Particular Statute made for the Security of our Religion or for a Suspension of our Ecclesiastical Laws CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections I Now come to the Alterations made in our Laws about the King's Supremacy in the Time of Henry the Eighth 24 Hen. 8. c. 12. An Act passed for taking away all Appeals to Rome which is founded on the King 's Natural and Independent Right of Governing and doing Justice to all his People and the Sufficiency of his own Clergy for Hearing and Determining such Matters as belonged to their Function and therefore all Causes are to be Heard Discussed Examined finally and definitively Adjudged and Determined within the King's Jurisdiction and Authority and not elswhere in the Courts Spiritual and Temporal But if the King be concerned then it is referred to the Upper-House of Convocation The Preamble of this Act against Appeals to Rome is considerable Whereas by divers Authentick Histories and Chronicles it is manifestly declared and expressed That this Realm of England is an Empire governed by one Supreme Head and King c. with plenary whole and entire Power Preheminence Authority Prerogative and Jurisdiction c. for final determination of Causes c. so that here is an Appeal to Ancient History in this Matter and we have still sufficient Evidence of it before the Popes Encroachments prevailed The Bishops and Barons told Anselm in William Rufus his time It was a thing unheard of and contrary to the Custom of his Realm for any one to go to Rome without the King 's Leave which is after explained by way of Appeal Anselm made but a shuffling Answer to this although he had sworn to observe the Customs of the Realm and he could not deny this to be one but he pretended It was against S. Peter 's Authority and therefore could not observe it for this were saith he to abjure S. Peter From whence I infer That the Custom of the Realm was then thought by Anselm to be inconsistent with the Pope's Authority For whatever they talk of S. Peter it is the Pope they mean. In the Reign of H. 1. the Pope complains grievously That the King would suffer no Appeals to be made to him and that due Reverence was not shewed to S. Peter in his Kingdom and that they ended Ecclesiastical Causes at Home even where Bishops were concerned and very learnedly quotes the Deâ—retal Epistles against them Afterwards the Pope sent his Legate and the King denied him Entrance and the whole Parliament rejected it as contrary to the Ancient Custom and Liberty of England That Passage in the Laws of H. 1. c. 5. which seems to allow of Appeals is a mere Forgery the whole Chapter being a Rapsody taken out of the Canonists H. Huntingdon saith That Appeals were brought in in King Stephen 's time by Henry Bishop of Winchester his Brother being the Pope's Legate By the Constitutions of Clarendon c. 8. the Appeal lay from the Archbishop to the King which is well expressed by Robert of Gloucester And the K. amend solde the Ercbishops deed And be as in the Pope's sted and S. Thomas it withsteed And although H. 2. in his Purgation for the Death of the Archbishop did swear That he would hinder no Appeals to Rome in Ecclesiastical Causes and that he would quit the Ancient Customs of the Realm Yet Hoveden saith The Constitutions of Clarendon were renewed in the Parliament at Northampton and the Justices in Eyre were sworn to observe them and to make others observe them inviolably And for those who went out of the Kingdom in Case of Appeals the Justices were to enquire per consuetudinem Terrae according to the Ancient Custom and if they did not return and stand to the King's Court they were to be outlawed In the Time of R. 1. the Popes complained much of Geofry Archbishop of York for slighting Appeals made to Rome and imprisoning those that made them Celestine doth it twice and in the same Words And Innocent the Third in King John's Time renews the same Complaint of him That he shewed no regard to Appeals made to the Apostolick See. But when the Rights of the Crown were given up by King John to the Pope no Wonder if the Liberties of Appeals were granted by him But yet in the succeeding Reigns we have several Instances upon Record of Persons imprisoned by the King for making Appeals to Rome John of Ibstock in the Time of E. 1. The Abbot of Walden and a Prebendary of Banbury in the Reign of E. 2. The Parson of Leighe Harwoden and the Prior of Barnwel in the time of E. 3. So that this Right was still owned by our Princes when the Matter came into Contest and therefore the Act of H. 8. against Appeals was but a just Resuming of the Ancient Rights of the Crown 25 H. 8. c. 19. A Commission is appointed for reviewing the Canons And it is observable That because it could not be done in Parliament Time the King hath Power given him by Act of Parliament to nominate the thirty two Persons to act in this Matter in these Words Be it therefore enacted by the Authority aforesaid That the King's Highness shall have Power and Authority to nominate and assign at his Pleasure the said thirty two Persons of his Subjects whereof sixteen to be of the Clergy and sixteen to be of the Temporality of the Upper and Nether House of Parliament And because the last Resort was to the Arch-Bishop in the former Act of Appeals therefore to prevent any Inconveniences thereby a new Power is granted by this Act i. e. Upon an Appeal to the King in Chancery a Commission is to be directed to such Persons as the King shall appoint who are to hear and determine such Appeals and the Causes concerning the same 25 H. 8. c. 21. After the Submission of the Clergy and the King being owned Supreme Head yet the Power of dispensing with the Canons in particular Cases did not pass by Commission from the King but by Act of Parliament The Words are It standeth therefore with natural Equity and good Reason that all and every such Laws human made without this Realm or induced into this Realm by the said Sufferance Consents and Custom Your Royal Majesty your Lords Spiritual and Temporal and Commons representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense but also to Authorize some elect Person or Persons to dispense c. So that the Power of granting Faculties at a time when the Prerogative was highest was not executed by Commission from the King by vertue of his Supremacy and Prerogative Royal but was granted to the Arch-Bishop of Canterbury in the manner expressed in that Act. A late Author has stretched this Statute to a Power of dispensing in other
