any Commission from William to his Great Lords and others to proceed against them by Ecclesiastical Censures nothing like it Stigand Archbishop of Canterbury if Spot's Story be true was too great a Friend to the English Liberties to be endured by him But he was too great a Dissembler to seem to have any thing to do in it himself and therefore knowing he was of the opposite Party to the prevailing Pope he privatly sends to him To send a Legate for that Purpose wherein the Pope and He had their several Ends and then in Parliament Time the King keeping his Easter at Winchester Stigand was deposed and Agilmarus Bishop of the East Angles and several others without any evident Reason saith Hoveden but only to make way for the Normans This was in Concilio Magno saith he and the rest for Easter was one of the three Seasons for the Parliamentary Meeting in the Year which William kept up in Imitation of the Saxons who at Christmas Easter and Pentecost held their Publick Courts and did wear their Crowns till the Times of H. 2. and then they did dispatch Publick Affairs Thus far he complied with the Saxon Customs but he had a new Work to do The Archbishop he could not rely upon and therefore was put to find out a new way by sending for a Legate from the Pope to serve his turn And thus William for his own Ends having so hard a Game to play here called in the Pope's Assistance who knew well enough how to draw his own Advantage out of it But William would go no further than his Interest carried him for afterwards he declared That he would maintain his own Rights which he enjoyed in Normandy viz. That nothing should be done without him in Convocation no Legate come but as he pleased c. But still he seemed to let them enjoy their Saxon Liberties in Matters of Ecclesiastical Proceedings so far as to have them debated in Parliament Thus the Controversie between the two Archbishops was referred to Parliament the King and the Great Men as well as the Bishops being present The Controversie between Lanfrank Archbishop of Canterbury and Odo Bishop of Baieux was referred saith Eadmerus to a Conventus Principum at Pinnedenen and when the King heard their Resolution cum consensu omnium
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
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
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
although he had the King's Assent to it and he exercised it several Years by his Permission Stephen Gardiner in his Letter to the Protector saith That he obtained his Legatine Power by the King's Assent From whence he observes What Danger they may fall in who break the Law with the King's Consent for in the Cardinal's Case he saith That because his Legatine Power was against the Laws of the Realm the Judges conclude the Offence to be such as incurred the Praemunire And this he Asserts was the Sense of the Lawyers of that Time and for confirmation of it he brought the Case of the Lord Tiptoft who sufferd on Tower-Hill because in execution of the King's Commission he had offended against the Laws of the Realm And of many Judges who had Fines set on their Heads in like Case for acting against the Law of the Realm by the King's Commandment But it is pleaded on the other side That the Commons 1 H. 5. n. 22. put in the saving the King's Prerogative into their Petition concerning the Statute of Provisors that it may stand in full Force And this was an owning the King's Dispensing Power by all the Commons in Parliament when they were in a high Debate with the Crown This seems to have a good shew of Reason to any one that doth not consider the Practice of those Times in Acts of Parliament for the Petitions of the Commons before 2 H. 5. were not taken entire and just as they delivered them but several Clauses were inserted by the Court especially such as seemed to preserve the King's Prerogative which the Commons found so inconvenient That the next Year as Serjeant Glanvil observed and probably on the Occasion of these Savings 1 H. 5. n. 15 and n. 22. the Course was altered and hath so continued Therefore methinks so great Weight should not be laid on these Savings as if they implied the owning the Dispensing Power when the Design of the Law was against it And the King's Answer is Let the Statutes be held and kept I appeal to any Man's Understanding whether the saving the King's Prerogative can be any other than a General Clause put in without respect to the Dispensing Power since the Petition is against the Exercise of it and the Answer That the Statutes should be observed If they were observed what Use of the Dispensing Power for that lay in giving leave not to observe them What strange Sense is this The King promises The Statutes shall be kept saving his Prerogative that they may not be kept for they feared the not keeping them from such a Prerogative and when the King therefore Yields they shall be kept he doth give up any such Prerogative or else he doth not answer their Petition The Truth is when the Kings had got this Power into their Hands though it were with such Limitations at first yet they found Arts from time to time to keep it till at last they were unwilling to part with it as appears by H. 4. but upon the restless Importunity of the Commons it was laid down by him And now in the beginning of H. 5. the Commons took Care to prevent its Rising in a new Reign but he being a Prince not ready to part with any thing which looked like Power was in probability not easie to be brought to confirm the Statute of Provisors without some general Words of saving his Prerogative which the Commons might yield to that they might gain the main Point since those