and goes no higher And since there were no such Commissions of Charitable Vses before that Statute therefore the Statute being introductive of a new Law must be pursued and where the Statute does not provide a Remedy there is none Now the Statute of 24 H. 8. cap. 12. and 25 Hen. 8. cap. 19. So far forth as they concern Appeals are for the most part introductive of New Laws too And the latter of them gives Appeals to the King in Chancery which never lay before And therefore as the Act gives them he ought to take them and no otherwise for the Act is his title and it has negative words But the Lord Coke's Error in ascribing that Power Jurisdiction and Authority to the King in person which was ab origine in King Lords and Commons runs through almost all that he has written upon that Subject And our Lawyers who look upon him as an Oracle for his Learning and Judgment in the Controversial profitable part of the Law in which he was unquestionably a very great Man follow him blind-fold in some mistakes They study Resolutions of Judges in cases of Property and till of late have gone by that lazy rule that the latest authorities are the best So they forget Antiquity and hardly cast their thoughts further backward than Dyer and Plowden Those of them that are more inquisitive go as high as to the Quadragesms and Book of Assizes But the Government is not so much beholden to them as were to be wisht They deserve worse of it than other Men for it being the only honour of their Profession to support it by understanding and asserting it and the natural bent of their Studies carrying them into it their narrow Spirits private Interests Et illud quod dicere nolo prevail with too many of them to betray it by neglecting it The Lord Coke's second Reason for a Commission of Review to examine a definitive Sentence given by the Delegates is because the Pope as Supreme Head by the Canon Law us'd to grant a Commission ad revidendum and such Authority as the Pope had claiming as Supreme Head doth of right belong to the Crown and is annexed thereunto by the Statutes of 26 Hen. 8. cap. 1. and 1 Eliz. cap. 1. And so it was resolved says he in the King's Bench Trin. 39 Eliz. You see the English on't is the King may do so because the Pope did so for the Pope was Supreme Head then or claimed to be so and the King is acknowledged to be so now This pretended Translation of the Pope's Power to the King is another fiction that has contributed exceedingly to raise the Supremacy in some Mens Imaginations But it will appear by running through the several Acts made in King Henry the Eighth's King Edward the Sixth's and Queen Elizabeth's Reigns concerning Religion and Church Government that no Power given to the King or acknowledged to be in him has any respect or relation whatsoever to the Pope's pretended Power heretofore exercised The Pope's Power was abolish'd and abrogated Stat. 28. Hen. 8. cap. 10. The Ancient Jurisdiction of the Crown which by the Common Law and Fundamental Constitution of our Government was inherent in it was restored only some branches of it put into another method of Administration And that by the Supreme Power of the Nation from whose Authority and Jurisdiction nothing within this Kingdom is exempted That such Authority as the Pope had does of right belong to the King he would prove by the Statutes of 26 Hen. 8. cap. 1. 1 Elizabeth cap. 1. The first of which to wit that of 26 Hen. 8. cap. 1. was repealed long before the Case in 39 Eliz. came in question and consequently is there alledged to no purpose As for the Second that of 1 Eliz. cap. 1. how far that goes we shall have occasion to enquire hereafter when we come to it in order of time He gives us a Corollary viz. that upon a Sentence given by the High Commissioners a Commission of Review may be granted by vertue of an express Clause in the Commission and if no such Clause had been says he yet a Commission of Review might have been granted Quia sicut fontes Communicant aquas fluminibus cumulativè non privative sic Rex subditis suis Jurisdictionem communicat in causis Ecclesiasticis vigore Statuti in ejusmodi casibus editi provisi cumulativè non privativè by construction upon that Act. But a Commission of Review upon a Sentence given by the High Commissioners is not now disputed The High Commission was erected long after the 25 Hen. 8. And consequently a Review of their Sentences which it seems some construction upon that Act gave colour for was not provided against by that Statute But by what Law a Review should be granted of a Sentence given by the Delegates which by the Act is to be Definitive I am yet to seek I would fain know whether a Cause determined by Virtue of this Act in the Vpper House of Convocation for there Ecclesiastical Causes in which the King himself is concerned are to be definitively determined may be drawn in question ever after before Commissioners ad revidendum or not And if not why is a Sentence of the Delegates liable to be examined any more than that Do these Men really believe that the Judicial Authority of the Nation is by the Law lodg'd in the King's Person What means then the Act of 16 Car. 1. cap. 10. That neither his Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary Way whatsoever to examine or draw in question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any the Subjects of this Realm but that the same ought to be tryed and determined in the Ordinary Courts of Justice and by the Ordinary Course of Law. If it be said the King appoints the Judges and hath formerly sate in the King's Bench in Person For his appointing the Judges since the time is known when it was otherwise that cannot be urged as a Perogative originally inherent in the King That our Kings have sometimes sate in the King's Bench in Person I yield and will agree to all the Inferences that can be drawn from it do but allow me which cannot be deny'd that Writs of Error lye from the Court of King's Bench and Appeals out of Chancery whoever sits there before the Lords in Parliament who whether the King be present or absent agreeing with or disagreeing from the Sense of the House affirm or reverse the Judgments and Decrees as they see Cause And were it not more honourable to ascribe no Judicial Power at all to the King in Person than to make him Judge of an Inferior Court. But you 'l find that our Kings never sate in the King's Bench or the Starr Chamber Juridically The Courts gave the Judgments
old Master the Cardinal who obtained his Legacy by our late Sovereign Lord's request at Rome and in his sight and knowledge occupied the same with his two Crosses and Masses born before him many years yet because it was against the Laws of the Realm the Judges concluded it the Offence of the Praemunire which conclusion I bare away and take it for the Law of the Realm because the Lawyers so said but my Reason digested it not The Lawyers for confirmation of their Doings brought in a Case of the Lord Tiptoft as I remember a jolly Civilian he was Chancellor to the King who because in the Execution of the King's Commission he had offended the Laws of the Realm he suffered on Tower-Hill they brought in many Examples of many Judges that had Fines set on their Heads in like Cases for doing against the Laws of the Realm by the King's Commandment and then was brought in the Judge's Oath not to stay any Procesâ— or Judgment for any Commandment from the King's Majesty And one Article against my Lord Cardinal was that he had granted Injunctions to stay the Common Law and upon that occasion Magna Charta was spoken of and it was made a great matter the stay of the Common Law and this I learned in that Case sithence that time being of the Council when many Proclamations were devised against the Carriers out of Corn at such time as the Transgressors should be punished the Judges would answer It might not be by the Laws whereupon ensued the Act of Proclamations in the passing of which Act many liberal Words were spoken and a plain Proviso that by Authority of the Act for Proclamations nothing should be made contrary to an Act of Parliament or Common Law. A known