although he had the King's Assent to it and he exercised it several Years by his Permission Stephen Gardiner in his Letter to the Protector saith That he obtained his Legatine Power by the King's Assent From whence he observes What Danger they may fall in who break the Law with the King's Consent for in the Cardinal's Case he saith That because his Legatine Power was against the Laws of the Realm the Judges conclude the Offence to be such as incurred the Praemunire And this he Asserts was the Sense of the Lawyers of that Time and for confirmation of it he brought the Case of the Lord Tiptoft who sufferd on Tower-Hill because in execution of the King's Commission he had offended against the Laws of the Realm And of many Judges who had Fines set on their Heads in like Case for acting against the Law of the Realm by the King's Commandment But it is pleaded on the other side That the Commons 1 H. 5. n. 22. put in the saving the King's Prerogative into their Petition concerning the Statute of Provisors that it may stand in full Force And this was an owning the King's Dispensing Power by all the Commons in Parliament when they were in a high Debate with the Crown This seems to have a good shew of Reason to any one that doth not consider the Practice of those Times in Acts of Parliament for the Petitions of the Commons before 2 H. 5. were not taken entire and just as they delivered them but several Clauses were inserted by the Court especially such as seemed to preserve the King's Prerogative which the Commons found so inconvenient That the next Year as Serjeant Glanvil observed and probably on the Occasion of these Savings 1 H. 5. n. 15 and n. 22. the Course was altered and hath so continued Therefore methinks so great Weight should not be laid on these Savings as if they implied the owning the Dispensing Power when the Design of the Law was against it And the King's Answer is Let the Statutes be held and kept I appeal to any Man's Understanding whether the saving the King's Prerogative can be any other than a General Clause put in without respect to the Dispensing Power since the Petition is against the Exercise of it and the Answer That the Statutes should be observed If they were observed what Use of the Dispensing Power for that lay in giving leave not to observe them What strange Sense is this The King promises The Statutes shall be kept saving his Prerogative that they may not be kept for they feared the not keeping them from such a Prerogative and when the King therefore Yields they shall be kept he doth give up any such Prerogative or else he doth not answer their Petition The Truth is when the Kings had got this Power into their Hands though it were with such Limitations at first yet they found Arts from time to time to keep it till at last they were unwilling to part with it as appears by H. 4. but upon the restless Importunity of the Commons it was laid down by him And now in the beginning of H. 5. the Commons took Care to prevent its Rising in a new Reign but he being a Prince not ready to part with any thing which looked like Power was in probability not easie to be brought to confirm the Statute of Provisors without some general Words of saving his Prerogative which the Commons might yield to that they might gain the main Point since those Words could signifie nothing against the very Intention and Design of the Law. IV. The Precedents in Law do contradict this Rule as will appear by those which are produced by the Lord Chief Justice Vaughan in the Case of Thomas and Sorrel 1. The King cannot Dispense with a Common Nusance for The King he saith cannot Pardon continuing Nusances but the Penalty he may The King cannot Dispense with a Nusance to the High Ways by 11 H. 7. he cannot Pardon or Discharge the Nusance or the suit for the same the High-ways being necessary for such as Trawel but Common Nusances are not mala in se which are not Evils at Common Law as some understand them but things so intrinsecally Evil that no Circumstances can make them lawful Malum in se is a Moral Evil in its own Nature and therefore can never be Dispensed with but a Nusance at Common Law is but a Natural Evil and all the Moral Evil of it lies in the Prohibition by Law And yet in these it is granted That the King cannot Dispense And the Year-Book saith That a Licence to make a Nusance in the High Way were void For what Reason Is it a thing forbidden by the Natural or Divine Law Cannot the King for his Will and Pleasure License the Making a Nusance and yet is it possible for Men of Sense to imagin That he can by his Dispensing Power give leave to do such things as in consequence overthrow our Laws and Religion Doth the Law take greater Care of the High-Way than of our Liberties and Religion This would seem strange Doctrine to People of another Country viz. That by the Law of England the King hath no Power over the High-Way to Dispense with a Common Nusance therein but he hath over the Laws made for the most Publick Good and Security of the Nation And truly this cannot but seem strange to as many among our selves as allow themselves the Liberty of thinking Doth the Law only take care of Oxen and High-Ways But it is well observed by the Learned Chief Justice Vaughan That Publick Nusances are not mala in se but mala politica introducta and when a thing is said to be prohibited by the Common Law the meaning is no more but that the Ancient Record of such a Prohibition is not to be found 2. The King cannot Pardon the Damage done to particular Persons saith the same Chief Justice where the Suit is only the Kings but for the Benefit and Safety of a third Person the King cannot Dispense with the Suit but by Consent and Agreement of the Party concerned And again Penal Laws the Breach whereof are to Men's particular Damage cannot be Dispensed with And the Chief Justice Herbert owns That the King cannot Dispense with Laws which vest the least Right or Property in any of his Subjects Here we see the Prerogative bounded where the Interest of particular Persons is concerned but doth the Law take more Care of them than of the Publick Interest and the concernment of the whole Nation But I find another Distinction in this Case viz. There is Bonum Publicum and Laws made for that may be Dispensed with And there is Bonum singulorum Populi and with Laws that concern that the King cannot Dispense This is admirable Learning if it be brought out of these Terms And the meaning is The King can do nothing to the Prejudice of the People in
