nullities in Law. Whether they received any further light as to the King's Prerogative in Dispensing with it notwithstanding all the caution that the Wisdom of a Nation could use in such a case from the pretended Opinion of the Judges in that Case we may guess at by observing the Act of 6 H. 8. cap. 18. Which Act reciting the Act of 13 Ed. 3. and of the 23 of King H. 6. and the Forfeitures and Penalties thereby imposed and that every Pardon for such Offence should be void and all Patents with Non Obstante's of the said Statute void in like manner does yet Enact Establish and Ordain that the Vnder-Sheriffs and other Officers of Sheriffs in the Shire of the Town of Bristol may continue to occupy their Offices in like manner as the Vnder-Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Act to the contrary notwithstanding By this Act it appears that in the Judgment of that Parliament a Patent to exercise the Office of Sheriff longer than a Year with a Non Obstante of the Statute of 23 Hen. 6. cap. 8. was a Patent void in Law For they recite the Act not only as an Act in force but that particular clause in it whereby Non Obstante's to it are declared to be void as a reason why the Under-Sheriffs of Bristol could not be safe in acting contrary thereunto without Assent of Parliament which was therefore had for their Security and would have been needless if a Patent with a Dispensation had then been accounted legal These Acts of Parliament might be thought sufficient to invalidate the Authority of that Judgment if any such had been given but the truth of it is there never was any such Judgment given as that the King might by his Perogative dispense with the said Statute of 23 Hen. 6. by which it is expresly enacted That no Non Obstantes in such case shall be available The Question indeed was upon the validity of a Grant made by King Edward the Fourth of the Shrivalty of Northumberland to the Earl of that County for his Life And the Judges held the Patent to be good But they did not ground their Judgment upon the Non-Obstante therein for there is not a word spoken of the Non-Obstante but by Rocliffe who was then second Baron of the Exchequer after the Court had agreed the Patent to be good By reason of a Proviso in an Act of Resumption But I shall forbear meddling any more with that Case for that a very good Account of it will be shortly given by another Hand as also of the five Points pretended to have been agreed by the Judges in Sir Edward Hales's Case and a sufficient Answer to that slight Pamphlet entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales's Case Written by Sir Edward Herbert in Vindication of himself Indeed Non Obstante's as they were first invented and introduced by Popes between the years of our Lord 1200 and 1250 V. Matth. Paris p. 810 811. Ibid. p. 817 818. p. 854. p. 875. and afterwards inserted into the King's Patents and Protections in imitation of them by King Henry the Third so they were never made use of by any of our Kings to elude Acts of Parliament till after the Statute of Mortmain which was made in the 7th of Edw. 1. Which first attempt as it must needs be illegal First because contrary to Magna Charta cap. 36. which is the first Law that prohibits Alienations in Mortmain and was not only sworn to when enacted and confirmed but is also by many after Acts of Parliament ordered to be observed in all Points as by 2 Edw. 3. cap. 1. 4 Edw. 3. cap 1.14 Edw. 3. cap. 1. and innumerable others Secondly Because when the Clergy petitioned King Edward the First for a relaxation of it His Answer was Hen. Knighton p. 2502. in Dec. Script that he could not do it because it was enacted de Consilio Magnatum suorum sine eorum Consilio non erat revocandum And Thirdly Because the sole Act of the King could not with any colour of Reason prejudice the Rights and Interest of the Mesne Lords yet such was the misguided Piety and Devotion of those Times that such Non Obstante's were obtained as appears by the Patent and Charter Rolls in the Tower from 8 Edw. 1. downwards abounding with special Licences to purchase and hold Lands c. Statuto de terris tenementis in manum mortuam non ponendis non Obstante And yet were not these Licences accounted legal or the Clergy safe in purchasing Lands Rents Advowsons c. by virtue of them till it was enacted in Parliament Anno 18 Edw. 3. cap. 3. That if Prelates Clerks beneficed or Religious People which have purchased Lands and the same have put to Mortmain be impeached upon the same before our Justices and they shew our Charter of Licence and Process thereupon by an Inquest of Ad quod damnum or of our Grace or by Fine they shall be freely let in Peace without being further impeached for the same purchase And in case they cannot sufficiently shew that they have entred by due Process after Licence to them granted in general or in special that they shall well be received to make a convenient Fine for the same and that the Enquiry of this Article shall wholly cease according to the accord comprized in this Parliament But Non Obstante's with the Statute of Mortmain having been introduced as aforesaid tho undeniably illegal at first and gaining afterwards a countenance from this Act of Parliament have given occasion to the dispensing with other Acts of Parliament Tho at first they were very rare and seldom occur in the Old Books and tho they are more frequent in the New and that Judges and Courts of Justice have invented little Distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of a more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subject has an interest and is intituled to an Action as pars gravata yet the Cases that have hitherto come before them judicially have been Questions upon Dispensations granted to particular Persons to exempt them prohîc nunc from incurring the Penalty of such or such a Law. A Dispensation suspending the Effect of a Law at once has been so far from receiving any countenance from Courts of Justice hitherto Thomas and Sorell's es of Wine-Liceneer that it has always been a fatal Objection against any particular Dispensation if it was such as consequentially quite eluded and frustrated the whole Law For that such a Dispensation is in effect a Repeal of the Law. It would be endless to launch out into a Discourse upon such particular Dispensations as have been granted and
either allowed or condemned The principal Cases in our Modern Books in which the conceits of latter times are display'd are these following Coke's 8th Report the Princes Case The Case of the City of London 11th Report the Case of the Taylors of Ipswich and the Case of Monopolies Dyer 52. a. 54. a. 224. b. 270. a. 303. a b. Plo. Com. Grendon against the Bishop of Lincoln Vaughan's Reports Thomas and Sorell's Case V. Roll's Abridgment Second Part p. 179 180. Lett. Y. Co. 12th Report p. 18 19. Sir John Davie's Reports Le Case de Commenda p. 68 c. Moor's Reports p. 244 245 c. cs 384. But how correspondent the reason of some of these Judgments is to the sense of former Parliaments and consequentially to the Judgment of the whole Nation and the very Constitution of this Government take a hint from a notable Record in the Fiftieth Year of King Edward the Third whereby it appears That Richard Lyons Merchant of London was impeached and accused by the Commons of many Deceits Extortions and other evil Deeds committed by him against our Lord the King and his People as well in the time that he had been belonging to the House and Council of the King as otherwise during the time that he was Farmer of the Subsidies and Customs of the King and more especially for that the said Richard by Covin had between him and some of the Privy Council of our Lord the King for their singular Profit and Advantage had procured and gotten many Patents and Writs of Licence to be made to carry great Faith and Credit whereby Skins Wool and other Merchandizes were transported otherwise than to the Staple of Calice against the Ordinances and Defences made in that behalf concerning the same before time in Parliament