modest Judges to take upon themselves the Resolution of Tho nothing can be too high nor too difficult for such Judges to determin who are wise enough to declare Acts of Parliament void Co. 8. Rep. Fol. 118. a. Moor's Reports pag. 828. But what shall we say of them in 40 Edward 3. who because the Statute of 14 Edw. 3. cap. 6. had impowered them to amend the misprision of a Clerk in writing a Letter or a Syllable too much or too little not only made a Question Whether they might amend where there was a Word wanting but went to the Parliament to know the Opinion of them that made the Law See the Story in Coke's 8 Report 158. a. So sacred were Acts of Parliament accounted in those days and so little was the Authority of the Judges in Westminster-Hall or rather of so great Credit and Authority were the Resolutions of Judges in those days when they were wary and cautious of making Alterations and in difficult Matters consulted their Superiors Other Examples of Adjournments ad proximum Parliamentum may be seen in Cotton's Abridgment of the Records in the Tower. But that which surprizeth us is That all our Judges since the Reformation should have attained to such an omniscience in the Law that I think I may confidently affirm there has not been an Adjournment ad proximum Parliamentum propter difficultatem these Hundred and fifty Years last past Sure I am that no President of any such thing appears in our modern Books of Law. And yet Cases of as great moment concern and consequence to the Government and the whole Nation have come in question within that space of time as ever did or could in former Ages But there is a Notion broached amongst us that the Kings of England have greater Power and larger Prerogatives in Ecclesiastical Matters than in Temporal and that by vertue of their Ecclesiastical Supremacy they may dispense with such Acts of Parliament as concern Religion But they that say so do not consider that before the Reformation the Kings of England had much less power in Ecclesiastical Matters than in Temporal and therefore they cannot have greater now unless some Act of Parliament give it them And therefore this power of dispensing with Acts of Parliament in Matters of Religion must be given by some Acts of Parliament since the Reformation or else the King has it not And admit for the present their Hypothesis who would invest the King with whatever power the Pope de facto exercised here Yet that will not serve the turn for as much as the Pope himself whatever power he might claim and attempt to exercise yet was never allowed a power to dispense with Acts of Parliament concerning Ecclesiastical Matters even when it was full Sea with him here in England Take one remarkable President out of Matt. Paris p. 699. that in the Year of our Lord 1245. The King the Prelates Earls Barons and Great Men of the Realm then Assembled in a most general Parliament at Westminster drew up several Articles of Grievances against the Popes Exorbitances and Illegal Oppressions one of which was conceived in these words viz. Item Gravatur Regnum Angliae ex adjectione multiplici illius infamis nuncii Non Obstante per quem juramenti Religio consuetudines antiquae Scripturarum vigor concessionum authoritas Statuta Jura Privilegia debilitantur evanescunt And it cannot but seem strange that after such publick Complaints for many others of the like nature might be cited of the whole Kingdom against Non Obstante's as intolerable Grievances they should be afterwards countenanced and screwed up to such a transcendent Soveraignty as to frustrate Laws Statutes and Acts of Parliament and that by vertue of an Ecclesiastical Supremacy by which the King is pretended to have whatever power the Pope had when the Pope himself was never allowed this To these Presidents and Authorities of former times it may not be improper to add what happened in the latter end of the Reign of King James the First and the beginning of King Charles the First upon occasion of the Spanish Match with relation to the Penal Laws against Roman Catholicks The whole Negotiation of that Affair may be read at large in Rushworth's first Volume of Historical Collections and in Prynne's Introduction to the Archbishop of Canterbury 's Tryal I will only point at two or three passages that are most material to the present purpose 1. King James in a Letter written with his own hand to the King of Spain has these words viz. Leges nostrates quae mulctam Catholicis non mortem irrogant aboleri aut rescindi à nobis Seorsim non posse leniri it a posse cùm erit usus exploratum habeat Serenitas vestra omnibus ut dictorum Catholicorum Romanorum animis mansuetudine ac lenitate nostrâ conciliatis c. he had promised that no Romish Priest or Catholick should be proceeded against for any Capital Crime but for the other Laws ut supra Yet afterwards when King James was made to believe that the Match was just upon the point of being concluded a Proclamation was prepared for granting a toleration to Papists tho' it never came out But Archbishop Abbot wrote a Letter in the nature of a Remonstrance to King James in which besides other Considerations of Religion and Policy these words follow Prynne's Introduct p. 40. Besides this Toleration which you endeavour to set by your Proclamation cannot be done without a Parliament unless your Majesty will let your Subjects see that you will take unto your self a Liberty to throw down the Laws of the Land at your pleasure And in the Second Year of King Charles the First the King commanded his Attorney General to charge the Earl of Bristol at the Bar of the House of Lords with High Treason and other Offences and Misdemeanours that they might proceed in a legal Course against him according to the Justice and usual Proceedings of Parliaments the fifth of which Articles is in these words That from the beginning of his Negotiation and throughout the whole managing thereof by the said Earl of Bristol and during his said Ambassage he the said Earl contrary to his Faith and Duty to God the true Religion professed by the Church of England and the Peace of the Church and State did intend and resolve that if the said Marriage so treated of as aforesaid should by his Ministry be effected that thereby the Romish Religion and the Professors thereof should be advanced within this Realm and other his Majesties Realms and Dominions and the true Religion and the Professors thereof discouraged and discountenanced And to that end and purpose the said Earl during the time aforesaid by Letters unto his late Majesty and otherwise often counselled and persuaded his said late Majesty to set at Liberty the Jesuits and Priests of the Romish Religion which according to the good Religious and Publick Laws of this Kingdom were