Person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesi nor in Hypothesi but that the King by his Royal Power may dispense with it for upon the Commandment of the King and Obedience of the Subject does his Government consist as it is provided by the Statute of 23 H. 6. c. 8. That all Patents made or to be made of any Office of a Sheriff c. for Term of years or for Life in Fee-simple or in Tail are void and of none effect any Clause or Parol of Non-obstante put or to be put into such Patents to be made notwithstanding And further Whosoever shall take upon him or them to accept or occupy such Office of Sheriff by vertue of such Grants or Patents shall stand perpetually disabled to be or bear the Office of Sheriff within any County of England by the same Authority And notwithstanding that by this Act 1. The Patent is made void 2. The King is restrained to grant a Non-obstante 3. The Grantee disabled to take the Office yet the King by his Royal Sovereign Power of commanding may command by his Patent for such Causes as he in his Wisdom doth think meet and profitable for himself and the Commonwealth of which he himself is sole Judge to serve him and the Weal Publick as Sheriff for such a County for years or for Life c. And so was it resolved by all the Justices of England in the Exchequer Chamber ' 2 H. 7. Here the Point is resolved into an inseparable Prerogative in the King which no Act of Parliament can restrain although made with his own Consent Is there no Act of Parliament then which this great Lawyer will allow to restrain the King's Prerogative so as he cannot disperse with it What saith he to the Case of Buying Offices at Court Cannot the King by vertue of his Prerogative order his Houshold as he pleases to dispose of Offices about him as he thinks fit No. The same Lawyer saith That no Non obstante could dispense with the Act against buying of Offices And yet one would think that the King had as great a Prerogative in the Court as over the Kingdom But how comes he to say That the King can dispense notwithstanding the Disability when elsewhere he saith The King cannot dispense in the Case of a Disability by Law For the Reason he gives why the King cannot present a Man to a Living who is convict of Simony is because the Law hath disabled him Very well And yet in this Case although the Law hath disabled him the King may dispense Where are we now The King can dispense with a Disability and he cannot dispense with it This is indeed a very dark learning of Dispensations as C. Justice Vaughan well called it for we cannot yet find the way through it Can the King dispense with a Disability in Law or not If not the Case of Sheriffs is gone If he can then why not in the case of Symony Why not as to sitting in Parliament without taking the Oaths No here is a Disability in Law. What then Cannot the K. dispense with a Disability in one Case as well as the other Bu the same Person saith That in that Case because the Words amount to a Disability the King cannot dispense and here where the Disability is expressed he may But we are lately told there are two sorts of Disabilities one is actually incurred as that upon the Members who sit without taking the Oaths and the other is a Disability annexed to the Breach of a Law as a penalty and that penalty not to be incurred before a Legal Conviction and in this Case the King's Dispensation coming before the Conviction doth prevent it by making that lawful which would not have been so without it But when a Disability is actually-incurred it cannot be taken off but by Act of Parliament I Answer That if the Law which makes the Disability doth allow of a Dispensation antecedent to the Conviction then I grant that the Dispensation before Conviction prevents the Disability As in Digby's Case if the Dispensation had come before Institution the Disability as to holding the former Living had been prevented because the Law doth expresly allow of a Dispensation in the Case But here is no such thing The Act of Parliament supposes no Dispensation but makes an utter Disability as to the holding the Office in Sir Edward Hales his Case but a dispensing Power is set up against the Act of Parliament and such a Dispensation neither before nor after Conviction can prevent a Disability If it could I can by no means see why it might not as well hold as to Members of Parliament at least as to the Oath of Supremacy if they take their Dispensation before Sitting in the House For the Disability doth not take place till they enter the Parliament 5 Eliz. c. 1. And he that entreth the Parliament without taking the said Oath shall be deemed no Knight Citizen Burgess or Baron nor shall have any Voice but shall be as if he had been never Returned or Elected The Intention of the Law for the Test was a disability to hold the Office but it allows time for Persons to qualifie themselves as appears by the Act for the Test. Is not this plain overthrowing the design of the Law for Persons instead of doing what the Law requires to take out a Dispensation for not doing it and so prevent the Disability And what doth a Law signifie when the very design of it is overthrown And what is the Power of making Laws by common Consent in Parliament if without such Consent the whole force of the Law may be taken away by a dispensing Power So that this doth not meerly make Laws to signifie nothing but according to Will and Pleasure but it makes our very Constitution insignificant which requires to every Law the Consent of the People in Parliament As for Instance By the first Constitution of the Roman Government the King had the custody of the Laws but no Laws were to be made but by the Consent of the Roman People in the Curiae thence called Leges Curiatae Would any one have thought this any Privilege if after these Laws were passed the King should claim an inseparable Prerogative of dispensing with them as he sees Cause For it is implied in such a Fundamental Contract as this that Laws when made should not lose their Force without their Consent who made them Else it is not Contractus bonae Fidei I will not dispute whether this were the Original Contract of our Nation or not but this I may say That when our Government came to a Settlement after long struglings this was one of the Fundamental Articles of it That no Laws should pass or Burdens should be laid upon the People but by their own Consent in arliament Bracton saith That a Law among us supposes the Authority of