He was charged with other particular Crimes to some of which he offered to make a Defence but to others and this amongst the rest he made no answer Wherefore the said Richard was a warded to Prison during the King's pleasure and distrained to Fine and Ransom according to the quantity of his Trespass and that he should lose his Freedom of the City of London and be no more in Office under the King and to incur other Penalties and Forfeitures as may be seen at large in the Record printed by Mr. Selden in a Book entituled The Priviledges of the Baronage of England pag. 34 35 36 c. So that Licences for the shipping of Wool contrary to an Act of Parliament tho mentioned by Rocliffe in the Book of King Henry the Seventh as legal and grantable by the King with a Non Obstante and countenanced sufficiently by latter Judicial Authorities Vide Dyer 52. a 54. a c. Yet appeared otherwise to antient Parliaments and if the Judgment of a Parliament be of greater Authority than that of a Court in Westminster-Hall or indeed than that of all the Judges put together and if Judicial Presidents do not make the Law but ought to declare it only then is the Legal Perogative in dispensing with Acts of Parliament much straiter if any at all than modern Opinions would represent it to us And that Parliamentary Presidents are of the highest Authority in this Nation will appear by considering that in former Times it was very frequent with the Judges in Westminster-Hall if any Case of Difficulty came before them especially if it depended upon the Construction of an Act of Parliament to be so cautious of making any new unwarranted Presidents that they frequently adjourned the Matter ad proximum Parliamentum By the Statute of Westminster the Second made Anno 13. Edwardi primi cap. 23. It 's enacted That Quotiescunque de caetero evenerit in Cancellaria quod in uno Casu reperitur breve in consimili casu cadente sub eodem Jure simili indigente Remedio non reperitur concordent Clerici de Cancellariâ in brevi faciendo vel atterminent querentes in proximum Parliamentum escribantur Casus i◠quibus concordare non possunt referant eos ad proximum Parliamentum My Lord Coke in his Second Institutes pag. 407. tells us That before this Act the Justices did punctually hold themselves to the Writs in the Register because they could not change them without an Act of Parliament And pag. 408. That Matters of great Difficulty were in antient Times usually adjourned into Parliament to be resolved and decided there And that this was the antient Custom and Law of the Kingdom Bracton bears witness Si aliqua nova inconsueta emerserint quae nunquam priùs evenerunt obscurum difficile sit eorum judicium tunc ponantur judicia in respectu usque ad Magnam Curiam ut ibi per Concilium Curiae terminentur And hereof the Lord Coke says There are infinite Presidents in the Rolls of Parliament and quotes in his Margent many Presslents out of the Year Books Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mischiefs have hapned for that in the Chancery King's Bench Common Bench and Exchequer Judgments have been delayed sometimes by Difficulty and sometimes by divers Opinions of the Judges and sometimes for some other Cause It is assented established and accorded That from henceforth at every Parliament shall be chosen a Prelate two Earls and two Barons which shall have Commission and Power of the King to hear by Petition delivered to them the Complaints of all those that will complain them of such Delays and they shall have power to cause to come before them at Westminster or elsewhere the Tenor of Records and Processes of such Judgments so delayed and cause the same Justices to come before them which shall be then present to hear the cause of such Delays Which Cause and Reason so heard by good Advice of themselves the Chancellor Treasurer the Justices of the one Bench and of the other and other of the King's Council as many and such as they shall think convenient shall proceed to take a good Accord and make a good Judgment So that our Parliaments of antient Time looked upon the Judges not as absolute Oracles of the Law but as Men that were both liable to Mistakes and under the Regulation and Direction of Parliaments even in their Ordinary Proceedings The Nation did not so far intrust them as they themselves would persuade us of late In the Three and thirtieth of H. 6. a Question arose in the Exchequer Chamber Whether a Record then and there certified as an Act of Parliament were really an Act of Parliament or no Fortescue who gave the Rule says They would be well advised before they annulled an Act of Parliament and the Matter was adjourned to the next Parliament that they might be certified by them of the certainty of the Matter 33 Hen. 6. Fol. 18. Indeed the Question Whether such or such a Record certified were an Act of Parliament or no may seem too high for
imprisoned or restrained and to grant and to allow unto the Papists and Professors of the Romish Religion free Toleration and silencing of all Laws made and standing in force against them Vide Rushworth Vol. 1. p. 251. and Prinne 's Introduct p. 32. So that King James thought himself had no power to rescind or repeal the Laws Seorsim tho' he could so moderate the execution of them as to make his Roman-Catholick Subjects be obliged to him Yet when afterwards in hopes of obtaining the Infanta for his Son he had agreed to issue a Proclamation for Indulgence to Roman Catholicks and a Proclamation was drawn accordingly but never published we may read the Sense of the Church of England upon it in Archbishop Abbot's Remonstrance The Reason why the Proclamation was not published was because the putting of it in practice or not was to depend upon the success of the Match which miscarrying the Proclamation was stifled And that may be the reason why the Parliament in 21 Jacobi take no notice of it But in the Parliament of 2 Car. 1. The Earl of Bristol was charged by the King 's own Direction for having persuaded the King to it as having committed a very high Crime in so doing Whereas if the King had a power by Law to do it it could not well be a Crime in him to persuade him to make use of his Power when the Circumstances of his Affairs required it And as it was then conceived a Misdemeanour to Advise the King to it so who knows how far future Parliaments may account it a Misdemeanour to have been in any wise instrumental towards the carrying on of a design which some will not stick to say now as the Archbishop did then is to give the King a Power of throwing down all the Laws of the Land at his pleasure Thus I have endeavoured to give some small account of the rise and progress of Dispensations with Acts of Parliament by which it does appear that as the clause of Non Obstante was first introduced by Popes and first applied by the instigation of the Popish Clergy to break through Acts of Parliaments tho' our Parliaments never Countenanced them and our Courts of Justice never extended the dispensing power farther than to particular persons or at most to Corporations so Dispensations suspending at one blow the whole effect of Laws were invented at Rome too in favour of English Papists upon the Treaty of the Spanish Match in King James's time But they never appeared bare-faced in view till King Charles the Second's time in whose Reign they were twice damned in Parliament The third effort has been made of late since which no Parliament has yet sat down It may seem strange considering the great Solemnity and Caution that is used in passing Acts of Parliament that so impudent a conceit as that of the Legality of a dispensing Power should ever enter into the thoughts of Men. For if a Bill be first brought into the House of Lords after it is read it is committed to a Committee of Lords and certain Judges are appointed to attend them that nothing may be put into the Act which may be mischievous to the King or Kingdom After which when it comes to be read in the House again the Judges sit as Attendants upon the House and hear all the Debates of the