Which any one may have recourse to in Spelm. Concil Eadmer Hist Mat. Paris and others In the beginning of King Henry the Second's Reign there was another Schism in the Popedom between Alexander and Victor upon which a great Council of Clergy and Laity out of the Kingdoms of England and France met to determine whether of the two should be acknowledged Pope within those Realms The matter was debated in Conspectu Regum Praesulum coram universâ quae convenerat multitudine Cleri Populi And Alexander was received for Pope and the Schismaticks Excommunicated The History is in Nubrig Lib. 2. c. 9. Pursuant to which President when there hapned in King Richard the Second's time to be another Schism in the Papacy and Act. of Parliament was made to declare who should be received Pope in England and a Law made for punishing any of the Clergy that should acknowledge the other Pope Vide Catt Records Ann. 2. Rich. 2. p. 180. What thing can be more purely Ecclesiastical than the determining who it lawfully chosen to be the Vniversal Bishop And yet neither the King nor the King and the Clergy would settle the point without the Laity By what has been said it appears That the Ancient Supremacy of the Kings of England in Ecclesiastical Matters was a very different thing not so much from what it is now by Law as from what it is apprehended to be by many amongst us The Error is fundamental and consists in ascribing Things Acts Powers c. to the King in person which belonged to were done and exercised by him no otherwise than in his Courts Appeals are said to have been to the King at Common Law And so an Abridgment of Law has it so Fox Rolls cap. 8. vid. Chron. Gerv. p. 1387. Speed and others And the Authority quoted is the Assize of Clarendon which in one Chapter directs that Appeals shall be from the Bishop to the Archbishop from the Archbishop to the King. But another Act of Parliament made about 12 years after clears the matter Sir Roger Twisden For in the mean time Becket was Murdered and King Henry the Second being put to hard Pennance for it part of his satisfaction was that he should agree not to hinder Appeals to Rome in Causes Ecclesiastical Mat. Paris p. 126. yet so as the party going was to give Security that he would not endeavour Malum Regis nec Regni But within Four Years after the Nation Assembled in Parliament would not quit their interest But the Assize of Clarendon was again renewed and a more close expression used concerning Appeals and such persons as had prosecuted any Justitiae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infra terminum nominatum stare Juri in Curiâ Domini Regis utlagentur c. This Gervas Dorobern who well understood it tells us was but renewing the Assize of Clarendon Rex Angliae Henricus convocatis Regni Primoribus apud Northamptoniam renovavit Assizam de Clarendon Here we see that such as were aggrieved by a Sentence given by the Archbishop were pursuant to the Statutes of Clarendon not to appeal to Rome but to the King Which the Statute of Northampton made but twelve years after explains to be to the Curia Regis By this and by what has been said before upon this Subject it appears that the ultimate Appeal in Causes Ecclesiastical as well as Temporal was to the Curia Regis or Parliament and that as the same Assemblies made Laws both for the Government of Church and State so the Supreme Judicature Ecclesiastical and Temporal was one and the same After that time Appeals were sometimes prosecuted in the Court of Rome that Statute and the Assize of Clarendon notwithstanding but this was only by connivance At last when the Pope got the better of King John who lay under great Disadvantages as all our Historians tell us and that in his Magna Charta these words were inserted V. Matth. Paris Pag. 258. Liceat unicuique de caetero exire de Regno nostro redire salvò securè per terram aquam salvâ fide nostra c. Then Appeals to Rome multiplyed for every little Cause and the Master-piece of Papal Encroachments was wrought effectually But it cannot be too often inculcated that the Laws of Clarendon which gave the ultimate Appeal to the Curia Regis as aforesaid are so often stiled the Avitae Consuetudines Regni Which shews sufficiently where the Supreme Judicature resided according to our old Constitution It appears by what has been said that King William the Conqueror was acknowledged to be God's Vicar appointed to govern his Church and yet that neither He nor his Successors pretended to make any Ecclesiastical Laws to bind the whole Kingdom but in a General Council of the Kingdom That the King's Supremacy was so far from being Personal that an Archbishop did as it were appeal from himself in Person to himself in Parliament and that the King submitted and owned the Jurisdiction That the same Archbishop understood the Law to be that the Assent of the Laity was necessary to the making of Ecclesiastical Laws by which they were to be bound That the King could not of his own