and notorious Judgment has been lately given in favour of a Dispensation with an Act of Parliament Sir Edward Hales's Case in a cause of extraordinary great consequence and the Court grounded themselves upon a Case pretended to have been adjudged in the Second year of King Henry the Seventh concerning Sheriffs It had been enacted by several Statutes That no Sheriff Vnder-Sheriff c. should abide in his Office above one whole year as by the 14 Edw. 3. cap. 7. and the 42 Edw. 3. cap. 9. And in King Richard the Second's time it was enacted That no Man who had been Sheriff of any County by one whole year should be another time chosen into the said Office within three years ensuing c. Notwithstanding which Statutes the contrary was often practised by colour of Dispensations with those Laws Which Dispensations of what validity they were in Law in the Judgment of Parliaments may be seen by divers Instances in Cotton's Abridgment of the Records of the Tower V. Cott. Abr. p. 387. Anno 1. H. 4â— One Artic. of Impeachment against King Rich. 2. some of which are very untoward To obviate the mischief of these Non Obstante's the Parliament in the Twenty Third year of King Henry the Sixth enacts That the said Statutes above recited shall be duly observed and inflicts the Penalty of 200 l. upon any Sheriff Under-Sheriff c. that shall hold the said Office longer than a year And farther enacts That every Pardon thereafter to be made for such Offence or Occupation or forseiture of Sums before recited shall be void and not available and that all Patents made or to be made of any of the said Offices for term of Years for term of Life or in Fee Simple or in Fee Tail shall be void and of no value by the same Authority any Clause or Word of Non Obstante in any wise put or to be put in any such Patents notwithstanding And moreover that whosoever shall take upon him to have or occupy the said Office of Sheriff by vertue of such Grants or Patents now to be made for term of Years for term of Life Fee Simple or Fee Tail shall stand for ever and at all times disabled to bear the Office of Sheriff within any County of England That that Statute was ever after looked on as a Law binding to the King and restraining any Non Obstante's in such case for the future will appear by considering some Statutes subsequent to the Law it self both before and after the pretended Judgment in 2 H. 7. The first is that of 28 Hen. 6. cap. 3. Whereby it is ordained and granted that the Sheriffs c. which were for the year last passed shall be quit and discharged against our Soveraign Lord the King and all his Liege People of the Penalties and Forfeitures of 200 l. which they or any of them might fall in or incur by force of the said Statute made in the 23d Year of the said King as for the occupation or exercise of the Office of Sheriff longer than by a Year c. So that such Sheriffs as had exercised their Office longer than a Year contrary to the said Statute of 23 Hen. 6. could not be safe by any Dispensation granted by the King without an Act of Parliament to indemnifie them against him and his People In the Eighth Year of King Edw. 4. cap. 4. the Parliament reciting the Statute of the 14th of King Edward 3. and of the 42 of the said King above-mentioned and that of the 23th of King Hen. 6. concerning Sheriffs and that contrary to the said Ordinances divers Sheriffs c. in the First Second and Third Years of the said King Edward the 4th that then was the Realm then being in great trouble and the Peace not fully established did occupy over a Year the said King by Advice and Assent of the Lords Spiritual and Temporal and at the Request of the Commons ordained and established That no manner of persons being Sheriffs Vnder-Sheriffs c. in the said Three first Years of his Reign or any space within the same for the occupation of the Office of Sheriff c. in the said Three Years or any part or space within the same or of the same or any of the same above a Year altho their Occupation were against the Ordinances above recited be damnified nor in any wise hurt by any Action Pain or Forfeiture in the same Ordinances or any of them comprised c. Yet nevertheless the said Ordinances and every of them to remain in their strength and force against all Sheriffs Vnder-Sheriffs c. for their occupation all other Years than the said Three Years as aforesaid If the King's Pardon could have saved them harmless the Act of 26 H. 6. notwithstanding which provided that all such Pardons should be void then these Offenders had not need to have recourse to an Act of Parliament for their Security These two Laws subsequent to the said Act of 23 H. 6. cap. 8. and prior to the said pretenced Judgment of 2 H. 7. shew it to have been the Sense of the Parliaments and People of those times that all Pardons and Dispensations with the said Statute were
either allowed or condemned The principal Cases in our Modern Books in which the conceits of latter times are display'd are these following Coke's 8th Report the Princes Case The Case of the City of London 11th Report the Case of the Taylors of Ipswich and the Case of Monopolies Dyer 52. a. 54. a. 224. b. 270. a. 303. a b. Plo. Com. Grendon against the Bishop of Lincoln Vaughan's Reports Thomas and Sorell's Case V. Roll's Abridgment Second Part p. 179 180. Lett. Y. Co. 12th Report p. 18 19. Sir John Davie's Reports Le Case de Commenda p. 68 c. Moor's Reports p. 244 245 c. cs 384. But how correspondent the reason of some of these Judgments is to the sense of former Parliaments and consequentially to the Judgment of the whole Nation and the very Constitution of this Government take a hint from a notable Record in the Fiftieth Year of King Edward the Third whereby it appears That Richard Lyons Merchant of London was impeached and accused by the Commons of many Deceits Extortions and other evil Deeds committed by him against our Lord the King and his People as well in the time that he had been belonging to the House and Council of the King as otherwise during the time that he was Farmer of the Subsidies and Customs of the King and more especially for that the said Richard by Covin had between him and some of the Privy Council of our Lord the King for their singular Profit and Advantage had procured and gotten many Patents and Writs of Licence to be made to carry great Faith and Credit whereby Skins Wool and other Merchandizes were transported otherwise than to the Staple of Calice against the Ordinances and Defences made in that behalf concerning the same before time in Parliament He was charged with other particular Crimes to some of which he offered to make a Defence but to others and this amongst the rest he made no answer Wherefore the said Richard was a warded to Prison during the King's pleasure and distrained to Fine and Ransom according to the quantity of his Trespass and that he should lose his Freedom of the City of London and be no more in Office under the King and to incur other Penalties and Forfeitures as may be seen at large in the Record printed by Mr. Selden in a Book entituled The Priviledges of the Baronage of England pag. 34 35 36 c. So that Licences for the shipping of Wool contrary to an Act of Parliament tho mentioned by Rocliffe in the Book of King Henry the Seventh as legal and grantable by the King with a Non Obstante and countenanced sufficiently by latter Judicial Authorities Vide Dyer 52. a 54. a c. Yet appeared otherwise to antient Parliaments and if the Judgment of a Parliament be of greater Authority than that of a Court in Westminster-Hall or indeed than that of all the Judges put together and if Judicial Presidents do not make the Law but ought to declare it only then is the Legal Perogative in dispensing with Acts of Parliament much straiter if any at all than modern Opinions would represent it to us And that Parliamentary Presidents are of the highest Authority in this Nation will appear by considering that in former Times it was very frequent with the Judges in Westminster-Hall if any Case of Difficulty came before them especially if it depended upon the Construction of an Act of