Words could signifie nothing against the very Intention and Design of the Law. IV. The Precedents in Law do contradict this Rule as will appear by those which are produced by the Lord Chief Justice Vaughan in the Case of Thomas and Sorrel 1. The King cannot Dispense with a Common Nusance for The King he saith cannot Pardon continuing Nusances but the Penalty he may The King cannot Dispense with a Nusance to the High Ways by 11 H. 7. he cannot Pardon or Discharge the Nusance or the suit for the same the High-ways being necessary for such as Trawel but Common Nusances are not mala in se which are not Evils at Common Law as some understand them but things so intrinsecally Evil that no Circumstances can make them lawful Malum in se is a Moral Evil in its own Nature and therefore can never be Dispensed with but a Nusance at Common Law is but a Natural Evil and all the Moral Evil of it lies in the Prohibition by Law And yet in these it is granted That the King cannot Dispense And the Year-Book saith That a Licence to make a Nusance in the High Way were void For what Reason Is it a thing forbidden by the Natural or Divine Law Cannot the King for his Will and Pleasure License the Making a Nusance and yet is it possible for Men of Sense to imagin That he can by his Dispensing Power give leave to do such things as in consequence overthrow our Laws and Religion Doth the Law take greater Care of the High-Way than of our Liberties and Religion This would seem strange Doctrine to People of another Country viz. That by the Law of England the King hath no Power over the High-Way to Dispense with a Common Nusance therein but he hath over the Laws made for the most Publick Good and Security of the Nation And truly this cannot but seem strange to as many among our selves as allow themselves the Liberty of thinking Doth the Law only take care of Oxen and High-Ways But it is well observed by the Learned Chief Justice Vaughan That Publick Nusances are not mala in se but mala politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found 2. The King cannot Pardon the Damage done to particular Persons saith the same Chief Justice where the Suit is only the Kings but for the Benefit and Safety of a third Person the King cannot Dispense with the Suit but by Consent and Agreement of the Party concerned And again Penal Laws the Breach whereof are to Men's particular Damage cannot be Dispensed with And the Chief Justice Herbert owns That the King cannot Dispense with Laws which vest the least Right or Property in any of his Subjects Here we see the Prerogative bounded where the Interest of particular Persons is concerned but doth the Law take more Care of them than of the Publick Interest and the concernment of the whole Nation But I find another Distinction in this Case viz. There is Bonum Publicum and Laws made for that may be Dispensed with And there is Bonum singulorum Populi and with Laws that concern that the King cannot Dispense This is admirable Learning if it be brought out of these Terms And the meaning is The King can do nothing to the Prejudice of the People in
their Private Capacities but he can do what he will with the Publick I had thought a Prince had been in the first Place bound to regard the Good of the Publick and to take Care of the salus Populi complicati as it is called i. e. as they are imbodied together and not of the Private Interests of particular Men which can never be preserved when the Publick Safety is not secured 3. It is granted That in Penal Laws by Act of Parliament where the Offenders are punishable at the King's Suit but where the Offence is to the immediate Wrong of Particular Persons and for which the Law gives them special Actions the King cannot Dispense Never was Law more tender of the Interest of Particular Persons than ours But suppose a Penal Law by Act of Parliament relates immediately to the Publick and gives no particular Persons any Special Actions is such a Law therefore Dispensable because only the Publick Good and the Safety of the Nation are concerned which are not it seems to be valued with the Private Interests of Particular Men. They who affirm such things may be very learned in Book Cases but they do not seem to have studied the Jus Publicum as Bracton calls it which concerns Statum Reipub. or the Political Law of this Nation which shews the great Respect which the Good of the Community ought to have above Private Interests But when Persons take up their Notions and Maxims from Laws relating to Meum and Tuum they are very apt to judge of Publick Laws according to those Measures 4. It is granted That the King cannot license a Baker Brewer or Victualler to break the Assize of Bread or Ale nor a Miller to take more Toll than the Law appoints therefore these are mala prohibita nor a Taverner to break the Assize of Wine Nor a Butcher to sell measled Swines-Flesh or Murrain Flesh nor any Man to forestal the Market by a non obstante of the Statute de Pistoribus which prohibits all these under several Penalties Nor can he licence Butchers Fishmongers Poulterers or other Sellers of Victuals nor Hostlers to sell Hay and Oats at what Price they please by a non obstante of the Statute of 23 E. 3. c. 6. and 13 R. 2. c. 8. Still the Law is extreamly tender of us as to Meat and Drink and not only for our selves but for our Horses too so that the King cannot Dispense with the Laws about them And yet can we think so meanly of the Wisdom of our Ancestors that they would take such Care of Bread and Wine and Horse-Meat that the King himself could not inhance the Price of them but that as to their Laws which relate to the Publick they were content to leave