modest Judges to take upon themselves the Resolution of Tho nothing can be too high nor too difficult for such Judges to determin who are wise enough to declare Acts of Parliament void Co. 8. Rep. Fol. 118. a. Moor's Reports pag. 828. But what shall we say of them in 40 Edward 3. who because the Statute of 14 Edw. 3. cap. 6. had impowered them to amend the misprision of a Clerk in writing a Letter or a Syllable too much or too little not only made a Question Whether they might amend where there was a Word wanting but went to the Parliament to know the Opinion of them that made the Law See the Story in Coke's 8 Report 158. a. So sacred were Acts of Parliament accounted in those days and so little was the Authority of the Judges in Westminster-Hall or rather of so great Credit and Authority were the Resolutions of Judges in those days when they were wary and cautious of making Alterations and in difficult Matters consulted their Superiors Other Examples of Adjournments ad proximum Parliamentum may be seen in Cotton's Abridgment of the Records in the Tower. But that which surprizeth us is That all our Judges since the Reformation should have attained to such an omniscience in the Law that I think I may confidently affirm there has not been an Adjournment ad proximum Parliamentum propter difficultatem these Hundred and fifty Years last past Sure I am that no President of any such thing appears in our modern Books of Law. And yet Cases of as great moment concern and consequence to the Government and the whole Nation have come in question within that space of time as ever did or could in former Ages But there is a Notion broached amongst us that the Kings of England have greater Power and larger Prerogatives in Ecclesiastical Matters than in Temporal and that by vertue of their Ecclesiastical Supremacy they may dispense with such Acts of Parliament as concern Religion But they that say so do not consider that before the Reformation the Kings of England had much less power in Ecclesiastical Matters than in Temporal and therefore they cannot have greater now unless some Act of Parliament give it them And therefore this power of dispensing with Acts of Parliament in Matters of Religion must be given by some Acts of Parliament since the Reformation or else the King has it not And admit for the present their Hypothesis who would invest the King with whatever power the Pope de facto exercised here Yet that will not serve the turn for as much as the Pope himself whatever power he might claim and attempt to exercise yet was never allowed a power to dispense with Acts of Parliament concerning Ecclesiastical Matters even when it was full Sea with him here in England Take one remarkable President out of Matt. Paris p. 699. that in the Year of our Lord 1245. The King the Prelates Earls Barons and Great Men of the Realm then Assembled in a most general Parliament at Westminster drew up several Articles of Grievances against the Popes Exorbitances and Illegal Oppressions one of which was conceived in these words viz. Item Gravatur Regnum Angliae ex adjectione multiplici illius infamis nuncii Non Obstante per quem juramenti Religio consuetudines antiquae Scripturarum vigor concessionum authoritas Statuta Jura Privilegia debilitantur evanescunt And it cannot but seem strange that after such publick Complaints for many others of the like nature might be cited of the whole Kingdom against Non Obstante's as intolerable Grievances they should be afterwards countenanced and screwed up to such a transcendent Soveraignty as to frustrate Laws Statutes and Acts of Parliament and that by vertue of an Ecclesiastical Supremacy by which the King is pretended to have whatever power the Pope had when the Pope himself was never allowed this To these Presidents and Authorities of former times it may not be improper to add what happened in the latter end of the Reign of King James the First and the beginning of King Charles the First upon occasion of the Spanish Match with relation to the Penal Laws against Roman Catholicks The whole Negotiation of that Affair may be read at large in Rushworth's first Volume of Historical Collections and in Prynne's Introduction to the Archbishop of Canterbury 's Tryal I will only point at two or three passages that are most material to the present purpose 1. King James in a Letter written with his own hand to the King of Spain has these words viz. Leges nostrates quae mulctam Catholicis non mortem irrogant aboleri aut rescindi à nobis Seorsim non posse leniri it a posse cùm erit usus exploratum habeat Serenitas vestra omnibus ut dictorum Catholicorum Romanorum animis mansuetudine ac lenitate nostrâ conciliatis c. he had promised that no Romish Priest or Catholick should be proceeded against for any Capital Crime but for the other Laws ut supra Yet afterwards when King James was made to believe that the Match was just upon the point of being concluded a Proclamation was prepared for granting a toleration to Papists tho' it never came out But Archbishop Abbot wrote a Letter in the nature of a Remonstrance to King James in which besides other Considerations of Religion and Policy these words follow Prynne's Introduct p. 40. Besides this Toleration which you endeavour to set by your Proclamation cannot be done without a Parliament unless your Majesty will let your Subjects see that you will take unto your self a Liberty to throw down the Laws of the Land at your pleasure And in the Second Year of King Charles the First the King commanded his Attorney General to charge the Earl of Bristol at the Bar of the House of Lords with High Treason and other Offences and Misdemeanours that they might proceed in a legal Course against him according to the Justice and usual Proceedings of Parliaments the fifth of which Articles is in these words That from the beginning of his Negotiation and throughout the whole managing thereof by the said Earl of Bristol and during his said Ambassage he the said Earl contrary to his Faith and Duty to God the true Religion professed by the Church of England and the Peace of the Church and State did intend and resolve that if the said Marriage so treated of as aforesaid should by his Ministry be effected that thereby the Romish Religion and the Professors thereof should be advanced within this Realm and other his Majesties Realms and Dominions and the true Religion and the Professors thereof discouraged and discountenanced And to that end and purpose the said Earl during the time aforesaid by Letters unto his late Majesty and otherwise often counselled and persuaded his said late Majesty to set at Liberty the Jesuits and Priests of the Romish Religion which according to the good Religious and Publick Laws of this Kingdom were
of any inherent Prerogative or by vertue of his Imperial Soveraignty or as incident to his lately recognis'd title of Supreme Head of breaking through all Acts of Parliaments relating to Religion and Ecclesiastical Affairs that now in the 32 Year of his Reign when he had been declared the Supreme Head by Act of Parliament Six Years ago when every Act of Parliament about Church Matters carried an acknowledgment of that Declaration in the front of it when a Legislative Power as to Doctrine and Ceremonies was given him by Act of Parliament yet even then when the Supremacy blaz'd like a Meteor and had so malignant an influence as to strike opposers dead when it was armed with such a Power as never any King of England enjoyed before or since yet then were Acts of Parliaments accounted so Sacred that nothing was to be ordained or defined by this new Legislative Authority contrary to the Laws and Statutes of the Realm And this very Legislative Power owing its birth to a Parliamentary Concession which qualified it with a Restriction which perhaps was not acceptable is sufficient to inform us that a Parliament can give more power and larger Prerogatives to the King even in Ecclesiastical Matters than he has by common right and that 's all the use that can be made of this Act now in our days The next Act is that of Marriages cap. 38. of this Session the Conusance of Marriage had time out of mind belonged to the Spiritual Jurisdiction which was now vested in a great measure in the King's Person the executive part he might administer by Commissioners delegated by vertue of the Stat. of 26 Hen. 8. cap. 1. as hath been said a Legislative Power was given him by 32 Hen. 8. cap. 26. But that Act did not enable him to make any binding Laws about Marriage for the Declarations Decrees Definitions Resolutions and Ordinances which he was impowered to make according to God's Word and Christ's Gospel with his Bishops and Doctors to be appointed were only in Matters of Christian Faith and the lawful Rites and Ceremonies of the same And the setling of the Degrees of Marriage not falling under either of those two Heads viz. Matters of Faith or Ceremonies it was necessary there should be an Act of Parliament to make a Regulation therein The next Act is the 34 and 35 Hen. 8. cap. 1. which prohibits the setling or using of any Books of the Old or New Testament of Tindal's Translation or comprizing any Matter of Christian Religion Articles of Faith or Holy Scripture contrary to the Doctrin set forth since Anno Dom. 1540. or to be set forth by the King prohibits the retaining any English Books or Writings concerning Matters against the