Parliament to be so cautious of making any new unwarranted Presidents that they frequently adjourned the Matter ad proximum Parliamentum By the Statute of Westminster the Second made Anno 13. Edwardi primi cap. 23. It 's enacted That Quotiescunque de caetero evenerit in Cancellaria quod in uno Casu reperitur breve in consimili casu cadente sub eodem Jure simili indigente Remedio non reperitur concordent Clerici de Cancellariâ in brevi faciendo vel atterminent querentes in proximum Parliamentum escribantur Casus i◠quibus concordare non possunt referant eos ad proximum Parliamentum My Lord Coke in his Second Institutes pag. 407. tells us That before this Act the Justices did punctually hold themselves to the Writs in the Register because they could not change them without an Act of Parliament And pag. 408. That Matters of great Difficulty were in antient Times usually adjourned into Parliament to be resolved and decided there And that this was the antient Custom and Law of the Kingdom Bracton bears witness Si aliqua nova inconsueta emerserint quae nunquam priùs evenerunt obscurum difficile sit eorum judicium tunc ponantur judicia in respectu usque ad Magnam Curiam ut ibi per Concilium Curiae terminentur And hereof the Lord Coke says There are infinite Presidents in the Rolls of Parliament and quotes in his Margent many Presslents out of the Year Books Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mischiefs have hapned for that in the Chancery King's Bench Common Bench and Exchequer Judgments have been delayed sometimes by Difficulty and sometimes by divers Opinions of the Judges and sometimes for some other Cause It is assented established and accorded That from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and Power of the King to hear by Petition delivered to them the Complaints of all those that will complain them of such Delays and they shall have power to cause to come before them at Westminster or elsewhere the Tenor of Records and Processes of such Judgments so delayed and cause the same Justices to come before them which shall be then present to hear the cause of such Delays Which Cause and Reason so heard by good Advice of themselves the Chancellor Treasurer the Justices of the one Bench and of the other and other of the King's Council as many and such as they shall think convenient shall proceed to take a good Accord and make a good Judgment So that our Parliaments of antient Time looked upon the Judges not as absolute Oracles of the Law but as Men that were both liable to Mistakes and under the Regulation and Direction of Parliaments even in their Ordinary Proceedings The Nation did not so far intrust them as they themselves would persuade us of late In the Three and thirtieth of H. 6. a Question arose in the Exchequer Chamber Whether a Record then and there certified as an Act of Parliament were really an Act of Parliament or no Fortescue who gave the Rule says They would be well advised before they annulled an Act of Parliament and the Matter was adjourned to the next Parliament that they might be certified by them of the certainty of the Matter 33 Hen. 6. Fol. 18. Indeed the Question Whether such or such a Record certified were an Act of Parliament or no may seem too high for
Regum Anglorum Lib. 2. cap. 5. This Council Matthew Westminster pag. 181. Anno Dom. 9051 calls Concilium Grande Episcoporum Abbatum fidelium populorum in Provinciâ Geviseorum In the same Council the bounds of their Diocesses were Limitted which the same Historian describes He tells us likewise that in the same Council two other Bishops were chosen One to the Bishoprick of Dorchester and another to that of Chichester In King Henry the Eighth's time six New Bishopricks were erected by the King's Letters Patents viz. Glocester Bristol Chester Peterborough Oxford and Westminster But those Letters Patents had the Authority of an Act of Parliament to warrant them made in the One and thirtieth year of that King's Reign cap. 9. Be it Enacted by the Authority of this present Parliament that his Highness shall have full power and Authority from time to time to declare and nominate by his Letters Patents c. such number of Bishops such number of Cities Sees for Bishops Cathedral Churches and Diocesses by metes and bounds c. as to his most Excellent Wisdom shall be thought necessary and convenient And also shall have power and Authority to make and devise Translations Ordinances Rules and Statutes concerning them All and every of them c. And that all and singular such Translations Nominations of Bishops Cities Sees and limitation of Diocesses for Bishops Erections Establishments Foundations Ordinances Statutes Rules c. shall be of as good strength force value and effect to all Intents and purposes as if such things c. had been done made and had by Authority of Parliament This is most apparently an Enabling Act Power is here given to the King by Authority of Parliament and it is Enacted that the Contents of his Letters Patents to be made for perfection of the Premises shall be as valid as if they had been Enacted in Parliament So that in that King's Judgment force and validity was by this Act given to his Letters Patents which otherwise they would have been destitute of and have been invalid for the End to which they were designed This was but a Temporary Act and dyed with that King for no such Power is given by the Act to his Successors And therefore in King Edward the sixth's time a Bill was brought into the House of Commons and read the first time To authorize that King to make New Bishopricks by Letters Patents As I find in a Manuscript Journal of King Edward the Sixth's Parliaments Anno Regni 7. What became of it afterwards I know not It was brought in towards the End of the Session and did not pass into a Law. But the bringing of it in shews that the King was not conceived to have any such Authority of Common Right Nor did that King exercise any such Authority For the Bishoprick of Durham was in his Reign divided into two by Act of Parliament And when it was restored to its former Estate in Queen Mary's time it was done by Act of Parliament Vid. Dr. Burnet's History of the Reform vol. 2. p. 215. Rastal's Statutes 1 Mariae Parl. 2. That Act of King Henry the Eighth by which he was impowered to Erect New Bishopricks was Repealed 1 2 Phil. Mar. And to the End that by the Repeal of the Act those Bishopricks that had been Erected by vertue of it might not be consequentially dissolved A Clause was inserted into the Act of Repeal That all Bishopricks Cathedral Churches Hospitals Colledges Schools and such other Foundations then continuing made by Authority of Parliament or otherwise according to the Order of the Laws of the Realm since the schism should be confirmed and continued for ever So that then the Bishopricks that had been newly Erected by King Henry the Eighth stood upon this Foundation viz. A Confirmation by Parliament notwithstanding the Repeal of 31 Henr. 8. cap. 9. But now that the Statute of 1 2 Phil. et Mar. cap. 8. is Repeal'd by Primo Eliz. and this clause of Confirmation not excepted out of the Repeal I know not upon what bottom they stand at this day So far were our Kings from assuming a Power to Erect and divide Bishopricks at their pleasure as a late Author in a Book intituled A Vindication of the King 's Sovereign Rights c. pag. 12. takes upon him to affirm That they never so much as divided Parishes nor could make Vnions and Consolidations of Parochial Churches without Authority of Parliament Witness the Statutes of 33 Henr. 8. cap. 32.32 Hen. 8. cap. 44.37 Hen. 8. cap. 21.17 Car. 2. cap. 3.22 Car. 2. cap. 11.22 23 Car. 2. cap. 15. c. Sir Roger mentions likewise the Bishoprick of Carlisle which was Erected by King Henry the First Anno Dom. 1133. The Prior of Hagulstad speaks of this in General terms Coll. pag. 257. Consecratus est Adulphus Prior de Nostlia ad Vrbem Karleol quam Rex Henricus initiavit ad sedem Episcopalem Math. Westm in like manner pag. 241. Rex Henricus Novum fecit Episcopatum apud Carleolum in Limbo Angliae et Galwalliae et posuit ibi primum Episcopum nomine