Authority permit a Legate to exercise his Office within the Realm That leave to exercise his Office could not be given him but in Parliament That the King could not part with Investitures if he would without the Assent of the People That Parliaments determined who ought to be received as Pope within the Realm That Appeals were to the Curia Regis by the Avitae Consuetudines Regni And that Bishops were elected in Parliament Whence I conclude that a Personal Supremacy has no warrant from Antiquity The clearing the Antient Supremacy and stating the Matter aright is of great use in this present Age in which as one sort of Men over-stock us with Jure Divino's so the Lawyers accost us often with the Common Law and the King's Perogative at Common Law and that this and the other Act is but declarative of the Common Law and gives the King no new Power And yet as the Divines have little or no ground for their Jure Divine's no more have the Lawyers in these Matters of the Supremacy any thing to warrant their late Hyperbole's but Shadows and Imaginations They found a Power exercised by the Pope which they had good reason to think injurious to the Crown they had heard that from the beginning it was not so And thus far they were right But how it was exercised before the Court of Rome and the Clergy invaded it they had forgot it having been usurpt upon Four hundred years before they were born For it is in vain to look for a true Scheme of the Antient Legal Supremacy at a nearer distance than from the Reigns of King John King Richard the First King Henry the
of the Patronage and Foundation of the King the Ordinaries by vertue of the King's Commissions to them directed shall enquire of the manner and foundation of the said Hospitals and of the Governance and Estate of the same and of all other matters requisite and necessary in that behalf and the Inquisitions thereof shall certifie into the King's Chancery And as to other Hospitals which be of another Foundation and Patronage than of the King the Ordinaries shall enquire of the manner of the Foundation Estate and Governance of the same and of all other Matters and Things necessary in this behalf and upon that make due correction and reformation according to the Laws of Holy Church as to them belongeth This Act apparently makes a distinction betwixt Hospitals that are and that are not of the King's Foundation and Patronage with respect to the Right of Visitation Those of the King's Foundation the Ordinaries were to visit by the King's Commission But those that were not of the King's Foundation the Ordinaries were to visit too but how Not by any Commission from the King but as special Commissioners special Visitors appointed by that Act. The King did not pretend to issue a Commission to Visit an Hospital of a Subject's Foundation The Parliament were strangers to such a conceit The right of Visiting de communi Jure belongs to the Founder he that gave the Laws ought to see them executed If the Parliament had appointed that Hospitals of the Foundation of Subjects should be Visited by the Ordinaries by Commission from the King they had in effect translated the Rights of all Founders that were Subjects to the King which they never intended For the Legal Notion of Visitation in such Cases is no more than this viz. A Man Founds and Endows a College The Rule of Law and of Natural Reason teaches cujus est dare ejus est disponere As a Man may give Lands to a private person upon what condition the Donor pleases provided it be not against Law so a Man may give Lands to a Society of Men upon what terms he pleases The terms exprest in the Foundation are called the private Laws by which the Society is to be ordered and governed And just as when a Man makes a Lease for Life or Years the Lessor may enter of right to see whether waste be done or no so a Founder may come and enquire whether those of his Foundation observe the Rules and Orders prescribed by him or his Ancestors and proceed according to the Statutes and the Powers thereby reserved in case he find any neglect or misdemeanour What right the King has to interpose his Authority in such case any more than in the Government of a private Family I cannot discern But Colleges in Vniversities are pretended to be visitable by the King's Commission by vertue of his Ecclesiastical Authority Here we must distinguish A College of Divines for Example founded by a Subject and Endowed and receiving Laws for their Governance from their Founder are visitable by their Founder and his Heirs or Successors They may be also for any thing here alledged to the contrary visitable by the Bishop of the Diocess or if exempt from Episcopal Jurisdiction by the King's Commission But what Power have these Visitors The Founder enquires whether the Statutes of the Foundation are observed and punishes according to the Statutes but goes no farther The Ordinary or Archbishop or if the place be exempt the King's Visitors enquire Whether they profess