them to the Will and Pleasure of their Prince No one that reads the History of our Ancestors and the Contests they had with Kings to obtain their Publick Liberties could ever entertain such a Thought concerning them 5. If Foreign Manufactures or Foreign Corn be prohibited for support of the Natives a Licence to one or more to bring them in if General is void by the Case of Monopolies notwithstanding a non obstante This is certainly Malum prohibitum and yet the King cannot Dispense with it And it is really a very hard Case if the King cannot Dispense with a Monopoly in Trade and may Dispense with a Monopoly in Religion i. e. That notwithstanding all the Laws for setling our Religion at Home he may grant a Licence to Foreigners to introduce another although never so repugnant to our Laws for none who understood our Affairs could imagine That this Dispensing Power was set up for any other End. But what shall we say to the Precedents on the other side I shall pass by others which have been sufficiently answered already and only speak to that which above all others hath been declared to be the Foundation of the Dispensing Power and therefore deserves to be farther cleared and that is The Case of Dispensing with the Statutes about Men's continuing Sheriffs more than a Year which is urged as plain and concluding because it was for a Publick Good and preventing great Mischiefs yet the King's Power of Dispensing in this Case was allowed by all the Judges of England 2 H. 7. and this hath been cited as adjudged in several Books of great Authority Fitz-Herbert Plowden Coke c. and the Practice hath ever since been accordingly This is the whole strength of the Argument And I shall not repeat what others have already said to shew that this was not the Reason of the Judicial Sentence then given but the particular Ground of one of the Judges after they had declared the Patent to be good But however that were it cannot be denied that great Lawyers since that time have taken it to have been the Sense of the Judges then For Coke's Words are express in Calvin's Case It is Enacted by the Parliament of 23. H. 6. That no man should serve the King as Sheriff of any County above one Year and that notwithstanding of any Clause of Non-obstante to the contrary that is to say notwithstanding that the King should expresly dispense with the said Statute howbeit it is agreed in 2 H. 7. That against the express purview of that Act the King may by a special Non-obstante dispense with that Act. Here it is plain that in Coke's Opinion at least the Judges did agree that although King and Parliament had made an Act which made void any Grant with a Non obstante yet that such a Grant made afterwards with a special Non obstante was good I am not much concerned whether it were their Opinion or not because I think there is much greater Reason and stronger Authority on the other side 1. As to Reason If a Non-obstante from the King be good when by Act of Parliament a Non-obstante is declared void what doth an Act of Parliament signifie in such a Case Must we say It is a void Clause But then to what purpose was it put in Did they who made the Act understand it to be a void Clause when they put it in Certainly it was then thought otherwise and if it were so we have the Authority of the Parliament against the Opinion of the Judges If it were not a void Clause then how came it to be so afterwards What Alteration was made in the Law of England in that Interval and by whom How comes a Clause that had force in 23 H. 6. to have none 2 H. 7 Could Radcliff or the rest by their Opinions destroy the Force of an Act of Parliament No But Coke saith No Act can bind the King from any Prerogative which is sole and inseparable from his Person but he may dispense with it by a Non-obstante as a Sovereign Power to command any of his Subjects to serve him for the Publick Weal and this solely and inseparably is annexed to his
Person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesi nor in Hypothesi but that the King by his Royal Power may dispense with it for upon the Commandment of the King and Obedience of the Subject does his Government consist as it is provided by the Statute of 23 H. 6. c. 8. That all Patents made or to be made of any Office of a Sheriff c. for Term of years or for Life in Fee-simple or in Tail are void and of none effect any Clause or Parol of Non-obstante put or to be put into such Patents to be made notwithstanding And further Whosoever shall take upon him or them to accept or occupy such Office of Sheriff by vertue of such Grants or Patents shall stand perpetually disabled to be or bear the Office of Sheriff within any County of England by the same Authority And notwithstanding that by this Act 1. The Patent is made void 2. The King is restrained to grant a Non-obstante 3. The Grantee disabled to take the Office yet the King by his Royal Sovereign Power of commanding may command by his Patent for such Causes as he in his Wisdom doth think meet and profitable for himself and the Commonwealth of which he himself is sole Judge to serve him and the Weal Publick as Sheriff for such a County for years or for Life c. And so was it resolved by all the Justices of England in the Exchequer Chamber ' 2 H. 7. Here the Point is resolved into an inseparable Prerogative in the King which no Act of Parliament can restrain although made with his own Consent Is there no Act of Parliament then which this great Lawyer will allow to restrain the King's Prerogative so as he cannot disperse with it What saith he to the Case of Buying Offices at Court Cannot the King by vertue of his Prerogative order his Houshold as he