Lords upon it Indeed they have no Voice in the House of Lords but if any Bill that is passing should in their Judgments have any ill Consequences to the King or Kingdom they might either have offered their Reasons at the Committee or suggested what their thoughts were to some of the Lords in the House who would have acquainted the House with it A Bill having passed the House of Lords with all this Caution is afterwards sent down to the Commons by some of the Judges themselves and sometimes by the Chief Justices and Chief Baron who coming into the House of Commons with Reverence and the respect of three Bows deliver the Bill to the Speaker And the method is the same in case of a Bill coming from the House of Commons and committed by the Lords some of the Judges are always appointed to attend and wait upon the Committee of the Lords After all this Solemnity the Bill yet signifies nothing without the Royal Assent In order to which before the King is to give it the Clerks of the House of Lords are to bring the Bills before the King and the Privy Council before whom they are read and not only the King's Council are ordered to attend and be present but likewise all the Judges in Westminster Hall And if any Bills should be thought of mischievous Consequence they as being the King's Council in Matters of Law are bound by the express tenour of their Oath to shew and disclose it to the King. But if no such thing be done then the King in full Parliament gives his Le Roy le Voet and so it becomes a general Law to bind the whole Kingdom Now after a Law made with such caution and solemnity is entred upon Record as a Statute binding to the whole Kingdom it must needs seem strange that the Judges in Westminster Hall should dare to allow of Dispensations with such a Law grounded upon the sole Act of the Prince and much more that they should as a late Honourable Author tells us they have done declare Acts of Parliament to be void Coke 8 Rep. Fol. 118. Heb. 87. and contrary to the Law of God or Natural Equity or that they should suppose any Law thus made to be so without assuming a power to themselves of Impeaching both Houses of Parliament the King himself all the Privy Councillors nay and themselves too or at least their Predecessors for want of Knowledge Prudence or Foresight as not being capable to judge of common Sense or not fore-seeing Inconveniences which either themselves now perceive or would persuade us the King by some new illumination has discovered especially when these inconveniences if real may easily be redressed In Parliament without having recourse to a Westminster Hall Prerogative or Dreams of Imperial Power vampt up with Ignorance a good Fancy and a tollerable Pen by some scurrilous Authors whose names I cannot prevail upon my self to defile paper with I cannot leave this period of time betwixt King John and King Henry the Eighth without a remark upon an Act of Parliament made in the Second Year of King Henry the Fifth cap. 1. That Act recites that many Hospitals have been founded by the Kings of this Realm and divers other Estates of Men and Women to which Hospitals the Founders have given part of their moveable Goods and of their Lands therewith to sustain impotent Men and Women c. And that the same Hospitals be now for the most part decayed and the Goods and Profits of the same withdrawn and spent in other uses And therefore Enacts That as to the Hospitals which be
This Prerogative that our Kings now have in the Election of Bishops stands upon the foundation of this Act of Parliament and other it has none The Supreme Headship it seems did not include the power of appointing Bishops for that had been allow'd two Years ago and is acknowledged by way of recital in this Session cap. 21. and yet the Election and Consecration of Bishops is appointed by Act of Parliament so that the title of Supreme Head did not then imply any such exorbitant Power as some have imagin'd Next comes the Act entituled No Imposition shall be paid to the Bishop of Rome c. It recites That where this your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from subjection to any Man's Law but only to such as have been devised made and ordained within the same for the Wealth of the said Realm or to such other as by sufferance of your Grace and your Progenitors the People of this Realm have taken at their free Will and Liberty by their own Consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consent and custom and none otherwise These other Laws which the People of this Realm are said to have taken at their free Will and Liberty by their own Consent and are said to have bound themselves to as to the Established Laws of the Realm by the said sufferance consent and custom and none otherwise are the Canon Laws Which here the Parliament disclaim any Obligation to the observance of otherwise than as they had bound themselves by their own sufferance and consent And consequently they did not look upon any Ecclesiastical Laws as obligatory to themselves and their Posterity but what themselves had or for the time to come should Consent to This would never have proceeded from them if they had imagin'd that the Legislative Power in Ecclesiastical Matters was or ever had been vested in the King's Person as some amongst us have not stuck to assert of late But the Act goes on It standeth therefore with natural equity and good Reason that in all and every such Laws humane made within this Realm or induced into this Realm by the said sufferance consent and custom your Royal Majesty and your Lords Spiritual and Temporal and Commons representing the whole state of your Realm in this your most high Court of Parliament have full Power and Authority not only to dispense but also to authorize some Elect Person or Persons to dispense with those and all other humane Laws of this your Realm c. and also the same to abrogate amplifie or diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament meet and convenient c. Here is no dispensing Power acknowledged to be personal in the King. Nor is the Parliament so much a stranger to Matters of Religion as not to have a share even in the dispensing as well as the abrogating Power with respect to Ecclesiastical Laws You see as soon as ever the foreign Yoke was cast off they put in for their share of the Supremacy nor did the King look upon it as any diminution to his own legal right to admit their claim It was in concurrence with them and with their assent that the method of prosecuting Appeals had been settled they joyn'd with him in tying up the hands of the Clergy from promulging any Constitutions without the Royal Assent their Authority concurr'd in appointing how Bishops should be Elected Invested and Consecrated and here they impower the Archbishop and the King to grant Dispensations Then they proceed to Enact how and by whom and in what cases Dispensations shall be granted for the future And first they impower the Archbishop of Canterbury for the time being and his Successors to grant Dispensations to the King his Heirs and Successors for causes not contrary to the Scriptures and the Laws of God. How Could not the King by vertue of his inherent Prerogative dispense with himself Dr. Hicks Was not this involv'd in the formal conception of Imperial Soveraignty No. If he will act contrary to Law he must have a Dispensation and that Dispensation granted by a Subject impowered by Act of Parliament so to do This is the first and only Act that gives the King a power of dispensing in Ecclesiastical Matters and the Archbishop of Canterbury may dispense in all cases which the King by vertue of this Act may dispense in only in cases unwont to be dispensed in at Rome he must advertise the King or his Councel who if they determine that such Dispensation shall pass then the Archbishop having the King's Licence shall dispense accordingly But who ever heard of the King 's Licensing an Archbishop to dispence with an Act of Parliament How would it found in our Ears if Divinâ Providentiâ Cantuariensis Archiepiscopus should issue a Non