of any inherent Prerogative or by vertue of his Imperial Soveraignty or as incident to his lately recognis'd title of Supreme Head of breaking through all Acts of Parliaments relating to Religion and Ecclesiastical Affairs that now in the 32 Year of his Reign when he had been declared the Supreme Head by Act of Parliament Six Years ago when every Act of Parliament about Church Matters carried an acknowledgment of that Declaration in the front of it when a Legislative Power as to Doctrine and Ceremonies was given him by Act of Parliament yet even then when the Supremacy blaz'd like a Meteor and had so malignant an influence as to strike opposers dead when it was armed with such a Power as never any King of England enjoyed before or since yet then were Acts of Parliaments accounted so Sacred that nothing was to be ordained or defined by this new Legislative Authority contrary to the Laws and Statutes of the Realm And this very Legislative Power owing its birth to a Parliamentary Concession which qualified it with a Restriction which perhaps was not acceptable is sufficient to inform us that a Parliament can give more power and larger Prerogatives to the King even in Ecclesiastical Matters than he has by common right and that 's all the use that can be made of this Act now in our days The next Act is that of Marriages cap. 38. of this Session the Conusance of Marriage had time out of mind belonged to the Spiritual Jurisdiction which was now vested in a great measure in the King's Person the executive part he might administer by Commissioners delegated by vertue of the Stat. of 26 Hen. 8. cap. 1. as hath been said a Legislative Power was given him by 32 Hen. 8. cap. 26. But that Act did not enable him to make any binding Laws about Marriage for the Declarations Decrees Definitions Resolutions and Ordinances which he was impowered to make according to God's Word and Christ's Gospel with his Bishops and Doctors to be appointed were only in Matters of Christian Faith and the lawful Rites and Ceremonies of the same And the setling of the Degrees of Marriage not falling under either of those two Heads viz. Matters of Faith or Ceremonies it was necessary there should be an Act of Parliament to make a Regulation therein The next Act is the 34 and 35 Hen. 8. cap. 1. which prohibits the setling or using of any Books of the Old or New Testament of Tindal's Translation or comprizing any Matter of Christian Religion Articles of Faith or Holy Scripture contrary to the Doctrin set forth since Anno Dom. 1540. or to be set forth by the King prohibits the retaining any English Books or Writings concerning Matters against the Holy and Blessed Sacrament of the Altar or for Maintenance of the Anabaptists or other Books abolished by the King's Proclamation forbids any thing to be taught contrary to the King's Instructions c. under severe Penalties In which there is this farther Clause And be it farther enacted That the King's Majesty our said Soveraign Lord that now is King Henry the Eighth may at any time hereafter at his Highness liberty and pleasure change and alter this present Act and Provisions of the same or any Clause or Article therein contained as to his Highness most excellent Wisdom shall seem convenient any thing in this Act to the contrary in any wise notwithstanding So that a Power in the King of Changing and Altering and consequently of Suspending which in effect is Repealing Acts of Parliament concerning Matters of Religion unless given by a Parliament is not according to the Constitution of our Government nor is it a Perogative inherent in the King of common Right For if he had had such a Power in himself this Clause which no doubt was put in by the King's Order would have been vain and nugatory The Act of 35 Hen. 8. cap. 16. gives the King Authority during his Life to name Thirty two Persons viz. sixteen Spiritual and sixteen Temporal to examine all Canons Constitutions and Ordinances Provincial and Synodal and to establish all such Laws Ecclesiastical as shall be thought by the King and them convenient to be used in all Spiritual Courts This the King could not do by Vertue of the Act of 32 Hen. 8. cap. 26. For that Act gave him a Power concerning Matters of Christian Faith and Ceremonies only Nor could the King and the Clergy settle these Canons and Constitutions without an Act of Parliament for the Laity in all Matters Ecclesiastical in all things of Spiritual Conusance were to be bound by them Nor would the Parliament trust the King and the Spiritualty to settle the Canon Law without an equal number of the Temporalty added to them The next and last Act that I shall observe in this King's Reign is the 37 Hen. 8. cap. 17. ' which Act reciting That the Archbishops Bishops Archdeacons and other Ecclesiastical Persons have no manner of Jurisdiction Ecclesiastical but by under and from the King Enacts That all Persons as well Lay as Marryed Men being Doctors of the Civil Law may lawfully execute and exercise all manner of Jurisdiction and all Censures and Coercions appertaining to or in any wise concerning the same c. any Law Constitution or Ordinance to the contrary notwithstanding What can be more purely Spiritual than exercising Ecclesiastical Censures and yet this King though he had a Personal executive Power given him in all Matters Ecclesiastical by the 26 Hen. 8. cap. 1. a Legislative Power in part by the Statutes of 31 Hen. 8. cap. 8. and 32 Hen. 8. cap. 25. and a Power of Dispensing with the Canon Law by the Statute of 25 Hen. 8. cap. 21. yet thought it convenient at least to have the concurrence of his Parliament in breaking through those Ordinances and Constitutions whereby Lay-men and Marryed-men were disabled to exercise any Jurisdiction Ecclesiastical or be Judge or Register in any Court commonly called Ecclesiastical Court. I cannot well deny but that the King might have dispens'd with those Canons and Constitutions by Vertue of the Statute of the 25 Hen. 8. cap. 21. which impowered him to allow the Archbishop of Canterbury to grant Licences and Dispensations even in Cases not wont to be dispensed in at Rome Nay and these Constitutions whereby Lay and Married Men were disabled as aforesaid are in the Preamble of this Statute said to be utterly abolish'd frustrated and of none effect by a Statute made in the Twenty fifth Year of the Kings most Noble Reign By which seems to be meant the Nineteenth Chapter of the then Session of Parliament And yet because the Archbishops Bishops Archdeacons and other Ecclesiastical Persons practised the contrary which might give occasion to some evil disposed Persons to think and little to regard the Proceedings and Censures Ecclesiastical made by your Highness and your Vicegerent Officials and Commissaries Judges and Visitors being also Lay and Married Men to be of
Ecclesiastical Commission such as c. by the Antient Perogative and Law of England never yet came in question judicially before any Court whatsoever The Case betwixt Cawdry and Atton turned upon this Point viz. Whether the High Commissioners might deprive for the first Offence whereas the Act of 1 mo Eliz. cap. 2. inflicts it only for the second Pop. Rep. pag. 59 60. And resolved that the Statute is to be understood when they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction What 's this to the Question Whether such a Commission might have been issued without an Act of Parliament impowering the Queen to issue it Nor do the Judges in that Case nor the Lord Coke in his double-tongued Report of it nor the post prandium Judges and Serjeants so much as pretend to any manner of Authority for their Opinion there delivered that the King might grant such a Commission by his Perogative at Common Law Nor do's the late Defender quote any antient Record History Maxim of Law or any other Legal Authority or Historical Proof whatsoever to clear the Point Nor will I reflect upon some Resolutions of Judges that have been in former times or in this Age of ours Ship-Money which gained so little Credit upon their Authorities that exemplary Punishments have and may be inflicted upon some of the Resolvers But tho this Point be left so forlorn by the Defender as having nothing to support it on his side but an ipse dixit and tho we live in an Age in which blessed be God most Men have a better Opinion of their own Understandings than to take things upon trust yet because this Question concerning the Legality of an Ecclesiastical Commission resolves it self into the mistaken notion of a Personal unbounded Supremacy and because some of our Clergy give us Schemes of Government according to which this Commission is the most justifiable thing in the World I am desirous to offer a few Observations concerning the Ecclesiastical Jurisdiction of the Kings of England in doing of which the only thing I aim at is the putting others who are better qualified and perhaps misinformed upon farther Inquiries if haply I may compass that We are told that our Common Lawyers have often affirmed Legality of c. defended pag. 38.39 That whatever the Pope de facto formerly did within this Realm by the Canon Law that of right belongs to our Kings That on this ground it has been adjudged That the Legislative Power in Matters Ecclesiastical is lodged in the King. The Pope made Laws for the Government of the Clergy and so may the King and so much Queen Elizabeth as supreme Head of the Church of England exercised c. And that the Power in the King in Matters Ecclesiastical is too ample to be bounded by an Act of Parliament But notwithstanding these and other Bravado's we are told also that the Acts of Parliament which restore the Ecclesiastical Jurisdiction to the Crown are but Declarative Vindication pag. 6. Legality of c. defended pag. 8. that they give no new Power but recognize what always was de Jure the King 's Right Which naturally sends us back to Antiquity to enquire how the Supremacy was then managed and exerted before a Forreign Power had made