Ethelulphum sancti Oswaldi Priorem Abbas Jorvallensis tells us the story in like terms Collect. pag. 1019. Eodem Anno Rex fecit Novum Episcopatum apud Karliolum quem Arnulfo Priori de sancto Bertulpho Contulit But it appears by Radulph de Diceto Coll. pag. 505. that in this very year a Parliament was held and a very solemn one Rex Henricus Convocatis Regni sui Principibus filiam suam haeredes filiae suae sibi successorres instituit In which Parliament it is not unlikely that this Bishoprick of Carlisle was erected notwithstanding these loose Expressions of the Monks For the same Authors express themselves in the same terms concerning the Bishoprick of Ely Which yet was erected by Act of Parliament Radulphus de Diceto Collect. pag. 501. Rex Henricus Abbathiam Elyensem ad Episcopalem mutavit sedem Herveum ibi praesecit Math. Westminst pag. 238. Rex Henricus Abbbathiam Elyensem in Episcopalem sedem commutavit Abbas Jorvallensis pag. 1003. Collect. Abbathiam de Ely ad sedem Episcopalem convertit primum Episcopum Herveum Bangorensem constituit So that no Argument can be drawn from these Historians mentioning the King's Founding the Bishoprick of Carlisle without naming the Parliament as a party to it to prove that therefore it was not Erected by Authority of Parliament For if the Charter of the Foundation of the Bishoprick of Ely had been lost the same Argument would have lain against it And all the Bishopricks in England of whose first Foundations there is any particular Account given by our Historians appear to have been Founded by Our Kings in Parliament or by vertue of an Authority given by Act of Parliament I suppose it will not be deny'd but whenever any Bishoprick in Particular was Founded at the same time it was endow'd Now Our Ancient Kings could not
cum aliis Proceribus Normanniae simul adesse praecepit ut Rex jussit factum est Igitur 8. Anno Papatus Domini Gregorii Papae 7. Celebre Concilium apud Jullam bonam Celebratum est Et de Statu Ecclesiae Dei totiusque Regni Providente Rege cum Baronum suorum consilio utiliter tractatum est Then he inserts the Laws made there all concerning Ecclesiastical Matters In the next Reign that of King William Rufus there was a Schism in the Popedom between Clement and Vrban Anselme whilst he was Abbot of Bec in Normandy had Sworn Obedience to Vrban and being Elected Archbishop of Canterbury desired leave to go out of the Realm to fetch his Pall from him This the King opposed for that Vrban had not been received for Pope in England and told the Archbishop he could not keep his Fealty to him his Prince saving the Obedience which he owed to Vrban Anselme upon this referred himself to the Judgment of the Archbishops Bishops Proceres c. in Parliament who accordingly were Convened at Rochingham Ex Regia Sanctione and the matter discussed before them If the Archbishop had had any Notion of a Personal Supremacy in the King separate from and independant of the Great Council of the Realm it had been absurd in him not to acquiesce in the King's Judgment but Appeal to a Parliament If the King himself had been possessed with an opinion of any Legislative or Supreme Judicial Power in Ecclesiastical Matters lodged in his Person he would never have consented to call a Parliament to determine a cause which himself as far as in him lay had determined already The History may be read at large in Eadmer Hist Nov. Lib. 2 page 24 25 26 c. In King Henry the First 's time Anno Dom. 1102. A Council was held at London in which at Anselm's request to the King the Laity were present Quatenus quicquid ejusdem Concilii authoritate decerneretur utriusque Ordinis curâ sollicitudine ratum servaretur Sic enim necesse erat Quum multis retro annis Synodali culturâ cessante vitiorum vepribus succrescentibus Christianae Religionis fervor in Angliâ nimis tepuerat This is a clear Testimony that the Assent of the Laity was necessary to the Enacting such Ecclesiastical Laws as they were to be bound by And that neither the King by his Prerogative nor the King and the Clergy could impose any Constitutions upon them without their Assent Eadmer Histor Nov. Lib. 3. Will. Malmesb. De Gest Pontif. Anglor Lib. 1. p. 129. But tho' the King could not make Laws Himself could he not permit a Legate to exercise his Legatine Power here King Henry the Eight indeed permitted Wolsey to exercise his Office here and afterward brought the whole Clergy under a Premunire for submitting to him and owning his Authority But the Statutes of Praemunire were then in being Could not our ancient Kings that Reigned before any Act of Parliament now upon Record was extant they that must needs have had all the inherent Prerogatives that are involved in the Notion of Imperial Soveraignty Doctor Hicks they that understood their power somewhat better perhaps than it is now understood because they lived nearer to the creation of it and exercised it before it was sophisticated could not they I say by vertue of their Ecclesiastical Supremacy permit the Popes Legate to domineer a while within the Realm Why King Henry the First was very well satisfied that himself had no such power For when Petrus Monachus Cluniacensis was sent hither by Calixtus the Pope to exercise his Office of Legate within this Realm the King would not suffer him so much as to Lodg upon the Road in any Religious House And when he came into his presence and had told him his Errand Rex obtensâ expeditione So Anno Dom. 1225. Magister Otto Domini Papae nuncius in Angliam veniens promagnis Ecclesiae Rom. negotiis Regi literas praesentavit sed Rex cognito literarum tenore Respondit quod solus non potuit definire nec debuit negotium quod omnes Clericos laicos totius Regni tangebat Matth. Paris p. 325. in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Hist Nov. p. 138. And so the Legate went back as he came He tells it him as a known truth Constaret that the giving him leave to exercise his Office here was too great a work for him to go about as his affairs then stood for that it could not be done but in and by the Parliament If the Parliament had not a share in the Ecclesiastical Jurisdiction how came their Assent to be necessary If they had when did they lose it If the King's Supremacy was personal why might not he if he would have licensed him himself If it was not personal then but is so now then do not assert over and over that the late Acts of Restitution are all declarative and give no new power If the Pope's power de facto exercised be translated to the King shew the conveyance This same King in a Letter to Pope Paschall about Investitures tells him that if himself should be so mean in tantâ me dejectione ponerem as to part with them yet Optimates mei imò totius Angliae Populus id nullo modo pateretur Decem Scriptores 999. The Investitures were performed by the King in person but subsequent to an Election by the Parliament and yet the Parliament were so concerned in them that they were not nor could be parted with but by an Act of Parliament Which accordingly ensued notwithstanding the King's resoluteness at first for when Anselme came from Rome the King was perswaded to with-draw his claim and it was granted in a Parliament held at London Astantibus Archiepiscopis caeteraque multitudine maxima Procerum Magnatum ut ab eo tempore in anteâ nullus electus per dationem Baculi pastoralis vel Annuli de Episoopatu vel Abbathia investiretur per Regem vel aliam quamcunque personam secularem Ibid. Et Sim. Mon. Dun. 228 229 230. But tho' Investitures were lost Elections remained as they were at least of right till King John's time Concessit Rex Johannes liberas in omnibus Ecclesiae Anglicanae electiones Matth. Par. p. 262 263. The Charter it self which was certainly an Act of Parliament See Presidents of many Bishops and Abbots Elected in Parliament in the Reigns of King Stephen and King Henry the Second In Spelm. Conc. Second Part. p. 42 119. Innumerable are the instances of Canons and Constitutions made in the Reigns of the first Norman Kings in their Great and General Councils concerning Churchmen and Church Matters