his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same c. This Act of Parliament having abrogated the Pope's Power here in England those places that had been exempt from ordinary Jurisdiction would naturally have fallen back within the Visitation of the Diocesan I mean such places as had been exempt by vertue of any Bulls Licences or Dispensations from Rome only if it had not been especially and expresly provided that nothing in the said Act should be taken nor expounded to the derogation or taking away of any grants or confirmations of any Liberties Priviledges or Jurisdiction of any Monasteries Abbies Priories or other Houses or places exempt which before the making of this Act have been obtained at the See of Rome and if the Visitation of them by Commission under the Great Seal had not been provided for In the next Year Ann. 26 H. 8. The Statute was made which enacts that the King our Soveraign Lord his Heirs and Successors Kings of this Realm shall be taken accepted and reputed the Only Supreme Head on Earth of the Church of England called Anglicana Ecclesia and shall have and enjoy united and annexed to the Imperial Crown of this Realm as well the title and stile thereof as all Honours Dignities Preheminences Jurisdictions Priviledges Authorities Immunities Profits and Commodities to the said Dignity of Supream Head of the same Church belonging and appertaining What was then meant understood recognis'd c. by the word Supreme Head will appear by these following Considerations First that the recital of the Act shews they intended not by that recognition to invest him with any new Power For they recite that the King's Majesty justly and rightfully is and ought to be the Supreme head of the Church of England and so is recognised by the Clergy of the Realm in their Convocations yet nevertheless for corroboration and confirmation thereof c. So that this Act so far forth as it gives or acknowledges the Title of SUPREME HEAD is but Declarative And consequently they that upon this Act ground a Translation of the Pope's Power by the Canon-law to the King utterly mistake the matter For our King 's Ecclesiastical Jurisdiction was not grounded upon the Canon Law but the Common Law of the Realm it was a Native of our own and not of any foreign extraction Secondly That this Supreme Head-ship of the Church consists only in his being Supreme head of that Church of England which then was called Anglicana Ecclesia and who they were appears First by the Statute of 24. Henr. 8. cap. 12. aforementioned The body Spiritual whereof of the Realm of England having Power when any Cause of the Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shew'd by that part of the said body Politick called the Spiritualty now being usually called the English Church So that the Spiritualty are the Ecclesia Anglicana of whom the King is here declar'd the supreme head Secondly It appears by the Recognition of the Clergy who having no Authority to declare a Supreme Head in Ecclesiastical matters for the Laity did but by that Submission acknowledge themselves to be to all intents and purposes the King's Subjects and not the Pope's But Thirdly This same Parliament in this very Session tells us that the King had of right always been so It is in the third Chapt. for the payment of first-fruits to the King. The words are Wherefore his said humble and obedient Subjects as well the Lords Spiritual and Temporal as the Commons in this present Parliament Assembled c. do pray that for the more surety continuance and augmentation of his Highness Royal estate being not only now recognis'd as he always indeed hath heretofore been the only Supreme Head in Earth next and immediately under God of the Church of England but also their most assured and undoubted natural Lord and King having the whole Governance of this his Realm c. They tell him That he was not only the Supreme Head of the Church of England but their viz. the Temporalties Lord and King so that he had the Governance of the whole Realm and Subjects of the same What can be more plain than first That by Supreme Head of the Church of England was meant the Supreme Head of the Spiritualty which was necessary to be recogniz'd because they had acknowledged formerly another Supreme Head. Secondly That they gave no new Power by that word since they tell us that indeed he had always been so And Thirdly That his Supremacy consists only in a power of Governance Fourthly This title of Supreme Head does not give the King any power of dispensing with Acts of Parliament in Matters of Religion or Ecclesiastical Affairs whatsoever That power was never yielded to the Pope himself during that whole time that he was uncontroulably submitted to as Head of the Church That power they complain of in the Act of 25 H. 8. cap. 21. as an Vsurpation an Abuse a Cheat. They declare it to be in the King and themselves Fifthly Dr. Burnet in his History of the Reformation p. 142 143. First Part has these words But at the same time that they pleaded so much for the King's Supremacy and power of making Laws for restraining and coercing his Subjects it appears that they were far from vesting him with such an absolute Power as the Popes had pretended to for they thus defined the extent of the King's Power Institution of a Christian Man. To them speaking of Princes and Magistrates specially and principally it appertaineth to defend the Faith of Christ and his Religion to conserve and maintain the True Doctrine of Christ and all such as be true Preachers and setters forth thereof and to abolish Heresies Abuses and Idolatries and to punish with corporal pains such as of Malice be the occasion of the same And finally to oversee and cause that the said Bishops and Priests do execute their Pastoral Office truly and faithfully and speally in these Points which by Christ and his Apostles were given and committed to them and in case they shall be negligent in any part thereof or would not diligently execute the same to cause them to double and supply their lack and if they obstinately withstand their Prince's kind monition and will not amend their faults then and in such case to put others in their rooms and places And God hath also commanded the said Bishops and Priests to obey with all humbleness and reverence both Kings and Princes and Governors and all their Laws not being contrary to the Laws of God whatsoever they be and that not only propter iram but also propter conscientiam Thus it appears that they both limited obedience to the King's Laws with the due caution of not being contrary to the Law of God and acknowledged the Ecclesiastical Jurisdiction in discharge of the
