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
whereas Subjects might Collate in those Days Churches of their own Foundation to any Clerk in Orders and give him the Investiture even without so much as a Presentation to the Bishop yet our Antient Kings Collated Bishopricks no otherwise than in Curia suâ For though Bishopricks were Royal Foundations yet they were Founded by Acts of Parliament as will appear by and by And one Great Reason why our Kings at least in those Days could not Erect Bishopricks and endow them otherwise was because they could not in those Days Alien their Crown Lands without the Assent of their Barons Non poterat Rex distrahere Patrimonium Regni And though King John told Pandulphus the Legate Omnes Praedecessores mei contulerunt Archiepiscopatus Episcopatus Abbathias in thalamis suis Monast Burton pag. 264. That must be understood to have been done since the Norman Conquest only though the contrary was frequently practised even in those Days and especially since the Constitutions of Clarendon For the Instance that he there gives of Wolstan's being made Bishop of Worcester in King Edward the Confessor his Time was far from a Collation in Thalamo if we believe himself when he resigned his Pastoral Staff at the Confessor's Tomb There concurred Electio Plebis Petitio Voluntas Episcoporum Gratia Procerum a full Parliament as well as the Authoritas Voluntas of the King himself Matth. Paris pag. 20 21. As for our Kings seizing the Temporalties of Bishops into their Hands and so suspending them à beneficio which the Doctor speaks of pag. 155. of which he says many Instances may be found in Mr. Prynn 's Historical Collections I suppose he would not be understood as if our Kings either might or used to seize them ad Libitum but by legal process and for some contempt for which by the Law they were liable to Seizure They were held of the King by Barony and though the Bishops pretended to an Exemption as to their Persons from the Laws of the Land yet their Temporalties which were held of the King and for which they did him Fealty were no-wise Exempted but that if they should commit Offences for which the King might by Law capere se ad Baronias suas they as well as the Laity that held by the same Tenure were equally liable to the Course and Rigour of the Law. What use this is of to the Doctor for the setting up some Notional Supremacy lodged in the King Personally I know not as yet Irregularities and Oppressions might well be used upon such occasions and Seizures made when there was no cause but the Statute of the fourteenth of Edward the Third cap. 6. aforementioned was provided to prevent such Mischiefs for the future But the Doctor was very ill advised in quoting pag. 155. to clear the point the Statutes of Provisions For those Statutes which every body knows and the Doctor will not deny to be only new Bullwarks to secure Old Rights were yet such as the King could never dispense with But when the Circumstances of his Affairs were such that to gratify the Pope and tye him to his Interest he found it convenient to have some Relaxation made of those Laws then were Parliaments called and at their first meeting one cause of their Convention declared to be to provide remedy touching the Statutes of Provisions for eschewing debate between the Pope and the King and his Realms And then we find leave given to the King from time to time to dispense with those Laws and that but for a time and this declar'd to be a Novelty Vid. Cotton's Abridgment pag. 341. 346. Annis 15. 16. Rich. 2. And the Complaints of the English Nation in Matth. Paris against the Pope's Provisions were grounded upon this VIZ. That Patroni Ecclesiarum ad eas cum Vacaverint Clericos idoneos praesentare non poterant sed conferebantur Ecclesiae Romanis qui penitùs Idioma Regni ignorabant pecuniam extra Regnum asportabant These Oppressions fell chiefly upon the Clergy as appears by most of the Laws against Provisions of which hereafter for the Pope assum'd a greater Power over them and Churches of which they were Patrons then he could pretend to over the Laity and they sometimes comply'd with his Provisions and submitted to collate Italians and Foreigners as at other times they did to heavy Exactions insomuch that in the year 1240. misit Dominus Papa praecepta sua Domino Cantuariensi Archiepiscopo Edmundo Sarisberiensi Lincolniensi Episcopis ut trecentis Romanis in primis beneficiis Vacantibus providerent