the Prince and the Council and Consent of the great Men and Agreement of the Common-wealth And he adds further That our Laws being thus made and established mutari non poterunt nec destrui sine communi Consensu Consilio eorum omnium quorum Consilio Consensu fuerunt promulgatae Which are very remarkable Words against a dispensing power For that doth imply a Power to change the Law and in effect to destroy it without the Advice or Consent of those that made it He saith indeed The Law may be improved without their Consent i. e. by the Judges Interpretation as to parallel Cases not expressed But if any new or hard Case happens it ought he saith to be respited usque ad magnam Curiam i. e. to the Parliament ut ibi per Concilium Curiae terminentur that being the Supreme Judicature of the Nation Fortescue who very well understood our Constitution saith That the King although he be the Head of the Political Body can neither change our Laws nor take away Property without Consent And that our Laws are made not by the Princes Will but by General Consent Totius Regni Assensu He saith They may be changed but it must be Non sine Communitatis Procerum Regni Assensu quali ipsae primitus emanarunt He takes notice That several of our Kings did not like our Constitution but affected a more Arbitrary and therefore approved the Civil Law for that Maxim Quod Principi placuit Legis habet vigorem But he shews our Constitution to be better for King and People For here he saith The King levies no Taxes nor alters Laws or makes new ones sine Concessione vel Assensu totius Regni sui in Parliamento suo expresso But certainly dispensing with Laws is altering them not as to their Words but as to the Intention and Design of them which is the main thing in a Law and he that alters the Law as to any one whose Case is common with others may alter it as to all others in equal Circumstances And what doth such a Law then signifie In the Charter of King John the Commune Consilium Regni was to pass all Aids and besides particular Summons to the Great Men general Summons were to be given to others to appear within forty days and if they did not Matters were to go on however This very Charter as appears by Matt. Paris was renewed 9 H. 3. But he had learned the Trick of a Non obstante from his good Friend the Pope and when he was urged with his own Grants he said Doth not the Pope void his Grants with a Non-obstante Why may not I do the same by the Grants of my Self and my Predecessors To whom a sharp Reply was made As long as he observed Justice in his Actings he would be King and no longer Which I only mention to shew that the Use of a Non obstante was then looked on as a Violation of Justice And so it must needs be if our Laws as Bracton saith be Communis Reipub. Sponsio for then they are of the Nature of Contracts and when Laws are so it is agreed by those who write of these Matters although otherwise no Enemies to a Dispensing Power That they are not to be Dispensed with by a non obstante If a Prince makes a Grant of any thing wherein he hath Power to oblige himself in Justice it becomes saith Baselius Pontius of the Nature of a Contract which gives a Right to those to whom it is made and lays an Obligation of Justice upon him Where a Grant is made for the Benefit of others and is ac cepted by them it is not in the Granter's Power to revoke it as Sanchez shews from many Authorities And the Lawyers are of the same Mind as appears by what is already produced out of Baldus and others but I shall mention some who declare the Opinion of others Explorati juris est eas Constitutiones quae in contractum transeunt ita ligare Principes ut iis derogare nequeant saith Gerl. Buxtorffius Gail saith That Princes are bound by all Grants made per modum contractus de Jure Communi and that is the general Opinion One of the latest Writers de Jure Gentium saith That Princes are more strongly bound by Laws which pass by way of Contracts than by any positive Laws made by Absolute Power Although they relate to the weightiest Points of Government That a Prince cannot grant a non obstante to such Laws as he hath sworn to observe is not only the Opinion of other Lawyers but of some of the highest Canonists And it is a Rule among them That no Clause of non obstante can take away Constitutionem Juratam Where there is therefore not only a Contract with others in the passing of a Law but an Oath to observe the Laws I do not see how a non obstante or a Dispensing Power can take Place 2. We have the Advantage in Point of Authority as well as Reason as to this very Case of Dispensing with the Statute of 23 H. 6. For I take it for granted That the Authority of Parliament is more to be regarded than the Opinion of Judges And I think we have good Reason to believe That the Parliament did not think this Act could be voided by a non obstante 1. The Parliament that declared any non obstante against the Act to be void was certainly of that Opinion or else they did a ridiculous thing to put in a Clause which was void of it self 2. The Parliament 28 H. 6. c. 3. was of that Mind for what need an Indemnity by Act of Parliament if the King could by his Dispensing Power have made it lawful for the Sheriffs to continue 3. The Parliament 8 E. 4. 4. continued in the same mind for whereas in the beginning of his Reign Sheriffs were continued more than a Year by reason of the Troubles it was not then thought though in a Case of such Necessity That the King could Dispense with this Law but they were indemnified by Act of Parliament and the Act declared to stand in full Force 4. the Parliament 6 H. 8. c. 18. after the supposed Judgment 2 H. 7. And in the time of a Prince who would lose none of his Prerogatives was still of the same Judgment for it not only recites the Statute but particularly takes notice of the voiding all Pardons and non obstante's and by Act of Parliament indemnisies the Under-Sheriffs of Bristow and gives them the same Priviledge which those of London had What need all this if it had been thought good Law at that time that the King might by his Dispensing Power have given Sheriffs leave to have acted against that Statute And now I leave any Man of Reason to judge Whether this famous Case be a sufficient Foundation for the seting up a Dispensing Power either as to a