nullities in Law. Whether they received any further light as to the King's Prerogative in Dispensing with it notwithstanding all the caution that the Wisdom of a Nation could use in such a case from the pretended Opinion of the Judges in that Case we may guess at by observing the Act of 6 H. 8. cap. 18. Which Act reciting the Act of 13 Ed. 3. and of the 23 of King H. 6. and the Forfeitures and Penalties thereby imposed and that every Pardon for such Offence should be void and all Patents with Non Obstante's of the said Statute void in like manner does yet Enact Establish and Ordain that the Vnder-Sheriffs and other Officers of Sheriffs in the Shire of the Town of Bristol may continue to occupy their Offices in like manner as the Vnder-Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Act to the contrary notwithstanding By this Act it appears that in the Judgment of that Parliament a Patent to exercise the Office of Sheriff longer than a Year with a Non Obstante of the Statute of 23 Hen. 6. cap. 8. was a Patent void in Law For they recite the Act not only as an Act in force but that particular clause in it whereby Non Obstante's to it are declared to be void as a reason why the Under-Sheriffs of Bristol could not be safe in acting contrary thereunto without Assent of Parliament which was therefore had for their Security and would have been needless if a Patent with a Dispensation had then been accounted legal These Acts of Parliament might be thought sufficient to invalidate the Authority of that Judgment if any such had been given but the truth of it is there never was any such Judgment given as that the King might by his Perogative dispense with the said Statute of 23 Hen. 6. by which it is expresly enacted That no Non Obstantes in such case shall be available The Question indeed was upon the validity of a Grant made by King Edward the Fourth of the Shrivalty of Northumberland to the Earl of that County for his Life And the Judges held the Patent to be good But they did not ground their Judgment upon the Non-Obstante therein for there is not a word spoken of the Non-Obstante but by Rocliffe who was then second Baron of the Exchequer after the Court had agreed the Patent to be good By reason of a Proviso in an Act of Resumption But I shall forbear meddling any more with that Case for that a very good Account of it will be shortly given by another Hand as also of the five Points pretended to have been agreed by the Judges in Sir Edward Hales's Case and a sufficient Answer to that slight Pamphlet entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales's Case Written by Sir Edward Herbert in Vindication of himself Indeed Non Obstante's as they were first invented and introduced by Popes between the years of our Lord 1200 and 1250 V. Matth. Paris p. 810 811. Ibid. p. 817 818. p. 854. p. 875. and afterwards inserted into the King's Patents and Protections in imitation of them by King Henry the Third so they were never made use of by any of our Kings to elude Acts of Parliament till after the Statute of Mortmain which was made in the 7th of Edw. 1. Which first attempt as it must needs be illegal First because contrary to Magna Charta cap. 36. which is the first Law that prohibits Alienations in Mortmain and was not only sworn to when enacted and confirmed but is also by many after Acts of Parliament ordered to be observed in all Points as by 2 Edw. 3. cap. 1. 4 Edw. 3. cap 1.14 Edw. 3. cap. 1. and innumerable others Secondly Because when the Clergy petitioned King Edward the First for a relaxation of it His Answer was Hen. Knighton p. 2502. in Dec. Script that he could not do it because it was enacted de Consilio Magnatum suorum sine eorum Consilio non erat revocandum And Thirdly Because the sole Act of the King could not with any colour of Reason prejudice the Rights and Interest of the Mesne Lords yet such was the misguided Piety and Devotion of those Times that such Non Obstante's were obtained as appears by the Patent and Charter Rolls in the Tower from 8 Edw. 1. downwards abounding with special Licences to purchase and hold Lands c. Statuto de terris tenementis in manum mortuam non ponendis non Obstante And yet were not these Licences accounted legal or the Clergy safe in purchasing Lands Rents Advowsons c. by virtue of them till it was enacted in Parliament Anno 18 Edw. 3. cap. 3. That if Prelates Clerks beneficed or Religious People which have purchased Lands and the same have put to Mortmain be impeached upon the same before our Justices and they shew our Charter of Licence and Process thereupon by an Inquest of Ad quod damnum or of our Grace or by Fine they shall be freely let in Peace without being further impeached for the same purchase And in case they cannot sufficiently shew that they have entred by due Process after Licence to them granted in general or in special that they shall well be received to make a convenient Fine for the same and that the Enquiry of this Article shall wholly cease according to the accord comprized in this Parliament But Non Obstante's with the Statute of Mortmain having been introduced as aforesaid tho undeniably illegal at first and gaining afterwards a countenance from this Act of Parliament have given occasion to the dispensing with other Acts of Parliament Tho at first they were very rare and seldom occur in the Old Books and tho they are more frequent in the New and that Judges and Courts of Justice have invented little Distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of a more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subject has an interest and is intituled to an Action as pars gravata yet the Cases that have hitherto come before them judicially have been Questions upon Dispensations granted to particular Persons to exempt them prohîc nunc from incurring the Penalty of such or such a Law. A Dispensation suspending the Effect of a Law at once has been so far from receiving any countenance from Courts of Justice hitherto Thomas and Sorell's es of Wine-Liceneer that it has always been a fatal Objection against any particular Dispensation if it was such as consequentially quite eluded and frustrated the whole Law For that such a Dispensation is in effect a Repeal of the Law. It would be endless to launch out into a Discourse upon such particular Dispensations as have been granted and
For he can appoint no Commissioners to determine Matters of civil Right but where special Acts empower him and no Act had yet impowered him to do so in Ecclesiastical Matters nor did his Predecessors or himself practise it till afterwards For his divers sundry old Histories and Chronicles afforded him no president of any such thing and therefore it could not be either in the nature of the thing or in the sense and meaning of the King and his Parliament any essential part of his Legal Supreme Headship to have a Personal Supremacy either independant of the Estates of the Realm or which might be administred otherwise than in the Course setled by Law i. e. by proper Officers appointed thereunto either by express Act of Parliament or the Original Constitution of the Government or both The Body of the Act prohibits Appeals to the See of Rome and enacts That in such Cases where heretofore any of the King's Subjects and Resiants have used to pursue c. any Appeal to the See of Rome and in all other cases of Appeals in and for the Causes aforesaid they may and shall from henceforth take have and use their Appeals within this Realm and not elsewhere in manner and form as hereafter ensueth and not otherwise that is to say First From the Arch-deacon or his Official if the Matter or Cause be there begun to the Bishop Diocesan of the said See if in any case the Parties be aggrieved And in like wise if it be commenced before the Bishop Diocesan or his Commissary from the Bishop Diocesan or his Commissary within fifteen days next ensuing the Judgment or Sentence thereof there given to the Archbishop of the Province of Canterbury if it be within his Province and if it be within the Province of York then to the Archbishop of York and so likewise to all other Archbishops within the