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
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
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
This Prerogative that our Kings now have in the Election of Bishops stands upon the foundation of this Act of Parliament and other it has none The Supreme Headship it seems did not include the power of appointing Bishops for that had been allow'd two Years ago and is acknowledged by way of recital in this Session cap. 21. and yet the Election and Consecration of Bishops is appointed by Act of Parliament so that the title of Supreme Head did not then imply any such exorbitant Power as some have imagin'd Next comes the Act entituled No Imposition shall be paid to the Bishop of Rome c. It recites That where this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any Man's Law but only to such as have been devised made and ordained within the same for the Wealth of the said Realm or to such other as by sufferance of your Grace and your Progenitors the People of this Realm have taken at their free Will and Liberty by their own Consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consent and custom and none otherwise These other Laws which the People of this Realm are said to have taken at their free Will and Liberty by their own Consent and are said to have bound themselves to as to the Established Laws of the Realm by the said sufferance consent and custom and none otherwise are the Canon Laws Which here the Parliament disclaim any Obligation to the observance of otherwise than as they had bound themselves by their own sufferance and consent And consequently they did not look upon any Ecclesiastical Laws as obligatory to themselves and their Posterity but what themselves had or for the time to come should Consent to This would never have proceeded from them if they had imagin'd that the Legislative Power in Ecclesiastical Matters was or ever had been vested in the King's Person as some amongst us have not stuck to assert of late But the Act goes on It standeth therefore with natural equity and good Reason that in all and every such Laws humane made within this Realm or induced into this Realm by the said sufferance consent and custom your Royal Majesty and your Lords Spiritual and Temporal and Commons representing the whole state of your Realm in this your most high Court of Parliament have full Power and Authority not only to dispense but also to authorize some Elect Person or Persons to dispense with those and all other humane Laws of this your Realm c. and also the same to abrogate amplifie or diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament meet and convenient c. Here is no dispensing Power acknowledged to be personal in the King. Nor is the Parliament so much a stranger to Matters of Religion as not to have a share even in the dispensing as well as the abrogating Power with respect to Ecclesiastical Laws You see as soon as ever the foreign Yoke was cast off they put in for their share of the Supremacy nor did the King look upon it as any diminution to his own legal right to admit their claim It was in concurrence with them and with their assent that the method of prosecuting Appeals had been settled they joyn'd with him in tying up the hands of the Clergy from promulging any Constitutions without the Royal Assent their Authority concurr'd in appointing how Bishops should be Elected Invested and Consecrated and here they impower the Archbishop and the King to grant Dispensations Then they proceed to Enact how and by whom and in what cases Dispensations shall be granted for the future And first they impower the Archbishop of Canterbury for the time being and his Successors to grant Dispensations to the King his Heirs and Successors for causes not contrary to the Scriptures and the Laws of God. How Could not the King by vertue of his inherent Prerogative dispense with himself Dr. Hicks Was not this involv'd in the formal conception of Imperial Soveraignty No. If he will act contrary to Law he must have a Dispensation and that Dispensation granted by a Subject impowered by Act of Parliament so to do This is the first and only Act that gives the King a power of dispensing in Ecclesiastical Matters and the Archbishop of Canterbury may dispense in all cases which the King by vertue of this Act may dispense in only in cases unwont to be dispensed in at Rome he must advertise the King or his Councel who if they determine that such Dispensation shall pass then the Archbishop having the King's Licence shall dispense accordingly But who ever heard of the King 's Licensing an Archbishop to dispence with an Act of Parliament How would it found in our Ears if Divinâ Providentiâ Cantuariensis Archiepiscopus should issue a Non Obstante to an Act of the King Lords and Commons in Parliament And yet the Archbishop may grant Dispensations with the King's allowance in all Cases whatsoever that that Act extends to Therefore I say the King's Power of dispensing by vertue of that Act is with the Canon Law only which in effect was no Law at all To say that the King is not restrain'd by this Act Hob. p 146. in Colt and Glovers Case but his power remains full and perfect as before and he may grant them still as King for all Acts of Justice and Mercy flow from him is a sound of words only vox praetereà nihil And yet we find by Experience that hae nugae seria ducunt in mala there is likewise a strange Expression in Moor's Reports 542. cs 719. Al tierce point ils semblont que la Royne poit granter dispensations come le Pape puissoit en cases lou l'Archevesque n'ad authority per le Stat. de 25 H. 8. de granter dispensations quia tout l'authority que le Pape usoit est done al Corone But these and many other scattered Cases and extravagant Expressions of Reporters which have been made use of as Judgments in after times there may possibly be some account given hereafter in a Discourse by it self The latter part of the Statute of 25 H. 8. c. 21. concerns the visiting of Colleges Hospitals and places exempt It is enacted that the Archbishop of Canterbury or any other person or persons shall have no Power and Authority by reason of this Act to visit or vex any Monasteries Abbeys Priories Colleges Hospitals Houses or other places Religious which be or were exempt before the making of this Act but that Redress Visitation and Confirmation shall be had by the King's Highness