A DISCOURSE CONCERNING THE ILLEGALITY OF THE LATE Ecclesiastical Commission In ANSWER to the VINDICATION and DEFENCE of it Wherein the true Notion of the LEGAL SUPREMACY Is CLEARED And an Account is given of the Nature Original and Mischief OF THE DISPENSING POWER LONDON Printed for Henny Mortlock at the Phoenix in St. Paul's Church-Yard and at the White Hart in Westminster-Hall M D C LXXXIX AN Advertisement THIS Discourse concerning the Illegality of the Late Ecclesiastical Commission was written when the Author of it was summoned to appear before it and was in continual Expectation of undergoing its Censure for not Complying with the Orders of it This put him upon an Enquiry into the Grounds on which it stood From whence he proceeded to search into the True Notion of the Legal Supremacy and finding it very imperfectly set down in the famous Fifth Report De Jure Regis Ecclesiastico he took the Pains to Examin it through every Reign there mentioned and upon the whole Matter he finds him and his Adversary F. P. equally mistaken But in the Management of it he hath rather endeavoured to give Light to the Thing than to discover any Mans Errors And it is hardly possible to settle the Notion of it aright without considering the Practice of other Countries as well as our own Of both which the Reader will find a short but impartial Account which I believe the Author could more easily have inlarged than have brought it into so narrow a Compass By this I hope the World will see That it was not Humor or Faction but a real and well-grounded Dissatisfaction which made those of the Church of England oppose the Proceedings of that Time and that such have as great and real a Zeal for the Ancient and Legal Constitution of our Government as those who make a greater Noise and Clamor about it and that not upon any new Notions or Phrases but upon the very same Grounds which our Ancestors made use of and carry in them the true Basis of our English Government It is possible some worthy Men may have carried some Notions beyond our Legal Constitution but the more they search into it the better Opinion they will have of it Which I think is so well setled that every Deviation from it tends to our Ruin. As to the Dispensing Power the Author hath inlarged that Part since some late Discourses have been published both for and against it He hath neglected nothing which hath been most plausibly pleaded for it but hath given a full Answer to the most material Instances which have been insisted on in behalf of it And after all I cannot but conclude That the Dispensing Power is a kind of Mental Reservation which quite alters the Meaning and Design of a Law. When the Late Ecclesiastical Commission was superseded if not dissolved the Author laid by these Papers as Useless but having communicated them to one Particular Friend whose Judgment and Authority he had a great Regard to he hath been prevailed with by him to make them Publick at this Time It being still necessary to shew with what Justice and Reason we refused to own the Jurisdiction of it And it seems to me as hard to reconcile it to our Laws as Liberty of Conscience to the Principles of Popery or the Worship of Images to the Second Commandment THE CONTENTS CHAP. I. THE State of the Question concerning the Court of the late Ecclesiastical Commission Pag. 1 CHAP. II. The King's Supremacy by Common-Law enquired into Coke's fifth Report de Jure Regis Ecclesiastico examined p. 8 CHAP. III. Whether the King's Supremacy by Law extends to the Dispensing with Laws Of the Nature and Original of that Power The Inconsistency of such a Dispensing Power with the Frame of our Government p. 25 CHAP. IV. Of the Alterations made in the Supremacy by the Statutes of Henry the Eighth with an Answer to the Objections p. 49 THE LEGALITY OF THE COURT OF Ecclesiastical Commission Stated and Argued In ANSWER to the VINDICATION and DEFENCE of it CHAP. I. The State of the Question concerning the Court of the late Ecclesiastical Commission The Case stands thus BY the Act of 1 Eliz. 1. it was established and enacted That such Jurisdictions Priviledges Superiorities and Preheminencies Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority have heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by this present Parliament be united and annexed to the Imperial Crown of this Realm And that the Kings and Queens of this Realm shall have ful Power and Authority by virtue of this Act by Letters Patents under the great Seal of England to assign name and authorize when and as often as they shall think meet and convenient and for such and so long time as they shall think meet to exercise use occupy and execute all manner of Jurisdictions Priviledges and Preheminences in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within these Realms and to visit reform redress order correct and amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities what soever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be reformed ordered redressed corrected restrained or amended to the Pleasure of Almighty God the increase of Virtue and the conservation of the Peace and Unity of this Realm And that such Person and Persons so to be named authorized and appointed after the said Letters Patents to him or them made and delivered shall have full Power and Authority by virtue of this Act and of the said Letters Patents to exercise use and execute all the Premises according to the Tenour and effect of the said Letters Patents any Matter or Cause to the contrary in any wise notwithstanding But in the Act 17 Car. 1. c. 11. after the recital of this latter Clause these words follow And whereas by Colour of some Words in the aforesaid Branch of the said Act whereby Commissioners areauthorized to execute their Commission according to the Tenor and Effect of the King's Letters Patents and by Letters Patents grounded thereupon the said Commissioners have to the great and unsufferable Wrong and Oppression of the King's Subjects used to fine and imprison them and to exercise Authority not belonging to Ecclesiastical Jurisdiction restored by that Act and divers other great Mischiefs and Inconveniences have also ensued to the King's Subjects by occasion of the said Branch and Commissions issued thereupon and the Executions thereof therefore for the Repressing and Preventing of the aforesaid Abuses Mischiefs and Inconveniences in time to come Be it enacted by the King 's Most Excellent Majesty and the Lords and Commons in this present Parliament assembled and by the Authority