King's Dominions c. there to be Definitively and Finally ordered decreed and adjudged according to Justice without any other appellation or provocation to any Person or Persons Court or Courts By the next Clause Matters or Contentions to be commenced before the Archdeacon of any Bishop or his Commissary are appointed in case either Party be aggrieved to be brought by Appeal to the Court of Arches or Audience of the same Archbishop of the Province there to be Definitively and Finally determined The next Clause appoints that Causes to be commenced before any of the Archbishops shall before the same Archbishop be definitively determined saving always the Prerogative of the Archbishop and Church of Canterbury in all the aforesaid Causes of Appeals in such and like wise as they have been accustomed and used heretofore Then it is Enacted that Causes touching the King his Heirs and Successors shall be finally decreed by the Prelates Abbots and Priors of the Vpper House of Convocation Hitherto no Appeal lay to the King in Person or in Chancery You have heard already that originally the ultimate Appeal in Ecclesiastical and Temporal Matters was to one and the same Tribunal Afterwards the See of Rome gained Appeals by Usurpation and Connivance Now they are lodged in the Diocesan the Archbishop and Vpper House of Convocation and their Sentences respectively are appointed to be final and definitive And therefore neither the Clergy in their Submission wherein they Recogniz'd the King to be the Supreme Head of the English Church V. Burnet's Collect. ad Vol. 1. p. 128 129. nor this Parliament who had been inform'd by Old Authentick Histories and Chronicles that the Spiritualty and Laity of this Realm are governed by One Supreme Head and King did so much as imagine that by vertue of that Office or Title the Supreme Cognisance of Appeals belonged to him personally If Appeals to the King in Person or in Chancery or Commissions of Review had then been dreamt of there needed not another Act in the Year ensuing to take off the odium of these definitive Sentences from the Archbishops It is the Stat. of 25. H. 8. cap. 19. Wherein it is Enacted That for lack of Justice at or in any of the Courts of the Archbishops of this Realm or in any of the King's Dominions it shall be lawful to the parties grieved to Appeal to the King's Majesty in the King's Court of Chancery And that upon every such Appeal a Commission shall be directed under the Great Seal to such persons as shall be named by the King's Highness his Heirs or Successors like as in case of Appeals from the Admiral 's Court to hear and Definitively to determine such Appeals By a subsequent Clause Appeals from the Jurisdiction of any Abbots Priors or other Heads and Governours of Monasteries c. and places exempt c. shall be made immediately to his Majesty into the Court of Chancery which Appeals so made shall be Definitively determined by Authority of the King's Commission It looks like a blemish to the Notion of Supreme Head in the modern acceptation of the Word to have the final Judgment in Causes Ecclesiastical referr'd by the Parliament to the Bishops Archbishops or to Commissioners appointed by vertue of an Act of Parliament c. and yet the Parliament in 25 Hen. 5. cap. 21. takes Notice of and allows the Clergy's Recognition nor was it till many Years after to wit the 39 of Eliz. that the Lawyers found out a way to make these Acts consistent with their imaginary personal Supreme Headship and that was by introducing Commissions of Review Which they tell us the King after such a definitive sentence may grant as Supreme Head Ad revidendum 4 Instit p. 341. Where two reasons are given for it First For that it is not restrained by the Act which seems to be a mistake For it is restrain'd by the Act as much as it was capable of being restrain'd and that by these words viz. that such Judgment and Sentence as the said Commissioners shall make and decree in and upon such Appeals shall be good and effectual and also definitive How could Commissions of Review be restrain'd more expresly than by these words They are not nam'd indeed and good reason why viz. because there never had been any such things in our Law before For he that will apply to this Case that common Rule of Law viz. that where the King is not named in a Statute he is not intended to be bound by it must prove that Appeals lay to the King in Person or in Chancery before these Acts were made And then perhaps I may yield that such Commissions of Review are not hereby restrained How comes it to pass V. Cr. Car. 40 Jones Rep. p. 147. Duke's Law of Char. Uses p. 62. Windsor and Hilton's Case that the Chancellor's Decree upon Complaint of a person aggrieved by a Decree of the Commissioners of Charitable Vses is final upon which no Bill of Review is to be allow'd Why because the Statute of 43 Eliz. cap. 4. gives an Appeal to him
Pastoral Office committed to the Pastors of the Church by Christ and his Apostles and that the Supremacy then pretended to was no such extravagant Power as some imagine Sixthly That the Supremacy ascribed to the King by this Act had no reference to any such absolute Power as the Pope pretended to appears by the whole course of the King's Reign forasmuch as the Exercise of this Supremacy in every Branch of it was directed by particular and positive Laws made much about the same time nor perhaps were any Acts of Supremacy exerted during this King's Reign that some Act of Parliament or other did not warrant as will appear in our Progress The truth of it is that no more can be made of it than an utter Exclusion of the Pope's pretended Authority and an acknowledgment that the King is not an absolute Dominus fac-totum in Spiritualibus but the Fountain of Justice to be administred according to Law in Cases commonly called Ecclesiastical as well as Temporal without any dependance upon a Foreign Potentate Hence it is that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs the Crown of England is so often mentioned to be an Imperial Crown and the Realm of England an Empire Sir Edward Haleâ—'s Case Tho that Word has been made use of of late to countenance a very strange and unheard of Judgment But the Gentleman that made use of the Word either understood it not or wilfully misapplyed it The Crown of England is said to be an Imperial Crown because it is subject to no Foreign Jurisdiction The Kings of England are not Homagers nor ever were for their Kingdom to any other as many Kings have been A Regal Crown does not ex vi termini exclude a Subordination an Imperial Crown does The Emperor of Germany whose Crown must needs be Imperial has less Power in the Empire than most Princes in their own Dominions But it must be confess'd that the Word Supreme Head tho legally understood it be no such Bug-bear yet was a Term borrowed from Antichrist a Word that gave offence especially to those that knew little of its Signification but what they had learnt from a Jurisdiction pretended to be exercis'd by the Pope as such and claiming to be so as Vicar General to Christ Papists thought the Right of St. Peters Successor injuriously invaded and Protestants though universally submitting to the Legal Power of the Crown yet many of them boggl'd at the Title as making too bold with our Saviours Prerogative of being the only HEAD of the Church And so great Powers were given to King Henry the Eighth by Acts of Parliament of which by and by in Ecclesiastical and Spiritual Matters which though given by particular Laws and those Laws occasion'd by the then Circumstances of Affairs yet by some unadvised Persons are confounded with his Legal and Original Supremacy at the Common Law or at least are lookt upon as incident to the Title Style and Dignity of Supreme Head that no wonder the Title has found little countenance from Protestant Writers The other part of this short Act of 26 Hen. 8. cap. 1. is very observable and discovers a Secret that few observe but rightly considered lays open a very fine Scene and gives an undeniable Answer to the only material Argument that can be produced in favor of the late