the Doctrin and observe the Rites and Ceremonies of the Church of England If the King had any thing to do to intermeddle with the Statutes and Government of such a College in the first Instance by virtue of his Ecclesiastical Supremacy it seems very strange that in the third and fourth Year of Queen Elizabeth's Reign when the Bishop of Winchester Founder of Maudlyn College in Oxford had at a Visitation deprived the President and he appealed to the Queen in Chancery the Judges and Civilians having had a Conference upon the Business agreed that the Appeal lay not as the Law then stood for that this Case was out of the Statutes of 24 and 25 Hen. 8. which direct Appeals to the King in Chancery and this Deprivation was a meer Temporal Thing and inflicted as by a Lay Patron And that if he were wrongfully expelled he might have an Assize or other Suit at Common Law. Concerning the King's Power with respect to the private Statutes of a College of a Subjects Foundation I will acquaint the Reader with one Act of Parliament made 1 Mariae which will yield some very useful Inferences The Act recites Whereas the late Noble Prince of Famous Memory King Henry the Eighth Father unto our most Gracious Sovereign Lady the Queen amongst other his godly Acts and Doings did erect make and establish divers and sundry Churches as well Cathedral as Collegiat and endowed every of the same with divers Mannors Lands Tenements and Possessions for the maintenance of the Deans Prebendaries and Ministers within the same and for other charitable Acts to be done and executed by the same Deans Prebendaries and Ministers and also did incorporate the same Deans Prebendaries and Ministers and made them Bodies politick in perpetual Succession according to the Laws of this Realm of England And where also as the said late King for the better maintenance and preservation of the said Churches in a godly Unity and good Order and Governance granted unto the several Corporations and Bodies Corporate of every of the said Churches that they should be ruled and governed for ever according unto certain Ordinances Rules and Statutes to be specified in certain Indentures then after to be made by his Highness and to be delivered and declared to every of the Bodies Corporate of the said several Churches as by the said several Erections and Foundations of the said Churches more plainly it doth and may appear Since which said Erections and Foundations the said late King did cause to be delivered to every of the said Churches so as is aforesaid erected and incorporated by certain Commissioners by his Highness appointed divers and sundry Statutes and Ordinances made and decreed by the same Commissioners for the Order Rule and Governances of the said several Churches and of the Deans Prebendaries and Ministers of the same which said Statutes and Ordinances were made by the said Commissioners and delivered unto every of the Corporations of the said several Churches in writing but not indented according to the Form of the said Foundations and Erections by reason whereof the said Churches and the several Deans Prebendaries and Ministers of the same have no Statutes or Ordinances of any Force or Authority whereby they should be ruled and governed and therefore remain as yet not fully established in such sort as the godly intent of the said late King Henry the Eighth was to the great imperfection of the Churches and the hindrance of God's Service and
de maximis una erat quae Regnum Angliae liberum ab omni legati ditione constituerat donec ipse vitae praesenti superesset So that this Patria Consuetudo of the Kingdoms being free from the Jurisdiction of any Legate and which had been confirmed by the Pope was not a Priviledge Granted to the King himself nor was he the Object of that Papal pretended Indulgence but the Kingdom whom he declares that himself could not deprive of the Benefit thereof without their own Consent And therefore the King's Assent and the King's Leave so frequently mentioned in the Monks upon this occasion must be understood of his Assent in a Great Council or Parliament Hence it was that when Johannes Cremensis came Legate hither Anno Domini 1125. And was permitted so to do by the King being then in Normandy for what private considerations betwixt the Pope and himself I know not it was look'd upon by the Wise Men of the Nation as a notorious breach of the Antient and known Laws and Liberties of the Kingdom Quam gravi multorum mentes scandalo vulneravit inusitata negotii Novitas Antiqui Regni Anglorum detrita libertas satis indicat Toti enim Regno Anglorum circumjacentibus Regionibus cunctis notissimum est eatenùs à primo Cantuariensi Metropolitano Sanctissimo Augustino usque ad istum Wilhelmum Cantuariensem Archiepiscopum omnes ipsius Augustini Successores Monachos Primates Patriarchas nominatos habitos nec ullius unquam Romani legati ditioni addictos Gervas Dorob Collect. pag. 1663. And when afterwards in King Henry the Third's