Ecclesiastical Jurisdiction are either such as other Princes have an equal Right to or else they must imply such proper Eclesiastical Jurisdiction as follows the Power of Order and then how can the Pope give the one without the other Such a Gift is like an Appropriation of a Benefice with a Cure to a Nunnery which the Lord Hobart saith is void in Law by reason of the incapacity of the Persons But the Supremacy which our Law gives is not any proper immediate spiritual Jurisdiction like that of Bishops but an Authoritative and Legislative Supremacy without any foreign Appeals as will appear afterwards But the Rights which the Kings of Sicily challenge are these 1. That they have the same Powers which Legates a Latere have and may judge of the same Causes and proceed in the same manner with Ecclesiastical Censures 2. That no Appeal lies from the King's Commissioner even to Rome it self and it is common to appeal from the Censure of the Bishop to him The former is a Power which our Kings never pretended to by vertue of their Supremacy for it is a Delegation of the Power of the Keys which the Legates à Latere exercise by vertue of their Function as well as their Commission But the Legal Supremacy with us is a Right to govern all sorts of Men by our own Laws without any foreign Jurisdiction and that with respect to Ecclesiastical Matters as well as Temporal But to prevent Mistakes and Cavils about this Matter it will be necessary to clear the Notion of Supremacy as it hath been owned and received in the Church of England And for this we have two Authentic Declarations of it to rely upon The first is mentioned 5 Eliz. c. 1. § 14. Where the Supremacy is declared to be taken and expounded in such form as is set forth in the Admonition annexed to the Queens Injunctions published in the first year of her Reign And the Words there are That the Queen neither doth nor will challenge any Authority but such as was of ancient time due to the Imperial Crown of this Realm that is under God to have the Sovereignty and Rule over all manner of Persons born within these her Realms Dominions and Countries of what Estates either Ecclesiastical or Temporal soever they be so as no other foreign Power shall or ought to have any superiority over them The Second is in the 37th Article wherein it is declared That by the Supremacy is meant that only Prerogative which we see to have been always given to all Godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers So that granting a Commission for proceeding by Ecclesiastical Censures is no part of that Supremacy which our Church owns And thus the Divines of our Church have understood it By the Supremacy saith Bishop Andrews we do not attribute to the King the Power of the Keys or Ecclesiastical Censures R. Thompson in his Desence against Becanus saith The Supremacy is not to be defined by Ecclesiastical Jurisdiction but by Supream Government Becanus urged this as an Argument against the Kings Supremacy That he had no Ecclesiastical Jurisdiction Dr. Burrhil answered That the Supremacy implied many other things as the Power of calling Convocations of confirming Canons of giving Commissions of Delegates of taking Cognizance of the Misdemeanors of Church-men as well as others but for proper Ecclesiastical Jurisdiction he denies it to belong to Supremacy And after asserts That the King's Supremacy is preserved if he takes care that those who have the Power of Ecclesiastical Censures do exercise them and not as though it belonged to the Supremacy to give an immediate Power to proceed by Ecclesiastical Censures which was not supposed to belong to it but a supreme Right of governing all sorts of Persons by our Laws The King's Supremacy in Ecclesiastical Matters doth not saith Mason imply the Power of the Keys which the King hath not but he may command those who have them to use them rightly All these wrote in King James I. his Reign when the Point of Supremacy was throughly sifted on both sides And the King himself who very well understood these Matters saith That the Oath of Supremacy only extended to the King's Power of Judicature over all Persons as well Civil as Ecclesiastical excluding all foreign Powers and Potentates to be Judges within his Dominions Not as though the King hereby challenged to himself a Power of inflicting Ecclesiastical Censures on Persons but leaving the Spiritual Jurisdiction to those who have the Power of the Keys it belonged to him to exercise his Supreme Authority over Ecclesiastical Persons and Causes as he did over Temporal For saith Archbishop Bramhal our Laws never invested the King with any Spiritual Power or Jurisdiction witness the Injunctions of Q. Eliz. witness the Publick Articles of Our Church witness the Professions of King James witness all our Statutes themselves The King of England saith he by the Fundamental Constitution of the Monarchy hath plenary Power without the Licence or Help or Concurrence of any Foreign Prelate or Potentate to render final Justice that is to receive the last Appeals of his own Subjects without any Fear of any Review from Rome or at Rome for all Matters Ecclesiastical and Temporal Ecclesiastical by his Bishops Temporal by his Judges And thus our Laws were in the Right when they called the Act of Supremacy Restoring the Rights of the Crown for if we take away all the Papal Usurpations as to Appeals Exemptions of Persons Dispensations Provisions making Canons sending Legates to hold Courts to call Convocations c. we may easily understand what the Supremacy is viz. a Power of Governing all Sorts of Men according to the Laws Ecclesiastical and Temporal without any Foreign Jurisdiction But as in Temporal Matters the King 's Supreme Authority is exercised in his Ordinary Courts so likewise in Ecclesiastical Which deriving their Jurisdiction from the King as Supreme his Supremacy is preserved in the ordinary Ecclesiastical Courts but as to extraordinary Jurisdiction that deper ds on the Legislative Power And whether that be not now taken away by it is the thing in Question Having endeavoured to set this Matter in as clear a Light as I could I now return to the Instance of Edward the Confessor And those Words of his as they are in Hoveden signifie no more than a General Right of Protecting and Defending the Church which is not denied to belong to Kings where the Pope's Authority is the most owned I cannot but take notice of a different Reading in the Lord Cokes Copy from all that I have seen for where he hath it Sanctam Ecclesiam regat defendat Lambard veneretur regâ—t but Hoveden revereatur ab