pleases to dispose of Offices about him as he thinks fit No. The same Lawyer saith That no Non obstante could dispense with the Act against buying of Offices And yet one would think that the King had as great a Prerogative in the Court as over the Kingdom But how comes he to say That the King can dispense notwithstanding the Disability when elsewhere he saith The King cannot dispense in the Case of a Disability by Law For the Reason he gives why the King cannot present a Man to a Living who is convict of Simony is because the Law hath disabled him Very well And yet in this Case although the Law hath disabled him the King may dispense Where are we now The King can dispense with a Disability and he cannot dispense with it This is indeed a very dark learning of Dispensations as C. Justice Vaughan well called it for we cannot yet find the way through it Can the King dispense with a Disability in Law or not If not the Case of Sheriffs is gone If he can then why not in the case of Symony Why not as to sitting in Parliament without taking the Oaths No here is a Disability in Law. What then Cannot the K. dispense with a Disability in one Case as well as the other Bu the same Person saith That in that Case because the Words amount to a Disability the King cannot dispense and here where the Disability is expressed he may But we are lately told there are two sorts of Disabilities one is actually incurred as that upon the Members who sit without taking the Oaths and the other is a Disability annexed to the Breach of a Law as a penalty and that penalty not to be incurred before a Legal Conviction and in this Case the King's Dispensation coming before the Conviction doth prevent it by making that lawful which would not have been so without it But when a Disability is actually-incurred it cannot be taken off but by Act of Parliament I Answer That if the Law which makes the Disability doth allow of a Dispensation antecedent to the Conviction then I grant that the Dispensation before Conviction prevents the Disability As in Digby's Case if the Dispensation had come before Institution the Disability as to holding the former Living had been prevented because the Law doth expresly allow of a Dispensation in the Case But here is no such thing The Act of Parliament supposes no Dispensation but makes an utter Disability as to the holding the Office in Sir Edward Hales his Case but a dispensing Power is set up against the Act of Parliament and such a Dispensation neither before nor after Conviction can prevent a Disability If it could I can by no means see why it might not as well hold as to Members of Parliament at least as to the Oath of Supremacy if they take their Dispensation before Sitting in the House For the Disability doth not take place till they enter the Parliament 5 Eliz. c. 1. And he that entreth the Parliament without taking the said Oath shall be deemed no Knight Citizen Burgess or Baron nor shall have any Voice but shall be as if he had been never Returned or Elected The Intention of the Law for the Test was a disability to hold the Office but it allows time for Persons to qualifie themselves as appears by the Act for the Test. Is not this plain overthrowing the design of the Law for Persons instead of doing what the Law requires to take out a Dispensation for not doing it and so prevent the Disability And what doth a Law signifie when the very design of it is overthrown And what is the Power of making Laws by common Consent in Parliament if without such Consent the whole force of the Law may be taken away by a dispensing Power So that this doth not meerly make Laws to signifie nothing but according to Will and Pleasure but it makes our very Constitution insignificant which requires to every Law the Consent of the People in Parliament As for Instance By the first Constitution of the Roman Government the King had the custody of the Laws but no Laws were to be made but by the Consent of the Roman People in the Curiae thence called Leges Curiatae Would any one have thought this any Privilege if after these Laws were passed the King should claim an inseparable Prerogative of dispensing with them as he sees Cause For it is implied in such a Fundamental Contract as this that Laws when made should not lose their Force without their Consent who made them Else it is not Contractus bonae Fidei I will not dispute whether this were the Original Contract of our Nation or not but this I may say That when our Government came to a Settlement after long struglings this was one of the Fundamental Articles of it That no Laws should pass or Burdens should be laid upon the People but by their own Consent in arliament Bracton saith That a Law among us supposes the Authority of
and governing this Church and Kingdom by our own Laws Which is well expressed in the Preamble to the Act against Appeals viz. That this Realm of England is an Empire governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all Sorts and Degrees of People divided in Terms and by Names of Spiritualty and Temporalty been bounden and ought to bear next to God a Natural and Humble Obedience By virtue of this Act Cromwel was made Vicegerent and Vicar General for both are in the same Commission and the King gave to him omnem omnimodam Jurisdictionem Authoritatem sive Potestatem Ecclesiasticam quae nobis tanquam supremo Capiti hujusmodi competit c. which are the Words of his Commission It 's true That the Power of granting a Commission to exercise this Power is not expressed in the Act of Parliament but it being vested in the King by the Act he might appoint One or more Commissioners to do it in his name but the Case is very different where that very Power of Delegation is taken away by Act of Parliament for that is the present Case To make this clear we must consider the Words of this Act and compare them with 1 Eliz. 1. the 17 Car. 1. 