scientes se suspensos à beneficiorum Collatione donec tot competenter providerentur Matth. Paris pag. 532. And it appears by the same Author that these and more were provided of Ecclesiastical Benefices in England Praebendas Ecclesias varios redditus opimos plusquam trecentos ad suam vel Papae contulerat legatus Otto voluntatem id p. 549. But many grievous Complaints and Petitions in Parliaments and in Letters to the Pope occur in Mr. Prynne's Historical Collections and in the Parliament Rolls against these Provisions as intolerable Grievances and contrary to all Law and Reason If at some times they were comply'd with upon condition that the Persons recommended by the Pope were of good condition and worthy of Promotion how does that relate to its being in the King's power even to admit the persons to the Dignity and Office as the Doctor ignorantly and childishly asserts But his conclusion VIZ. That the Exercise of their Government was according to the King's Laws I do not Quarrel with him about for it was or ought to have been so But not according to the King's Pleasure Nor would any unbyassed Man in Reading King Alfred's Laws have readily made such an Inference as the Doctor does pag. 155 156 telling us out of L. l. Alvredi that King Alfred reserved to himself the liberty even of Dispensing with the Marriage of Nuns Which he would represent as a thing prohibited by the Canons only and that the King reserved to himself a Power of Dispensing with it though without his Especial Dispensation he suffered the Canon to take place Now the Marriage of Nuns was really prohibited by a Law of the State by an Act of Parliament of that Age For Brompton giving us an Account of King Alfred's Laws says thus Ego Alfredus West-Saxonum Rex ostendi haec omnibus sapientibus meis dixerunt Placet ea Custodire And many Temporal Laws are amongst them all Enacted by the same Authority And the same Law or Canon that prohibits Nuns from Marrying gives the King and not only him but the Bishop of the Diocess leave to Dispense so that the Doctor might as well have argu'd for the Bishops as the Kings reserving a Power to himself of Dispensing The Words are Si quis Sanctimonialem ab Ecclesiâ abduxerit sine Licentia Regis vel Episcopi c. Then he says That our Kings Presided sometimes
Canons c. contrary to the Kings prerogative or the Laws of the Realm this is a prohibition to the King and them not to make any such Canons Constitutions or Ordinances as are contrary to Law. Sir Roger's fifth particular is That our Kings suffered no synodical decree to be of force but by their Allowance and Confirmation For which he quotes Florentius Wigornensis Anno 1127. Where 't is said Rex auditis Concilii Gestis consensum praebuit authoritate Regia potestate concessit confirmavit statuta Concilii à Gulielmo Cantuariensi Archiepiscopo sanctae Romanae Ecclesiae legato apud Westmonasterium celebrati Now that Council consisted not of the Clergy only but as Ecclesiastical Synods did in those days of the Clergy and Laity Confluxerunt quoque illic magnae multitudines Clericorum Laicorum tam divitum quam mediocrium fact us est conventus grandis inestimabilis ibidem And this we have heard before out of Malmesbury was necessary quatenus quicquid ejusmodi Concilii Authoritate decerneretur utriusque Ordinis cura sollicitudine ratum servaretur Now that the Acts of such Synods were of no force within the Realm without the Kings Assent I agree as his Assent is necessary to make an Act of Parliament a binding Law in Temporals so his Assent is and till the Clergy had turn'd him out of their Synods always was necessary and Essential to an Ecclesiastical Law. But what inference can be drawn from hence to prove any personal Supremacy in the King separate and distinct from the Assent of his People in their Synods and Councils I do not apprehend But one Observation I cannot omit upon this Council compar'd with that other held Anno Dom. 1175. Ann. 21. Hen. 2. For whereas in the former the Laity were present as well as the Clergy we find the King gave his Royal Assent to their Canons and so they became Ecclesiastical Laws binding to the whole Nation In the latter the Laity were not present by any account that I can find of it and therefore to make their Canons general Laws the Kings Assent would not have been sufficient nor was it singly had for Gervas Dorob Anno Dom. 1175. pag. 1429. Collect tells us in hoc Concilio ad Emendationem Anglicanae