own Contracts no man could trust them and consequently all Society with them would be dissolved And whatever Supreme Power may do as to such Acts as are properly its own yet where there is Jus quaesitum alteri as in all Contracts there is that cannot be taken away by it But all this was answered on the other side by the Plenitude of the Popes Power for it was a Contradiction they said to own that and to say That there was any Engagement by Oath or otherwise which he could not Dispense with For as Hank 11 H. 4. 37. says Papa omnia potest And therefore all such Oaths and Promises as limit the Popes Dispensing Power are void in themselves And as to Ecclesiastical Laws or Constitutions they easily resolved all Difficulties about them upon such Principles as these 1. That the Popes have the supreme Power in the Church 2. That the Ecclesiastical Laws were the Popes Laws 3. That it is an inseparable Prerogative in the Pope to Dispense with Ecclesiastical Laws upon Necessity and urgent Occasions 4. That the Pope is the sole Judge of that Necessity 5. That this was not a Trust given to the Pope by Councils or Conclaves but by God and St. Peter and therefore cannot be taken away from her But I shall endeavour to give a clearer Light into this Matter by shewing the several Steps and Degrees how this Dispensing Power came into the World and how it passed from the Ecclesiastical to other Laws when Princes assumed such a Plenitude of Power in Civils which the Popes practised in Ecclesiasticals The first time we read of Dispensations was with respect to the Ancient Canons of the Church and it implied a Relaxation of the Rigour of them not with respect to their Force or binding Power but as to the Penance which Persons were to undergo for the Violation of them And herein the Notion of Dispensing was very different from what the Canonists made it afterwards when they declared it to be a Relaxation of the Law it self so that it should not have that Force upon the Conscience which it otherwise had For a Dispensation with them is a Licence to do that which they cannot lawfully do without it and that with a non-obstante to that which otherwise makes it Unlawful De Jure illicitum fit ex Dispensatione licitum hic est proprie effectus Dispensationis saith Pyrrhus Corradus who gives a large Account of the Practice of Dispensations in the Court of Rome which conclude with a non-obstante to any former Constitutions or Canons of Councils But no such thing can be found in the Ancient Practice of the Church because the Popes themselves were then believed to be under the Canons But when it was supposed That the severe Execution of the Canons would rather hinder than advance the Good of the Church the Governours of it thought they had sufficient Authority to abate the Rigorous Execution of them As about the Times of Penance the Translation of Bishops from one See to another the Intervals of Orders and such like But the Popes then pretended to be strict Observers of the Canons when the particular Bishops took upon them to Dispense with the Execution of them as appears by Ivo's Preface to his Collection of Canons where he distinguisheth the Immoveable or Moral Precepts from the Canonical which he calls Moveable In the former saith he no Dispensation is to be allowed But in those things which only concern Discipline the Bishops may Dispense provided there be a Compensation i. e. That the Church's Interest may be better secured or advanced thereby as he there discourses at large And his Rule is Ibi Dispensatio admittenda est ubi rigor periculosus est But by this means the Severity of the Primitive Discipline was quite lost The Bishops of Rome observing this thought it a proper time for them to appear zealous for the Ancient Canons which gained them a great Reputation in the World and by this means the Custody of the Canons was looked on as their particular Province Which they improved so well that at last they turned the Guardianship of the Canons into a Power over them and then they found Fault with the Bishops Dispensing with them for another Reason viz. Because the Dispensing Power was a Prerogative of the Roman See and Inferior Bishops could act no farther in it than they had Authority from it We find that in S. Bernard's time the Pope did take upon him to Dispense too far to his great Dissatisfaction for by his Dispensing Power he saith he overthrew the Order of the Church Murmur loquor saith he querimoniam Ecclesiarum The Pope dispensed with the Ecclesiastical Laws in Exemptions of Abbots and others from that Subordination they stood in to their proper Superiors He saith He could not see how this Dispensing Power could be justified You do indeed shew a plenitude of Power but it may be not of Justice you shew what you can do but it is a Question whether you ought or not and you ought to consider First Whether it be lawful then whether it be decent and lastly whether it be expedient At last he allows a Dispensing Power in two Cases Urgent Necessity and Common Good otherwise he saith It is not fidelis Dispensatio sed crudelis Dissipatio an overthrow of all Order and Government In one of his Epistles he speaks sharply against getting a Dispensation to do that which it was not lawful to do without one And he thinks he hath disproved it by invincible Reason For a Licence from the Pope can never make that Lawful which without it were Unlawful When the Practice of the Dispensing Power grew more common there were two great Questions raised concerning it Whether if a Dispensation were granted without Just Cause it were Lawful or not And Whether if it were not Lawful yet it was valid There were some who flattered the Dispensing Power so much that they allowed it in all Cases whether there were a just Cause or not These were the high-flown Canonists who resolved all Laws into Will and Pleasure But others who allowed a Dispensing Power upon a Just Cause yet thought it repugnant to the Original Design of Government for those who are entrusted with Care of the Laws to Dispense with them without such a Cause as answers the End of Government And some went so far as to deny any Validity in a Dispensation granted upon Pleasure for as an unjust Law hath no Force so said they an unjust Dispensation of a Good Law hath none Upon this Point two great Schoolmen differ Suarez whom the Lord Chief Justice Vaughan commends for his Learning in this Matter goes upon these Grounds 1. That a Prince is not Dominus sed Dispensator Legum although the Force of a Law depends upon his Authority and therefore in Dispensing with a Law he doth not act by Absolute Power but by Administration For