inroads upon it They that affirm this or the other Act to be but Declarative and that this or that may be done by the Common Law always alledge if they intend to perswade some Judicial or other President some Record or other some anciently received Maxime or Rule of Law They that resolve without such grounds for their Resolution set up for Law-makers and not Interpreters Now it was to difficult matter to resolve that the Supreme Jurisdiction Ecclesiastical as well as Temporal did originally belong to the Crown of England Every Chronicle Writer can tell us when the power of the Court of Rome prevailed to lop off some of its Branches And the Crown must needs have it before it could lose it But whether our modern conceptions of the Supremacy are adequate to that Ancient Legal Supremacy at the Common Law of which we agree the restoring of Ecclesiastical Jurisdiction by Act of Parliament to be but Declarative is certainly worth their Enquiry who pretending that All Laws concerning it are but declarative must either justifie that Position and other modern Ascriptions from Antiquity or confess the vanity of them The Ancient Ecclesiastical Supremacy of the Kings of this Realm was no personal Prerogative But our Kings were Head of the Church as they were Head of the State governing both by Laws made by the same Authority if designed to be binding to all and administred in the same Courts till King William the Conqueror's Reign and from that time downwards in the Spiritual and Temporal Courts apart All Matters whatsoever concerning Religion Discipline Ceremonies with all Laws Canons and Articles whatsoever relating thereunto by which the Laity were to be bound were anciently Enacted by the same Authority that made our Temporal Laws and without such Authority are not binding to the Laity to this day nor ever were Nor has the King any power by the Law to impose any New Article Ceremony Practice Rule or Order whatsoever upon the Clergy or any of them under any sort of Penalty without an Act of Convocation at least In the first place I will give a few Instances before the entry of the Saxons by which it will appear in some measure how the Law stood in those days with respect to the Supremacy In the Year 448 Germanus and Lupus two Learned Bishops were sent hither out of France to suppress the Pelagian Heresie Upon which occasion a Synod was assembled at Verolam Aderat Populus expectabatur futurus Judex Adstabant partes c. After a long debate Populus arbiter vix manus continet Judicium clamore contestando c. In this first Synod that we read of in England the People were present and were Judges and by their determination a great Controversie of Religion was settled * Vide Spelm. Concil Tom. 1. p. 47 48. An Account of this Council and of the time when it was held Bed. Eccl. Histor Gent. Anglor Lib. 1. Cap. 17. Thus it was in the first Christian Council that ever sate viz. the 15th Chapter of the Acts of the Apostles After the matter had been debated whether the believing Gentiles ought to be Circumcised and to keep Moses his Law verse 22d It pleased the Apostles and Elders with the whole Church to send c. And they wrote Letters after this manner The Apostles and Elders and Brethren send Greeting unto c. It seemed good to the Holy Ghost and to us c. So that the Laity as well as the Clergy had in this Council decisive Votes And if it shall appear by what follows that the People of this Nation never were nor can to this day be
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
Visitations page 144. c. to page 160. In which Section because he pretends to set up an imaginary Personal Supremacy quite different from what I have endeavoured to assert from some Remarks upon Ancient Histories and late Acts of Parliament but agreeable enough with some Opinions that have been espous'd of late and made use of to warrant some late Proceedings I thought it might not be amiss to trace him through that Section and submit to the Judgment of the Unprejudiced Reader whether the Doctor has afforded the World a right Scheme of the King 's Ecclesiastical Supremacy I beg the Reader 's Pardon if he meet with some few passages over again here that were touch'd upon in the foregoing Discourse I hope their usefulness will excuse the repetition of them and the Answer would not have been so clear without it He tells us pag. 144. that long before the Reformation several Kings of England permitted no Canons or Constitutions of the Church or Bulls and Breves of the Apostolick See to be executed here without their Allowance Which I agree to be very true only the Doctor saying without their Allowance implies and it appears by the whole drift of his Discourse in this Chapter and indeed by the main Scope of his Book that he would be understood that With their Allowance such Canons and Constitutions Bulls and Breves might lawfully be Executed Which I deny And hope to make it evident that Our Kings could not by their own Personal Authority let in upon their Subjects a foreign Jurisdiction He adds pag. 145. that since the Supremacy has been Established by Act of Parliament in the Crown The Kings of England may according to the Laws in force not only Exercise all the Powers they could What Powers those are no Man knows but Filmer Brady Johnson Hicks Sir. Roger L'Estrange and a very few others of yesterday as Sovereign Princes but likewise whatever the Pope de jure if not de facto could or did do in the outward Regiment of Ecclesiastical matters and consequently that whatsoever was done in Visitations by the Authority of the Popes Metropolitans or Diocesan Bishops may now be done by the Kings of England as Supreme Ordinaries Which is a very wild Assertion and without the least Foundation of Truth He does not here speak it out roundly That the King may by the Law do whatever the Pope de facto did but minces the matter a little by saying Whatever the Pope de jure if not de facto could or did do And yet with the same breath he says positively that whatever was done in Visitations by Authority of the Pope may now be done by the King. So that however the King may be limited and tyed up in other Parts of his Ecclesiastical Jurisdiction to what the Popes de jure could do in Visitations at least he has Authority to do whatever the Popes Archbishops or Bishops actually did The Doctor did not consider that the several Branches of the Supremacy now restored by Act of Parliament are guided directed and limited by positive and particular Laws made about the time of the Reformation And that the Act of primo Elizabeth in that general Clause which Restores the Supremacy Vnites and Annexes only such Jurisdiction and Authority as had or might be lawfully Exercised by any Spiritual Person c. Not that the Pope to speak strictly could Exercise any Jurisdiction lawfully within this Realm for the Old Laws and Customs of the Realm and the Statutes of Premunire and Provisors were firm Bars to his Right but a Jurisdiction may be lawful in it self that is for so I would be understood the Acts of a Person Assuming Jurisdiction may be lawful in themselves considered separate and a-part from the Person of him that Exerts it though the Person Exercising such Jurisdiction have no legal Authority If an Usurper should possess himself of any Government and carry on the Administration of it in the same Method and Course of Justice that the Lawful Prince did or ought to do in strictness of Law there might perhaps be a Nullity in all his Acts and yet considered Abstracted from his Person his Government would be said to be lawful that is according to Law and the course of Proceedings that had been setled and obtained before his Usurpation So whatever the Pope did in this Nation as pretending to be Head of the English Church which was not in it self contrary to the Law of the Realm in Church or State but might lawfully be done though not by him is by the said Act of primo Elizabeth Vnited and Annexed to what Why to the Imperial Crown of this Realm Whereas by the Act of Supremacy that passed in King Henry the Eighths time All such Jurisdiction Authority c. was personally vested in the King his Heirs and Successors But of that distinction more shall be said God willing some other time Pursuant to this imagination of the Pope's Power being Translated to the King he tells us that latter Laws have devolved upon the King even the Power of the Pope in foro externo pag. 145. He says pag. 145 146. that during the Schism in the Papacy between Vrban and Clement King William Rufus claimed as other Princes did a Right to declare to which Pope he would adhere And that none should be received as Pope in England without his Licence and Election Here if I understand the Doctor aright he takes for granted that if there should happen a Schism in the Popedom the King might declare whether or which of the Competitors himself thought fit to be Pope within this Realm Which I deny that he could do without the Assent of the Clergy and Laity in a General Assembly He says pag. 145. that if the Archbishop of Canterbury called and presided in a General Council of Bishops King William allowed nothing to be appointed or forbidden unless they were accommodated to his Will and were first ordained by him These are the Words of Eadmerus out of whom the Doctor Quotes them Eadm Lib. 1. Fol. 6. But if the Doctor would here insinuate as he does and consonantly to his own Hypothesis must mean that the King's Will concurring with the Assent of a General Council of Bishops could make an Ecclesiastical Law to bind the whole Kingdom without the Assent of the Laity that is what I deny and hope to make it very clear in the following Discourse Whereas he says pag. 145. out of the same Author Eadmerus that King William suffered not any of his Barons or Officers to undergo any Ecclesiastical Censure but by his precept I hope it will appear that this was not an Arbitrary Power assumed by the King but that the Law of the Realm was so He says pag. 146 147. that the Oath of Fidelity which Anselme had taken to King William Rufus was no ways like the present Oath of Supremacy He says pag. 148 149. As to the legantine Power it is apparent by