Obstante to an Act of the King Lords and Commons in Parliament And yet the Archbishop may grant Dispensations with the King's allowance in all Cases whatsoever that that Act extends to Therefore I say the King's Power of dispensing by vertue of that Act is with the Canon Law only which in effect was no Law at all To say that the King is not restrain'd by this Act Hob. p 146. in Colt and Glovers Case but his power remains full and perfect as before and he may grant them still as King for all Acts of Justice and Mercy flow from him is a sound of words only vox praetereà nihil And yet we find by Experience that hae nugae seria ducunt in mala there is likewise a strange Expression in Moor's Reports 542. cs 719. Al tierce point ils semblont que la Royne poit granter dispensations come le Pape puissoit en cases lou l'Archevesque n'ad authority per le Stat. de 25 H. 8. de granter dispensations quia tout l'authority que le Pape usoit est done al Corone But these and many other scattered Cases and extravagant Expressions of Reporters which have been made use of as Judgments in after times there may possibly be some account given hereafter in a Discourse by it self The latter part of the Statute of 25 H. 8. c. 21. concerns the visiting of Colleges Hospitals and places exempt It is enacted that the Archbishop of Canterbury or any other person or persons shall have no Power and Authority by reason of this Act to visit or vex any Monasteries Abbeys Priories Colleges Hospitals Houses or other places Religious which be or were exempt before the making of this Act but that Redress Visitation and Confirmation shall be had by the King's Highness
Pastoral Office committed to the Pastors of the Church by Christ and his Apostles and that the Supremacy then pretended to was no such extravagant Power as some imagine Sixthly That the Supremacy ascribed to the King by this Act had no reference to any such absolute Power as the Pope pretended to appears by the whole course of the King's Reign forasmuch as the Exercise of this Supremacy in every Branch of it was directed by particular and positive Laws made much about the same time nor perhaps were any Acts of Supremacy exerted during this King's Reign that some Act of Parliament or other did not warrant as will appear in our Progress The truth of it is that no more can be made of it than an utter Exclusion of the Pope's pretended Authority and an acknowledgment that the King is not an absolute Dominus fac-totum in Spiritualibus but the Fountain of Justice to be administred according to Law in Cases commonly called Ecclesiastical as well as Temporal without any dependance upon a Foreign Potentate Hence it is that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs the Crown of England is so often mentioned to be an Imperial Crown and the Realm of England an Empire Sir Edward Haleâ—'s Case Tho that Word has been made use of of late to countenance a very strange and unheard of Judgment But the Gentleman that made use of the Word either understood it not or wilfully misapplyed it The Crown of England is said to be an Imperial Crown because it is subject to no Foreign Jurisdiction The Kings of England are not Homagers nor ever were for their Kingdom to any other as many Kings have been A Regal Crown does not ex vi termini exclude a Subordination an Imperial Crown does The Emperor of Germany whose Crown must needs be Imperial has less Power in the Empire than most Princes in their own Dominions But it must be confess'd that the Word Supreme Head tho legally understood it be no such Bug-bear yet was a Term borrowed from Antichrist a Word that gave offence especially to those that knew little of its Signification but what they had learnt from a Jurisdiction pretended to be exercis'd by the Pope as such and claiming to be so as Vicar General to Christ Papists thought the Right of St. Peters Successor injuriously invaded and Protestants though universally submitting to the Legal Power of the Crown yet many of them boggl'd at the Title as making too bold with our Saviours Prerogative of being the only HEAD of the Church And so great Powers were given to King Henry the Eighth by Acts of Parliament of which by and by in Ecclesiastical and Spiritual Matters which though given by particular Laws and those Laws occasion'd by the then Circumstances of Affairs yet by some unadvised Persons are confounded with his Legal and Original Supremacy at the Common Law or at least are lookt upon as incident to the Title Style and Dignity of Supreme Head that no wonder the Title has found little countenance from Protestant Writers The other part of this short Act of 26 Hen. 8. cap. 1. is very observable and discovers a Secret that few observe but rightly considered lays open a very fine Scene and gives an undeniable Answer to the only material Argument that can be produced in favor of the late Ecclesiastical Commission The Argument lies thus King Henry the Eighth issued a Commission to Cromwell whereby he constituted him his Vicegerent in Ecclesiastical Matters and delegated to him the Exercise of all his Ecclesiastical Jurisdiction long before the 1 Eliz. which impowered Queen Elizabeth and her Successors from time to time to issue such Commissions And this Commission to Cromwell cannot be deny'd to have been a Legal Commission because it is recited in an Act of Parliament 31 Hen. 8. cap. 10. admitted to be according to Law and a place appointed him in respect of that Office above the Archbishop of Canterbury in the House of Lords And there having been no Act of Parliament in King Henry the Eighths time whereby he was expresly impowered to issue such a Commission the Commission was warranted by the Common Law. This being the Argumentum palmarium tho foolishly omitted by those that have undertaken to write in Vindication of the Proceedings of the late Commissioners receives a full and satisfactory Answer from this very Act of Parliament this being the Act which was the Ground and Foundation of that Commission and as far as I know of the Commission did really warrant it The Words are these viz. And that our Sovereign Lord the King his Heirs and Successors Kings of this Realm shall have full Power and Authority from time to time to visit repress redress reform order correct restrain and amend all such Errors Heresies Abuses Offences Contempts and Enormities whatsoever they be which by any manner Spiritual Authority or Jurisdiction ought or may be lawfully reformed repressed ordered redressed corrected restrained or amended most to the Pleasure of Almighty God the increase of Vertue in Christs Religion and for the conservation of the Peace Vnity and Tranquillity of this Realm any Vsage Custom foreign Laws foreign Authority Prescription or any thing or things to the contrary hereof notwithstanding By these Words a Personal Authority not of Legislation but of visiting redressing correcting c. is given to whom To the King his Heirs and Successors This Power was given by the Parliament nor was enjoyed or exercised by the King or any of his Predecessors before and being vested in the King his Heirs and Successors may consequentially be delegated to Commissioners After this Act was pass'd out comes Cromwell's Commission of Vicegerency and not till then tho the Clergy had recogniz'd the Supremacy two years ago and the Parliament in the 24 Hen. 8. cap. 12. and the 25 Hen. 8. cap. 21. had in effect done so too Yet was not the recognis'd restor'd and declar'd Supremacy lookt upon as any Warrant for an Ecclesiastical Commission till a new Power was given to the King by this Act And this Act of Parliament having been Repealed by the First and Second of Phil. and Mar. and never since reviv'd there is now no ground from this Act or from that President of Cromwell's Commission for a like Commission in our Days How far the Statute of 1 Eliz. gives countenance thereunto shall be enquired into when we come to it The next Act that I shall take notice of is the Thirteenth Chapter of this same Session entituled By whom Suffragans shall be nominated and elected The Act recites that sithen the beginning of this present Parliament good and honourable Laws and Statutes have been made and established for Elections Presentations Consecrations and investing of Archbishops and Bishops of this Realm with all Ceremonies appertaining to the same yet nevertheless no Provision hath been made for Suffragan Bishops and therefore enacts what Towns shall be taken and accepted