Ecclesiastical Commission The Argument lies thus King Henry the Eighth issued a Commission to Cromwell whereby he constituted him his Vicegerent in Ecclesiastical Matters and delegated to him the Exercise of all his Ecclesiastical Jurisdiction long before the 1 Eliz. which impowered Queen Elizabeth and her Successors from time to time to issue such Commissions And this Commission to Cromwell cannot be deny'd to have been a Legal Commission because it is recited in an Act of Parliament 31 Hen. 8. cap. 10. admitted to be according to Law and a place appointed him in respect of that Office above the Archbishop of Canterbury in the House of Lords And there having been no Act of Parliament in King Henry the Eighths time whereby he was expresly impowered to issue such a Commission the Commission was warranted by the Common Law. This being the Argumentum palmarium tho foolishly omitted by those that have undertaken to write in Vindication of the Proceedings of the late Commissioners receives a full and satisfactory Answer from this very Act of Parliament this being the Act which was the Ground and Foundation of that Commission and as far as I know of the Commission did really warrant it The Words are these viz. And that our Sovereign Lord the King his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner Spiritual Authority or Jurisdiction ought or may be lawfully reformed repressed ordered redressed corrected restrained or amended most to the Pleasure of Almighty God the increase of Vertue in Christs Religion and for the conservation of the Peace Vnity and Tranquillity of this Realm any Vsage Custom foreign Laws foreign Authority Prescription or any thing or things to the contrary hereof notwithstanding By these Words a Personal Authority not of Legislation but of visiting redressing correcting c. is given to whom To the King his Heirs and Successors This Power was given by the Parliament nor was enjoyed or exercised by the King or any of his Predecessors before and being vested in the King his Heirs and Successors may consequentially be delegated to Commissioners After this Act was pass'd out comes Cromwell's Commission of Vicegerency and not till then tho the Clergy had recogniz'd the Supremacy two years ago and the Parliament in the 24 Hen. 8. cap. 12. and the 25 Hen. 8. cap. 21. had in effect done so too Yet was not the recognis'd restor'd and declar'd Supremacy lookt upon as any Warrant for an Ecclesiastical Commission till a new Power was given to the King by this Act And this Act of Parliament having been Repealed by the First and Second of Phil. and Mar. and never since reviv'd there is now no ground from this Act or from that President of Cromwell's Commission for a like Commission in our Days How far the Statute of 1 Eliz. gives countenance thereunto shall be enquired into when we come to it The next Act that I shall take notice of is the Thirteenth Chapter of this same Session entituled By whom Suffragans shall be nominated and elected The Act recites that sithen the beginning of this present Parliament good and honourable Laws and Statutes have been made and established for Elections Presentations Consecrations and investing of Archbishops and Bishops of this Realm with all Ceremonies appertaining to the same yet nevertheless no Provision hath been made for Suffragan Bishops and therefore enacts what Towns shall be taken and accepted
several Instances that none Exercised any here without the King's leave Which is true and as true it is and apparent by as many Instances that the King singly could not give any such leave He says pag. 154. that What Visitations were made of the Vniversity of Oxford by the Pope's Legates do no ways infer that thereby the King's Power of Visiting is Exauctorated but that whatever they did was in Subordination to the King's pleasure or as ordain'd by his Laws The Doctor does well to disjoin the King's Pleasure and his Laws for they did not always agree But this Paragraph must be altered to make it tolerable Sence viz. Whatever the legates did in Visiting the Vniversity of Oxford if it were not contrary to the King's Laws was in Subordination to the King's Authority Some other passages tending to the same purpose with those already taken notice of will offer themselves as we go along through the several parts of the Chapter Whereas the Doctor says that several Kings permitted no Canons or Constitutions of the Church or Bulls c. to be Executed here without their Allowance Intimating thereby that those Kings might of their own Personal Authority give such Allowance And that with their Allowance Foreign Canons and Constitutions might be Executed here I take leave to say That it never was in the Power of a King of England legally to Subject his People to a Foreign Jurisdiction nor to Oblige them to the Observance of any Law without their own Assent And therefore the King's Allowance could not make a Foreign Canon Obligatory here unless it were received by the People with their own Assent Nor could his giving leave legally Subject his People to Processes from Rome as will abundantly appear by and by But before I go on I desire the Doctor to take notice of an Old Act of Parliament for such it was though the Word Parliament was not then in being amongst us made in King Edward the Confessor's Time if not before and Confirmed by King William the First Debet Rex omnia ritè facere in Regno per Judicium Procerum Regni Debet enim Jus Justitia magis regnare in Regno quà m voluntas prava Lex est semper quod jus facit Voluntas autem Violentia Vis non est Jus. And again in the same Chapter Debet Rex Judicium Rectum in Regno facere Justitiam per Consilium Procerum Regni sui tenere Ista verò debet omnia Rex in propriâ personâ inspectis tactis Sacrosanctis Evangeliis super sacras sanctas reliquias coram Regno Sacerdotio Clero jurare antequà m ab Archiepiscopis Episcopis Regni coronetur Lambard de Priscis Anglorum legibus page 138. page 142. Hence we see that Judicium Procerum Consilium Procerum are Essential to the English Government Without which Right and Justice cannot Reign but a Perverse Will would Rule the Roast Hence it was that King Edward the First Prynn's Collect Tom. 3. Pag. 158. When Pope Gregory the Tenth sent Reymundus de Nogeriis his Chaplain as his Nuntio into England c. amongst other things to Demand and Receive from the King Eight Years Arrears of the Annual Tribute and Peter-pence then due to the Church of Rome Wrote to him a very remarkable Letter In which among other things he tells him That his last Parliament was Dissolved the sooner by reason of his own Sickness so that he could not then Super Petitione census ejusdem deliberationem habere cum Praelatis Proceribus Regni sui sine Quorum Communicato Consilio Sanctitati Vestrae super praedictis non possumus respondere jure-jurando in Coronatione nostra praestito sumus Astricti quod jura Regni nostri servabimus illibata nec aliquid quod diadema tangit Regni ejusdem absque ipsorum requisito Concilio faciemus And therefore he deferred returning the Pope an Answer till the next Session of Parliament Pro firmo scituri Pie Pater Domine quòd in alio Parliamento nostro quod ad festum Sancti Michaelis intendimus celebrare habito Communicato Consilio cum Praelatis Proceribus memoratis Vobis super praemissis ipsorum consilio dabimus Responsionem By this Letter it appears that whatever did Diadema Regni tangere could not nor ought to be done sine Concilio Prelatorum Procerum Regni By which as is evident enough by the Letter it self a Parliament is meant Now that the Bringing in of Bulls and Executing Process from Rome within the Realm did Diadema Regni tangere with a Witness will appear by perusing the Statutes of Praemunire and Provisors Anno 27 Edward the Third cap. 1. Because it is shewn unto Our Lord the the King by the Grievous and Clamorous Complaints of the great Men and Commons how that diverse of the People be and have been drawn out of the Realm to Answer of diverse things the Cognisance whereof appertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court In Prejudice and Disherison of Our