Regum Anglorum Lib. 2. cap. 5. This Council Matthew Westminster pag. 181. Anno Dom. 9051 calls Concilium Grande Episcoporum Abbatum fidelium populorum in Provinciâ Geviseorum In the same Council the bounds of their Diocesses were Limitted which the same Historian describes He tells us likewise that in the same Council two other Bishops were chosen One to the Bishoprick of Dorchester and another to that of Chichester In King Henry the Eighth's time six New Bishopricks were erected by the King's Letters Patents viz. Glocester Bristol Chester Peterborough Oxford and Westminster But those Letters Patents had the Authority of an Act of Parliament to warrant them made in the One and thirtieth year of that King's Reign cap. 9. Be it Enacted by the Authority of this present Parliament that his Highness shall have full power and Authority from time to time to declare and nominate by his Letters Patents c. such number of Bishops such number of Cities Sees for Bishops Cathedral Churches and Diocesses by metes and bounds c. as to his most Excellent Wisdom shall be thought necessary and convenient And also shall have power and Authority to make and devise Translations Ordinances Rules and Statutes concerning them All and every of them c. And that all and singular such Translations Nominations of Bishops Cities Sees and limitation of Diocesses for Bishops Erections Establishments Foundations Ordinances Statutes Rules c. shall be of as good strength force value and effect to all Intents and purposes as if such things c. had been done made and had by Authority of Parliament This is most apparently an Enabling Act Power is here given to the King by Authority of Parliament and it is Enacted that the Contents of his Letters Patents to be made for perfection of the Premises shall be as valid as if they had been Enacted in Parliament So that in that King's Judgment force and validity was by this Act given to his Letters Patents which otherwise they would have been destitute of and have been invalid for the End to which they were designed This was but a Temporary Act and dyed with that King for no such Power is given by the Act to his Successors And therefore in King Edward the sixth's time a Bill was brought into the House of Commons and read the first time To authorize that King to make New Bishopricks by Letters Patents As I find in a Manuscript Journal of King Edward the Sixth's Parliaments Anno Regni 7. What became of it afterwards I know not It was brought in towards the End of the Session and did not pass into a Law. But the bringing of it in shews that the King was not conceived to have any such Authority of Common Right Nor did that King exercise any such Authority For the Bishoprick of Durham was in his Reign divided into two by Act of Parliament And when it was restored to its former Estate in Queen Mary's time it was done by Act of Parliament Vid. Dr. Burnet's History of the Reform vol. 2. p. 215. Rastal's Statutes 1 Mariae Parl. 2. That Act of King Henry the Eighth by which he was impowered to Erect New Bishopricks was Repealed 1 2 Phil. Mar. And to the End that by the Repeal of the Act those Bishopricks that had been Erected by vertue of it might not be consequentially dissolved A Clause was inserted into the Act of Repeal That all Bishopricks Cathedral Churches Hospitals Colledges Schools and such other Foundations then continuing made by Authority of Parliament or otherwise according to the Order of the Laws of the Realm since the schism should be confirmed and continued for ever So that then the Bishopricks that had been newly Erected by King Henry the Eighth stood upon this Foundation viz. A Confirmation by Parliament notwithstanding the Repeal of 31 Henr. 8. cap. 9. But now that the Statute of 1 2 Phil. et Mar. cap. 8. is Repeal'd by Primo Eliz. and this clause of Confirmation not excepted out of the Repeal I know not upon what bottom they stand at this day So far were our Kings from assuming a Power to Erect and divide Bishopricks at their pleasure as a late Author in a Book intituled A Vindication of the King 's Sovereign Rights c. pag. 12. takes upon him to affirm That they never so much as divided Parishes nor could make Vnions and Consolidations of Parochial Churches without Authority of Parliament Witness the Statutes of 33 Henr. 8. cap. 32.32 Hen. 8. cap. 44.37 Hen. 8. cap. 21.17 Car. 2. cap. 3.22 Car. 2. cap. 11.22 23 Car. 2. cap. 15. c. Sir Roger mentions likewise the Bishoprick of Carlisle which was Erected by King Henry the First Anno Dom. 1133. The Prior of Hagulstad speaks of this in General terms Coll. pag. 257. Consecratus est Adulphus Prior de Nostlia ad Vrbem Karleol quam Rex Henricus initiavit ad sedem Episcopalem Math. Westm in like manner pag. 241. Rex Henricus Novum fecit Episcopatum apud Carleolum in Limbo Angliae et Galwalliae et posuit ibi primum Episcopum nomine Ethelulphum sancti Oswaldi Priorem Abbas Jorvallensis tells us the story in like terms Collect. pag. 1019. Eodem Anno Rex fecit Novum Episcopatum apud Karliolum quem Arnulfo Priori de sancto Bertulpho Contulit But it appears by Radulph de Diceto Coll. pag. 505. that in this very year a Parliament was held and a very solemn one Rex Henricus Convocatis Regni sui Principibus filiam suam haeredes filiae suae sibi successorres instituit In which Parliament it is not unlikely that this Bishoprick of Carlisle was erected notwithstanding these loose Expressions of the Monks For the same Authors express themselves in the same terms concerning the Bishoprick of Ely Which yet was erected by Act of Parliament Radulphus de Diceto Collect. pag. 501. Rex Henricus Abbathiam Elyensem ad Episcopalem mutavit sedem Herveum ibi praesecit Math. Westminst pag. 238. Rex Henricus Abbbathiam Elyensem in Episcopalem sedem commutavit Abbas Jorvallensis pag. 1003. Collect. Abbathiam de Ely ad sedem Episcopalem convertit primum Episcopum Herveum Bangorensem constituit So that no Argument can be drawn from these Historians mentioning the King's Founding the Bishoprick of Carlisle without naming the Parliament as a party to it to prove that therefore it was not Erected by Authority of Parliament For if the Charter of the Foundation of the Bishoprick of Ely had been lost the same Argument would have lain against it And all the Bishopricks in England of whose first Foundations there is any particular Account given by our Historians appear to have been Founded by Our Kings in Parliament or by vertue of an Authority given by Act of Parliament I suppose it will not be deny'd but whenever any Bishoprick in Particular was Founded at the same time it was endow'd Now Our Ancient Kings could not
those Times What Orders of Men were comprehended under the word Magnates is not material to our present purpose The Great Councils that made the Laws and without whom no Laws were made are frequently so described by our antient Historians In the year 692 Ina King of the West Saxons enacted many Constitutions for the Government of the Church as De formula vivendi Ministrorum Dei. De baptizandis Infantibus De opere in die Dominico De immunitate fani c. The Preface to which Laws runs thus Ego Inas Dei beneficio Occiduorum Saxonum Rex suasu instituto Cenredi Patris mei Heddae Erkenwaldi Episcoporum meorum Omnium Senatorum meorum natu Majorum sapientum Populi mei in magnâ servorum Dei frequentiâ religiose studebam tum animorum nostrorum saluti tum communi Regni Nostri conservationi ut legitima nuptiarum faedera c. Here the King his Bishops all his Senators the Natu Majores Sapientes of his People which are Descriptions of the Laity in Parliaments of those Times and a great number of Gods Servants by which the Clergy are meant make Ecclesiastical Laws This was a Parliament as appears not only by the presence of the Laity but by many Temporal Laws enacted at the same time Spelm. Conc. Tom. 1. Fol. 182 183 c. In the year 694. Concilium Magnum Becanceldae celebratum est Presidente Withredo Rege Cantiae necnon Bertualdo Archiepiscopo Britanniae cum Tobiâ Episcopo Roffensi Abbatibus Abbatissis Praesbyteris Diaconibus Ducibus Satrapis c. All these pariter tractabant anxie examinabant de Statu Ecclesiarum Dei c. Here the King 's Legislative Power in Ecclesiastical Matters exerted it self not Personally but in this Great Council They do all enact Statuimus decernimus praecipimus For when the King himself is spoken of the Singular Number is used Nullus unquam habeat licentiam accipere alicujus Ecclesiae vel Familiae Monasterii Dominium quae à meipso vel antecessoribus meis c. Spelm. Conc. Pag. 189 190. A Council was held at Berghamjtede Anno 5 to Withredi Regis Cantiae i. e. Anno Christi 697. Sub Bertualdo Archiepiscopo Cantuariensi praesentibus Gybmundo Episcopo Roffensi omnibus Ordinibus Gentis illius cum Viris quibusdam militaribus In quo de moribus cavetur ad Ecclesiae cognitionem plerumque pertinentibus These Ordines Gentis illius seem by the Preface to these Laws to be meant of the Ordines Ecclesiastici Gentis illius but withal that they cum viris utique militaribus humanissimè communi Omnium Assensu has Leges decrevêre Spelm. Conc. 194. So that these Ecclesiastical Laws were enacted by the assent of the viri Militares as well as of the King and the Clergy A Council was held at Cloveshoe sub Cuthberto Doroberniae Archiepiscope praesentibus praeter Episcopes Sacerdotes Ecclesiasticos quamplurimos Aedilbaldo Merciorum Rege cum suis Principibus Ducibus Anno Dom. 747. In quo decernebatur de unitate Ecclesiae de Statu Christianae Religionis de Concordiâ pace c. Spelm. Conc. 242 c. In the Year 787 Concilium Legatinum Pananglicum was held at Calchyth in which many Canons were made de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus This Council was held Coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus Regionis seu Senatoribus Ducibus Populo terrae who All confirmed them After these Ecclesiastical Laws had been thus enacted by Aelfwald King of Northumberland the Legates carried them into the Council or Parliament of the Mercians where the glorious King Offa cum Senatoribus Terrae una cum c. convenerat There they were read in Latin and Teutonick that All might understand and All promised to observe them and the King and his Princes the Archbishop and his Companions signed them with the Sign of the Cross Spelm. Conc. Vol. 1. Fol. 291 292 c. Many Instances of this kind might have been added as particularly that of the Council at Hatfield An. 680. wherein the Canons of five General Councils were received which was a Witena Gemote a Conventus Sapientum But I spare time am endeavouring only to open a Door By these Instances it is apparent that the same Body of Men that enacted the Temporal Laws of the Kingdom did in the very same Councils make Laws for the Government of the Church Indeed the whole Fabrick of the English Saxon Church was built upon Acts of Parliament nothing in which the whole Community was concerned was enacted decreed or established but by that Authority For whose reads impartially the Histories of those times and compares them with one another will find that as most of those Antient Councils commonly so called were no other than to speak in our Modern Language Parliaments so not any thing whatsoever in Religion obligatory to the People whether in matters of Faith Discipline Ceremonies or any Religious Observances was imposed but in such Assemblies as no Man can deny to have been Parliaments of those Times that has not a Fore-head of Brass For the Presence not of the King 's only but of the Duces Principes Satrapae Populus terrae c. shews sufficiently that neither the Kings nor the Kings and the Clergy without the concurrent Authority of the same Persons that enacted Temporal Laws could prescribe General Laws in matters of Religion I do not dispute what Orders of Men among the Saxons were described by Duces Principes c. but sure I am that they were Lay-men and as sure that they assented to and confirmed those Laws without whose assent they had been no Laws So that the Kings of those Times had no greater Legislative Power in Ecclesiastical Matters than in Temporal The tearing the Ecclesiastical Power from the Temporal was the cursed Root of the Kingdom of Antichrist It was that that mounted the Papacy Those Powers never were distinct in England nor most other Nations till that See got the ascendant And it is a strange inconsistency to argue one while that whatever the Pope de facto formerly did by the Canon Law that of right belongs to our Kings and another while that the several Acts that restore the Ecclesiastical Jurisdiction to the Crown are but Declarative It shews how little the Supremacy is understood by Modern Asserters of it and how little they are acquainted with the antient Government of England The Third Period of Time to be considered shall be from the uniting of the several Kingdoms of the Saxons under one Monarchy to the Norman Conquest In this Division we find a Letter from Pope Formosus to King Edward the Elder wherein the Pope complains that the Country of the West-Saxons had wanted Bishops for seven whole Years Upon the receipt of this Letter the King calls Synodum Senatorum Gentis Anglorum who
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.
of the Patronage and Foundation of the King the Ordinaries by vertue of the King's Commissions to them directed shall enquire of the manner and foundation of the said Hospitals and of the Governance and Estate of the same and of all other matters requisite and necessary in that behalf and the Inquisitions thereof shall certifie into the King's Chancery And as to other Hospitals which be of another Foundation and Patronage than of the King the Ordinaries shall enquire of the manner of the Foundation Estate and Governance of the same and of all other Matters and Things necessary in this behalf and upon that make due correction and reformation according to the Laws of Holy Church as to them belongeth This Act apparently makes a distinction betwixt Hospitals that are and that are not of the King's Foundation and Patronage with respect to the Right of Visitation Those of the King's Foundation the Ordinaries were to visit by the King's Commission But those that were not of the King's Foundation the Ordinaries were to visit too but how Not by any Commission from the King but as special Commissioners special Visitors appointed by that Act. The King did not pretend to issue a Commission to Visit an Hospital of a Subject's Foundation The Parliament were strangers to such a conceit The right of Visiting de communi Jure belongs to the Founder he that gave the Laws ought to see them executed If the Parliament had appointed that Hospitals of the Foundation of Subjects should be Visited by the Ordinaries by Commission from the King they had in effect translated the Rights of all Founders that were Subjects to the King which they never intended For the Legal Notion of Visitation in such Cases is no more than this viz. A Man Founds and Endows a College The Rule of Law and of Natural Reason teaches cujus est dare ejus est disponere As a Man may give Lands to a private person upon what condition the Donor pleases provided it be not against Law so a Man may give Lands to a Society of Men upon what terms he pleases The terms exprest in the Foundation are called the private Laws by which the Society is to be ordered and governed And just as when a Man makes a Lease for Life or Years the Lessor may enter of right to see whether waste be done or no so a Founder may come and enquire whether those of his Foundation observe the Rules and Orders prescribed by him or his Ancestors and proceed according to the Statutes and the Powers thereby reserved in case he find any neglect or misdemeanour What right the King has to interpose his Authority in such case any more than in the Government of a private Family I cannot discern But Colleges in Vniversities are pretended to be visitable by the King's Commission by vertue of his Ecclesiastical Authority Here we must distinguish A College of Divines for Example founded by a Subject and Endowed and receiving Laws for their Governance from their Founder are visitable by their Founder and his Heirs or Successors They may be also for any thing here alledged to the contrary visitable by the Bishop of the Diocess or if exempt from Episcopal Jurisdiction by the King's Commission But what Power have these Visitors The Founder enquires whether the Statutes of the Foundation are observed and punishes according to the Statutes but goes no farther The Ordinary or Archbishop or if the place be exempt the King's Visitors enquire Whether they profess the Doctrin and observe the Rites and Ceremonies of the Church of England If the King had any thing to do to intermeddle with the Statutes and Government of such a College in the first Instance by virtue of his Ecclesiastical Supremacy it seems very strange that in the third and fourth Year of Queen Elizabeth's Reign when the Bishop of Winchester Founder of Maudlyn College in Oxford had at a Visitation deprived the President and he appealed to the Queen in Chancery the Judges and Civilians having had a Conference upon the Business agreed that the Appeal lay not as the Law then stood for that this Case was out of the Statutes of 24 and 25 Hen. 8. which direct Appeals to the King in Chancery and this Deprivation was a meer Temporal Thing and inflicted as by a Lay Patron And that if he were wrongfully expelled he might have an Assize or other Suit at Common Law. Concerning the King's Power with respect to the private Statutes of a College of a Subjects Foundation I will acquaint the Reader with one Act of Parliament made 1 Mariae which will yield some very useful Inferences The Act recites Whereas the late Noble Prince of Famous Memory King Henry the Eighth Father unto our most Gracious Sovereign Lady the Queen amongst other his godly Acts and Doings did erect make and establish divers and sundry Churches as well Cathedral as Collegiat and endowed every of the same with divers Mannors Lands Tenements and Possessions for the maintenance of the Deans Prebendaries and Ministers within the same and for other charitable Acts to be done and executed by the same Deans Prebendaries and Ministers and also did incorporate the same Deans Prebendaries and Ministers and made them Bodies politick in perpetual Succession according to the Laws of this Realm of England And where also as the said late King for the better maintenance and preservation of the said Churches in a godly Unity and good Order and Governance granted unto the several Corporations and Bodies Corporate of every of the said Churches that they should be ruled and governed for ever according unto certain Ordinances Rules and Statutes to be specified in certain Indentures then after to be made by his Highness and to be delivered and declared to every of the Bodies Corporate of the said several Churches as by the said several Erections and Foundations of the said Churches more plainly it doth and may appear Since which said Erections and Foundations the said late King did cause to be delivered to every of the said Churches so as is aforesaid erected and incorporated by certain Commissioners by his Highness appointed divers and sundry Statutes and Ordinances made and decreed by the same Commissioners for the Order Rule and Governances of the said several Churches and of the Deans Prebendaries and Ministers of the same which said Statutes and Ordinances were made by the said Commissioners and delivered unto every of the Corporations of the said several Churches in writing but not indented according to the Form of the said Foundations and Erections by reason whereof the said Churches and the several Deans Prebendaries and Ministers of the same have no Statutes or Ordinances of any Force or Authority whereby they should be ruled and governed and therefore remain as yet not fully established in such sort as the godly intent of the said late King Henry the Eighth was to the great imperfection of the Churches and the hindrance of God's Service and
