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
for Sees of Bishops Suffragans And gives the King Power and Authority to give to one of two Persons to be presented to him by any Archbishop or Bishop the Stile Title and Name of a Bishop of such a See c. provides for the Consecration of such Bishops limits what Authority they shall have in the Diocess c. Hence I infer that the Parliament had its share in the Government of the Church The Letters Patents made pursuant to this Act conclude Vigore Statuti in ejusmodi casu editi provisi Dr. Burnet Coll. of Rec. ad Vol. 1. p. 130. notwithstanding the Restitution of the Supremacy and the King could not as SUPREME HEAD without this Act of Parliament appoint the number of Suffragan Bishops or give limit or bound their Power and Authority In the Twenty eighth Year of this King it was enacted That all Archbishops and Bishops of this Realm or of any the Kings Dominions consecrated and at this present Parliament taken and reputed for Archbishops and Bishops may by the Authority of this present Parliament and not by Vertue of any Provision or other Foreign Authority Licence Faculty or Dispensation keep enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner as if they had been promoted elected confirmed and consecrated according to the due Course of the Laws of this Realm And that every Archbishop and Bishop of this Realm and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Archbishop or Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging Here the Parliament impowers the Archbishops and Bishops that then were to use and exercise their Offices and Orders not by Virtue of any Foreign Authority but by Authority of this present Parliament This the King could not have done without consent of Parliament because he could not dispense with the Statutes of Praemunire and Provisors as has been said already and as appears by a notable Act in the Twenty fifth Year of this King's Reign Burnett's Collect. of Records ad Vol. 1. pag. 121 122 123. concerning the Deprivation of the Bishops of Salisbury and Worcester The Act recites That where by the laudable Laws and Provisions of this Realm it had been established that no Person or Persons of of what Degree Estate or Quality should take or receive within this Realm of England to Farm by any Procuracy Writ Letter of Attorney Administration by Indenture or by any other Mean any Benefice or other Promotion within this Realm of any Person or Persons but only of the King 's true and lawful Subjects being born under the King's Dominions And also that no Person or Persons of what Estate and Degree soever by reason of any such Farm Procuracy Letter of Attorney Administration Indenture or by any other Mean should c. Notwithstanding which said wholsom Laws Statutes and Provisions the King's Highness being a Prince of great Benignity and Liberality having no Knowledge or due Information or Instruction of the same Laws Statutes and Provisions hath heretofore nominated and preferred and promoted Laurence Compegius Bishop of Sarum with all the Spiritual and Temporal Possessions c. belonging to the same And hath also nominated preferred and promoted Hierome being another Stranger to the See of Worcester c. Be it enacted by Authority of this present Parliament That the said two several Sees of Salisbury and Worcester shall be taken reputed and accounted in Law void c. Here we see the King was not allowed to act contrary to Acts of Parliament concerning Ecclesiastical Matters We see Bishops depriv'd by Act of Parliament and by the Act of 28 H. 8. cap. 16. other Bishops and Archbishops who in strictness of Law were no Bishops of those Sees by reason of their foreign Provisions quieted in the injoyment of their Bishopricks and authoriz'd to exercise their Episcopal Function there by Act of Parliament though it is not to be doubted but if the Rolls of those times were searcht Dispensations formerly granted to those Bishops would be found amongst them But they stood them in no stead because contrary to the Laws Statutes and Provisions aforesaid So that here the King and Parliament acknowledging that the King had no knowledge or due Information or Instruction of the said Statutes which is a modest and respectful way of expressing the King's doing an illegal thing what else can we infer than that they disown and he disclaims any personal Prerogative inherent in himself to violate those and consequently other Laws concerning Ecclesiastical Affairs Which shews both that the King's Supremacy was not accounted any such unbounded Power as some fancy and that the Parliament retain'd its share in the Jurisdiction over Ecclesiastical Persons and Things notwithstanding the restitution recognition or call it what you will of the Supremacy I pass by the Act of 31 H. 8. c. 14. whereby certain Opinions then accounted Heresie and Marriage of Priests are brought within the compass of Treason and Felony for that the inflicting of such Punishments for what Crimes or pretended Crimes soever is an Act of Civil not of Spiritual or Ecclesiastical Jurisdiction and come to the Act of 32 H. 8. cap. 26. which laid the top stone of King Henry the Eighths Supremacy and mounted it one story higher than ever it was carried before or since It was thereby enacted that All Decrees and Ordinances which according to God's Word and Christ's Gospel by the Kings Advice and Confirmation by his Letters Patents shall be made and ordained by the Archhishops Bishops and Doctors appointed or to be appointed by his Royal Majesty or else by the whole Clergy of England nota benè in and upon the matter of Christian Religion and Christian Faith and the lawful Rites Ceremonies and Observations of the same shall be in every point thereof believed obeyed and performed to all intents and purposes upon the pains therein comprised Here Matters of Doctrin and Worship are given up to the King's determination and appointment But he was to determine by such Advice as was appointed by the Act. And this Power was personal died with him and was never pretended to by any of his Successors It was given him by Parliament who could not have given it him if they had not had it themselves for there was no Act of Convocation in the case He had it not before for then there would have been no need of the Act. It is greater to give than to receive They give it him with a restriction that affords a good Argument against a pretended power in the King of dispensing with all Acts of Parliament concerning matters of Religion viz. Provided that nothing shall be ordained or defined which shall be repugnant to the Laws and Statutes of the Realm It seems the Parliament at that time was so far from apprehending any power lodged in the King either by vertue