Holy and Blessed Sacrament of the Altar or for Maintenance of the Anabaptists or other Books abolished by the King's Proclamation forbids any thing to be taught contrary to the King's Instructions c. under severe Penalties In which there is this farther Clause And be it farther enacted That the King's Majesty our said Soveraign Lord that now is King Henry the Eighth may at any time hereafter at his Highness liberty and pleasure change and alter this present Act and Provisions of the same or any Clause or Article therein contained as to his Highness most excellent Wisdom shall seem convenient any thing in this Act to the contrary in any wise notwithstanding So that a Power in the King of Changing and Altering and consequently of Suspending which in effect is Repealing Acts of Parliament concerning Matters of Religion unless given by a Parliament is not according to the Constitution of our Government nor is it a Perogative inherent in the King of common Right For if he had had such a Power in himself this Clause which no doubt was put in by the King's Order would have been vain and nugatory The Act of 35 Hen. 8. cap. 16. gives the King Authority during his Life to name Thirty two Persons viz. sixteen Spiritual and sixteen Temporal to examine all Canons Constitutions and Ordinances Provincial and Synodal and to establish all such Laws Ecclesiastical as shall be thought by the King and them convenient to be used in all Spiritual Courts This the King could not do by Vertue of the Act of 32 Hen. 8. cap. 26. For that Act gave him a Power concerning Matters of Christian Faith and Ceremonies only Nor could the King and the Clergy settle these Canons and Constitutions without an Act of Parliament for the Laity in all Matters Ecclesiastical in all things of Spiritual Conusance were to be bound by them Nor would the Parliament trust the King and the Spiritualty to settle the Canon Law without an equal number of the Temporalty added to them The next and last Act that I shall observe in this King's Reign is the 37 Hen. 8. cap. 17. ' which Act reciting That the Archbishops Bishops Archdeacons and other Ecclesiastical Persons have no manner of Jurisdiction Ecclesiastical but by under and from the King Enacts That all Persons as well Lay as Marryed Men being Doctors of the Civil Law may lawfully execute and exercise all manner of Jurisdiction and all Censures and Coercions appertaining to or in any wise concerning the same c. any Law Constitution or Ordinance to the contrary notwithstanding What can be more purely Spiritual than exercising Ecclesiastical Censures and yet this King though he had a Personal executive Power given him in all Matters Ecclesiastical by the 26 Hen. 8. cap. 1. a Legislative Power in part by the Statutes of 31 Hen. 8. cap. 8. and 32 Hen. 8. cap. 25. and a Power of Dispensing with the Canon Law by the Statute of 25 Hen. 8. cap. 21. yet thought it convenient at least to have the concurrence of his Parliament in breaking through those Ordinances and Constitutions whereby Lay-men and Marryed-men were disabled to exercise any Jurisdiction Ecclesiastical or be Judge or Register in any Court commonly called Ecclesiastical Court. I cannot well deny but that the King might have dispens'd with those Canons and Constitutions by Vertue of the Statute of the 25 Hen. 8. cap. 21. which impowered him to allow the Archbishop of Canterbury to grant Licences and Dispensations even in Cases not wont to be dispensed in at Rome Nay and these Constitutions whereby Lay and Married Men were disabled as aforesaid are in the Preamble of this Statute said to be utterly abolish'd frustrated and of none effect by a Statute made in the Twenty fifth Year of the Kings most Noble Reign By which seems to be meant the Nineteenth Chapter of the then Session of Parliament And yet because the Archbishops Bishops Archdeacons and other Ecclesiastical Persons practised the contrary which might give occasion to some evil disposed Persons to think and little to regard the Proceedings and Censures Ecclesiastical made by your Highness and your Vicegerent Officials and Commissaries Judges and Visitors being also Lay and Married Men to be of
Regum Anglorum Lib. 2. cap. 5. This Council Matthew Westminster pag. 181. Anno Dom. 9051 calls Concilium Grande Episcoporum Abbatum fidelium populorum in Provinciâ Geviseorum In the same Council the bounds of their Diocesses were Limitted which the same Historian describes He tells us likewise that in the same Council two other Bishops were chosen One to the Bishoprick of Dorchester and another to that of Chichester In King Henry the Eighth's time six New Bishopricks were erected by the King's Letters Patents viz. Glocester Bristol Chester Peterborough Oxford and Westminster But those Letters Patents had the Authority of an Act of Parliament to warrant them made in the One and thirtieth year of that King's Reign cap. 9. Be it Enacted by the Authority of this present Parliament that his Highness shall have full power and Authority from time to time to declare and nominate by his Letters Patents c. such number of Bishops such number of Cities Sees for Bishops Cathedral Churches and Diocesses by metes and bounds c. as to his most Excellent Wisdom shall be thought necessary and convenient And also shall have power and Authority to make and devise Translations Ordinances Rules and Statutes concerning them All and every of them c. And that all and singular such Translations Nominations of Bishops Cities Sees and limitation of Diocesses for Bishops Erections Establishments Foundations Ordinances Statutes Rules c. shall be of as good strength force value and effect to all Intents and purposes as if such things c. had been done made and had by Authority of Parliament This is most apparently an Enabling Act Power is here given to the King by Authority of Parliament and it is Enacted that the Contents of his Letters Patents to be made for perfection of the Premises shall be as valid as if they had been Enacted in Parliament So that in that King's Judgment force and validity was by this Act given to his Letters Patents which otherwise they would have been destitute of and have been invalid for the End to which they were designed This was but a Temporary Act and dyed with that King for no such Power is given by the Act to his Successors And therefore in King Edward the sixth's time a Bill was brought into the House of Commons and read the first time To authorize that King to make New Bishopricks by Letters Patents As I find in a Manuscript Journal of King Edward the Sixth's Parliaments Anno Regni 7. What became of it afterwards I know not It was brought in towards the End of the Session and did not pass into a Law. But the bringing of it in shews that the King was not conceived to have any such Authority of Common Right Nor did that King exercise any such Authority For the Bishoprick of Durham was in his Reign divided into two by Act of Parliament And when it was restored to its former Estate in Queen Mary's time it was done by Act of Parliament Vid. Dr. Burnet's History of the Reform vol. 2. p. 215. Rastal's Statutes 1 Mariae Parl. 2. That Act of King Henry the Eighth by which he was impowered to Erect New Bishopricks was Repealed 1 2 Phil. Mar. And to the End that by the Repeal of the Act those Bishopricks that had been Erected by vertue of it might not be consequentially dissolved A Clause was inserted into the Act of Repeal That all Bishopricks Cathedral Churches Hospitals Colledges Schools and such other Foundations then continuing made by Authority of Parliament or otherwise according to the Order of the Laws of the Realm since the schism should be confirmed and continued for ever So that then the Bishopricks that had been newly Erected by King Henry the Eighth stood upon this Foundation viz. A Confirmation by Parliament notwithstanding the Repeal of 31 Henr. 8. cap. 9. But now that the Statute of 1 2 Phil. et Mar. cap. 8. is Repeal'd by Primo Eliz. and this clause of Confirmation not excepted out of the Repeal I know not upon what bottom they stand at this day So far were our Kings from assuming a Power to Erect and divide Bishopricks at their pleasure as a late Author in a Book intituled A Vindication of the King 's Sovereign Rights c. pag. 12. takes upon him to affirm That they never so much as divided Parishes nor could make Vnions and Consolidations of Parochial Churches without Authority of Parliament Witness the Statutes of 33 Henr. 8. cap. 32.32 Hen. 8. cap. 44.37 Hen. 8. cap. 21.17 Car. 2. cap. 3.22 Car. 2. cap. 11.22 23 Car. 2. cap. 15. c. Sir Roger mentions likewise the Bishoprick of Carlisle which was Erected by King Henry the First Anno Dom. 1133. The Prior of Hagulstad speaks of this in General terms Coll. pag. 257. Consecratus est Adulphus Prior de Nostlia ad Vrbem Karleol quam Rex Henricus initiavit ad sedem Episcopalem Math. Westm in like manner pag. 241. Rex Henricus Novum fecit Episcopatum apud Carleolum in Limbo Angliae et Galwalliae et posuit ibi primum Episcopum nomine Ethelulphum sancti Oswaldi Priorem Abbas Jorvallensis tells us the story in like terms Collect. pag. 1019. Eodem Anno Rex fecit Novum Episcopatum apud Karliolum quem Arnulfo Priori de sancto Bertulpho Contulit But it appears by Radulph de Diceto Coll. pag. 505. that in this very year a Parliament was held and a very solemn one Rex Henricus Convocatis Regni sui