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
out of Parliament endow Bishopricks because they could not distrahere patrimonium Regni And a further Consideration to this purpose may be drawn from the Exemptions which the possessions of the Church enjoy'd from all secular service Except the Trinoda necessitas Which Exemptions were all Granted by Charters Assented to in Parliament as appears undeniably by the several Charters Granted in divers Kings Reigns successively to the Abby of Crowland All inserted in haec verba into Ingulphus his History of that Monastery and by the Monasticon In which it appears further that all Exemptions from Episcopal Jurisdiction Except of the King 's free Chappels which were of his own Foundation were granted in Parliament I mean all such Exemptions granted by our Kings For the Pope used to grant Exemptions by Bulls and those Papal Exemptions were confirm'd by Parliament temp Henr. 8. King William the Conquerour Founded Battle-Abby in Sussex in the place where he overcame Harald and Exempted it from Episcopal Jurisdiction But whether he did it in Parliament or not let the Charter it self testifie viz. Willielmus Dei Gratia Rex Anglorum c. Notum sit Vobis me Concessisse confirmasse cum Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Consilio etiam Episcoporum Baronum meorum ut Ecclesia Sancti Martini de Bello quam Fundavi ex voto ob Victoriam quam mihi Deus in eodem loco concessit libera sit quieta in perpetuum ab omni servitute omnibus quaecunque humana mens excogitare potest c. Nec liceat Episcopo Cicestrensi quamvis in illius Dioecesi sit in Ecclesia illa vel Maneriis ad illam pertinentibus ex consuetudine hospitari contra voluntatem Abbatis nec Ordinationes aliquas facere ibidem nec Abbatiam in aliquo gravare sed neque super illam Dominationem aliquam aut vim aut potestatem exerceat sed sicut mea Dominica Capella libera sit omnino ab omni ejus Exactione c. Hoc etiam Regali Authoritate Episcopolum Baronum meorum Attestatione constituo quatenus Abbas Ecclesiae suae leugae circumjacentis per omnia Judex sit Dominus The Fourteenth Particular is that our Kings have by their Writs commanded Bishops to keep resident Which considering that it was their Duty incumbent on them by Law what great Power does it argue in the King to command his Subjects to do what the Law enjoyns them The Sixteenth is That they have commanded their Bishops by reason of Schism or Vacancy in the Popedom c. not to seek Confirmation from Rome but the Metropolitans to be charged by the King 's Writ to bestow it on the Elected For this Sir Roger quotes Rot. Parl. 16. Mart. 3 Hen. 5. nu 11. Anno Domini 1414. Now that was done by Act of Parliament Which because it is observable to many purposes shall be transcrib'd at large Our Lord the King considering the long Vacancy of the Apostolick See by reason of the damnable Schism which has now continued a long time in Holy Church and is not known how long it may yet last And that certain Cathedral Churches within the Kingdom which are of the Foundation of his Noble Progenitors and belong to his Patronage have been for some while and are yet destitute of Parochial Government because the Persons that are elected into the same cannot be confirmed in Parts beyond the Sea for want of an Apostle Altho' our said Lord the King bath thereunto given his Royal Assent to the Great decrease of Divine Service in the said Churches substraction of Hospitality Great peril of many Souls Devastation and Destruction of the Lordships and Possessions belonging to the same and the Impoverishment of such Bishops Elect And that by possibility all the Cathedral Churches within the Realm may become void in like manner and so be destitute of Government and the King and his Realm of Council Comfort and Aid which they ought to have of the Prelacy And considering also that in divers foreign Parts since the Voidance of the said See divers Confirmations have been and are daily made by the Metropolitans of the places as he is credibly informed and Willing for that cause for ousting the said Mischiefs chiefs to provide such remedy as it behoves By the full and deliberate Advice and Assent of the Lords and Commons of his Realm in this present Parliament Wills and Ordains that the persons so chosen and to be chosen within his Kingdom during the Vacancy of the said See Apostolick shall be comfirmed by the Metropolitans of the Places without Excuse or further delay in that behalf And that the King's Writs if need be be directed to the Metropolitans straitly charging them to make the said Confirmations And to perform all that to their Office belongeth As also to the Bishops Elect that they on their part Effectually prosecute their Confirmations that through default of such Metropolitans or Bishops Elect dammage or prejudice may not ensue to our Lord King and his Kingdom and to his Realm and to the said Churches for the Cause aforesaid which God forbid Here it is plain that what Sir Roger ascribes to the King was really done by the full and deliberate Advice and Assent of the Lords and Commons of his Kingdom in Parliament And therefore that the supreme Jurisdiction in matters Ecclesiastical was not in the notion of that Age Lodg'd personally in the King but in the King by Law in the King with his Parliament about him Pursuant to this President we find in King Henry the Eighth's time a Notable Act in the 28th Year of his Reign cap. 16. In which there is this clause viz. And that it may be also Enacted by Authority of this present Parliament that all Arch bishops and Bishops of this Realm or of any the King's Dominions Consecrated and at this present time taken and reputed for Arch-bishops and Bishops may by Authority of this Present Parliament and not by vertue of any Provision or other Forein Authority Licence Faculty or Dispensation keep enjoy and retain their Arch-bishopricks in as large and ample manner as if they had been promoted Elected and consecrated according to the due course of the Laws of this Realm And that every Arch-bishop and Bishop of this Realm and of other the King's Dominions may minister use and Exercise all and every thing and things pertaining to the Office or Order of an Arch bishop and Bishop with all Tokens Ensigns and Ceremonies thereunto Lawfully belonging This Act in the 2d paragraph had made void all Bulls Dispensations Breves c. obtain'd at Rome contrary to the statutes of Premunire Provisors whereby many Bishopricks would have become void To prevent which the Clause here recited makes them legal Bishops notwithstanding and supplies all the Ceremonies of Election and Consecration Which I suppose no man will take upon him to say that the King might then