good Order and Regiment to be had and continued amongst the Ministers of the same And forasmuch as the Authority of the making of the said Statutes Ordinances and Orders was reserved only unto the said King and no mention made of any like Authority to be reserved unto his Heirs and Successors the same Orders and Statutes cannot now be made and provided without Authority of Parliament And then the Act proceeds to empower that Queen during her Life to prescribe such Orders and Statutes and to alter transpose change augment or diminish the said Orders Statutes c. And gives her likewise Authority to make ordain and establish Statutes Ordinances and Foundations for the good Order and Government of Grammar Schools erected by King Hen. 8. or King Edw. 6. and to alter Statutes already made V. Rastall's Statutes 1 Mar. Par. 2. Act 9. And she dying before the work was finished there was another Act in Queen Elizabeth's time impowering her to do the like and to alter the Statutes in being Hence I infer first if King Henry the Eighth having reserved a Power to himself of appointing private Laws c. as aforesaid and coming to die without executing that Power his Successor could not make such Laws though for the Government of Colleges c. of which the King himself was Founder as most evidently according to the Opinion of those two Queens and their Parliaments she could not and for the Government of Colleges c. that had no private Laws at all for their good Order and Government then a power given by Commission to Survey Alter Reform Amend c. the Statutes of the Foundation of Colleges Halls c. was not in those days look'd upon as Law. Secondly If the King could not appoint New Laws for the Government of Colleges c. of his own Foundation then he could not alter the Statutes of Colleges founded by Subjects I infer from hence in the third place that some Commission grounded upon these Statutes of Queen Mary and Queen Elizabeth which were Temporary and gave those Queens Power but for Life has been the pattern for that Clause in a late Commission which relates to the Colleges in Vniversities c. And that the Gentleman who drew the late Commission had forgot those two Acts of Queen Mary and Queen Elizabeth because the latter never was printed and the former being expired long before his Statute-Book was printed is left out of it but it is to be seen in Rastall And finding such a Commission upon the Roll he concluded the King had a Power by the Common Law to grant it Archbishop Laud pretended to visit both Vniversities Jure Metropolitico and it was decreed at the Council Table that he had right to visit but he claimed only a Right to visit them as to their Doctrin and Church Discipline and Ceremonies not to meddle with the private Statutes of their Foundation Which he disclaimed any Right to enquire into V. Rushworth's Collections I mention this only to shew how a College may be subject to a double Visitation diverso respectu The Question is not here concerning the King's Authority to visit the Vniversity but what Authority he has to visit a private College for their good Government and to meddle with their Statues himself not being the Founder I cannot see as yet HAVING given some Account of the Nature of the Antient Legal Jurisdiction which in former Ages the Crown claim'd and exercis'd in Ecclesiastical and Spiritual Matters come we now to King Henry the Eighth's Reign in whose time all Foreign Power was excluded the Antient Supremacy restor'd and New Powers given some to that King personally some to Him his Heirs and Successors I shall run through the Acts as they lye in order of Time. The first Act that made an open Breach with Rome was that of 24 Hen. 8. cap. 12. That no Appeals should be used but within the Realm The Preamble to that Act will afford us considerable Observations and very pertinent to the chief Subject and Occasion of this present Discourse It runs thus Where by divers sundry old authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire and so hath been accepted in the World governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same Vnto whom a Body Politick compact of all sorts and degrees of People divided in Terms and by Names of Spiritualty and Temporalty been bounden and own to bear next to God a natural and humble Obedience He being also institute and furnished by the Goodness and Sufferance of Almighty God with plenary whole and entire Power Pre-eminence and Authority Prerogative and Jurisdiction to render and yield Justice and final determination to all manner of folk Resiants or Subjects within this his Realm in all Causes Matters Debates and Contentions happening to occur insurge and begin within the Limits thereof without restraint or provocation to any Foreign Princes and Potentates of the World The Body Spiritual whereof having Power when any cause of the Law divine cometh in question or of Spiritual Learning that it was declared and shewed by that part of the said Body Politick called the Spiritualty now being usually called the English Church which always hath been reputed and also found of that sort that both for Knowledge c. it hath been thought and is sufficient and meet of it self without the intermedling of any exterior Person or Persons to declare and determine all such Doubts and to administer all such Offices and Duties as to their Rooms Spiritual doth appertain And the Law Temporal for tryal of Property of Lands and Goods and for the conservation of the People of this Realm in Vnity and Peace without Rapine or Spoil was and yet is administred adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politick called the Temporalty and both their Jurisdictions and Authorities do conjoin together in the due Administration of Justice the one to help the other From this part of the Preamble we may observe First That for the Kingdom of England's being an Empire consisting of two Estates of Men and governed by One Supreme Head the King and Parliament appeal to old authentick Histories and Chronicles and consequently wherein the power of this One Supreme Head doth consist must be learnt from Antiquity Secondly That the Exclusion of Foreign Jurisdiction was the main thing in their Eye without restraint or provocation to any Foreign Princes or Potentates of the World. Thirdly That as this Supreme Head administred ordinary Justice to his Subjects in Matters Temporal by proper Officers sundry Judges and Ministers so in Causes of the Law Divine or of Spiritual Learning the same was to be declared interpreted and shewn by the Spiritualty which is to be understood of ordinary Proceedings And consequently not by Commissioners appointed by the Supreme Head
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
Pastoral Office committed to the Pastors of the Church by Christ and his Apostles and that the Supremacy then pretended to was no such extravagant Power as some imagine Sixthly That the Supremacy ascribed to the King by this Act had no reference to any such absolute Power as the Pope pretended to appears by the whole course of the King's Reign forasmuch as the Exercise of this Supremacy in every Branch of it was directed by particular and positive Laws made much about the same time nor perhaps were any Acts of Supremacy exerted during this King's Reign that some Act of Parliament or other did not warrant as will appear in our Progress The truth of it is that no more can be made of it than an utter Exclusion of the Pope's pretended Authority and an acknowledgment that the King is not an absolute Dominus fac-totum in Spiritualibus but the Fountain of Justice to be administred according to Law in Cases commonly called Ecclesiastical as well as Temporal without any dependance upon a Foreign Potentate Hence it is that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs the Crown of England is so often mentioned to be an Imperial Crown and the Realm of England an Empire Sir Edward Haleâ—'s Case Tho that Word has been made use of of late to countenance a very strange and unheard of Judgment But the Gentleman that made use of the Word either understood it not or wilfully misapplyed it The Crown of England is said to be an Imperial Crown because it is subject to no Foreign Jurisdiction The Kings of England are not Homagers nor ever were for their Kingdom to any other as many Kings have been A Regal Crown does not ex vi termini exclude a Subordination an Imperial Crown does The Emperor of Germany whose Crown must needs be Imperial has less Power in the Empire than most Princes in their own Dominions But it must be confess'd that the Word Supreme Head tho legally understood it be no such Bug-bear yet was a Term borrowed from Antichrist a Word that gave offence especially to those that knew little of its Signification but what they had learnt from a Jurisdiction pretended to be exercis'd by the Pope as such and claiming to be so as Vicar General to Christ Papists thought the Right of St. Peters Successor injuriously invaded and Protestants though universally submitting to the Legal Power of the Crown yet many of them boggl'd at the Title as making too bold with our Saviours Prerogative of being the only HEAD of the Church And so great Powers were given to King Henry the Eighth by Acts of Parliament of which by and by in Ecclesiastical and Spiritual Matters which though given by particular Laws and those Laws occasion'd by the then Circumstances of Affairs yet by some unadvised Persons are confounded with his Legal and Original Supremacy at the Common Law or at least are lookt upon as incident to the Title Style and Dignity of Supreme Head that no wonder the Title has found little countenance from