Ecclesiae assensu Domini Regis primorum Regni haec subscripta promulgata sunt Capitula And that the Clergy in those days when they took upon them to hold Synods apart from the Laity did not imagine that the King alone could give their Canons any Validity in Law where they entrench'd upon or interser'd with the Laws of the Land will appear by observing that when in King Henry the Third's Time the Clergy in opposition to the Gravamina Laicorum had made many provisional Articles for the enlarging their own Jurisdiction pro quibus Episcopi Angliae fuerant pugnaturi Mathew Paris says thus of them viz. Formati sunt Articuli circiter quinquaginta quos praelati in seripta redegerunt ut apto tempore coram Rege magnatibus praelatis lecti effectum debitum sortirentur Additamenta ad Math. Paris pag. 199 c. so that it was the magnates praelati as well as the King and not the King without them that could give life to them Sir Roger's sixth particular is That our Kings permitted no Bishops to Excommunicate or inflict any Ecclesiastical Censure on any Baron or Officer nisi praecepto suo concerning which I have spoken already The seventh is That they caused the Bishops to appear in their Courts to give an Account why they Excommunicated the Subject This makes nothing for any personal Authority in the King. Whatever he does in his Courts he does by his Judges who have the Law of the Realm for their guide and Rule And ought to keep all inferiour Courts within their Bounds and therefore might and do yet every day grant Prohibitions when the Bishops and their Officials proceed to Excommunicate where the Law does not allow that Censure to be apply'd And if the Writ of Prohibition be not obey'd but that the Bishop or other Ecclesiastical Judge proceeds notwithstanding an Attachment is the next process Vid. Fitz. Nat. Br. tit prohibition For Excommunication whatever pretence of Divine Right the Clergy may have for their Jurisdiction was always regulated by the Laws of the Realm but never by the Kings Arbitrary Will and Pleasure The Eighth is That they caused such as were imprisoned after forty days standing Excommunicate to be free'd by Writ without the assent of the prelate or satisfaction giving the King and his Judges communicating with them tam in Divinis quam profanis and commanding none to shun them though by the ordinary denounced Excommunicate Now the ground of this is no other then the Writ de cautione admittenda by which the Bishops are commanded quod accepta ab A. B. the Person Excommunicate cautione ipsum à prisona quâ occasione praedict detinetur deliberari mandent alioqui quod nostrum est in hac parte exequemur To which Writ if the Bishop did not yield Obedience then a Writ went to the Sheriff to deliver the Prisoner if the Bishop should persist in his refusal to accept Caution v. Regist fol. 66. a. Fitz. Nat. Brev. Fol. 63. Now these Writs in the Register were made in Parliament as Bracton tells us Lib. 5. Fol. 413. b. sunt quidem brevia formata de certis casibus de communi consilio totius Regni concessa approbata And therefore says he and the Lord Coke out of him 2 Instit 407.8 Rep. fol. 48 49. nullatenus mutari possunt absque consensu voluntate eorum The Acts indeed by which most of the Writs in the Register are appointed are lost as all the Records of Parliament are before Magna Charta but by Acts of Parliament yet upon record many writs are directed and the forms of them express'd in the body of the Acts. So that Writs in the Register are the very Law of England they are Statute-Law and the oldest Statute-Law we have And consequently the King 's commanding the Bishops to discharge persons that were in prison upon a Capias Excommunicatum and commanding the Sheriff to deliver them in the Bishop's default is no Act of Personal Prerogative in them But the ordinary course of the Law of the Realm and warranted by Acts of Parliament though the Records of those Acts being lost we now call it Common-Law Sir Roger's ninth Instance is That our Kings suffer'd no Legates to come into England without their leave Of which has been discours'd already The tenth is That they determin'd Matters of Episcopacy Inconsulto Romano Pontifice Which is true they did and had good Right to do but not Inconsultis Magnatibus Witness the Degradation of Stigand Arch-bishop of Canterbury temp Willielmi primi And the intended deprivation of Wolstan Bishop of Worcester The Controversie betwixt King William Rusus and