them not warrantable by the Laws and Statutes of the Realm Now what use the Doctor can make of this Particular viz. of the King 's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law I cannot discover Sir Roger's eighteenth and last particular is an observation in Matth. Paris where the Ecclesiasticks having enumerated several cases in which they held themselves hardly dealt with add That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition he was attached and appearing before the Justices constrained to produce his proceedings that they might determine to which Court the Cause belonged By which says he it is manifest how the King's Courts had the superintendency over the Ecclesiastick This makes nothing for any Extrajudicial Personal Arbitrary power in the King in the Ecclesiastical matters and is so far from impugning that it corroborates my hypothesis That the Temporal and Ecclesiastical Courts often quarrel'd about their Jurisdiction and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm thereby endeavouring to usurp and encroach upon many matters which apparently belonged to the Common Laws as the tryal of Limits and Bounds of Parishes the Right of Patronage the tryal of right of Tythes by Indicavit Writs to the Bishop upon a recovery in a Quare impedit the tryal of Titles to Church-Lands concerning Distresses and Attachments within their own Fees and many other things which belonged to the King 's Temporal Courts That the Temporal Courts granted Prohibitions in these and other like cases that the Clergy hereupon complain'd not to the King but to the Parliament Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes 599 600 601 c. So that the King determined to which Court Causes belonged either in his Courts of Ordinary Justice or if the Clergy remain'd unsatisfied with the Opinions of the Judges in his High Court of Parliament and no otherwise But we need not wonder that such a Prelate as Arch bishop Bancroft whose Divinity had taught him that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself and that such Authority belonged to Kings by the Word of God in the Scripture we need not wonder I say to find him in King James the First 's time Exhibiting Articles of Abuses in granting Prohibitions against the Judges to the Lords of the Privy Council As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst 601 602 c. 12 Co. p. 63 64 65. By what has been said I hope it appears sufficiently that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction and no other than they had in Temporal matters viz. in their Great Councels and in their Ordinary Courts of Justice And that not only our Mercenary Doctor but more learned and wiser men than he have unwarily confounded that Jurisdiction with a Fiction of their own brains by which they have ascribed to the King a Personal Supremacy without any warrant from Antiquity Law or History Witness these loose Expressions in Sir Roger Twiden's Historical Vindication c. It cannot be denyed but the necessity of being in union with the true Pope at least in time of schism did wholly depend on the King pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals that is quae sui sunt ordinis without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione in other things as points of Government the Ordering that of Right and Custom ever to have belonged to the King assisted with his Councel of Bishops and others of the Clergy who was therefore called Vicarius Christi c. pag. 21. The King and the Arch bishop or rather the Arch-bishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy as the Erection of Bishopricks disposing and translating of Bishops c. p. 24. and innumerable others But to go on with Dr. Johnston and draw to a conclusion he acknowledges pag. 157 that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time And if no such thing can be found then what authority can our Kings now have to exercise such a Jurisdiction unless by vertue of some Act of Parliament made in or since his time But says he we have sufficient grounds to judge that whatever was done was by the King's Power and Authority which is a wild extravagant ignorant expression and hardly common sense And therefore says he Sir Edward Coke in Cawdrie's case Lays it down for a Rule That as in Temporal Causes the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proed approved and allowed here by and with general consent are aptly and rightly called the King's Ecclesiastical Laws and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects c. pag. 157. which that he has he proves by the Preamble of stat 24 Hen. 8. cap. 12. And what then May the King therefore erect New Courts directly contrary to positive Laws Command things arbitrarily upon pain of suspension deprivation c. and Command things contrary to Law by vertue of his Ecclesiastical Laws The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy which now stands Repealed And with 1 Eliz. by which he says all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governour But the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to shew hereafter that the Doctor understands the Act of 1 Eliz. as little as any thing else that he pretends to write upon FINIS