them not warrantable by the Laws and Statutes of the Realm Now what use the Doctor can make of this Particular viz. of the King 's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law I cannot discover Sir Roger's eighteenth and last particular is an observation in Matth. Paris where the Ecclesiasticks having enumerated several cases in which they held themselves hardly dealt with add That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition he was attached and appearing before the Justices constrained to produce his proceedings that they might determine to which Court the Cause belonged By which says he it is manifest how the King's Courts had the superintendency over the Ecclesiastick This makes nothing for any Extrajudicial Personal Arbitrary power in the King in the Ecclesiastical matters and is so far from impugning that it corroborates my hypothesis That the Temporal and Ecclesiastical Courts often quarrel'd about their Jurisdiction and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm thereby endeavouring to usurp and encroach upon many matters which apparently belonged to the Common Laws as the tryal of Limits and Bounds of Parishes the Right of Patronage the tryal of right of Tythes by Indicavit Writs to the Bishop upon a recovery in a Quare impedit the tryal of Titles to Church-Lands concerning Distresses and Attachments within their own Fees and many other things which belonged to the King 's Temporal Courts That the Temporal Courts granted Prohibitions in these and other like cases that the Clergy hereupon complain'd not to the King but to the Parliament Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes 599 600 601 c. So that the King determined to which Court Causes belonged either in his Courts of Ordinary Justice or if the Clergy remain'd unsatisfied with the Opinions of the Judges in his High Court of Parliament and no otherwise But we need not wonder that such a Prelate as Arch bishop Bancroft whose Divinity had taught him that the King may take what causes he shall please to determine from the determination of the Judges and determine them himself and that such Authority belonged to Kings by the Word of God in the Scripture we need not wonder I say to find him in King James the First 's time Exhibiting Articles of Abuses in granting Prohibitions against the Judges to the Lords of the Privy Council As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst 601 602 c. 12 Co. p. 63 64 65. By what has been said I hope it appears sufficiently that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction and no other than they had in Temporal matters viz. in their Great Councels and in their Ordinary Courts of Justice And that not only our Mercenary Doctor but more learned and wiser men than he have unwarily confounded that Jurisdiction with a Fiction of their own brains by which they have ascribed to the King a Personal Supremacy without any warrant from Antiquity Law or History Witness these loose Expressions in Sir Roger Twiden's Historical Vindication c. It cannot be denyed but the necessity of being in union with the true Pope at least in time of schism did wholly depend on the King pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals that is quae sui sunt ordinis without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione in other things as points of Government the Ordering that of Right and Custom ever to have belonged to the King assisted with his Councel of Bishops and others of the Clergy who was therefore called Vicarius Christi c. pag. 21. The King and the Arch bishop or rather the Arch-bishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy as the Erection of Bishopricks disposing and translating of Bishops c. p. 24. and innumerable others But to go on with Dr. Johnston and draw to a conclusion he acknowledges pag. 157 that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time And if no such thing can be found then what authority can our Kings now have to exercise such a Jurisdiction unless by vertue of some Act of Parliament made in or since his time But says he we have sufficient grounds to judge that whatever was done was by the King's Power and Authority which is a wild extravagant ignorant expression and hardly common sense And therefore says he Sir Edward Coke in Cawdrie's case Lays it down for a Rule That as in Temporal Causes the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm and that so many of the Ecclesiastical Laws as were proed approved and allowed here by and with general consent are aptly and rightly called the King's Ecclesiastical Laws and whosoever denyeth this denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects c. pag. 157. which that he has he proves by the Preamble of stat 24 Hen. 8. cap. 12. And what then May the King therefore erect New Courts directly contrary to positive Laws Command things arbitrarily upon pain of suspension deprivation c. and Command things contrary to Law by vertue of his Ecclesiastical Laws The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy which now stands Repealed And with 1 Eliz. by which he says all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governour But the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to shew hereafter that the Doctor understands the Act of 1 Eliz. as little as any thing else that he pretends to write upon FINIS
That the King desired only dignitates Regibus ante debitas sibi exhiberi Hoved. pag. 292. b. And in another Letter to the Pope on the King's behalf they declare the same ibid. pag. 292 293. Our Archbishops indeed used to fetch their Palls from Rome but that Entitled the Pope to no Jurisdiction here So that the Subject Matters of the Laws of Clarendon then Enacted into Statute-Laws were in King William Rufus his Time the Laws and Vsages of the Realm and therefore Anselm's and Becket's Oaths were in Substance the same And those Laws and Vsages having been usurp'd upon since and the Usurpation purged by the Laws made about the time of the Reformation the Oath of Supremacy is now the same in Substance with those Ancient Oaths aforementioned Not but that the Ecclesiastical Jurisdiction in some of its Branches may now be settled in another course of Administration than it was so long ago But those Alterations which yet are not very considerable have been made by Acts of Parliament by which if Men had been content to stand or fall many Notions that are now too rise amongst us would never have been hatched The Writ from R. de Glanville to the Abbot of Battle mentioned by the Doctor pag. 148. whereby he Commands him on the King's behalf by the Faith which he owed him not to proceed in the Cause that was depending betwixt the Monks of Canterbury and the Archbishop donec indè mecum fueris locutus was no other than a Probibition to him to proceed in a Cause depending before him and the Abbots of Feversham and St. Augustine as Judges appointed by the Pope to hear and determine it They had cited the Archbishop to appear before them they had sent him Comminatoriam Epistolam eique diem peremptorium praefixerant They had no Legal Authority to Exercise Jurisdiction within the Realm for the Pope could give them none And therefore the Chief Justice prohibits them in the King's Name The Writ may be Read in Chron. Gervas Coll. pag. 1503. from whence the Doctor Quotes the Story Though he relates it Knavishly enough We find a Writ saith he to the Abbot of Battle c. wherein he Commands him on the part of the King by the Faith which he owes him and by the Oath which he made to him to do what he then enjoyned Never telling us that the thing enjoyn'd was the