Principibus filiam suam haeredes filiae suae sibi successorres instituit In which Parliament it is not unlikely that this Bishoprick of Carlisle was erected notwithstanding these loose Expressions of the Monks For the same Authors express themselves in the same terms concerning the Bishoprick of Ely Which yet was erected by Act of Parliament Radulphus de Diceto Collect. pag. 501. Rex Henricus Abbathiam Elyensem ad Episcopalem mutavit sedem Herveum ibi praesecit Math. Westminst pag. 238. Rex Henricus Abbbathiam Elyensem in Episcopalem sedem commutavit Abbas Jorvallensis pag. 1003. Collect. Abbathiam de Ely ad sedem Episcopalem convertit primum Episcopum Herveum Bangorensem constituit So that no Argument can be drawn from these Historians mentioning the King's Founding the Bishoprick of Carlisle without naming the Parliament as a party to it to prove that therefore it was not Erected by Authority of Parliament For if the Charter of the Foundation of the Bishoprick of Ely had been lost the same Argument would have lain against it And all the Bishopricks in England of whose first Foundations there is any particular Account given by our Historians appear to have been Founded by Our Kings in Parliament or by vertue of an Authority given by Act of Parliament I suppose it will not be deny'd but whenever any Bishoprick in Particular was Founded at the same time it was endow'd Now Our Ancient Kings could not
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
Ecclesiastical Commission such as c. by the Antient Perogative and Law of England never yet came in question judicially before any Court whatsoever The Case betwixt Cawdry and Atton turned upon this Point viz. Whether the High Commissioners might deprive for the first Offence whereas the Act of 1 mo Eliz. cap. 2. inflicts it only for the second Pop. Rep. pag. 59 60. And resolved that the Statute is to be understood when they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction What 's this to the Question Whether such a Commission might have been issued without an Act of Parliament impowering the Queen to issue it Nor do the Judges in that Case nor the Lord Coke in his double-tongued Report of it nor the post prandium Judges and Serjeants so much as pretend to any manner of Authority for their Opinion there delivered that the King might grant such a Commission by his Perogative at Common Law Nor do's the late Defender quote any antient Record History Maxim of Law or any other Legal Authority or Historical Proof whatsoever to clear the Point Nor will I reflect upon some Resolutions of Judges that have been in former times or in this Age of ours Ship-Money which gained so little Credit upon their Authorities that exemplary Punishments have and may be inflicted upon some of the Resolvers But tho this Point be left so forlorn by the Defender as having nothing to support it on his side but an ipse dixit and tho we live in an Age in which blessed be God most Men have a better Opinion of their own Understandings than to take things upon trust yet because this Question concerning the Legality of an Ecclesiastical Commission resolves it self into the mistaken notion of a Personal unbounded Supremacy and because some of our Clergy give us Schemes of Government according to which this Commission is the most justifiable thing in the World I am desirous to offer a few Observations concerning the Ecclesiastical Jurisdiction of the Kings of England in doing of which the only thing I aim at is the putting others who are better qualified and perhaps misinformed upon farther Inquiries if haply I may compass that We are told that our Common Lawyers have often affirmed Legality of c. defended pag. 38.39 That whatever the Pope de facto formerly did within this Realm by the Canon Law that of right belongs to our Kings That on this ground it has been adjudged That the Legislative Power in Matters Ecclesiastical is lodged in the King. The Pope made Laws for the Government of the Clergy and so may the King and so much Queen Elizabeth as supreme Head of the Church of England exercised c. And that the Power in the King in Matters Ecclesiastical is too ample to be bounded by an Act of Parliament But notwithstanding these and other Bravado's we are told also that the Acts of Parliament which restore the Ecclesiastical Jurisdiction to the Crown are but Declarative Vindication pag. 6. Legality of c. defended pag. 8. that they give no new Power but recognize what always was de Jure the King 's Right Which naturally sends us back to Antiquity to enquire how the Supremacy was then managed and exerted before a Forreign Power had made inroads upon it They that affirm this or the other Act to be but Declarative and that this or that may be done by the Common Law always alledge if they intend to perswade some Judicial or other President some Record or other some anciently received Maxime or Rule of Law They that resolve without such grounds for their Resolution set up for Law-makers and not Interpreters Now it was to difficult matter to resolve that the Supreme Jurisdiction Ecclesiastical as well as Temporal did originally belong to the Crown of England Every Chronicle Writer can tell us when the power of the Court of Rome prevailed to lop off some of its Branches And the Crown must needs have it before it could lose it But whether our modern conceptions of the Supremacy are adequate to that Ancient Legal Supremacy at the Common Law of which we agree the restoring of Ecclesiastical Jurisdiction by Act of Parliament to be but Declarative is certainly worth their Enquiry who pretending that All Laws concerning it are but declarative must either justifie that Position and other modern Ascriptions from Antiquity or confess the vanity of them The Ancient Ecclesiastical Supremacy of the Kings of this Realm was no personal Prerogative But our Kings were Head of the Church as they were Head of the State governing both by Laws made by the same Authority if designed to be binding to all and administred in the same Courts till King William the Conqueror's Reign and from that time downwards in the Spiritual and Temporal Courts apart All Matters whatsoever concerning Religion Discipline Ceremonies with all Laws Canons and Articles whatsoever relating thereunto by which the Laity were to be bound were anciently Enacted by the same Authority that made our Temporal Laws and without such Authority are not binding to the Laity to this day nor ever were Nor has the King any power by the Law to impose any New Article Ceremony Practice Rule or Order whatsoever upon the Clergy or any of them under any sort of Penalty without an Act of Convocation at least In the first place I will give a few Instances before the entry of the Saxons by which it will appear in some measure how the Law stood in those days with respect to the Supremacy In the Year 448 Germanus and Lupus two Learned Bishops were sent hither out of France to suppress the Pelagian Heresie Upon which occasion a Synod was assembled at Verolam Aderat Populus expectabatur futurus Judex Adstabant partes c. After a long debate Populus arbiter vix manus continet Judicium clamore contestando c. In this first Synod that we read of in England the People were present and were Judges and by their determination a great Controversie of Religion was settled * Vide Spelm. Concil Tom. 1. p. 47 48. An Account of this Council and of the time when it was held Bed. Eccl. Histor Gent. Anglor Lib. 1. Cap. 17. Thus it was in the first Christian Council that ever sate viz. the 15th Chapter of the Acts of the Apostles After the matter had been debated whether the believing Gentiles ought to be Circumcised and to keep Moses his Law verse 22d It pleased the Apostles and Elders with the whole Church to send c. And they wrote Letters after this manner The Apostles and Elders and Brethren send Greeting unto c. It seemed good to the Holy Ghost and to us c. So that the Laity as well as the Clergy had in this Council decisive Votes And if it shall appear by what follows that the People of this Nation never were nor can to this day be