Second King Stephen and so backwards And yet we find no Resolutions concerning what the Supremacy at Common Law was and wherein it consisted grounded upon Authorities of those Times which only can afford a right Idea of it Nor indeed can any thing be found in our Old Books of Law as Bracton Glanvil Britton Fleta the Mirrour nor in the Antient Histories of those Times that warrants such an Ecclesiastical Supremacy in the Crown as we now a-days dream of no Supremacy in Ecclesiastical Matters other than in Temporal which in a Nation of Saxon descent could never exclude the Ordines Regni having ever entred into the thoughts of Man as lodged in the King's Person or any Temporal Prince The Pope pretended to it but our Kings never did Only where the Constitutions of Clarendon mention Appeals from the Archbishop to the King they take up with the Letter and examine no farther As some Philosophers have ascribed Phaenomena in Nature which they could give no rational Account of to occult Qualities so the Lawyers resolve puzling Questions by telling us Magisterially that so and so it was at the Common Law as occult in these Matters to many of them as any Secret of Nature to the Philosophers That Branch of 1 o. Eliz. which unites Ecclesiastical Jurisdiction to the Crown appears by the Journal of the House of Lords to be in the sense of the Parliament V. Sir Simon Dewes that past it but Declarative But that all other Acts and Clauses of Acts which were pass'd at the time of the Reformation with respect to the Ecclesiastical Jurisdiction are so too I can't believe till I see Authorities of Antiquity proving it Those particular Branches of the Supremacy concerning the making of Bishops Appeals c. with some Temporary Laws now expired as they were guided and limited by positive Laws made in King Henry the Eighths time and King Edward's and revived in Queen Elizabeth's so they are grounded upon those Laws only and have no other Foundation so far forth as they are Personal For the Antient and Legal Supremacy having been so long overshadowed as to be almost forgot they did not upon the Restitution of it return all things to their former estate They prescribed another course for Appeals than had ever been known in our Law before They did not resume the Elections of Bishops to the Parliament who had had them formerly but leaving a shew of an Election in the Consistory they authorize the King to name the Man. The power of making Laws and Constitutions Ecclesiastical for the Government of the whole Kingdom we find no Resumption of no declarative Act concerning it other than in the Recital of 25 Hen. 8. cap. 21. For that Point had never been gained from them From the Reign of King Henry the Second downward to King Henry the Eighth we find little or nothing of any Canons and Constitutions for the Government of the Church made with assent of the Laity For the Clergy had now established their Exemption and had set up Imperium in Imperio But many Acts we meet with setting Bounds to their Encroachments and limiting their Jurisdiction and all made by the same Authority that enacted the Temporal Laws of the Kingdom And therefore the Supremacy so far forth as it remained in the Crown was not Personal but exerted it self in the Legislative Body of the Kingdom For the Parliaments tho in a great measure Anti-Christ-ridden did not even in these Times so far forget the old Constitution as to let the Church and Religion run adrist for all them and be wholly managed either by the King or their Ghostly Fathers The Writs of Summons to Parliaments both antient and modern have this special Clause in them Pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum c. So that the State of the Church is as properly within the care of a Parliament as the State of the Realm And in the Prologues to most Acts of Parliaments the Honour the Profit the Reverence the Benefit the Advancement of Holy Church is mentioned as the End of their Meeting no less than the Safety and Defence of the Realm Accordingly innumerable Acts of Parliament were made and are now in print concerning Church-men the Ecclesiastical Jurisdiction Matters of Religion c. As the Statutes of Mortmain Circumspecte agatis the Statute upon the Writ of Consultation Articuli Cleri several Statutes entituled Pro Clero the Statutes of Premunire and Provisors concerning Priests and Salaries against Appeals to Rome prohibiting Bishops to meddle in Matters of the Peace removing Bishops from Temporal Offices restraining the Popes Exactions and Usurpations and Encroachments of the Canons upon the Civil Jurisdiction freeing Clergy Men from Arrests during the time of Divine Service for the Instruction of the People by Preaching concerning Priors dative and removable c. Exempting of Pilgrims from the Punishment of Vagrants Hunting on Holy-days Consecrations of Church-yards and Appropriations of Churches and Alms concerning Provisions of Exemptions from regular or ordinary Obedience granted to Religious Persons from Rome the Suppression of Sectaries Heretical Books Schools Working on Holy-days Entring into Religion without Consent of Parents Tythes Chalices Ornaments of the Church c. So that whatever remained of the Supremacy remained in the Legislative Body of the Kingdom and was there exerted During this time the question was not Whether the King could by his Prerogative impose Laws upon the Clergy or in concurrence with the Clergy conclude the Laity these are Notions started up since the Reformation which has brought to light in Politicks as well as Religion Mysteries that had been hid from Ages but whether the Spirituality or State Ecclesiastical of whom the Pope was now de facto the Head could bind the Laity without their Assent in Parliament This was a fifth Encroachment which was attempted by introducing the Canon Law and drawing to themselves by a side wind all Temporal Jurisdiction in ordine ad Spiritualia But the design was never brought to perfection such was the Genius of a Government built upon this noble Foundation that no man ought to be bound by a Law that he does not consent to that muffled up in Darkness and Superstition as our Ancestors were yet that Notion seemed to be engraven in their Nature born with them sucked in with their Mothers Milk the impression was so strong that nothing could deface it Accordingly we often find them protesting that this and the other thing did not bind them because it was done without their Assent Rott Par. 40. Edw. 3. nu 7 8. Rott Parl. 5 Ed. 3. art 46. Rott Parl. 6 Rich. 2. nu 62. that they would not be bound by any Ordinances of the Clergy without their Assent That they would not subject themselves to the Prelates no more than their Ancestors had done And in the 25. H. 8. cap.