Protestant Writers The other part of this short Act of 26 Hen. 8. cap. 1. is very observable and discovers a Secret that few observe but rightly considered lays open a very fine Scene and gives an undeniable Answer to the only material Argument that can be produced in favor of the late Ecclesiastical Commission The Argument lies thus King Henry the Eighth issued a Commission to Cromwell whereby he constituted him his Vicegerent in Ecclesiastical Matters and delegated to him the Exercise of all his Ecclesiastical Jurisdiction long before the 1 Eliz. which impowered Queen Elizabeth and her Successors from time to time to issue such Commissions And this Commission to Cromwell cannot be deny'd to have been a Legal Commission because it is recited in an Act of Parliament 31 Hen. 8. cap. 10. admitted to be according to Law and a place appointed him in respect of that Office above the Archbishop of Canterbury in the House of Lords And there having been no Act of Parliament in King Henry the Eighths time whereby he was expresly impowered to issue such a Commission the Commission was warranted by the Common Law. This being the Argumentum palmarium tho foolishly omitted by those that have undertaken to write in Vindication of the Proceedings of the late Commissioners receives a full and satisfactory Answer from this very Act of Parliament this being the Act which was the Ground and Foundation of that Commission and as far as I know of the Commission did really warrant it The Words are these viz. And that our Sovereign Lord the King his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner Spiritual Authority or Jurisdiction ought or may be lawfully reformed repressed ordered redressed corrected restrained or amended most to the Pleasure of Almighty God the increase of Vertue in Christs Religion and for the conservation of the Peace Vnity and Tranquillity of this Realm any Vsage Custom foreign Laws foreign Authority Prescription or any thing or things to the contrary hereof notwithstanding By these Words a Personal Authority not of Legislation but of visiting redressing correcting c. is given to whom To the King his Heirs and Successors This Power was given by the Parliament nor was enjoyed or exercised by the King or any of his Predecessors before and being vested in the King his Heirs and Successors may consequentially be delegated to Commissioners After this Act was pass'd out comes Cromwell's Commission of Vicegerency and not till then tho the Clergy had recogniz'd the Supremacy two years ago and the Parliament in the 24 Hen. 8. cap. 12. and the 25 Hen. 8. cap. 21. had in effect done so too Yet was not the recognis'd restor'd and declar'd Supremacy lookt upon as any Warrant for an Ecclesiastical Commission till a new Power was given to the King by this Act And this Act of Parliament having been Repealed by the First and Second of Phil. and Mar. and never since reviv'd there is now no ground from this Act or from that President of Cromwell's Commission for a like Commission in our Days How far the Statute of 1 Eliz. gives countenance thereunto shall be enquired into when we come to it The next Act that I shall take notice of is the Thirteenth Chapter of this same Session entituled By whom Suffragans shall be nominated and elected The Act recites that sithen the beginning of this present Parliament good and honourable Laws and Statutes have been made and established for Elections Presentations Consecrations and investing of Archbishops and Bishops of this Realm with all Ceremonies appertaining to the same yet nevertheless no Provision hath been made for Suffragan Bishops and therefore enacts what Towns shall be taken and accepted
several Instances that none Exercised any here without the King's leave Which is true and as true it is and apparent by as many Instances that the King singly could not give any such leave He says pag. 154. that What Visitations were made of the Vniversity of Oxford by the Pope's Legates do no ways infer that thereby the King's Power of Visiting is Exauctorated but that whatever they did was in Subordination to the King's pleasure or as ordain'd by his Laws The Doctor does well to disjoin the King's Pleasure and his Laws for they did not always agree But this Paragraph must be altered to make it tolerable Sence viz. Whatever the legates did in Visiting the Vniversity of Oxford if it were not contrary to the King's Laws was in Subordination to the King's Authority Some other passages tending to the same purpose with those already taken notice of will offer themselves as we go along through the several parts of the Chapter Whereas the Doctor says that several Kings permitted no Canons or Constitutions of the Church or Bulls c. to be Executed here without their Allowance Intimating thereby that those Kings might of their own Personal Authority give such Allowance And that with their Allowance Foreign Canons and Constitutions might be Executed here I take leave to say That it never was in the Power of a King of England legally to Subject his People to a Foreign Jurisdiction nor to Oblige them to the Observance of any Law without their own Assent And therefore the King's Allowance could not make a Foreign Canon Obligatory here unless it were received by the People with their own Assent Nor could his giving leave legally Subject his People to Processes from Rome as will abundantly appear by and by But before I go on I desire the Doctor to take notice of an Old Act of Parliament for such it was though the Word Parliament was not then in being amongst us made in King Edward the Confessor's Time if not before and Confirmed by King William the First Debet Rex omnia ritè facere in Regno per Judicium Procerum Regni Debet enim Jus Justitia magis regnare in Regno quà m voluntas prava Lex est semper quod jus facit Voluntas autem Violentia Vis non est Jus. And again in the same Chapter Debet Rex Judicium Rectum in Regno facere Justitiam per Consilium Procerum Regni sui tenere Ista verò debet omnia Rex in propriâ personâ inspectis tactis Sacrosanctis Evangeliis super sacras sanctas reliquias coram Regno Sacerdotio Clero jurare antequà m ab Archiepiscopis Episcopis Regni coronetur Lambard de Priscis Anglorum legibus page 138. page 142. Hence we see that Judicium Procerum Consilium Procerum are Essential to the English Government Without which Right and Justice cannot Reign but a Perverse Will would Rule the Roast Hence it was that King Edward the First Prynn's Collect Tom. 3. Pag. 158. When Pope Gregory the Tenth sent Reymundus de Nogeriis his Chaplain as his Nuntio into England c. amongst other things to Demand and Receive from the King Eight Years Arrears of the Annual Tribute and Peter-pence then due to the Church of Rome Wrote to him a very remarkable Letter In which among other things he tells him That his last Parliament was Dissolved the sooner by reason of his own Sickness so that he could not then Super Petitione census ejusdem deliberationem habere cum Praelatis Proceribus Regni sui sine Quorum Communicato Consilio Sanctitati Vestrae super praedictis non possumus respondere jure-jurando in Coronatione nostra praestito sumus Astricti quod jura Regni nostri servabimus illibata nec aliquid quod diadema tangit Regni ejusdem absque ipsorum requisito Concilio faciemus And therefore he deferred returning the Pope an Answer till the next Session of Parliament Pro firmo scituri Pie Pater Domine quòd in alio Parliamento nostro quod ad festum Sancti Michaelis intendimus celebrare habito Communicato Consilio cum Praelatis Proceribus memoratis Vobis super praemissis ipsorum consilio dabimus Responsionem By this Letter it appears that whatever did Diadema Regni tangere could not nor ought to be done sine Concilio Prelatorum Procerum Regni By which as is evident enough by the Letter it self a Parliament is meant Now that the Bringing in of Bulls and Executing Process from Rome within the Realm did Diadema Regni tangere with a Witness will appear by perusing the Statutes of Praemunire and Provisors Anno 27 Edward the Third cap. 1. Because it is shewn unto Our Lord the the King by the Grievous and Clamorous Complaints of the great Men and Commons how that diverse of the People be and have been drawn out of the Realm to Answer of diverse things the Cognisance whereof appertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court In Prejudice and Disherison of Our Lord the King and of his Crown and of all the People of his Realm and to the Vndoing and Destruction of the Common Law of the said Realm at all times used Another Statute mentioning Citations out of the Court of Rome and Provisions of Benefices and Offices in the Church says that by means thereof the Good Antient Laws Franchises and Vsages of the Realm have been greatly Impeached Blemished and Confounded the Crown of Our Lord the King abated and the great Men Commons and Subjects of the Realm in Bodies and Goods damnified 38 Statute Edwardi tertii cap. 1 2 3 4. The Statute of 16 Rich. 2. cap. 5. Entituled Praemunire for purchasing Bulls from Rome The Crown of England subject to none mentions frequently All these things as being to the Disherison of the King's Crown and against his Crown and Regality And therefore in the five and twentieth Year of King Edward the Third the Commons prayed the King that since the Right of the Crown of England and the Law of the Realm was such that upon the Mischiefs and Damages which happen'd to his Realm he ought and was bound by his Oath with the Accord of his People in his Parliament thereof to make remedy and Law That it may please him thereupon to Ordain remedy Which he does accordingly by the Assent of the Great Men and Commonalty of the said Realm having regard to a Statute made in the time of his Grandfather Anno 25th Edward the First against Provisions which holdeth his force and was never Defeated Repealed or Annulled in any Point and by so much he is bounden by his Oath to cause the same to be kept as the Law of the Land. The Laws of Praemunire and against Provisions were but Declaratory Laws of the Vsages of the Realm in opposition to Papal Bulls c. And here we see our