he is not Lord over the Community but Governour 2. That for him to Dispense in a Law made for the Community without a just Cause is not only malum quia prohibitum sed ex se ex natura rei semper malum Therefore Suarez was far from thinking a Prince might Dispense with any thing that was not malum in se for he makes it to be so for him to dispense with a malum quia prohibitum if it be prohibited by a Law made for a Publick Good and there be no just Cause for it 3. That although a Prince sins in Dispensing with such a Law yet his Dispensation holds as to the Force of the Law which he supposes to depend on the Will of the Prince and therefore his Will being altered the Obligation ceaseth as to the Persons Dispensed with 4. That although such a Dispensation holds as to the Law yet he thinks a Prince bound in Conscience to Revoke such a Dispensation because it is unlawful for him to persist in such a Will it being repugnant to the Common Good and the Obligation of his Duty 5. That if such a Dispensation be to the Injury of a third Person then it is void in it self as being repugnant to Justice Vasquez saith They are all agreed That no Prince hath a Power to Dispense with his Laws according to his Pleasure or because they are his Laws But he saith There is a Dispute Whether an unlawful Dispensation be valid or not And he thinks not and that a Man's Action after the Dispensation is as faulty as if there had been none His Reason is because a Prince is bound by his own Laws so that he cannot Dispense with himself as to the Obligation of them for if he could at Pleasure Dispense with himself he could never be bound for how can a Man be bound to keep a Law in which he can Dispense with himself when he pleases And if he cannot Dispense with himself much less with any under him Having thus endeavoured to clear the Nature and Original of the Dispensing Power I now come 2. To the Reason assigned by Sir E. Coke from the Year Books why the King may Dispense with Laws because they be mala prohibita and not mala per se. My Lord Vaughan said Right concerning it That this Rule hath more confounded Men's Judgments on this Subject than rectified them Which I shall make appear by shewing I. That it alters the Frame of our Government II. That it takes away all Security by Law. III. That it contradicts the Sense of our Nation in former Ages IV. That the Rule is contrary to the Precedents in Law. I. That it alters the Frame of our Government For it goes upon a very false Ground viz. That the King may Dispense with any thing which is not Evil in its own Nature or antecedently to any Human Laws which is to suppose the whole Legislative Power to be lodged in the Person of the King For all who understand these Matters do agree That a Power to Dispense with Laws is the same with a Power to make them Dispensare hoc est lege solvere is solus potest qui ferendae abrogandaeque leg is potestatem habet saith H. Grotius Suarez saith He hath the Power of Dispensing qui legem tulit quia ab ejus voluntate potentia pendet Vasquez That the Dispensing Power lies in him qui habet Potestatem condendi abrogandi legem Pufendorf That none can Dispense with a Law but such as have the Power of making it But we need no Authorities in this Matter For to Dispense in the Sense it is here taken is to take away the Obligation of a Law and whoever takes it away must have the Power of laying it on And there is no Difference between the Dispensation with a Law and the Abrogation of it but that a Dispensation is an Abrogation of it to particular Persons while others are under the Force of it and an Abrogation is a General Dispensation that being no more than a Relaxation of the whole Law to those Persons who were bound by it before But if a part of the Law be taken away as to the whole Community then it is called a Derogation of it But if the Law be Relaxed only for a limited Time and under certain Conditions then it is not an Abrogation but an Indulgence or Suspension of the Law. To Dispense with a Law is more than to give an Equitable Sense or a Favourable Interpretation of a Law for he that Inteprets a Law supposes his Interpretation to agree with the Sense and Design of the Law he that Dispenses owns that which he dispenses with to be against the Intention of the Law but that he hath Power to take away the Force of it so far as he thinks fit He that saith Thou shalt not kill doth not reach to Legal Executioners of Justice interprets the Law according to Reason and Equity But when God said to Abraham Go and Sacrifice thy Son he must be supposed by virtue of his Supreme Authority to Dispense with the Law in his Case so as to make that Lawful upon his Command which would not have been so without it Some will not allow this to be called a Dispensation but an alteration of the Matter of the Law but when that Alteration comes from the Authority of the Law Makers it is the same so that to Interpret a Law is an Act of Discretion and Judgment but to Dispense with it of Authority and Jurisdiction And none can therefore Dispense in the Law of God but he that made it all that the Wisest and greatest Men can justly pretend to is no more than to give the true Sense of it and it is intolerable Prsumption for any Creature to pretend to more An Equitable Sense as to Human Law is not always that which seems to be most favourable to those who go against the Letter of it but that which most enforces the End and Design of the Law although it be not comprehended in the Words of it If a Law mentions a Crime of a lesser nature in regard of Circumstances and in regard of those Circumstances promises some Favour as Benefit of the Clergy it can be no Equitable Sense to extend it to such Acts which have worse Circumstances because the Ground of the Favour was the extenuation of the Fact by the Circumstances so that the chief Rule of Equity in the Interpretation of a Law is to attend to the Intention and Design of it more than to the bare Words The Intention and Design of the Law is not to be measured by Particular and Accidental Cases wherein some Inconveniencies are to be born but by the Publick and General Good which more than makes amends for them which is the Reason of that Maxim Better a Mischief than an Inconvenience which is false unless taken in such an Equitable Sense There are