by whole-sale is altogether needless in a Constitution wherein Concitò reformari possunt by the same Authority that made them In Forty days time a Parliament may be summoned to consent to what alteration they shall think fit to be made And it is the constant practice observed to this day that at the beginning of every Parliament a Committee is appointed to consider what Laws are inconvenient and have need to be altered continued or repealed If the Parliament shall not think fit to make any alteration the Laws must remain in force and ought to be put in execution for there can be no Reformation of them made Sine Communitatis Procerum assensu And the reason is because by such assent Primitus emanârant The Repealing of a Law or which is all one a total Suspension of a Law is making a new Law whatever quibbles and foolish distinctions may be pretended to be made in the Case Now the Laws of England do not oriri Principis voluntate and rherefore a Repeal or total Suspension of a Law grounded upon the voluntas Principis only is not warranted by that model of the English Government that Fortescue presents us with He that asserts such a Power in the King to Suspend Laws Enacted by the Consent of the whole Kingdom turns the Government of this Nation topsie turvie Lord Chief Justice Herbert in Sir Edward Hales his Case And makes the Laws of England indeed the King's Laws contrary to the style of all Antiquity of all History and contrary to the forms of Legal Proceedings even to this day Lex terrae and Leges terrae Leges Consuetudines Angliae Leges Angliae Statuta Angliae Assiza Regni are known and common Expressions Leges Regis sounds harsh the phrase is uncouth because the Notion included in it is false nor was ever thought of by our Forefathers The Statutes of Praemunire and Provisors and the method of dispensing with them before the Reformation will abundantly disclose to us where the power of dispensing with Acts of Parliament even in Ecclesiastical Matters was vested In the 16th Year of King Richard the Second the Archbishop of Canterbury declared the Causes of the Parliament The second of which was to provide some remedy touching the Statute of Provisors for eschewing debate betwixt the Pope and the King and his Parliament Cot. Records p. 346. King Richard needed not have put himself to the trouble of convening his Parliament in order to provide a Remedy in such case if by the Law as it was then understood he might by his Perogative have dispensed with the Statutes of Provisors and all other Laws concerning Ecclesiastical Matters In the 17th R. 2. It was enacted in Parliament that Tydeman late Abbot of Beawliew and Elect of Landaffe by the Popes Provision should enjoy the same Bishoprick notwithstanding any Act so always as this be taken for no Example Ibid. p. 354. So that tho Tydeman had a Dispensation from the King he durst not trust to it without getting his Title to his Abby confirmed in Parliament The like President occurs in 18 H. 6. The Archbishop of Roan had the Profits of the Bishoprick of Ely granted to him by the Pope and confirmed in Parliament Ibid. p. 623. But in the Fifteenth year of King Richard the Second the Commons for the great Affiance which they reposed in the King granted that the King by the Advice of his Lords might make such Toleration touching the Statute of Provision as to him should seem good until the next Parliament so as the Statute be repealed in no Article thereof nor none disturbed of his lawful Possession So also as they may disagree thereto at the next Parliament with this Protestation That this their Assent being in truth a Novelty be had or taken for no Example Ibid. p. 342. And in the Sixteenth year of the same King the Commons grant to the King that he by the Advice of his Lords should have power to moderate the Statute of Provisions to the Honour of God and saving the Rights of the Crown and to put the same in execution so as the same be declared in the next Parliament to the end the Commons may then agree to the same or no. Ibid. pag. 347. The occasions of these Concessions were the then circumstances of the Kings Affairs who was often at enmity with France and made advantage of the Pope's Friendship which he obtained by this and other Methods of the like kind The like Instances occur in the same Collection p. 362 In the Twentieth year of the same King. p. 393 In the First year of King Henry the Fourth p. 406 In the Second year of King Henry the Fourth From hence it appears that those Times had no notion of any absolute Power any inseparable Perogative in the King himself of dispensing with those Laws without his Parliaments consent For they grant the King such Power and that but for a time and so as they may disagree to it at their next Meeting and with a protestation that this their Assent be not drawn into Example and declare their giving the King such Power to be a Novelty And all this they do with a saving to the Rights of the Crown which let them if they can explain the meaning of who imagine that the uniting of Ecclesiastical Jurisdiction to the Crown of England by the Statute of 1 Eliz. is a vesting of it in the King's Person In this same interval of Time the Statutes of Praemunire were enacted viz. 27 Edw. 3. cap. 1. and 38 Edw. 3. cap. 1. 16 R. 2. and some others with which how far it was lawful for the King to dispense take an account from what hapned to Cardinal Wolsey in King Henry the Eighths time He had a Commission from the Pope to exercise his Office of Legate here in England he had the King's leave so to do he exercised that Office many years without controul and was submitted to almost universally I remember but one Obstruction offered to have been made to him and that was by Hunne a Merchant-Taylor in London The History of which may be read at large in Fox and Dr. Burnet's History of the Reformation And yet the whole Clergy were afterwards attainted of a Praemunire for submitting to such Foreign Authority as the same Authors the Lord Herbert and others abundantly testifie But Stephen Gardiner's Letter to the Duke of Somerset concerning that Matter as it is very remarkable for many other Passages so this ensuing part I think proper to be here inserted because it will save me the trouble of relating the History and of endeavouring to open the Reasons of that Proceeding Now whether the King may command against an Act of Parliament and what Danger they may fall in that break a Law with the King's consent I dare say no Man alive at this day hath had more Experience with the Judges and Lawyers than I First I had experience in my