being assembled Singulis tribubus Gervisiorum West-Saxonum Singulos constituerunt Episcopos quod olim duo habuerunt in quinque diviserunt Spelm. Conc. 387 388. The Ecclesiastical Laws of King Edward the Elder and Guthrune the Dane begin with this Proaemium Haec sunt Senatus consulta ac instituta quae primò Aluredus Guthrunus Reges deindè Edwardus Guthrunus Reges illis ipsis temporibus tulêre cum pacis faedus Daci Angli ferierunt Quaeque postea à sapientibus Tha Witan saepiùs recitata atque ad Communem Regni utilitatem aucta atque amplificata sunt The Titles of some of these Laws are De Apostatis De Correctione Ordinatorum i.e. Sacris initiatorum De incestu De jejuniis c. All of Ecclesiastical Cognisance or at least of After-times so reputed These are called Senatûs Consulta than which a more apposite Word could scarce have been used for Acts of Parliament and were assented to by the Wyten from which Word the Saxon term for Parliaments Wytena Gemot is derived Spelm. Conc. 390 c. A Concilium Celebre was held under King Athelstane in quo Leges plurimae tum Civiles tum Ecclesiasticae statuebantur It 's true the Civil Laws are omitted and Sir Henry Spelman gives us an account only of the Ecclesiastical Laws made at this Assembly which conclude Decreta actaque haec sunt in celebri Gratanleano Concilio cui Wulfelmus interfuit Archiepiscopus cum eo Optimates Sapientes ab Athelstano evofrequentissimi Spel. Conc. p. 396 c. King Edmund held a Council Anno 944 where many Ecclesiastical as well as Secular Laws were made as De vitae castitate eorum qui Sacris initiantur De fani instauratione De pejerantibus De iis qui barbara factitârunt Sacrificia c. And this Council is expressed to have been Conventus tam Ecclesiasticorum quam Laicorum celebris tam Ecclesiasticorum quam Laicorum frequentia Spelm. Conc. p. 419 c. I will give no more instances before the Conquest tho numbers are to be had which lye scattered up and down in the Monkish Histories and being compared with one another will sufficiently disclose what I assert For sometimes Laws that concern Temporal Affairs as well as Ecclesiastical are said to have been made by such or such a King in one Author which very Laws another Historian tells us were made in the Great Council which yet they have no Uniform appropriated Expression Term or Denomination for Just as we in common Parlance say King Edward the Third or King Henry the Seventh made such or such a Law which yet every Man understands to have been made in Parliament because else it were not a Law. That Bishopricks and other Ecclesiastical Dignities For the Election of Wulstan Bishop of Worc. Temp. Edw. Confess v. Matt. Paris p. 20. That in his Election there concurr'd Plebis Petitio Voluntas Episcoporum Gratia Procerum Regis Authoritas were in the Saxon times conferred in Parliament we have the further Testimony of Ingulphus who was Abbot of Crowland in King William the Conquerors Reign A multis annis retroactis nulla erat electio Praelatorum merè Libera Canonica Sed omnes Dignitates tam Episcoporum quam Abbatum Regis Curia pro sua complacentia conferebat Ingulph Hist Fol. 509. b. Concerning Appeals in Ecclesiastical Causes I shall say more in the next Division Only here it will be proper to insert that the Constitutions of Clarendon one of which is expresly concerning Appeals are said to contain the Avitae Consuetudines Regni Malmesbur de gestis Pontificum Anglor Lib. 3. And William of Malmesbury relates a remarkable Story of Wilfrid Archbishop of York whose Archbishoprick being divided by the Common Council of the Northumbrian Kingdom into four Bishopricks he appealed to the Pope who wrote Letters to the King in his behalf upon the receipt of which the King told the Legates Se quidem Legatorum Personis honorem ut parentibus deferre caeterùm assensum legationi omninò abnuere quod esset contra rationem homini jam bis à toto Anglorum Concilio damnato propter quaelibet Apostolica Scripta communicare This shews that tho a Prelate thought the Pope's Authority might stand him in stead yet the Nation acknowledged no Foreign Jurisdiction and that the Supreme Judicature here from which the Archbishop appealed was that of the Parliament and not of the King. The Power of dispensing with Laws concerning Church Matters could not be a Personal Perogative in the King in these days for Dispensations were not born till Two hundred years after the Conquest as will appear hereafter The fourth Period of Time shall be from the Norman Entrance down to the Reign of King John In this time it was that the Ecclesiastical Jurisdiction of the Crown suffered a Rape and that four very considerable Branches were cut off By this time the Pope had shaken off his Dependance upon the Emperor the Laity were excluded from voting in his Election And the Game plaid at Rome was by setting the Clergy in a state of Exemption from Temporal Laws as to their Persons and Possessions and excluding the Laity King's themselves as well as Parliaments from Ecclesiastical Power to govern Mens Consciences first and then all they had directly or indirectly But this was a work of Time and could not be effected but by degrees King William the First made one step this way by dividing the Spiritual and Temporal Courts without which perhaps it had been impossible for the Canon Law to have broken in upon us But yet in his time tho he was certainly in the sense of his Great Council Lambard de priscis Anglorum Regibus p. 138 142. Hoved. p. 345. as much Head of the English Church as any of his Predecessors were or his Successors are by Law for he was declared to be Vicarius summi Regis ad hoc constitutus ut Regnum terrenum Populum Domini super omnia Sanctam veneretur Ecclesiam ejus regat ab injuriosis defendat maleficos ab eâ evellat destruat penitus disperdat Quod nisi fecerit nec Regis nomen in eo constabit Yet in his time I say a Personal Supremacy independant of the Great Council of the Nation was never pretended to For he reformed the Ecclesiastical Laws and Canons of the Church no otherwise than de Communi Consilio Archiepiscoporum Episcoporum Seld. Not. Specileg ad Eadmer p. 167 Lamb. de priscis Anglor Legib p. 158. Abbatum omnium Procerum Regni sui c. Nor was this the Constitution of the English Church only Ordericus Vitalis Folio 552. gives us a remarkable Instance out of Normandy of the same platform there Rex Guillielmus in Festo Pentecostes Anno ab Incarnatione Domini 1080. apud Illebonam resedit ibique Gulielmum Archiepiscopum omnes Episcopos Abbates Comitesque
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
Co. 12. Rep. p. 64. and they were entred per Curiam Nay take in their Hypothesis Brady Johnson Filmer who would persuade us that Parliaments of old time before they were christen'd by that Name were but Assemblies of the King's Tenants in the nature of a Court-Baron Why even in a Court-Baron the Suitors are Judges And all the Judges of England told King James the First Co. 12. Rep. 64. That the King could not in Person adjudge any Case If therefore our King 's have no Judicial Power personally in them how can they derive to others what themselves have not How comes it to pass that the King can grant a Commission to review a Decree when himself cannot review it nor is impowered by Act of Parliament to grant any such Commission I will dwell no longer upon these Acts concerning Appeals It appears I hope already that Appeals which by the Antient Law of the Realm were to the Curia Regis had been gain'd from it to the Court of Rome That King Henry the Eighth caused such Foreign Appeals to be restrain'd and directed how they should be prosecuted within the Realm for the future Which Direction ought to be pursued for so far forth as it gives Appeals to the King in Chancery it is introductive of a New Law Which I must believe till I can be inform'd that our Kings in former times ever received Appeals out of Parliament or their Magna Curia what ever that was The next thing in our way is another part of the fore-mentioned Statute of 25 Hen. 8. cap. 19 viz. That the Clergy in their Convocations shall enact no Constitutions without the King's Assent The words of the enacting Clause are That they the Clergy nor any of them from henceforth shall presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincial or Synodals or any other Canons nor shall enact promulge or execute any such Canons Constitutions or Ordinances Provincial by whatsoever Name or Names they may be call'd in their Convocations in time coming which alway shall be assembled by Authority of the King 's Writ unless the same Clergy-men have the King 's most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial or Synodal upon pain of every one of the Clergy doing contrary to this Act and being thereof convict to suffer Imprisonment and make Fine at the King 's Will. This Act cannot be pretended to give the King and the Clergy any new power For it is penn'd in Negative Words It is but declarative of what the Antient Law of the Kingdom was The Clergy had frequent Provincial Synods ever since the Christian Faith was introduc'd amongst us but till the Pope had set his Foot here our Kings sometime presided were frequently present in them Their Assent was had to all Constitutions made for the Government of the Church And Canons intended to bind the Laity never obtain'd as Ecclesiastical Laws here without the Assent of the Temporalty But when the Clergy had got an Exemption from the Temporal Laws and lookt upon themselves as a distinct separate Body of Men from the rest of the King's Subjects as having a dependance upon and owing Canonical Obedience to a Foreign Head then they proceeded to make Canons without consent of the King or the Temporalty But even in those days when ever they entrench't upon the Common Law of the Realm which was the Subjects Fence and Protection the Temporal Courts gall'd them with Prohibitions They had not in the times of Popery a Power of binding the Laity even in Matters of Religion without their Assent But themselves they bound and the inferior Clergy were all subjected to the Power of Provincial Synods because of their Oath of Canonical Obedience And these Canons by which they bound the whole Body of the Clergy never had any Royal Assent to them since King Stephen's days No Ecclesiastical Laws other than what were enacted in Parliament having since that King's Reign derived their Authority from the King. This Act therefore ties up the Clergy from any power of making Canons and Constitutions without the King. But since it gives them no manner of Power or Authority whatsoever their Power even the Royal Assent taken in is no other since this Act than it was before they had withdrawn themselves from