imprisoned or restrained and to grant and to allow unto the Papists and Professors of the Romish Religion free Toleration and silencing of all Laws made and standing in force against them Vide Rushworth Vol. 1. p. 251. and Prinne 's Introduct p. 32. So that King James thought himself had no power to rescind or repeal the Laws Seorsim tho' he could so moderate the execution of them as to make his Roman-Catholick Subjects be obliged to him Yet when afterwards in hopes of obtaining the Infanta for his Son he had agreed to issue a Proclamation for Indulgence to Roman Catholicks and a Proclamation was drawn accordingly but never published we may read the Sense of the Church of England upon it in Archbishop Abbot's Remonstrance The Reason why the Proclamation was not published was because the putting of it in practice or not was to depend upon the success of the Match which miscarrying the Proclamation was stifled And that may be the reason why the Parliament in 21 Jacobi take no notice of it But in the Parliament of 2 Car. 1. The Earl of Bristol was charged by the King 's own Direction for having persuaded the King to it as having committed a very high Crime in so doing Whereas if the King had a power by Law to do it it could not well be a Crime in him to persuade him to make use of his Power when the Circumstances of his Affairs required it And as it was then conceived a Misdemeanour to Advise the King to it so who knows how far future Parliaments may account it a Misdemeanour to have been in any wise instrumental towards the carrying on of a design which some will not stick to say now as the Archbishop did then is to give the King a Power of throwing down all the Laws of the Land at his pleasure Thus I have endeavoured to give some small account of the rise and progress of Dispensations with Acts of Parliament by which it does appear that as the clause of Non Obstante was first introduced by Popes and first applied by the instigation of the Popish Clergy to break through Acts of Parliaments tho' our Parliaments never Countenanced them and our Courts of Justice never extended the dispensing power farther than to particular persons or at most to Corporations so Dispensations suspending at one blow the whole effect of Laws were invented at Rome too in favour of English Papists upon the Treaty of the Spanish Match in King James's time But they never appeared bare-faced in view till King Charles the Second's time in whose Reign they were twice damned in Parliament The third effort has been made of late since which no Parliament has yet sat down It may seem strange considering the great Solemnity and Caution that is used in passing Acts of Parliament that so impudent a conceit as that of the Legality of a dispensing Power should ever enter into the thoughts of Men. For if a Bill be first brought into the House of Lords after it is read it is committed to a Committee of Lords and certain Judges are appointed to attend them that nothing may be put into the Act which may be mischievous to the King or Kingdom After which when it comes to be read in the House again the Judges sit as Attendants upon the House and hear all the Debates of the Lords upon it Indeed they have no Voice in the House of Lords but if any Bill that is passing should in their Judgments have any ill Consequences to the King or Kingdom they might either have offered their Reasons at the Committee or suggested what their thoughts were to some of the Lords in the House who would have acquainted the House with it A Bill having passed the House of Lords with all this Caution is afterwards sent down to the Commons by some of the Judges themselves and sometimes by the Chief Justices and Chief Baron who coming into the House of Commons with Reverence and the respect of three Bows deliver the Bill to the Speaker And the method is the same in case of a Bill coming from the House of Commons and committed by the Lords some of the Judges are always appointed to attend and wait upon the Committee of the Lords After all this Solemnity the Bill yet signifies nothing without the Royal Assent In order to which before the King is to give it the Clerks of the House of Lords are to bring the Bills before the King and the Privy Council before whom they are read and not only the King's Council are ordered to attend and be present but likewise all the Judges in Westminster Hall And if any Bills should be thought of mischievous Consequence they as being the King's Council in Matters of Law are bound by the express tenour of their Oath to