keeping of his Oath and observing the Law and that the Method observed by the King in sending him this Injunction was according to the Ordinary course of Justice and of proceedings at Law in the like Cases But the Doctor would raise a little Dust by this and a few other such pitiful Scraps to amuse his Readers and create an Opinion that the King may enjoyn any thing As to the Legantine Power he says pag. 148. It is apparent by several Instances that none Exercised any here without the King's leave whether by the Grant of Pope Nicholas to Edward the Confessor he disputes not But the Doctor takes for granted that with the King's leave a a Legate might be sent and Exercise his Office here Though what he Quotes for it out of Eadmerus pag. 125 126. concerning what passed betwixt King Henry the First and Pope Calixtus at Gisors makes nothing for his purpose Rex à Papa impetravit ut omnes Consuetudines quas Pater suus in Angliâ habuerat in Normanniâ sibi concederet maximè ut neminem aliquando legati Officio in Angliâ fungi permitteret si non ipse aliquâ praecipuâ querelâ exigente quae ab Archiepiscopo Cantuariorum caeterisque Episcopis Regni terminari non posset hoc fieri à Papâ postularet The coming in of a Legate at the King's Request to determine some great and difficult Controversie in particular which could not be decided by all the Bishops of England is one thing and the coming in of a Legate with a General Power to Exercise Jurisdiction over all the King's Subjects and to hold a Legantine Court is a quite other thing The Doctor says pag. 151. that Anno Domini 1138 Tertio Regis Stephan Albert or Alberic Cardinal of Hostia was the Pope's Legate and Consecrated Theobald Archbishop of Canterbury and called the Clergy to a Colloquium by Apostolical Authority by which it appears says he That the Canons of the Church now obtained and the King Assented to the Powers the Legate had so that what was Decreed had the King's Allowance It seems provided what was Decreed had the King's Allowance all was well and there needed no more But Gerv. Dorobern Coll. pag. 1344. tells us that Praedictus Albericus Apostolicâ Legatione functus venit in Angliam Domini Papae litteras ad Regem deferens lectis itaque litteris coram Rege Primoribus Angliae licèt non in primis vix tandèm pro Reverentiâ Domini Papae susceptus est So that this Legate was admitted by the Consent of the Primores Angliae as well as of the King. And consequently his Exercising his Office here with such Assent as aforesaid is no Argument that the King 's Personal Assent to his Powers without the Concurrence of his Primores would have made them ever a whit the better And when this Legate Celebrated his Synod at Westminster there were present Episcopi diversarum Provinciarum Numero XVII Abbates ferè XXX Cleri Populi Multitudo Numerosa See Spelman's Councils Volume the Second pag. 39. and Gerv. Dorobern Collect. pag. 1347. So that as the Assent of the Primores was had to his Entry so the Multitudo Numerosa Cleri Populi Assented to the Canons then made And the King 's single Assent to either would not have been sufficient Besides this I shall take leave to oppose the Judgement and Opinion of King Henry the First to that of the Doctor concerning the King's having or not having Authority to Admit a Legate hither from Rome When in his Reign Petrus Monachus Cluniacensis came hither from Pope Calixtus with a Legantine Power perductus ad Regem dignè ab eo susceptus est Et expositâ sui adventûs causâ Rex obtensâ expeditione in quâ tunc erat nam super Walenses eâ tempestate exercitum duxerat dixit se tanto negotio operam tunc quidem dare non posse cum Legationis illius stabilem Authoritatem non nisi per conniventiam Episcoporum Abbatum Procerum ac totius Regni Conventum roborari posse constaret Eadmer Lib. 6. pag. 137 138. He tells it him as a known Truth constaret that his Legacy could not be of any validity in this Nation without the Consent of the whole Kingdom in Parliament Which by reason of his Wars with the Welsh he was not then at leisure to call The Words following are Remarkable VIZ. Super haec patrias Consuetudines ab Apostolicâ sede sibi concessas nunquam se aequanimiter amissurum fore testabatur in quibus haec
Anselm about Anselm's going to fetch his Pall from Vrban And that betwixt Lanfrank Arch-bishop of Canterbury and Thomas Arch-bishop of York concerning the Profession of Canonical Obedience which the former required of the Latter the Chusing Bishops and Arch-Bishops the Controversies betwixt King Henry the 2d and Thomas Becket all heard debated and determined in General Assemblies of Clergy and Laity and not by our Kings apart from their Great Councels The Eleventh is That they permitted No appeals to Rome 'T is true nor did they ever determine them themselves either in person or by Commission And therefore the Statute of Clarendon which gives Appeals from the Arch-Bishop to the King was never understood to be to the King in person but to the King in his Court. As we may see by what Ger. Dorobern Anno 1176. Coll. p. 1433 And Hoveden fol. 313 314 tell us of the statute made at Northampton in King Henry the second 's time Which both of them call a renewing of the Assize of Clarendon Now in these Laws made at Northampton there is this close Expression concerning Appeals Justiciae faciant quaerere per consuetudinem terrae illos qui à Regno recesserunt nisi redire voluerint infrà terminum nominatum stare ad Rectum in Curià Domini Regis Vtlagentur So that though King Henry as far as in him lay had given ways to Appeals to Rome for when he was absolv'd of the Guilt that he was supposed to have contracted by having occasioned the death of Thomas Becket part of the satisfaction enjoyn'd him was quod licebit Appellationes libere fieri Radulph de Diceto p. 560 yet the Kingdom afterward meeting in Parliament at Northampton would not quit their interest But renew'd the Laws of Clarendon against forein Appeals And explain the Appeals ad Regem to be meant of Appeals ad Curiam Regis But it is a common errour with Men that are ignorant of our Laws wherever they find they King's name in any Acts of Parliament or Judicial Proceedings to imagine that the King has some Personal Authority out of his Courts But for the present I will give but one Instance to detect that mistake The Stat. of Westm 1. Enacts cap. 15. what persons shall be replevisable and what not Amongst others those that are taken by Commandement le Roy are appointed not to be bayl'd by that Statute My Lord Coke in his Commentary upon that Law 2d Institut pag. 186. says thus viz. 1. The King being a body Politick cannot command but by matter of Record for Rex praecipit and lex praecipit are all one For the King must command by matter of Record according to Law. 2. When any Judicial Act is by Act of Parliament referred to the King it is to be understood to be done in some Court of Justice according to Law. The words of the Statute of Rich. 2. cap. 12. are si non que il sort per briefe ou auter maundement del Roy. And yet it was resolved by all the Judges of England that the King cannot do it by any Commandment but by Writ or by Order or Rule of some of his Courts of Justice where the Cause dependeth And Fortescue speaking to the Prince to instruct him against he should be King Melius says he per alios quà m per teipsum Judicia reddes quo proprio ore Nullus Regum Angliae usus est tamen sua sunt omnia Judicia Regni licet per alios ipsa reddantur sicut judicum â—lim sententias Josaphat asseruit esse judicia Dei. The Great Case in tertio Caroliprimi of Habeas Corpus turn'd upon this point The Judges indeed betray'd the Nation in that cause as they have done in others in these Hundred years last past as far as in them lay but how that Judgment was resented in Parliament the Reader may inform himself out of the 1st Vol. of Rushworth's Collections and the 1st part of Doctor Nalson The Law was declared upon that occasion to be that Voluntas Regis est secundum legem et Justiciarios suos in Guriâ suâ non in Camerâ according to 2 R. 