the King and the Laity Which how far it extended has been sufficiently explain'd already I will not go so far as some have done to affirm Sir Edward Bagshaw's Argument concerning the Canons that the King's Assent here spoken of must be understood of his Assent in Parliament But I think it is very observable that the Parliament did by this Act appoint Sixteen of the Two and thirty Commissioners who were to view search and examine the Canons Constitutions and Ordinances Provincial and Synodal heretofore made in order to the keeping of some and rejecting others to be of the Vpper and Nether House of Parliament They would have Committees of their own Houses inspect all Canons formerly made and judge which were fit to be retain'd How can we then imagine that they had any thoughts of subjecting themselves and their Posterities to the King and the Convocation of the Clergy in Matters of Religion for the future Nay they seem as it were jealous lest this Act tho as cautiously penn'd as the Wit of Man could contrive it should be made use of to colour some unwarrantable Power of the Clergy in Convocation having the Royal Assent to their Constitutions And therefore they add a special Proviso that no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by the Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the King's Perogative Royal or the Customs Laws or Statutes of the Realm Now whether it was against the Laws of the Realm or not in the Opinion of this Parliament for the King and the Clergy to top any Laws upon them without their consent will appear by the Preamble of another Act of this very Session of Parliament and therefore I will pass it by now Nor was there any thing in the future practice of this King's Reign which gave or asserted any Power to the King and Convocation to bind or conclude the People without an Act of Parliament concurring and enforcing the same The next Act is the Twentieth Chap. of this same Session of Parliament concerning the Election and Consecration of Bishops This Act does not resume the Election to the Parliament from whom it had been gain'd but leaving a shadow of Election in the Consistory impowers the King to name the Person commands the Dean and Chapter under the Penalty of a Praemunire to choose the Person nominated to them in the Writ of Conge d'eslire and appoints how he shall be Consecrated without Pall Bulls or other things formerly requisite to be obtained at the See of Rome
for Sees of Bishops Suffragans And gives the King Power and Authority to give to one of two Persons to be presented to him by any Archbishop or Bishop the Stile Title and Name of a Bishop of such a See c. provides for the Consecration of such Bishops limits what Authority they shall have in the Diocess c. Hence I infer that the Parliament had its share in the Government of the Church The Letters Patents made pursuant to this Act conclude Vigore Statuti in ejusmodi casu editi provisi Dr. Burnet Coll. of Rec. ad Vol. 1. p. 130. notwithstanding the Restitution of the Supremacy and the King could not as SUPREME HEAD without this Act of Parliament appoint the number of Suffragan Bishops or give limit or bound their Power and Authority In the Twenty eighth Year of this King it was enacted That all Archbishops and Bishops of this Realm or of any the Kings Dominions consecrated and at this present Parliament taken and reputed for Archbishops and Bishops may by the Authority of this present Parliament and not by Vertue of any Provision or other Foreign Authority Licence Faculty or Dispensation keep enjoy and retain their Archbishopricks and Bishopricks in as large and ample manner as if they had been promoted elected confirmed and consecrated according to the due Course of the Laws of this Realm And that every Archbishop and Bishop of this Realm and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Archbishop or Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging Here the Parliament impowers the Archbishops and Bishops that then were to use and exercise their Offices and Orders not by Virtue of any Foreign Authority but by Authority of this present Parliament This the King could not have done without consent of Parliament because he could not dispense with the Statutes of Praemunire and Provisors as has been said already and as appears by a notable Act in the Twenty fifth Year of this King's Reign Burnett's Collect. of Records ad Vol. 1. pag. 121 122 123. concerning the Deprivation of the Bishops of Salisbury and Worcester The Act recites That where by the laudable Laws and Provisions of this Realm it had been established that no Person or Persons of of what Degree Estate or Quality should take or receive within this Realm of England to Farm by any Procuracy Writ Letter of Attorney Administration by Indenture or by any other Mean any Benefice or other Promotion within this Realm of any Person or Persons but only of the King 's true and lawful Subjects being born under the King's Dominions And also that no Person or Persons of what Estate and Degree soever by reason of any such Farm Procuracy Letter of Attorney Administration Indenture or by any other Mean should c. Notwithstanding which said wholsom Laws Statutes and Provisions the King's Highness being a Prince of great Benignity and Liberality having no Knowledge or due Information or Instruction of the same Laws Statutes and Provisions hath heretofore nominated and preferred and promoted Laurence Compegius Bishop of Sarum with all the Spiritual and Temporal Possessions c. belonging to the same And hath also nominated preferred and promoted Hierome being another Stranger to the See of Worcester c. Be it enacted by Authority of this present Parliament That the said two several Sees of Salisbury and Worcester shall be taken reputed and accounted in Law void c. Here we see the King was not allowed to act contrary to Acts of Parliament concerning Ecclesiastical Matters We see Bishops depriv'd by Act of Parliament and by the Act of 28 H. 8. cap. 16. other Bishops and Archbishops who in strictness of Law were no Bishops of those Sees by reason of their foreign Provisions quieted in the injoyment of their Bishopricks and authoriz'd to exercise their Episcopal Function there by Act of Parliament though it is not to be doubted but if the Rolls of those times were searcht Dispensations formerly granted to those Bishops would be found amongst them But they stood them in no stead because contrary to the Laws Statutes and Provisions aforesaid So that here the King and Parliament acknowledging that the King had no knowledge or due Information or Instruction of the said Statutes which is a modest and respectful way of expressing the King's doing an illegal thing what else can we infer than that they disown and he disclaims any personal Prerogative inherent in himself to violate those and consequently other Laws concerning Ecclesiastical Affairs Which shews both that the King's Supremacy was not accounted any such unbounded Power as some fancy and that the Parliament retain'd its share in the Jurisdiction over Ecclesiastical Persons and Things notwithstanding the restitution recognition or call it what you will of the Supremacy I pass by the Act of 31 H. 8. c. 14. whereby certain Opinions then accounted Heresie and Marriage of Priests are brought within the compass of Treason and Felony for that the inflicting of such Punishments for what Crimes or pretended Crimes soever is an Act of Civil not of Spiritual or Ecclesiastical Jurisdiction and come to the Act of 32 H. 8. cap. 26. which laid the top stone of King Henry the Eighths Supremacy and mounted it one story higher than ever it was carried before or since It was thereby enacted that All Decrees and Ordinances which according to God's Word and Christ's Gospel by the Kings Advice and Confirmation by his Letters Patents shall be made and ordained by the Archhishops Bishops and Doctors appointed or to be appointed by his Royal Majesty or else by the whole Clergy of England nota benè in and upon the matter of Christian Religion and Christian Faith and the lawful Rites Ceremonies and Observations of the same shall be in every point thereof believed obeyed and performed to all intents and purposes upon the pains therein comprised Here Matters of Doctrin and Worship are given up to the King's determination and appointment But he was to determine by such Advice as was appointed by the Act. And this Power was personal died with him and was never pretended to by any of his Successors It was given him by Parliament who could not have given it him if they had not had it themselves for there was no Act of Convocation in the case He had it not before for then there would have been no need of the Act. It is greater to give than to receive They give it him with a restriction that affords a good Argument against a pretended power in the King of dispensing with all Acts of Parliament concerning matters of Religion viz. Provided that nothing shall be ordained or defined which shall be repugnant to the Laws and Statutes of the Realm It seems the Parliament at that time was so far from apprehending any power lodged in the King either by vertue