shew and disclose it to the King. But if no such thing be done then the King in full Parliament gives his Le Roy le Voet and so it becomes a general Law to bind the whole Kingdom Now after a Law made with such caution and solemnity is entred upon Record as a Statute binding to the whole Kingdom it must needs seem strange that the Judges in Westminster Hall should dare to allow of Dispensations with such a Law grounded upon the sole Act of the Prince and much more that they should as a late Honourable Author tells us they have done declare Acts of Parliament to be void Coke 8 Rep. Fol. 118. Heb. 87. and contrary to the Law of God or Natural Equity or that they should suppose any Law thus made to be so without assuming a power to themselves of Impeaching both Houses of Parliament the King himself all the Privy Councillors nay and themselves too or at least their Predecessors for want of Knowledge Prudence or Foresight as not being capable to judge of common Sense or not fore-seeing Inconveniences which either themselves now perceive or would persuade us the King by some new illumination has discovered especially when these inconveniences if real may easily be redressed In Parliament without having recourse to a Westminster Hall Prerogative or Dreams of Imperial Power vampt up with Ignorance a good Fancy and a tollerable Pen by some scurrilous Authors whose names I cannot prevail upon my self to defile paper with I cannot leave this period of time betwixt King John and King Henry the Eighth without a remark upon an Act of Parliament made in the Second Year of King Henry the Fifth cap. 1. That Act recites that many Hospitals have been founded by the Kings of this Realm and divers other Estates of Men and Women to which Hospitals the Founders have given part of their moveable Goods and of their Lands therewith to sustain impotent Men and Women c. And that the same Hospitals be now for the most part decayed and the Goods and Profits of the same withdrawn and spent in other uses And therefore Enacts That as to the Hospitals which be
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.
little or none Effect or Force Therefore it is ordained and enacted by Authority of this present Parliament That all and singular Persons as well Lay as those that be Married being Doctors of the Civil Law c. The enacting of a thing by Parliament to silence all Doubts to give credit to the Proceedings of such Lay-men as then did actually exercise Ecclesiastical Jurisdiction by Commission or otherwise shews sufficiently that even in Matters never so Spiritual the Act of King Lords and Commons carryed a greater Authority than any Commission Dispensation or other Act whatsoever proceeding from the King solely and that at a time when the Supremacy was at the height There were many other Acts passed in this Kings Reign concerning Church men and Matters confessedly of Ecclesiastical Conusance as 21 Hen. 8. cap. 5. concerning Probates of Wills. Cap. 6. Concerning Mortuaries taken by Priests and others Cap. 13. Against Pluralities of Benefices and taking of Farms by Spiritual Men. 23 Hen. 8. Cap. 1. Abridging the Power of Ordinaries and taking away the Benefit of Clergy in some Cases Cap. 9. That no Man be cited into any Ecclesiastical Court out of the Diocess wherein he dwells unless in certain Cases Cap. 10. Concerning Feoffments and Assurances to the use of any Church or Chappel 25 Hen. 8. Cap. 14. For the punishment of Heresie and Hereticks limiting the manner of proceeding against them defining what shall be Heresie how it shall be punisht and abridging the Authority of the Bishops and the Canon Law. Cap. 16. Concerning Pluralities 26 Hen. 8. Cap. 3. For the payment of the First Fruits of all Dignities Benefices Promotions Spiritual and Tenths to the King and his Heirs abolishing the Pope's Usurpation and Authority herein Cap. 13. For abolishing the Priviledge of Sanctuary in Cases of High Treason Cap. 15. Against some Exactions of Spiritual Men within the Archdeaconry of Richmond 27 Hen. 8. Cap. 8. That the King 's Spiritual Subjects shall pay no Tenths whilst they are in their First Fruits Cap. 19. Limiting Sanctuaries and Sanctuary Persons Cap. 20. Concerning the Payment of Tythes within the City and Suburbs of London Cap. 28. For the suppressing of Monasteries Priories and Religious Houses vesting their Revenues in the King and erecting a Court of Augmentations 28 Hen. 8. Cap. 10. For extinguishing the Authority of the Bishop of Rome prescribing an Oath of Abjuration of it and Popery together with