have done notwithstanding his Newly restor'd Supremacy Sir Roger's 16th Particular is that Our Kings placed by a Lay hand Clerks in Prebendary or Parochial Churches Ordinariis penitus irrequisitis But if he had considered that Originally all Church livings in England were Donatives And that Presentations to Ordinaries Admissions Institutions and Inductions thereupon obtain'd in England in compliance with the Canons many years after the Conquest he would not have mentioned that as a special prerogative in the King which was but common to him with All his subjects that had been Founders and were Patrons of Benefices Mr Selden tells us in his History of Tythes cap. 12. sect 5. that it was not till about the year MCC that the Decretals and the Encreasing Authority of the Canons had settled the Vniversal course here of filling Churches by Presentation to the Bishop Archdeacon Vicar of the Bishop or Guardian of the Spiritualties and that then the use of Investitures of Churches and tythes severally or together practised by Lay-men was left off And a Division of secular and Ecclesiastical Right from thence been continued in practice And in the same Section pag. 392. he says that whilst the use of Lay-Investitures was in being all Churches so given were properly Donatives For further satisfaction as to that Particular I refer to him Sir Roger's seventeenth Particular is that Our Kings prohibited the Laity from yielding Obedience or answering by Oath to their Ecclesiastical Superior enquiring de peccatis subditorum This take out of the Additaments to Matth. Paris pag. 200. num 9. from whence Sir Roger quotes it Item cum Praelati Ecclesiastici inquirere volunt de peccatis subditorum prohibentur laici ne de veritate dicendâ aut de credulitate aliquod juramentum exponant aut Praelatis super hujusmodi obediant propter quod multorum excessus peccata mortalia incorrecta impunita relinquuntur sic praestatur audacia delinquendi peccandi facultas Now this was no other then protecting the Laity from being impos'd upon by the Oath ex officio And innumerable Authorities might be cited to prove that no kinds nor forms of Oaths can be made or imposed on the King's Subjects nor prescribed to them in any new cases but by Act of Parliament onely And that no Bishop or Subject whatsoever hath any power to make or enjoyn any new Oaths or forms of Oaths nor any Authority to administer an Oath to any Man without some Legal Commission from the King under the Great Seal or some Act of Parliament especially Authorizing him to give or take an Oath unless in Courts of Record or other Courts who have Authority to administer Oaths by Prescription But Anno Dom. 1237. Otho the Pope's Legate in a Council at London made this Constitution touching Oaths in Spiritual Causes in Ecclesiastical Courts till that time not known nor used in England as appears by the words of the Constitution Jusjurandum Calumniae in causis Ecclesiasticis quibuslibet de veritate dicenda in spiritualibus quoque ut Veritas aperiatur facilius causae celerius terminentur statuimus de caetero Praestari in Regno Angliae secundum canonicas Legitimas sanctiones Obtentâ in contrarium Consuetudine Non obstante vid. Matth. Paris 454. A clear resolution that till that time the custom of England and the Law of the Land was to the contrary and that they could not enforce any Man to his Oath in such cases After which Grosthead Bishop of Lincoln Anno 1246. Vpon the suggestion of the Fryers Predicant and Minorites raged more than was meet or Expedient they are the words of Matthew Paris against those of his Diocess making strict inquisition in his Bishoprick by his Arch-deacons and Deans concerning the Chastity and manners as well of noble as ignoble upon Oath to the enormous hurt and scandal of the reputations of many Quod nunquam antea fieri consueverat The King hearing the Grievous Complaints of his people Consilio Curiae suae scripsit Vicecomiti Hertfordiae in haec verba Henricus Dei Gratia Rex Angliae c. Praecipimus tibi quod sicut teipsum omnia tua diligis non permittas quod aliqui laici de Ballivâ tuâ ad voluntatem Episcopi Lincolniensis Achidiaconorum vel Officialium seu Decanorum Ruralium in aliquo loco Conveniant de caetero ad cognitiones per sacramentum eorum vel attestationes aliquas faciendas nisi in causis matrimonialibus Testamentariis Matth. Par. p. 716. And the very next year following in pursuance hereof the King by Parliament Enacted and Commanded That if any Lay-man were convented before any Ecclesiastical Judge for breach of Faith and Perjury that they should be prohibited by the King and that the Ecclesiastical Judge should be prohibited to hold plea for all Causes against Lay-men unless they were of Matrimony and Testament All which Matth. Paris precisely relates pag. 727. Which Prohibition and Statute nullified the Constitution of Otho and put a stop to this his innovation But yet about nine years after Boniface Arch-bishop of Canterbury published this peremptory Constitution in affront to them both Statuimus quod laici ubi de subditorum peccatis excessibus corrigendis per Praelatos Ecclesiasticos judices inquiritur ad praestandum de Veritate dicendâ juramentum per Excommunicationis sententias si opus fuerit Compellantur Impedientes vero ne hujusmodi juramenta praestentur for the Judges with many others then generally oppugned and hindred the ushering in of this Innovation per interdicti excommunicationis sententiam arceantur To evacuate which illegal Constitution trenching both upon the people's Liberties and the Courts of Justice too the Judges frequently Granted out sundry General Prohibitions to all or most of the Sheriffs of England as is evident by the Register of Writs Pars 2. fol. 36.43.50 Fitzherbert's Nat. Brev. fol. 41. A. Auxy home poit suer prohibition direct al Viscount que le Viscount ne permit ne suffer les lay subjects del Roy de vener a ascun lieu al citation del Evesque ad faciend aliquas recognitiones vel sacrament prestand nisi in causis matrimonialibus Testamentariis Rastal's Abridment of the statutes Title Prohibit nu 5. Vpon which Prohibitions this Attachment followed The King to the Sherifs Greeting Cause such a Bishop to put in sureties to appear before our Justices c. to shew cause why he made certain Lay persons to be summoned and distrained by Ecclesiastial censures to appear before him at his pleasure to take an Oath against their Wills In Grave Praejudicium Coronae Dignitatis nostrae Regiae necnon contra consuetudinem Regni nostri By all which and by the Petition of Right it self it appears evidently that this Juramentune Calumniae or Oath ex officio was utterly against Law. For one of the Grievances complain'd of in that Petition was that the King's Subjects had had an Oath administred to
in Councils of the Clergy of their Kingdom though the Pope's Legates were present and Quotes Spelman's Councils pag. 292 293. Out of which Book it will not be amiss to give an Account of that Assembly which the Doctor in this place calls a Council of the Clergy Anno Gratiae 787 Concilium Calchythense Legatinum Pananglicum a Gregorio Ostiensi Theophylacto Tudentino Episcopis Legatis Hadriani Papae Calchythae celebratum est In quo decernitur de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus Et de Conferendâ parte Archiepiscopatûs Cantuariae ad Ecclesiam Litchfeldensem jam in Archiepiscopatum promovendam Habebatur in duabus Sessionibus says Sir Henry Spelman rectiùs fortè concilia dicendis quarum prima fuit in regno Northanhymbrorum coram Alfwoldo illic Rege Magnatibus suis Praesidente è Legatis Gregorio Ostiensi Episcopo Secunda Sessio in Regno Merciorum fuit coram Offâ Rege ibidem suis Magnatibus Praesidente etià m in eâdem Gregorio ipso Ostiensi So that here appears the Doctor 's First mistake in saying that the Kings presided though the Legates were present I confess our Kings frequently did preside in Ecclesiastical Assemblies nor was the Grandeur of Popes arrived in those Days to such an Extravagant pitch as to Usurp Precedency before Kings and Emperors But I observe this to shew the Doctor 's carelesness in his Quotations not to argue any Inferiority of the Kings Persons by reason of their not presiding when they were Present For we find Instances of Archbishops of Canterbury presiding though the Kings were Present The Doctor 's Second mistake is in calling this an Assembly of the Clergy For though this Council was Assembled for Ecclesiastical Matters nor do we find any Temporal Laws made or Temporal Affairs transacted in it saving that in the Twelfth Chapter it is decreed what sort of Persons shall be chosen to be Kings and by whom yet were all Persons present that in those Days constituted the General Legislative Assemblies of the Nation which in latter Ages we have Christned by the Name of Parliaments And this appears by the Letter which one of the Legates wrote to the Pope giving him an account of the Success of their Mission Pervenimus ad aulam Offae Regis Merciorum at ille cum iugenti gaudio ob Reverentiam Beati Petri vestri Apostolatûs honore suscepit tam nos quà m sacros apices à summâ sede delatos Tunc convenerunt in unum Concilium Offa Rex Merciorum Chinulphus Rex West-Saxonum cui etià m tradidimus vestra Syngrammata Sancta Ac illi continuò promiserunt se de his vitiis corrigendos Tunc inito concilio cum praedictis Regibus Pontificibus Senioribus terrae perpendentes quod angulus ille longè latèque protenditur permisimus Theophylactum Venerabilem Episcopum Regem Merciorum Britanniae partes adire Ego autem assumpto mecum Adjutore quem filius vester Excellentissimus Rex Carolus ob reverentiam Vestri Apostolatûs nobiscum misit Virum probatae fidei Wighodum Abbatem Presbyterum perrexi in regionem Northanhymbrorum ad Oswaldum Regem Archiepiscopum Sanctae Ecclesiae Eboracae