little or none Effect or Force Therefore it is ordained and enacted by Authority of this present Parliament That all and singular Persons as well Lay as those that be Married being Doctors of the Civil Law c. The enacting of a thing by Parliament to silence all Doubts to give credit to the Proceedings of such Lay-men as then did actually exercise Ecclesiastical Jurisdiction by Commission or otherwise shews sufficiently that even in Matters never so Spiritual the Act of King Lords and Commons carryed a greater Authority than any Commission Dispensation or other Act whatsoever proceeding from the King solely and that at a time when the Supremacy was at the height There were many other Acts passed in this Kings Reign concerning Church men and Matters confessedly of Ecclesiastical Conusance as 21 Hen. 8. cap. 5. concerning Probates of Wills. Cap. 6. Concerning Mortuaries taken by Priests and others Cap. 13. Against Pluralities of Benefices and taking of Farms by Spiritual Men. 23 Hen. 8. Cap. 1. Abridging the Power of Ordinaries and taking away the Benefit of Clergy in some Cases Cap. 9. That no Man be cited into any Ecclesiastical Court out of the Diocess wherein he dwells unless in certain Cases Cap. 10. Concerning Feoffments and Assurances to the use of any Church or Chappel 25 Hen. 8. Cap. 14. For the punishment of Heresie and Hereticks limiting the manner of proceeding against them defining what shall be Heresie how it shall be punisht and abridging the Authority of the Bishops and the Canon Law. Cap. 16. Concerning Pluralities 26 Hen. 8. Cap. 3. For the payment of the First Fruits of all Dignities Benefices Promotions Spiritual and Tenths to the King and his Heirs abolishing the Pope's Usurpation and Authority herein Cap. 13. For abolishing the Priviledge of Sanctuary in Cases of High Treason Cap. 15. Against some Exactions of Spiritual Men within the Archdeaconry of Richmond 27 Hen. 8. Cap. 8. That the King 's Spiritual Subjects shall pay no Tenths whilst they are in their First Fruits Cap. 19. Limiting Sanctuaries and Sanctuary Persons Cap. 20. Concerning the Payment of Tythes within the City and Suburbs of London Cap. 28. For the suppressing of Monasteries Priories and Religious Houses vesting their Revenues in the King and erecting a Court of Augmentations 28 Hen. 8. Cap. 10. For extinguishing the Authority of the Bishop of Rome prescribing an Oath of Abjuration of it and Popery together with the Pope's Usurpations and excellently setting forth the King's Supremacy and Parliaments Authority in Matters Ecclesiastical Cap. 11. For the Restitution of the Profits arising during the Vacation of a Benefice to the next Incumbent Cap. 13. Compelling Spiritual Persons to reside upon their Livings Cap. 16. Releasing such as had obtain'd pretended Licences and Dispensations from the See of Rome 31 Hen. 8. Cap. 16. Enabling such as were Religious Persons to purchase Lands to sue and to be sued in all manner of Actions which they were disabled formerly to do by the Common and Canon Law. Cap. 9. Enabling the King to make Bishops by his Letters Patents and to erect new Bishopricks which he did Cap. 13. For dissolving all Monasteries and Religious Houses and vesting them in the King. Cap. 14. For abolishing diversity of Opinions in Matters of Religion most fully and exactly demonstrating the Parliaments Jurisdiction in Matters of Religion 32 Hen. 8. Cap. 7. For the true Payment of Tythes and Offerings Cap. 10. For the Punishment of incontinent Priests and Women offending with them Cap. 12. Concerning Sanctuaries and the Priviledges of Churches and Church-Yards Cap. 15. Prescribing the manner of proceeding against Hereticks and impugners of the Act for abolishing of enormous Opinions in Christians Religion Cap. 25. Dispensing with the Marriage between the King and the Lady Ann of Cleve 33 Hen. 8. Cap. 29. For enabling Religious Persons to sue and be sued Cap. 31. Severing the Bishopricks of Chester and the Isle of Man from the Jurisdiction of the Archbishop of Canterbury and uniting them to the Province and Archbishoprick of York Cap. 32. Making the Church of Whitegate a Parish Church by it self and severing it from the Parish of Over All these Acts and perhaps some few not here enumerated evince beyond all possibility of contradiction that the whole Fabrick of the English Church both as to the Doctrin Discipline Ceremonies Censures Rights Jurisdictions Endowments Priviledges c. was from time to time ordered moulded governed altered improved or impaired by Authority of Parliament and not by the King in right of his meer Supremacy nor by the Clergy upon the score of any pretended Authority derived from from Christ or from the King as SUPREME HEAD on Earth That no one Pin was fastned in this Tabernacle but according to what the Legislative Body of the Kingdom prescribed and directed from time to time That this Age had no other Notion of the King's Supremacy by common right than our Fore-Fathers had before the Pope and his Faction grew upon our Constitution That many Powers and Authorities given to King Henry the Eighth by Parliament which are now either abrogated or expired as they shew that our King 's were not nor are entituled to them of common Right nor can justifie the executing any such Authority by Presidents in his Reign which were grounded upon Laws then in being but which are now of no force so they shew unquestionably that there is a greater and more Soveraign Supremacy in Matters Spiritual and Ecclesiastical in the King and both Houses of Parliament than is lodged in the King himself or in the King and Convocation It appears farther that those Temporary Powers given to that King expiring with him and the Act of 26 Hen. 8. Cap. 1. being now Repeal'd the Legal and Ancient Jurisdiction of the Crown in Matters Ecclesiastical is the same now that it was Five hundred Years ago notwithstanding any thing that pass'd in this Reign only that a new Course is now settled and that by Act of Parliament too for the Electing of Bishops and Prosecuting of Appeals Only one Thing more I shall add viz. That in Matters Spiritual as well as Temporal several Resolutions of the Judges being grounded on Temporary Acts of Parliament then in being following Judges both Ecclesiastical and Civil meeting with such Resolutions and not considering that those Acts upon which such Resolutions were made were but Temporary or Repeal'd they have made such Judgments to be Presidents to graft their Modern Opinions upon FINIS An Answer to CHAP. 4. SECT 1. Of a late BOOK Entituled the King 's Visitatorial Power Asserted By way of APPENDIX SInce the foregoing Papers were Written a late Mercenary Writer One Nathaniel Johnson Doctor in Physick has publish'd a Book Entituled The King 's Visitatorial Power Asserted in which Book he has inserted a long Section how pertinently to his main design in that Treatise may perhaps be shewn hereafter concerning the King's Supremacy and Power in Ecclesiastical Causes and
several Instances that none Exercised any here without the King's leave Which is true and as true it is and apparent by as many Instances that the King singly could not give any such leave He says pag. 154. that What Visitations were made of the Vniversity of Oxford by the Pope's Legates do no ways infer that thereby the King's Power of Visiting is Exauctorated but that whatever they did was in Subordination to the King's pleasure or as ordain'd by his Laws The Doctor does well to disjoin the King's Pleasure and his Laws for they did not always agree But this Paragraph must be altered to make it tolerable Sence viz. Whatever the legates did in Visiting the Vniversity of Oxford if it were not contrary to the King's Laws was in Subordination to the King's Authority Some other passages tending to the same purpose with those already taken notice of will offer themselves as we go along through the several parts of the Chapter Whereas the Doctor says that several Kings permitted no Canons or Constitutions of the Church or Bulls c. to be Executed here without their Allowance Intimating thereby that those Kings might of their own Personal Authority give such Allowance And that with their Allowance Foreign Canons and Constitutions might be Executed here I take leave to say That it never was in the Power of a King of England legally to Subject his People to a Foreign Jurisdiction nor to Oblige them to the Observance of any Law without their own Assent And therefore the King's Allowance could not make a Foreign Canon Obligatory here unless it were received by the People with their own Assent Nor could his giving leave legally Subject his People to Processes from Rome as will abundantly appear by and by But before I go on I desire the Doctor to take notice of an Old Act of Parliament for such it was though the Word Parliament was not then in being amongst us made in King Edward the Confessor's Time if not before and Confirmed by King William the First Debet Rex omnia ritè facere in Regno per Judicium Procerum Regni Debet enim Jus Justitia magis regnare in Regno quà m voluntas prava Lex est semper quod jus facit Voluntas autem Violentia Vis non est Jus. And again in the same Chapter Debet Rex Judicium Rectum in Regno facere Justitiam per Consilium Procerum Regni sui tenere Ista verò debet omnia Rex in propriâ personâ inspectis tactis Sacrosanctis Evangeliis super sacras sanctas reliquias coram Regno Sacerdotio Clero jurare antequà m ab Archiepiscopis Episcopis Regni coronetur Lambard de Priscis Anglorum legibus page 138. page 142. Hence we see that Judicium Procerum Consilium Procerum are Essential to the English