3. f. The Twelfth particular is that Our Kings bestowed Bishopricks on such as they liked and translated Bishops from one See to another concerning our Kings bestowing Bishopricks something has been said already As for their translating Bishops from one See to another I desire to hear any one Instance in any age of any Bishop translated by the King against his own will. The Pope pretended to such a power and sometimes Exercised it and that was one of the mischiefs which occasioned the making of the Statutes of Provisors But could never yet find that any of our Kings attempted it The Thirteenth particular is Erecting New Bishopricks The Instances given by Sir Roger are 1st the erecting of the Bishoprick of Ely by King Henry the 1st Anno 1009. taking it out of Lincoln-Diocess And yet nothing is more evident then that this was done by Act of Parliament The Instrument Runs thus viz. In Nomine sanctae individuae Trinitatis Patris Filii spiritus sancti Anno ab Incarnatione Domini MCVIII Indictione Anno Pontificatus Domini Paschalis Papae 2. decimo Regni quoque mei similiter decimo Ego Henricus Providente Divina Clementia Rex Anglorum Normannorum Dux Wilhelmi Magni Regis Filius qui Edwardo Regi Haereditario jure successit in Regnum videns Ecclesiae messem in Regno meo multam esse Agricolas quidem paucos et ab hoc plurimum laborantes in Messe et in ipsa Lincolniensem Ecclesiam multa plebe foecundam ex Authoritate Consilio predicti Papae Paschalis Assenfu simul prece Roberti Lincolniensis Episcopi totius Capituli sui cum ipso annuente Domino Anselmo Beatae memoriae Cantuariensi Archiepiscopo Thoma secundo Venerabili Eboracensium Archiepiscopo Universis Episcopis Abbattibus totius Angliae sed omnibus Ducibus Comitibus Principibus Regni mei Elyense Monasterium c. in Episcopalem sedem sicut caeteros Episcopatus Regni mei liberam absolutam perenniter statuo confirmo vid. Mr. Selden 's Notas Spicilegium ad Eadmer Et Dugdale's Monasticon And what if All the Bishopricks of England Erected both before and after were Erected by Acts of Parliament and not by the King's Letters Patents only In King Edward the Elder 's time upon the Letter of Pope Formosus Congregata est synodus Senatorum Procerum Populorum Nobilium Gentis Angliae In quâ Presidebat Plegmundus Archiepiscopus Tum sibi Rex cum suis et Plegmundus Archiepiscopus salubre Concilium iniverunt and Constituted and Elected five Bishops in the Province of the Gewissi where there had till then been but two dividing those two Bishopricks into five by Act of Parliament Spelman's Counc Volum 1. pag. 387 388. Malmesbury de Gestis
SOME OBSERVATIONS UPON THE Ecclesiastical Jurisdiction OF THE KINGS of ENGLAND WITH AN APPENDIX In Answer to part of a Late Book Intitled The KING' 's Visitatorial Power Asserted LONDON Printed for William Battersby at Thavies-Inn Gate in Holborn and Thomas Basset at the George in Fleet-street 1689. To the Reader A Late Declaration for Liberty of Conscience whereby the King Assum'd a Power of Suspending All Penal Laws in matters of Religion The Ecclesiastical Commission and suspending by vertue of it the Bishop of London and depriving the Fellows of Magdalen-Colledge occasioned a general dissatisfaction in the Nation and produc't some Pamphlets to justifie all those Proceedings viz. One Entituled The King 's Right of Indulgence in Spiritual Matters with the Equity thereof Asserted Another A Vindication of the Proceedings of his Majestie 's Ecclesiastical Commissioners against the Bishop of London and the Fellows of Magdalen-Colledge A Third The Legality of the Court held by his Majestie 's Ecclesiastical Commissioners Defended And last of all The King 's Visitatorial power asserted Perusing these Pamphlets I could not but observe that one and the same inveterate error ran through them All viz. Their ascribing to the King all such power Jurisdiction and Authority as by the Law of England and the very Original Constitution of our Government is lodged in the Legislative body of the Kingdom and which the King is intrusted onely with the Administration of and that in his Courts of Justice I had attempted the answering more than one of those Pamphlets but I found that at every turn I met with that mistake in the Authors who either through Ignorance or Design or both argue for the King's Prerogative from whatever they find to have been done in Great Councils of the Realm or in Ordinary Courts of Justice this one mistake together with some rash and unwarranted expressions glean'd out of a few late Writers will be found to be the main strength of their Cause I thought therefore that it might be a work of some use especially at this time to endeavour the removal of this rubbish and the laying open in some measure the nature of the Ecclesiastical Jurisdiction of the Crown of England both because we have lately seen how dangerous and fatal these mistakes are and because although much has been written since the Reformation by Mr. Prynn Sir Roger Twisden and others to vindicate the Ecclesiastical Supremacy from Forein Pretensions and Vsurpations yet I know not whether any has yet taken in hand to give an Account of it as stands by Law here at home I do therefore offer these few Observations upon it to the publick desiring the Judicious Reader 's pardon for what slips and imperfections he may find herein and have added in an Appendix an Answer to a Section in the Book concerning Visitatorial Power wherein I hope the Reader will be satisfied how groundless and weak most of the arguments are which our Prerogative-mongers pretend to draw from Antiquity These following Observations are brought down no lower then to the latter end of King Henry the eighth's Reign I design a Continuation with Remarks upon some Judicial Presidents that have pass't since the Reformation if these Papers are well received if not I shall save time and be eas'd of trouble SOME OBSERVATIONS Upon the Ecclesiastical Jurisdiction Of the King 's of ENGLAND IT is obvious enough to judicious and intelligent Persons by what unhappy Circumstances it comes to pass that one great Mean of our Preservation seems at present in a manner hid from our Eyes But since Experience is said to be the Mistress of Fools it is hoped that at least in this our Day we may see the things that belong to our Peace Luke 19.42 and remember that the reason why the Ostrich leaveth her Eggs in the Dust Job 39.13 14 15 17. forgetting that the Foot may crush them is because God hath deprived her of Wisdom neither hath he imparted to her Vnderstanding If Interest or Ambition have swayed with some of us Prov. 22.28 as far as in them lay to remove the antient Land-Marks which our Fore-Fathers have set Josh 7.19 let such give Glory to God and take Shame to themselves In the mean time what effect soever these ensuing Papers may have upon our Friends at least let our Adversaries see that there is a Remnant left in Israel 1 Kings 19.18 that have not bowed their Knees to Baal An Arch-Bishop may tell us The Legality of the Ecclesiastical Commission defended pag. 6 7. that the King may take what Causes he pleases to determin from the Determination of the Judges and determin them himself and that it is clear in Divinity that such Authority belongs to the King by the Word of God. But as we are not to receive even the Word of God it self under the Sanction of a Human Law from the Mouth of an Arch-Bishop or from the whole Body of the Clergy much less are we bound to submit to any Courtly Glosses upon that Sacred Text concerning the Power of Kings whose Authority as we suppose it to be grounded wholly upon Municipal Laws so we know the Law to be a better Foundation and a better Security than any imaginary Authority pretended from Scripture And if the Defender would have observed what the Lord Coke in the Presence and with the clear consent of all the Judges and Barons of the Exchequer Coke 12. Rep. pag. 63 64 65. answered upon that occasion before the King himself both from Reason and Authority he would have silenced the Arch-Bishops Divinity and saved me the