Civitatis Eanbaldum Sed quia praefatus Rex longè in Borealibus commorabatur misit jam dictus Archiepiscopus missos suos ad Regem qui continuò omni gaudio Statuit diem concilii Note here the manner of receiving Foreign Canons in those days Ad quem Convenerunt Omnes Principes Regionis tam Ecclesiastici quà m Saeculares And a little after Qui omni Humilitatis Subjectione clarâ voluntate tam admonitionem Vestram quà m parvitatem nostram amplexantes sposponderunt se in omnibus obedire Then follow the Canons themselves And afterwards these Words VIZ. Haec decreta Beatissime Pater Adriane in Concilio publico coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus regionis seu Senatoribus Ducibus Populo terrae proposuimus illi c. se in omnibus custodire decreverunt signo crucis in vice vestrâ in manu nostrâ confirmaverunt Then follow the Witnesses Names of whom part are Secular part Ecclesiastical Persons And afterwards His peractis perreximus Assumptis nobiscum Viris illustribus Legatis Regis Archiepiscopi c. qui unà nobiscum pergentes ipsa decreta secum deferentes in Concilium Merciorum ubi Gloriosus Rex Offa cum Senatoribus terrae unà cum Archiepiscopo Janbrichto sanctae Ecclesiae Dorovernensis caeteris Episcopis regionum convenerat in Conspectu Concilii Clarâ voce singula Capitula perlecta sunt tam Latinè quà m Teutonicè quo omnes intelligere possent dilucidè reserata qui omnes consonâ voce alacri animo gratias referentes promiserunt se in omnibus haec Statuta custodire In this Convention the Canons of the six first General Councils were received And several Constitutions made for the Government of the English Church All which were Assented to by the Clergy and the Laity of these two Kingdoms of the Heptarchy And by Vertue of that Assent became incorporated into the Municipal Laws of those Kingdoms So that though this and many other such Councils as this was shew abundantly the King of England's Supremacy in Ecclesiastical Affairs in opposition to a Foreign Power yet no Argument can be drawn from hence to prove any other or greater power in Ecclesiastical Matters to be lodged in the King than he has in Temporals The Supreme Power in both being in the King in conjunction with his Great Council or Parliament but not in him separate and apart from them Another Example produced by the Doctor of our Kings having presided in a Council of the Clergy though the Pope's Legates were present is out of Sir Henry Spelman's Counc pag. 189. But in this he has as bad luck as in the former for as in the former the Kings did not preside but one of the Legates so in this the King indeed presided but no Legate appears by the Book to have been present And the Acts of the Council begin thus VIZ. In Nomine Domini Dei Nostri Salvatoris Jesu Christi Congregatum est Magnum Concilium in loco qui vocatur Becancelde Praesidente in eodem Concilio Withredo Clementissimo Rege Cantuariorum nec non Bertualdo Reverendissimo Archiepiscopo Britanniae simulque Tobiâ Episcopo Roffensis Ecclesiae caeterisque Abbatibus Abbatissis Presbyteris Diaconibus Ducibus Satrapis in unum glomeratis paritèr tractantes anxiè examinantes de statu Ecclesiarum Dei c. Here the King presides in a General Council of his own People or in a Parliament assembled for Matters concerning the State and Government of the Church And what use the Doctor can make of all this I know not The Charter of King William the Conqueror whereby he severed the Ecclesiastical Courts from the Temporal and which the Doctor
would have us believe was an Act of the King 's Personal Authority in Ecclesiastical Affairs was a Parliamentary Charter or an Act of Parliament Willielmus Dei gratiâ c. Sciatis c. quod leges Episcopales quae non benè nec secundum sanctorum Canonum praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Consilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Procerum Regni mei emendandas Judicavi Propterea mando praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneat c. This Mr. Selden understood to be an Act of Parliament for having given an account of his Diaploma to Battle-Abbey and recited it at length in his Notes Specilegium ad Eadmerum p. 165 166. which was granted Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Concilio etiam Episcoporum Baronum meorum says he id genus etiam est sancitum ejus quo Sacrum à Civili discriminavit Forum The same Author speaking in another of his Works of King William the Conquerour's bringing the Possessions of the Church under Military Service of which though Roger Wendover out of whom Matthew Paris took the Relation says that Episcopatus Abbathias omnes quae Baronias tenebant in purâ perpetuâ Eleemosynâ eatenus ab omni servitute Seculari Libertatem habuerant sub servitute statuit Militari irrotulans singulos Episcopatus Abbathias pro Voluntate suâ quot milites sibi successoribus suis hostilitatis tempore voluit à singulis exhiberi Yet says Mr. Selden how it is likely he brought them to this kind of Tenure may be conjectured by other circumstances of the stories of the the same time And observe especially That he held a Parliament the same Year so that perhaps this Innovation of their Tenures was done by an Act of that Parliament Seld. Titles of Honour p. 578. Which I mention only to shew that things said to have been done by the Conquerour and especially Laws and Constitutions mention'd to have been made by Him must not presently be suppos'd to have proceeded from his own single personal Authority but to have been made More Anglico cum assensu Ordinum Regni as has been even now observed out of Mr. Selden What follows in the Doctor p. 156 157 concerning the King 's Temporal Courts being Judges whether a Cause belonged to the Jurisdiction of the Temporal or Ecclesiastical Courts is very true And so is the Account that he gives of King William the First his settling many particulars to belong to the Jurisdiction of the Ecclesiastical Judges in a Council at Illibon in Normandy Anno 1080. But it is an inveterate Error of the Doctor 's to confound the King 's personal Authority with his Authority in his Courts and his Authority in and with the Assent of his Great Councils or Parliaments That Councel of Illebon mention'd by the Doctor is related by Ordericus Vitalis in this manner viz. Anno ab Incarnatione Domini MLXXX Rex Gulielmus in festo Pentecostes apud Illebonam resedit ibique Gulielmum Archiepiscopum omnes Episcopos Abbates Comitesque cum aliis Proceribus Normanniae simul adesse praecepit Vt Rex jussit factum est Igitur Octavo Anno Papatus Domini Gregorii Papae septimi Concilium apud Jullam bonam celebratum est de statu Ecclesiae Dei totiusque Regni providentiâ Regis cum Baronum suorum consilio utiliter tractatum est And then follow the Canons all being concerning matters Ecclesiastical Now what use the Doctor makes of this Paragraph I know not For the Jurisdiction of the King in his Courts where the Law of the Land is the Judges rule to restrain All Inferiour Courts within their proper bounds no man denies And the King's Authority to limit erect and appoint Consilio Baronum suorum And unà cum Episcopis Comitibus Proceribus Regni sui what Causes shall belong to the cognisance of Ecclesiastical Judges and what not no man that is a Protestant questions How many Acts of Parliament in every Age might be reckon'd of this nature vid. Stat. de Circumspecte agatis temp Edwardi 1. Stat. de Articulis Cleri tempore Edward 2. Statutum pro Clero tempore Edw. 3. and innumerable others Then the Doctor refers his Readers for farther satisfaction how far the Kings of England have exercised Jurisdiction in Ecclesiastical matters to Sir Roger Twiselen pag. 108 109 c. who instanceth in eighteen particulars I will not stand with the Dr. for the number but referr him to Mr. Prynn's second Tome of his Chronological Vindication of the King 's Supreme Ecclesiastical Jurisdiction out of the Introduction to which Volume he might have named five and twenty But because he has chosen to quote Sir Roger Twisden's eighteen let us examin those Particulars and Sir Roger's Authorities upon which he grounds them and it will presently appear how far they make for his Hypothesis 1. The first is that they permitted none to be taken for Pope but by the King's appointment For which he quotes Eadmerus pag. 26. But of this matter having spoken already I shall say no more of it in this place The Second is That none were to receive Letters from the Pope without shewing them to the King who caused all words prejudicial to him or his Crown to be renounced For which he quotes Eadmerus pag. 113. In whom are these words in a Letter from Pope Paschal to King Henry the First viz. Sedis eni◠Apostolicae Nuntii vel Literae praeter jussum sum Regiae Majestatis nullam in potestate tuâ susceptionem aut aditum promerentur This was but the Law of England not to be subject to any Foreign Power asserted by a Law in King William the Conquerour's time and afterwards over and over in opposition to Papal Encroachments and Usurpations confirm'd by the Statutes of Praemunire and Provisors and effectually secured by the Laws made at and since the Reformation and particularly by that Remarkable Statute of 14 Henr. 8. cap. 12. concerning Appeals And that the King could not of himself let in a Forein Power upon his People appears sufficiently by what has been said already The two Passages quoted by Sir Roger out of Thorn Collect pag. 2151 2152 and 2194 shew that two Persons to whom the Pope had conferr'd by Provisions the Monastery of St. Austin in Canterbury were enforced before their Admittance to renounce all such words in their Bulls of Provision as were prejudicial to the King and his Crown i.e. to the Laws of the Realm in and over which the King was Supreme Magistrate and Governour After which renunciation made they did fealty to the King and were by the Escheator put into possession of their Temporalties The King might by Law have oppos'd these Provisions but the Monks who had the Right of