Time Circa festum Apostolorum Petri Pauli Otto sancti Nicholai in carcere Tulliano Diaconus Cardinalis nesciebatur ad quid per Mandatum Regis venit Legatus in Angliam Nescientibus Regni Magnatibus plures adversus Regem Magnam conceperunt indignationem dicentes Omnia Rex pervertit Jura fidem promissa in omnibus transgreditur Nota bend Nunc se matrimonio sine suorum amicorum hominum naturalium consilio Alienigenae copulavit Nunc Legatum Regni totius immutatorem clam vocavit c. Dictum est autem quod Archiepiscopus Cantuariensis Edmundus Regem talia facientem increpavit praecipuè de Vocatione Legati sciens inde in suae dignitatis praejudicium magnam Regno imminere Jacturam Matth. Par. 440. The Historian blames those that went to meet this Legate and that made him Honourable Presents of Scarlet Cloath c. In quo facto says he nimis à multis meruerunt reprehendi tam pro dono quà m pro dandi modo quia in panno ejus colore videbatur legationis Officium Adventum acceptari Which is a remarkable testimony that the King 's calling in a Legate did not in the judgment of those times give him any Legal Authority here if it were done Nescientibus Regni Magnatibus i. e. to speak in Eadmerus his Words if he were otherwise admitted than per Conniventiam Episcoporum Abbatum Procerum totius Regni conventum The same Historian Matth. Par. speaking afterward pag. 446. of the same Legate Rex says he spreto naturalium hominum suorum consilio magis magis ut caepit deliravit Et se voluntati Romanorum praecipuè Legati quem inconsultiùs advocaverat mancipavit c. And again His aliis deliramentis Rex omnium Nobilium suorum corda cruentavit Consiliarios quoque habuit suspectos infames qui hujus rei fomentum esse dicebantur quos idcircò magis habebant Nobiles Angliae exosos But the Instance which the Doctor himself gives pag. 154. of Henry Beaufort Bishop of Winchester and Great Unkle to King Henry the Sixth is as full against him as any thing that he could have pitch'd upon For that Bishop being Cardinal of St. Eusebius was sent Legate into England Anno 1429. Which was Anno Octavo of King Henry the Sixth And was fain to be beholden to an Act of Parliament for his Pardon for having offended against the Laws made against Provisors by bringing in and Executing Papal Bulls within the Realm For Anno 10. Henr. 6. The King by the Common Assent of all the Estates pardoneth to the said Cardinal all Offences Punishments and Pains incurred by him against the Statutes of Provisors Vid. Cotton 's Abridgement of Records 10. Henr. 6. nu 16. Which would have been needless if either the King 's giving leave to his Entrance or Assent to his Decrees could have justified his Proceedings and added any Legal Authority to them By what has been said I conceive it to be very clear that all Foreign Jurisdiction being utterly against the Law of the Realm and an intolerable Usurpation upon the King's Crown and Regality and upon the Rights and Liberties of his Subjects it was never conceived that the King could by his own Personal Authority without the Consent of his People in Parliament subject them to it no more than he could subject himself and his Crown in Temporal Matters Which that he could not do we have these two Remarkable Authorities When after the Death of Alexander the Third King of Scots the Succession to that Crown was in dispute and Ten several Competitors claim'd it and that Edward the First King of England challenged a Jurisdiction of determining to which of them the Right of Succession appertained the Pope that then was pretended that it belonged to him in Right of his Apostleship to decide the Controversie and Wrote to the King a Letter requiring him to desist any further Proceeding therein In answer to which Letter of the Pope the King wrote a long Letter containing Historical Proofs of his being Supreme Lord of Scotland and that the King of Scots was his Homager and at the same time the Parliament of England then Assembled at Lincoln wrote another Letter to the Pope upon the same Subject In which are these Words VIZ. Ad observationem defensionem Libertatum Consuetudinum Legum Paternarum ex debito praestiti Sacramenti adstringimur quae manutenebimus toto posse totisque viribus cum Dei Auxilio defendemus nec etiam permittimus aut aliquatenùs permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia alià inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare praecipuè cùm praemissa cederent in exhaeredationem juris Coronae Regis Angliae Regiae Dignitatis ac subversionem Status Ejusdem REgni notoriam necnon in praejudicium Libertatum Consuetudinum ac Legum Paternarum Sealed by One hundred and four Earls and Barons and in the Name of all the Commonalty of England V. Co. 2d Inst pag. 196. and Fox his Book of Martyrs Vol. 1. pag. 387 388 389. By which it appears that the King could not legally if he would have given way to the Pope's determining the Controversie about the Succession in Scotland since it belonged to himself in