trouble of taking notice of that part of his Discourse It was their Opinion that the King could not in Person adjudge any Case Which they confirm with such Reasons and Authorities from judicial Records and Acts of Parliament that it seems very imprudent in the Defender to urge that as an Authority which received so solid so learned and so honest an Answer Judges and Serjeants may entertain themselves with what Discourse they please post prandium Legality of c. defended pag. 10 11. Coke 12. Rep. pag. 19 c. and in their mooting upon one extrajudicial Point may talk of another by the by and if one of the Company put this transient Discourse into Paper so that afterwards it gets into the Press Good God! what condition are we come into when Tablechat must be obtruded upon us for Law To go a little further Judges in Courts of Justice may pretend to resolve what Points of Law they please but if their Resolutions are not pertinent to the Matter depending before them in Judgment and necessary for the deciding it such Resolutions go for nothing because the Judges had no Authority so to resolve And I am fully assured that this Point Legality of c. defended Pag. 8.9 Coke 5. Rep. Cawdry's Case viz. Whether any King or Queen of England for the time being might issue an
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
For he can appoint no Commissioners to determine Matters of civil Right but where special Acts empower him and no Act had yet impowered him to do so in Ecclesiastical Matters nor did his Predecessors or himself practise it till afterwards For his divers sundry old Histories and Chronicles afforded him no president of any such thing and therefore it could not be either in the nature of the thing or in the sense and meaning of the King and his Parliament any essential part of his Legal Supreme Headship to have a Personal Supremacy either independant of the Estates of the Realm or which might be administred otherwise than in the Course setled by Law i. e. by proper Officers appointed thereunto either by express Act of Parliament or the Original Constitution of the Government or both The Body of the Act prohibits Appeals to the See of Rome and enacts That in such Cases where heretofore any of the King's Subjects and Resiants have used to pursue c. any Appeal to the See of Rome and in all other cases of Appeals in and for the Causes aforesaid they may and shall from henceforth take have and use their Appeals within this Realm and not elsewhere in manner and form as hereafter ensueth and not otherwise that is to say First From the Arch-deacon or his Official if the Matter or Cause be there begun to the Bishop Diocesan of the said See if in any case the Parties be aggrieved And in like wise if it be commenced before the Bishop Diocesan or his Commissary from the Bishop Diocesan or his Commissary within fifteen days next ensuing the Judgment or Sentence thereof there given to the Archbishop of the Province of Canterbury if it be within his Province and if it be within the Province of York then to the Archbishop of York and so likewise to all other Archbishops within the King's Dominions c. there to be Definitively and Finally ordered decreed and adjudged according to Justice without any other appellation or provocation to any Person or Persons Court or Courts By the next Clause Matters or Contentions to be commenced before the Archdeacon of any Bishop or his Commissary are appointed in case either Party be aggrieved to be brought by Appeal to the Court of Arches or Audience of the same Archbishop of the Province there to be Definitively and Finally determined The next Clause appoints that Causes to be commenced before any of the Archbishops shall before the same Archbishop be definitively determined saving always the Prerogative of the Archbishop and Church of Canterbury in all the aforesaid Causes of Appeals in such and like wise as they have been accustomed and used heretofore Then it is Enacted that Causes touching the King his Heirs and Successors shall be finally decreed by the Prelates Abbots and Priors of the Vpper House of Convocation Hitherto no Appeal lay to the King in Person or in Chancery You have heard already that originally the ultimate Appeal in Ecclesiastical and Temporal Matters was to one and the same Tribunal Afterwards the See of Rome gained Appeals by Usurpation and Connivance Now they are lodged in the Diocesan the Archbishop and Vpper House of Convocation and their Sentences respectively are appointed to be final and definitive And therefore neither the Clergy in their Submission wherein they Recogniz'd the King to be the Supreme Head of the English Church V. Burnet's Collect. ad Vol. 1. p. 128 129. nor this Parliament who had been inform'd by Old Authentick Histories and Chronicles that the Spiritualty and Laity of this Realm are governed by One Supreme Head and King did so much as imagine that by vertue of that Office or Title the Supreme Cognisance of Appeals belonged to him personally If Appeals to the King in Person or in Chancery or Commissions of Review had then been dreamt of there needed not another Act in the Year ensuing to take off the odium of these definitive Sentences from the Archbishops It is the Stat. of 25. H. 8. cap. 19. Wherein it is Enacted That for lack of Justice at or in any of the Courts of the Archbishops of this Realm or in any of the King's Dominions it shall be lawful to the parties grieved to Appeal to the King's Majesty in the King's Court of Chancery And that upon every such Appeal a Commission shall be directed under the Great Seal to such persons as shall be named by the King's Highness his Heirs or Successors like as in case of Appeals from the Admiral 's Court to hear and Definitively to determine such Appeals By a subsequent Clause Appeals from the Jurisdiction of any Abbots Priors or other Heads and Governours of Monasteries c. and places exempt c. shall be made immediately to his Majesty into the Court of Chancery which Appeals so made shall be Definitively determined by Authority of the King's Commission It looks like a blemish to the Notion of Supreme Head in the modern acceptation of the Word to have the final Judgment in Causes Ecclesiastical referr'd by the Parliament to the Bishops Archbishops or to Commissioners appointed by vertue of an Act of Parliament c. and yet the Parliament in 25 Hen. 5. cap. 21. takes Notice of and allows the Clergy's Recognition nor was it till many Years after to wit the 39 of Eliz. that the Lawyers found out a way to make these Acts consistent with their imaginary personal Supreme Headship and that was by introducing Commissions of Review Which they tell us the King after such a definitive sentence may grant as Supreme Head Ad revidendum 4 Instit p. 341. Where two reasons are given for it First For that it is not restrained by the Act which seems to be a mistake For it is restrain'd by the Act as much as it was capable of being restrain'd and that by these words viz. that such Judgment and Sentence as the said Commissioners shall make and decree in and upon such Appeals shall be good and effectual and also definitive How could Commissions of Review be restrain'd more expresly than by these words They are not nam'd indeed and good reason why viz. because there never had been any such things in our Law before For he that will apply to this Case that common Rule of Law viz. that where the King is not named in a Statute he is not intended to be bound by it must prove that Appeals lay to the King in Person or in Chancery before these Acts were made And then perhaps I may yield that such Commissions of Review are not hereby restrained How comes it to pass V. Cr. Car. 40 Jones Rep. p. 147. Duke's Law of Char. Uses p. 62. Windsor and Hilton's Case that the Chancellor's Decree upon Complaint of a person aggrieved by a Decree of the Commissioners of Charitable Vses is final upon which no Bill of Review is to be allow'd Why because the Statute of 43 Eliz. cap. 4. gives an Appeal to him
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