Government Without which Right and Justice cannot Reign but a Perverse Will would Rule the Roast Hence it was that King Edward the First Prynn's Collect Tom. 3. Pag. 158. When Pope Gregory the Tenth sent Reymundus de Nogeriis his Chaplain as his Nuntio into England c. amongst other things to Demand and Receive from the King Eight Years Arrears of the Annual Tribute and Peter-pence then due to the Church of Rome Wrote to him a very remarkable Letter In which among other things he tells him That his last Parliament was Dissolved the sooner by reason of his own Sickness so that he could not then Super Petitione census ejusdem deliberationem habere cum Praelatis Proceribus Regni sui sine Quorum Communicato Consilio Sanctitati Vestrae super praedictis non possumus respondere jure-jurando in Coronatione nostra praestito sumus Astricti quod jura Regni nostri servabimus illibata nec aliquid quod diadema tangit Regni ejusdem absque ipsorum requisito Concilio faciemus And therefore he deferred returning the Pope an Answer till the next Session of Parliament Pro firmo scituri Pie Pater Domine quòd in alio Parliamento nostro quod ad festum Sancti Michaelis intendimus celebrare habito Communicato Consilio cum Praelatis Proceribus memoratis Vobis super praemissis ipsorum consilio dabimus Responsionem By this Letter it appears that whatever did Diadema Regni tangere could not nor ought to be done sine Concilio Prelatorum Procerum Regni By which as is evident enough by the Letter it self a Parliament is meant Now that the Bringing in of Bulls and Executing Process from Rome within the Realm did Diadema Regni tangere with a Witness will appear by perusing the Statutes of Praemunire and Provisors Anno 27 Edward the Third cap. 1. Because it is shewn unto Our Lord the the King by the Grievous and Clamorous Complaints of the great Men and Commons how that diverse of the People be and have been drawn out of the Realm to Answer of diverse things the Cognisance whereof appertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court In Prejudice and Disherison of Our Lord the King and of his Crown and of all the People of his Realm and to the Vndoing and Destruction of the Common Law of the said Realm at all times used Another Statute mentioning Citations out of the Court of Rome and Provisions of Benefices and Offices in the Church says that by means thereof the Good Antient Laws Franchises and Vsages of the Realm have been greatly Impeached Blemished and Confounded the Crown of Our Lord the King abated and the great Men Commons and Subjects of the Realm in Bodies and Goods damnified 38 Statute Edwardi tertii cap. 1 2 3 4. The Statute of 16 Rich. 2. cap. 5. Entituled Praemunire for purchasing Bulls from Rome The Crown of England subject to none mentions frequently All these things as being to the Disherison of the King's Crown and against his Crown and Regality And therefore in the five and twentieth Year of King Edward the Third the Commons prayed the King that since the Right of the Crown of England and the Law of the Realm was such that upon the Mischiefs and Damages which happen'd to his Realm he ought and was bound by his Oath with the Accord of his People in his Parliament thereof to make remedy and Law That it may please him thereupon to Ordain remedy Which he does accordingly by the Assent of the Great Men and Commonalty of the said Realm having regard to a Statute made in the time of his Grandfather Anno 25th Edward the First against Provisions which holdeth his force and was never Defeated Repealed or Annulled in any Point and by so much he is bounden by his Oath to cause the same to be kept as the Law of the Land. The Laws of Praemunire and against Provisions were but Declaratory Laws of the Vsages of the Realm in opposition to Papal Bulls c. And here we see our
de maximis una erat quae Regnum Angliae liberum ab omni legati ditione constituerat donec ipse vitae praesenti superesset So that this Patria Consuetudo of the Kingdoms being free from the Jurisdiction of any Legate and which had been confirmed by the Pope was not a Priviledge Granted to the King himself nor was he the Object of that Papal pretended Indulgence but the Kingdom whom he declares that himself could not deprive of the Benefit thereof without their own Consent And therefore the King's Assent and the King's Leave so frequently mentioned in the Monks upon this occasion must be understood of his Assent in a Great Council or Parliament Hence it was that when Johannes Cremensis came Legate hither Anno Domini 1125. And was permitted so to do by the King being then in Normandy for what private considerations betwixt the Pope and himself I know not it was look'd upon by the Wise Men of the Nation as a notorious breach of the Antient and known Laws and Liberties of the Kingdom Quam gravi multorum mentes scandalo vulneravit inusitata negotii Novitas Antiqui Regni Anglorum detrita libertas satis indicat Toti enim Regno Anglorum circumjacentibus Regionibus cunctis notissimum est eatenùs à primo Cantuariensi Metropolitano Sanctissimo Augustino usque ad istum Wilhelmum Cantuariensem Archiepiscopum omnes ipsius Augustini Successores Monachos Primates Patriarchas nominatos habitos nec ullius unquam Romani legati ditioni addictos Gervas Dorob Collect. pag. 1663. And when afterwards in King Henry the Third's Time Circa festum Apostolorum Petri Pauli Otto sancti Nicholai in carcere Tulliano Diaconus Cardinalis nesciebatur ad quid per Mandatum Regis venit Legatus in Angliam Nescientibus Regni Magnatibus plures adversus Regem Magnam conceperunt indignationem dicentes Omnia Rex pervertit Jura fidem promissa in omnibus transgreditur Nota bend Nunc se matrimonio sine suorum amicorum hominum naturalium consilio Alienigenae copulavit Nunc Legatum Regni totius immutatorem clam vocavit c. Dictum est autem quod Archiepiscopus Cantuariensis Edmundus Regem talia facientem increpavit praecipuè de Vocatione Legati sciens inde in suae dignitatis praejudicium magnam Regno imminere Jacturam Matth. Par. 440. The Historian blames those that went to meet this Legate and that made him Honourable Presents of Scarlet Cloath c. In quo facto says he nimis à multis meruerunt reprehendi tam pro dono quà m pro dandi modo quia in panno ejus colore videbatur legationis Officium Adventum acceptari Which is a remarkable testimony that the King 's calling in a Legate did not in the judgment of those times give him any Legal Authority here if it were done Nescientibus Regni Magnatibus i. e. to speak in Eadmerus his Words if he were otherwise admitted than per Conniventiam Episcoporum Abbatum Procerum totius Regni conventum The same Historian Matth. Par. speaking afterward pag. 446. of the same Legate Rex says he spreto naturalium hominum suorum consilio magis magis ut caepit deliravit Et se voluntati Romanorum praecipuè Legati quem inconsultiùs advocaverat mancipavit c. And again His aliis deliramentis Rex omnium Nobilium suorum corda cruentavit Consiliarios quoque habuit suspectos infames qui hujus rei fomentum esse dicebantur quos idcircò magis habebant Nobiles Angliae exosos But the Instance which the Doctor himself gives pag. 154. of Henry Beaufort Bishop of Winchester and Great Unkle to King Henry the Sixth is as full against him as any thing that he could have pitch'd upon For that Bishop being Cardinal of St. Eusebius was sent Legate into England Anno 1429. Which was Anno Octavo of King Henry the Sixth And was fain to be beholden to an Act of Parliament for his Pardon for having offended against the Laws made against Provisors by bringing in and Executing Papal Bulls within the Realm For Anno 10. Henr. 6. The King by the Common Assent of all the Estates pardoneth to the said Cardinal all Offences Punishments and Pains incurred by him against the Statutes of Provisors Vid. Cotton 's Abridgement of Records 10. Henr. 6. nu 16. Which would have been needless if either the King 's giving leave to his Entrance or Assent to his Decrees could have justified his Proceedings and added any Legal Authority to them By what has been said I conceive it to be very clear that all Foreign Jurisdiction being utterly against the Law of the Realm and an intolerable Usurpation upon the King's Crown and Regality and upon the Rights and Liberties of his Subjects it was never conceived that the King could by his own Personal Authority without the Consent of his People in Parliament subject them to it no more than he could subject himself and his Crown in Temporal Matters Which that he could not do we have these two Remarkable Authorities When after the Death of Alexander the Third King of Scots the Succession to that Crown was in dispute and Ten several Competitors claim'd it and that Edward the First King of England challenged a Jurisdiction of determining to which of them the Right of Succession appertained the Pope that then was pretended that it belonged to him in Right of his Apostleship to decide the Controversie and Wrote to the King a Letter requiring him to desist any further Proceeding therein In answer to which Letter of the Pope the King wrote a long Letter containing Historical Proofs of his being Supreme Lord of Scotland and that the King of Scots was his Homager and at the same time the Parliament of England then Assembled at Lincoln wrote another Letter to the Pope upon the same Subject In which are these Words VIZ. Ad observationem defensionem Libertatum Consuetudinum Legum Paternarum ex debito praestiti Sacramenti adstringimur quae manutenebimus toto posse totisque viribus cum Dei Auxilio defendemus nec etiam permittimus aut aliquatenùs permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia alià inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare praecipuè cùm praemissa cederent in exhaeredationem juris Coronae Regis Angliae Regiae Dignitatis ac subversionem Status Ejusdem REgni notoriam necnon in praejudicium Libertatum Consuetudinum ac Legum Paternarum Sealed by One hundred and four Earls and Barons and in the Name of all the Commonalty of England V. Co. 2d Inst pag. 196. and Fox his Book of Martyrs Vol. 1. pag. 387 388 389. By which it appears that the King could not legally if he would have given way to the Pope's determining the Controversie about the Succession in Scotland since it belonged to himself in