Lord the King and of his Crown and of all the People of his Realm and to the Vndoing and Destruction of the Common Law of the said Realm at all times used Another Statute mentioning Citations out of the Court of Rome and Provisions of Benefices and Offices in the Church says that by means thereof the Good Antient Laws Franchises and Vsages of the Realm have been greatly Impeached Blemished and Confounded the Crown of Our Lord the King abated and the great Men Commons and Subjects of the Realm in Bodies and Goods damnified 38 Statute Edwardi tertii cap. 1 2 3 4. The Statute of 16 Rich. 2. cap. 5. Entituled Praemunire for purchasing Bulls from Rome The Crown of England subject to none mentions frequently All these things as being to the Disherison of the King's Crown and against his Crown and Regality And therefore in the five and twentieth Year of King Edward the Third the Commons prayed the King that since the Right of the Crown of England and the Law of the Realm was such that upon the Mischiefs and Damages which happen'd to his Realm he ought and was bound by his Oath with the Accord of his People in his Parliament thereof to make remedy and Law That it may please him thereupon to Ordain remedy Which he does accordingly by the Assent of the Great Men and Commonalty of the said Realm having regard to a Statute made in the time of his Grandfather Anno 25th Edward the First against Provisions which holdeth his force and was never Defeated Repealed or Annulled in any Point and by so much he is bounden by his Oath to cause the same to be kept as the Law of the Land. The Laws of Praemunire and against Provisions were but Declaratory Laws of the Vsages of the Realm in opposition to Papal Bulls c. And here we see our
That the King desired only dignitates Regibus ante debitas sibi exhiberi Hoved. pag. 292. b. And in another Letter to the Pope on the King's behalf they declare the same ibid. pag. 292 293. Our Archbishops indeed used to fetch their Palls from Rome but that Entitled the Pope to no Jurisdiction here So that the Subject Matters of the Laws of Clarendon then Enacted into Statute-Laws were in King William Rufus his Time the Laws and Vsages of the Realm and therefore Anselm's and Becket's Oaths were in Substance the same And those Laws and Vsages having been usurp'd upon since and the Usurpation purged by the Laws made about the time of the Reformation the Oath of Supremacy is now the same in Substance with those Ancient Oaths aforementioned Not but that the Ecclesiastical Jurisdiction in some of its Branches may now be settled in another course of Administration than it was so long ago But those Alterations which yet are not very considerable have been made by Acts of Parliament by which if Men had been content to stand or fall many Notions that are now too rise amongst us would never have been hatched The Writ from R. de Glanville to the Abbot of Battle mentioned by the Doctor pag. 148. whereby he Commands him on the King's behalf by the Faith which he owed him not to proceed in the Cause that was depending betwixt the Monks of Canterbury and the Archbishop donec indè mecum fueris locutus was no other than a Probibition to him to proceed in a Cause depending before him and the Abbots of Feversham and St. Augustine as Judges appointed by the Pope to hear and determine it They had cited the Archbishop to appear before them they had sent him Comminatoriam Epistolam eique diem peremptorium praefixerant They had no Legal Authority to Exercise Jurisdiction within the Realm for the Pope could give them none And therefore the Chief Justice prohibits them in the King's Name The Writ may be Read in Chron. Gervas Coll. pag. 1503. from whence the Doctor Quotes the Story Though he relates it Knavishly enough We find a Writ saith he to the Abbot of Battle c. wherein he Commands him on the part of the King by the Faith which he owes him and by the Oath which he made to him to do what he then enjoyned Never telling us that the thing enjoyn'd was the keeping of his Oath and observing the Law and that the Method observed by the King in sending him this Injunction was according to the Ordinary course of Justice and of proceedings at Law in the like Cases But the Doctor would raise a little Dust by this and a few other such pitiful Scraps to amuse his Readers and create an Opinion that the King may enjoyn any thing As to the Legantine Power he says pag. 148. It is apparent by several Instances that none Exercised any here without the King's leave whether by the Grant of Pope Nicholas to Edward the Confessor he disputes not But the Doctor takes for granted that with the King's leave a a Legate might be sent and Exercise his Office here Though what he Quotes for it out of Eadmerus pag. 125 126. concerning what passed betwixt King Henry the First and Pope Calixtus at Gisors makes nothing for his purpose Rex à Papa impetravit ut omnes Consuetudines quas Pater suus in Angliâ habuerat in Normanniâ sibi concederet maximè ut neminem aliquando legati Officio in Angliâ fungi permitteret si non ipse aliquâ praecipuâ querelâ exigente quae ab Archiepiscopo Cantuariorum caeterisque Episcopis Regni terminari non posset hoc fieri à Papâ postularet The coming in of a Legate at the King's Request to determine some great and difficult Controversie in particular which could not be decided by all the Bishops of England is one thing and the coming in of a Legate with a General Power to Exercise Jurisdiction over all the King's Subjects and to hold a Legantine Court is a quite other thing The Doctor says pag. 151. that Anno Domini 1138 Tertio Regis Stephan Albert or Alberic Cardinal of Hostia was the Pope's Legate and Consecrated Theobald Archbishop of Canterbury and called the Clergy to a Colloquium by Apostolical Authority by which it appears says he That the Canons of the Church now obtained and the King Assented to the Powers the Legate had so that what was Decreed had the King's Allowance It seems provided what was Decreed had the King's Allowance all was well and there needed no more But Gerv. Dorobern Coll. pag. 1344. tells us that Praedictus Albericus Apostolicâ Legatione functus venit in Angliam Domini Papae litteras ad Regem deferens lectis itaque litteris coram Rege Primoribus Angliae licèt non in primis vix tandèm pro Reverentiâ Domini Papae susceptus est So that this Legate was admitted by the Consent of the Primores Angliae as well as of the King. And consequently his Exercising his Office here with such Assent as aforesaid is no Argument that the King 's Personal Assent to his Powers without the Concurrence of his Primores would have made them ever a whit the better And when this Legate Celebrated his Synod at Westminster there were present Episcopi diversarum Provinciarum Numero XVII Abbates ferè XXX Cleri Populi Multitudo Numerosa See Spelman's Councils Volume the Second pag. 39. and Gerv. Dorobern Collect. pag. 1347. So that as the Assent of the Primores was had to his Entry so the Multitudo Numerosa Cleri Populi Assented to the Canons then made And the King 's single Assent to either would not have been sufficient Besides this I shall take leave to oppose the Judgement and Opinion of King Henry the First to that of the Doctor concerning the King's having or not having Authority to Admit a Legate hither from Rome When in his Reign Petrus Monachus Cluniacensis came hither from Pope Calixtus with a Legantine Power perductus ad Regem dignè ab eo susceptus est Et expositâ sui adventûs causâ Rex obtensâ expeditione in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem Authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Lib. 6. pag. 137 138. He tells it him as a known Truth constaret that his Legacy could not be of any validity in this Nation without the Consent of the whole Kingdom in Parliament Which by reason of his Wars with the Welsh he was not then at leisure to call The Words following are Remarkable VIZ. Super haec patrias Consuetudines ab Apostolicâ sede sibi concessas nunquam se aequanimiter amissurum fore testabatur in quibus haec
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