the Pope's Usurpations and excellently setting forth the King's Supremacy and Parliaments Authority in Matters Ecclesiastical Cap. 11. For the Restitution of the Profits arising during the Vacation of a Benefice to the next Incumbent Cap. 13. Compelling Spiritual Persons to reside upon their Livings Cap. 16. Releasing such as had obtain'd pretended Licences and Dispensations from the See of Rome 31 Hen. 8. Cap. 16. Enabling such as were Religious Persons to purchase Lands to sue and to be sued in all manner of Actions which they were disabled formerly to do by the Common and Canon Law. Cap. 9. Enabling the King to make Bishops by his Letters Patents and to erect new Bishopricks which he did Cap. 13. For dissolving all Monasteries and Religious Houses and vesting them in the King. Cap. 14. For abolishing diversity of Opinions in Matters of Religion most fully and exactly demonstrating the Parliaments Jurisdiction in Matters of Religion 32 Hen. 8. Cap. 7. For the true Payment of Tythes and Offerings Cap. 10. For the Punishment of incontinent Priests and Women offending with them Cap. 12. Concerning Sanctuaries and the Priviledges of Churches and Church-Yards Cap. 15. Prescribing the manner of proceeding against Hereticks and impugners of the Act for abolishing of enormous Opinions in Christians Religion Cap. 25. Dispensing with the Marriage between the King and the Lady Ann of Cleve 33 Hen. 8. Cap. 29. For enabling Religious Persons to sue and be sued Cap. 31. Severing the Bishopricks of Chester and the Isle of Man from the Jurisdiction of the Archbishop of Canterbury and uniting them to the Province and Archbishoprick of York Cap. 32. Making the Church of Whitegate a Parish Church by it self and severing it from the Parish of Over All these Acts and perhaps some few not here enumerated evince beyond all possibility of contradiction that the whole Fabrick of the English Church both as to the Doctrin Discipline Ceremonies Censures Rights Jurisdictions Endowments Priviledges c. was from time to time ordered moulded governed altered improved or impaired by Authority of Parliament and not by the King in right of his meer Supremacy nor by the Clergy upon the score of any pretended Authority derived from from Christ or from the King as SUPREME HEAD on Earth That no one Pin was fastned in this Tabernacle but according to what the Legislative Body of the Kingdom prescribed and directed from time to time That this Age had no other Notion of the King's Supremacy by common right than our Fore-Fathers had before the Pope and his Faction grew upon our Constitution That many Powers and Authorities given to King Henry the Eighth by Parliament which are now either abrogated or expired as they shew that our King 's were not nor are entituled to them of common Right nor can justifie the executing any such Authority by Presidents in his Reign which were grounded upon Laws then in being but which are now of no force so they shew unquestionably that there is a greater and more Soveraign Supremacy in Matters Spiritual and Ecclesiastical in the King and both Houses of Parliament than is lodged in the King himself or in the King and Convocation It appears farther that those Temporary Powers given to that King expiring with him and the Act of 26 Hen. 8. Cap. 1. being now Repeal'd the Legal and Ancient Jurisdiction of the Crown in Matters Ecclesiastical is the same now that it was Five hundred Years ago notwithstanding any thing that pass'd in this Reign only that a new Course is now settled and that by Act of Parliament too for the Electing of Bishops and Prosecuting of Appeals Only one Thing more I shall add viz. That in Matters Spiritual as well as Temporal several Resolutions of the Judges being grounded on Temporary Acts of Parliament then in being following Judges both Ecclesiastical and Civil meeting with such Resolutions and not considering that those Acts upon which such Resolutions were made were but Temporary or Repeal'd they have made such Judgments to be Presidents to graft their Modern Opinions upon FINIS An Answer to CHAP. 4. SECT 1. Of a late BOOK Entituled the King 's Visitatorial Power Asserted By way of APPENDIX SInce the foregoing Papers were Written a late Mercenary Writer One Nathaniel Johnson Doctor in Physick has publish'd a Book Entituled The King 's Visitatorial Power Asserted in which Book he has inserted a long Section how pertinently to his main design in that Treatise may perhaps be shewn hereafter concerning the King's Supremacy and Power in Ecclesiastical Causes and