of any inherent Prerogative or by vertue of his Imperial Soveraignty or as incident to his lately recognis'd title of Supreme Head of breaking through all Acts of Parliaments relating to Religion and Ecclesiastical Affairs that now in the 32 Year of his Reign when he had been declared the Supreme Head by Act of Parliament Six Years ago when every Act of Parliament about Church Matters carried an acknowledgment of that Declaration in the front of it when a Legislative Power as to Doctrine and Ceremonies was given him by Act of Parliament yet even then when the Supremacy blaz'd like a Meteor and had so malignant an influence as to strike opposers dead when it was armed with such a Power as never any King of England enjoyed before or since yet then were Acts of Parliaments accounted so Sacred that nothing was to be ordained or defined by this new Legislative Authority contrary to the Laws and Statutes of the Realm And this very Legislative Power owing its birth to a Parliamentary Concession which qualified it with a Restriction which perhaps was not acceptable is sufficient to inform us that a Parliament can give more power and larger Prerogatives to the King even in Ecclesiastical Matters than he has by common right and that 's all the use that can be made of this Act now in our days The next Act is that of Marriages cap. 38. of this Session the Conusance of Marriage had time out of mind belonged to the Spiritual Jurisdiction which was now vested in a great measure in the King's Person the executive part he might administer by Commissioners delegated by vertue of the Stat. of 26 Hen. 8. cap. 1. as hath been said a Legislative Power was given him by 32 Hen. 8. cap. 26. But that Act did not enable him to make any binding Laws about Marriage for the Declarations Decrees Definitions Resolutions and Ordinances which he was impowered to make according to God's Word and Christ's Gospel with his Bishops and Doctors to be appointed were only in Matters of Christian Faith and the lawful Rites and Ceremonies of the same And the setling of the Degrees of Marriage not falling under either of those two Heads viz. Matters of Faith or Ceremonies it was necessary there should be an Act of Parliament to make a Regulation therein The next Act is the 34 and 35 Hen. 8. cap. 1. which prohibits the setling or using of any Books of the Old or New Testament of Tindal's Translation or comprizing any Matter of Christian Religion Articles of Faith or Holy Scripture contrary to the Doctrin set forth since Anno Dom. 1540. or to be set forth by the King prohibits the retaining any English Books or Writings concerning Matters against the Holy and Blessed Sacrament of the Altar or for Maintenance of the Anabaptists or other Books abolished by the King's Proclamation forbids any thing to be taught contrary to the King's Instructions c. under severe Penalties In which there is this farther Clause And be it farther enacted That the King's Majesty our said Soveraign Lord that now is King Henry the Eighth may at any time hereafter at his Highness liberty and pleasure change and alter this present Act and Provisions of the same or any Clause or Article therein contained as to his Highness most excellent Wisdom shall seem convenient any thing in this Act to the contrary in any wise notwithstanding So that a Power in the King of Changing and Altering and consequently of Suspending which in effect is Repealing Acts of Parliament concerning Matters of Religion unless given by a Parliament is not according to the Constitution of our Government nor is it a Perogative inherent in the King of common Right For if he had had such a Power in himself this Clause which no doubt was put in by the King's Order would have been vain and nugatory The Act of 35 Hen. 8. cap. 16. gives the King Authority during his Life to name Thirty two Persons viz. sixteen Spiritual and sixteen Temporal to examine all Canons Constitutions and Ordinances Provincial and Synodal and to establish all such Laws Ecclesiastical as shall be thought by the King and them convenient to be used in all Spiritual Courts This the King could not do by Vertue of the Act of 32 Hen. 8. cap. 26. For that Act gave him a Power concerning Matters of Christian Faith and Ceremonies only Nor could the King and the Clergy settle these Canons and Constitutions without an Act of Parliament for the Laity in all Matters Ecclesiastical in all things of Spiritual Conusance were to be bound by them Nor would the Parliament trust the King and the Spiritualty to settle the Canon Law without an equal number of the Temporalty added to them The next and last Act that I shall observe in this King's Reign is the 37 Hen. 8. cap. 17. ' which Act reciting That the Archbishops Bishops Archdeacons and other Ecclesiastical Persons have no manner of Jurisdiction Ecclesiastical but by under and from the King Enacts That all Persons as well Lay as Marryed Men being Doctors of the Civil Law may lawfully execute and exercise all manner of Jurisdiction and all Censures and Coercions appertaining to or in any wise concerning the same c. any Law Constitution or Ordinance to the contrary notwithstanding What can be more purely Spiritual than exercising Ecclesiastical Censures and yet this King though he had a Personal executive Power given him in all Matters Ecclesiastical by the 26 Hen. 8. cap. 1. a Legislative Power in part by the Statutes of 31 Hen. 8. cap. 8. and 32 Hen. 8. cap. 25. and a Power of Dispensing with the Canon Law by the Statute of 25 Hen. 8. cap. 21. yet thought it convenient at least to have the concurrence of his Parliament in breaking through those Ordinances and Constitutions whereby Lay-men and Marryed-men were disabled to exercise any Jurisdiction Ecclesiastical or be Judge or Register in any Court commonly called Ecclesiastical Court. I cannot well deny but that the King might have dispens'd with those Canons and Constitutions by Vertue of the Statute of the 25 Hen. 8. cap. 21. which impowered him to allow the Archbishop of Canterbury to grant Licences and Dispensations even in Cases not wont to be dispensed in at Rome Nay and these Constitutions whereby Lay and Married Men were disabled as aforesaid are in the Preamble of this Statute said to be utterly abolish'd frustrated and of none effect by a Statute made in the Twenty fifth Year of the Kings most Noble Reign By which seems to be meant the Nineteenth Chapter of the then Session of Parliament And yet because the Archbishops Bishops Archdeacons and other Ecclesiastical Persons practised the contrary which might give occasion to some evil disposed Persons to think and little to regard the Proceedings and Censures Ecclesiastical made by your Highness and your Vicegerent Officials and Commissaries Judges and Visitors being also Lay and Married Men to be of