Election being willing to receive the Persons so collated and the King to admit them as any Private Patron might admit a Clerk to be collated to a Church of his own Gift by Provision it was very reasonable that the King should require a renunciation of such Clauses in their Bulls of Provision as interser'd with the Jurisdiction which the Law gave him over his Spiritual Subjects And this appears by Sir Roger Twisden's third quotation upon this Head compar'd with an Act of Parliament in Queen Mary's time The quotation is out of Coke's 3 Instit pag. 27. where the Form of the Renunciation is set down viz. I renounce all the words comprized in the Pope's Bull to me made of the Abby of c. the which be contrary or prejudicial to the King our Sovereign Lord and to his Crown c. A true and Gonuine Explanation of which take from an Act of a Popish Parliament viz. 1 2 Phil. Mar. cap. 8. Be it Enacted by Authority of this present Parliament That all Bulls Dispensations and Privileges obtained before the Twentieth Year of King Henry the Eighth or which shall hereafter be obtained of the See of Rome not containing matter contrary or prejudicial to the Authority Dignity or Preheminence Royal or Imperial of the Realm or to the Laws of the Realm now being in force may be put in execution c. So that such Bulls as were not contrary to the known Laws of the Realm were allowed to be valid so long as the Pope was acknowledged to be the Head of the English Church But such Bulls or clauses in Bulls as were contrary to the Laws were to be renounced as Prejudicial to our Sovereign Lord the King and his Crown i. e. as this Law of Phil. and Mary explains it to the Preheminence Imperial of the Realm and the Laws of the same Sir Roger's third Particular is That Our Kings permitted No Councils but by their liking to assemble which gained the name of Convocations as that always had been and ought to be assembled by the King 's Writ For this Sir Roger quotes Eadmer pag. 24 and the statute of 25 Henry the 8. c. 19. Upon this Head I have no Controversie with the Doctor nor Sir Roger I only assert that such things as are the proper Business of Convocations cannot be transacted by the King alone without them His fourth particular is That Our Kings caused some to sit in them sc in his Ecclesiastical Councils to supervise their Actions and prohibit them on the behalf of the King and Kingdom ne quid ibi contra Regiam Coronam aut dignitation statuere attentarent Here the Reader is to observe that the Authority quoted for this is in Anno Dom. 1237. which was about the twentieth year of King Henry the Third before which time the Clergy had turn'd the King and the Laity out of their Synods And therefore it stood the King in stead to prohibit them who were but a small number of his Subjects and scarce half-Subjects from attempting any thing to the prejudice of the Rights of his Crown or the Liberties of his People and the Laws of the Realm which they had already made too great inrodes upon As no such Prohibitions as these can be produc'd in former times so they were altogether useless and unnecessary when the Kings themselves and all such of their Subjects as were admitted into Parliaments sat and had Votes in Ecclesiastical Synods as is undeniably evident by almost all the Ancient Councils collected by Sir Henry Spelman till within the Reign of King Steven Who owing his Crown to the Clergy was fain to suffer this and other Usurpations to secure his crack'd Title But after the Clergy took upon them to meet in Convocations neither assembled by the Kings Writ nor consisting as the Ancient Synods had done of the King and all the Estates of the Realm Prohibitions to them are frequent not to attempt any thing against the Law of the Land. Vid. Patt 8. Reg. Johan nu 1. Rex Archiepiscopis Episcopis Abbatibus Archidiaconis omni Clero apud sanctum Albanum ad Concilium convocato salutem Conquerente Vniversitate Militum Baronum aliorum sidelium nostrorum audivimus quod non solum in laicorum grave praejudicium sed etiam in totius Regni nostri intolerabile dispendium super Romescot praeter consuetudinem solvendo aliis perpluribus inconsuctis exactionibus Authoritate summi pontificis Concilium inire Concilium celebrare decrevistis Nos vero c. Vobis precise mandamus expresse prohibemus ne super praedictis vel aliquibus aliis Concilium aliquod in Authoritate aliquâ in fide qua nobis tenemini teneatis vel contrae Regni nostri Consuetudinem aliquid novi statuatis à celebratione hujusmodi Concilii supersedeatis quousque cum Vniversitate nostra super hoc Colloquium habuerimus This Writ appears to have been granted at the Complaint of the whole Parliament and Commands the Clergy not to proceed in their Exactions nor any other business contra consuetudinem Regni till the King had spoken with his Parliament about the matter But I lay no stress at all upon the Parliament's being here a party I produce this Writ only to confirm Sir Roger's fourth particular of the Kings prohibiting the Clergy to attempt any thing against the Rights of his Crown or the Law of the Land. It is a known Rule that whatever is forbidden by Law the King may forbid by his Proclamation and that whensoever any Court assumes an Authority not warranted by Law the King may prohibite them by his Writ What more natural then for the supreme Magistrate to whom the Law has committed the Execution of it self to prohibite all things that are contrary to Law As here we see the King at the complaint of the Vniversitas prohibits the Clergy from attempting any thing contrary to the Consuetudo Regni so in King Henry the Eighth's time there appears a prohibition to the King himself and the Clergy not to do any thing contrariant or repugnant to the King's prerogative Royal or the Customs Laws and Statutes of the Realm The Statute of 25 Hen. 8. cap. 19. which all men agree to be but declarative of the Common Law enacts that No Canons Constitutions or Ordinances of the Clergy shall be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the Kings prerogative Royal or the Customs Laws or Statutes of the Realm This Act had before provided that the Clergy should not make promulge or execute any Canons Constitutions or Ordinances in their Convocations without the Kings Licence and Assent under the Penalty of a Premunire so that without the Kings Assent their Canons would be Nullities and themselves under a premunire for making or Executing them And therefore when the Act provides in an after-clause that they shall make no
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