12. and the present Commission The Words 26 H. 8. 1. are the same in effect with those 1 Eliz. 1. But with this observable Difference That whereas the Statute of H. 8. gives the King his Heirs and Successors full Power and Authority from Time to Time to Visit c. That of 1 Eliz. 1. unites the Jurisdiction to the Imperial Crown of this Realm but then it doth not proceed as the other did To give full Power and Authority to her her Heirs and Successors to visit c. but the Words are And that your Highness your Heirs and Successors Kings or Queens of this Realm shall have full Power and Authority by this Act by Letters Patents under the Great Seal of England to Assign Name and Authorise when and as often as your Highness your Heirs and Successors shall think meet to Exercise Use Occupy and Execute under your Highness your Heirs and Successors all manner of Jurisdictions Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction c. so that the Administration of this Extraordinary Jurisdiction is by this Act limited to such who are nominated and appointed by the Letters Patents The Fountain of all Jurisdiction is acknowledged to be in the Imperial Crown of this Realm but the Administration is twofold Ordinary in the Archbishops Bishops and Ecclesiastical Courts and to secure their Dependance on the Crown the Oath of Supremacy is required by this Act to be taken by every Archbishop Bishop and all Ecclesiastical Persons and Officers But besides this it was then thought fit That there should be an Extraordinary Administration of it which is limited by this Act to such as should be nominated and appointed in Letters Patents c. and no other Reason can be given of the Change from what it was in the Time of Henry the Eighth for it is not now placed absolutely as then in the Queen her Heirs and Successors but the Jurisdiction is annexed to the Crown and the Extraordinary Administration to be by Commission under the Broad Seal Now since this Power of nominating Commissioners for Extraordinary Jurisdictions is taken away by Act of Parliament the only Question is Whether notwithstanding the Right of Jurisdiction being still in the Crown a new Commission may not be granted for Extraordinary Jurisdiction There had been no Question in this Case if the Administration of Extraordinary Jurisdiction had not been setled 1 Eliz. 1. to be by Commission and that very Power of granting such a Commission had not been taken away by Act of Parliament But as the Matter now stands the only Pretence left for it is That the same Act which confirms the Repeal hath a Salvo for the King's Supremay in these Words Provided always That this Act shall not extend or be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters or Affairs If these Words be taken strictly with Respect to the same Matter they make the Act inconsistent with it self For then the meaning would be The King's Supremacy shall not extend to the setting up such a Court always provided that his Supremacy notwithstanding this Act may extend to the setting up such another Court. Is it consistent with the Wisdom of a Parliament to make such delusory Acts Therefore we must understand the King's Supremacy in other Matters And there was this Reason for it All the Acts of Parliament touching the Supremacy in Henry the Eighth's Time were repealed by Queen Mary and the Restoring the Supremacy to the Crown was by the same Act which set up the High Commission and therefore when part of that Act was Repealed and that Repeal confirmed it was fitting to add a Clause That there was no intention to abridg or diminish the Supremacy setled by Law especially since by that Act the Ordinary Jurisdiction of the Bishops in their Courts was revived And it is very well known what Clamors had been made As though the Bishops Courts being held in their own Names were inconsistent with the King's Supremacy and although the Judges had declared July the first 1637. That there was no necessity that Processes Ecclesiastical should be in the King's Name and the King August the eighteenth in 13 Car. 1. published a Proclamation to that purpose Yet all this did not satisfie some but the Bishops were still thought by them in their Ordinary Jurisdiction to usurp upon the King's Supremacy and to abridg and diminish it therefore when this Act passed to revive their Jurisdiction it was no more than reasonable to add such a Clause to prevent Misconstruction viz. That this Act nor any thing in it be construed to extend to abridg or diminish the King's Supremacy in Ecclesiastical Matters as the Ordinary Jurisdiction of the Bishops had been thought to do And the Vindicator of the Ecclesiastical Commission could not forbear a Marginal Note to that purpose The Court held by his Majesties Ecclesiastical Commissioners is more legal than the Bishops Courts This is in the Kings Name theirs in their own Name only As though the new setting up a Court forbidden by Law did not make it illegal in whose Name soever it were and as though Courts expresly owned and allowed by Law were illegal meerly because the Forms of their Proceedings do not run in the Kings Name But I desire him to take an Answer from his own Oracle the L. Ch. J. Coke Now albeit the Proceedings and Process in the Ecclesiastical Courts be in the Name of the Bishops c. it followeth not therefore that either the Court is not the Kings or the Law whereby they proceed
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