in Councils of the Clergy of their Kingdom though the Pope's Legates were present and Quotes Spelman's Councils pag. 292 293. Out of which Book it will not be amiss to give an Account of that Assembly which the Doctor in this place calls a Council of the Clergy Anno Gratiae 787 Concilium Calchythense Legatinum Pananglicum a Gregorio Ostiensi Theophylacto Tudentino Episcopis Legatis Hadriani Papae Calchythae celebratum est In quo decernitur de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus Et de Conferendâ parte Archiepiscopatûs Cantuariae ad Ecclesiam Litchfeldensem jam in Archiepiscopatum promovendam Habebatur in duabus Sessionibus says Sir Henry Spelman rectiùs fortè concilia dicendis quarum prima fuit in regno Northanhymbrorum coram Alfwoldo illic Rege Magnatibus suis Praesidente è Legatis Gregorio Ostiensi Episcopo Secunda Sessio in Regno Merciorum fuit coram Offâ Rege ibidem suis Magnatibus Praesidente etià m in eâdem Gregorio ipso Ostiensi So that here appears the Doctor 's First mistake in saying that the Kings presided though the Legates were present I confess our Kings frequently did preside in Ecclesiastical Assemblies nor was the Grandeur of Popes arrived in those Days to such an Extravagant pitch as to Usurp Precedency before Kings and Emperors But I observe this to shew the Doctor 's carelesness in his Quotations not to argue any Inferiority of the Kings Persons by reason of their not presiding when they were Present For we find Instances of Archbishops of Canterbury presiding though the Kings were Present The Doctor 's Second mistake is in calling this an Assembly of the Clergy For though this Council was Assembled for Ecclesiastical Matters nor do we find any Temporal Laws made or Temporal Affairs transacted in it saving that in the Twelfth Chapter it is decreed what sort of Persons shall be chosen to be Kings and by whom yet were all Persons present that in those Days constituted the General Legislative Assemblies of the Nation which in latter Ages we have Christned by the Name of Parliaments And this appears by the Letter which one of the Legates wrote to the Pope giving him an account of the Success of their Mission Pervenimus ad aulam Offae Regis Merciorum at ille cum iugenti gaudio ob Reverentiam Beati Petri vestri Apostolatûs honore suscepit tam nos quà m sacros apices à summâ sede delatos Tunc convenerunt in unum Concilium Offa Rex Merciorum Chinulphus Rex West-Saxonum cui etià m tradidimus vestra Syngrammata Sancta Ac illi continuò promiserunt se de his vitiis corrigendos Tunc inito concilio cum praedictis Regibus Pontificibus Senioribus terrae perpendentes quod angulus ille longè latèque protenditur permisimus Theophylactum Venerabilem Episcopum Regem Merciorum Britanniae partes adire Ego autem assumpto mecum Adjutore quem filius vester Excellentissimus Rex Carolus ob reverentiam Vestri Apostolatûs nobiscum misit Virum probatae fidei Wighodum Abbatem Presbyterum perrexi in regionem Northanhymbrorum ad Oswaldum Regem Archiepiscopum Sanctae Ecclesiae Eboracae Civitatis Eanbaldum Sed quia praefatus Rex longè in Borealibus commorabatur misit jam dictus Archiepiscopus missos suos ad Regem qui continuò omni gaudio Statuit diem concilii Note here the manner of receiving Foreign Canons in those days Ad quem Convenerunt Omnes Principes Regionis tam Ecclesiastici quà m Saeculares And a little after Qui omni Humilitatis Subjectione clarâ voluntate tam admonitionem Vestram quà m parvitatem nostram amplexantes sposponderunt se in omnibus obedire Then follow the Canons themselves And afterwards these Words VIZ. Haec decreta Beatissime Pater Adriane in Concilio publico coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus regionis seu Senatoribus Ducibus Populo terrae proposuimus illi c. se in omnibus custodire decreverunt signo crucis in vice vestrâ in manu nostrâ confirmaverunt Then follow the Witnesses Names of whom part are Secular part Ecclesiastical Persons And afterwards His peractis perreximus Assumptis nobiscum Viris illustribus Legatis Regis Archiepiscopi c. qui unà nobiscum pergentes ipsa decreta secum deferentes in Concilium Merciorum ubi Gloriosus Rex Offa cum Senatoribus terrae unà cum Archiepiscopo Janbrichto sanctae Ecclesiae Dorovernensis caeteris Episcopis regionum convenerat in Conspectu Concilii Clarâ voce singula Capitula perlecta sunt tam Latinè quà m Teutonicè quo omnes intelligere possent dilucidè reserata qui omnes consonâ voce alacri animo gratias referentes promiserunt se in omnibus haec Statuta custodire In this Convention the Canons of the six first General Councils were received And several Constitutions made for the Government of the English Church All which were Assented to by the Clergy and the Laity of these two Kingdoms of the Heptarchy And by Vertue of that Assent became incorporated into the Municipal Laws of those Kingdoms So that though this and many other such Councils as this was shew abundantly the King of England's Supremacy in Ecclesiastical Affairs in opposition to a Foreign Power yet no Argument can be drawn from hence to prove any other or greater power in Ecclesiastical Matters to be lodged in the King than he has in Temporals The Supreme Power in both being in the King in conjunction with his Great Council or Parliament but not in him separate and apart from them Another Example produced by the Doctor of our Kings having presided in a Council of the Clergy though the Pope's Legates were present is out of Sir Henry Spelman's Counc pag. 189. But in this he has as bad luck as in the former for as in the former the Kings did not preside but one of the Legates so in this the King indeed presided but no Legate appears by the Book to have been present And the Acts of the Council begin thus VIZ. In Nomine Domini Dei Nostri Salvatoris Jesu Christi Congregatum est Magnum Concilium in loco qui vocatur Becancelde Praesidente in eodem Concilio Withredo Clementissimo Rege Cantuariorum nec non Bertualdo Reverendissimo Archiepiscopo Britanniae simulque Tobiâ Episcopo Roffensis Ecclesiae caeterisque Abbatibus Abbatissis Presbyteris Diaconibus Ducibus Satrapis in unum glomeratis paritèr tractantes anxiè examinantes de statu Ecclesiarum Dei c. Here the King presides in a General Council of his own People or in a Parliament assembled for Matters concerning the State and Government of the Church And what use the Doctor can make of all this I know not The Charter of King William the Conqueror whereby he severed the Ecclesiastical Courts from the Temporal and which the Doctor
Election being willing to receive the Persons so collated and the King to admit them as any Private Patron might admit a Clerk to be collated to a Church of his own Gift by Provision it was very reasonable that the King should require a renunciation of such Clauses in their Bulls of Provision as interser'd with the Jurisdiction which the Law gave him over his Spiritual Subjects And this appears by Sir Roger Twisden's third quotation upon this Head compar'd with an Act of Parliament in Queen Mary's time The quotation is out of Coke's 3 Instit pag. 27. where the Form of the Renunciation is set down viz. I renounce all the words comprized in the Pope's Bull to me made of the Abby of c. the which be contrary or prejudicial to the King our Sovereign Lord and to his Crown c. A true and Gonuine Explanation of which take from an Act of a Popish Parliament viz. 1 2 Phil. Mar. cap. 8. Be it Enacted by Authority of this present Parliament That all Bulls Dispensations and Privileges obtained before the Twentieth Year of King Henry the Eighth or which shall hereafter be obtained of the See of Rome not containing matter contrary or prejudicial to the Authority Dignity or Preheminence Royal or Imperial of the Realm or to the Laws of the Realm now being in force may be put in execution c. So that such Bulls as were not contrary to the known Laws of the Realm were allowed to be valid so long as the Pope was acknowledged to be the Head of the English Church But such Bulls or clauses in Bulls as were contrary to the Laws were to be renounced as Prejudicial to our Sovereign Lord the King and his Crown i. e. as this Law of Phil. and Mary explains it to the Preheminence Imperial of the Realm and the Laws of the same Sir Roger's third Particular is That Our Kings permitted No Councils but by their liking to assemble which gained the name of Convocations as that always had been and ought to be assembled by the King 's Writ For this Sir Roger quotes Eadmer pag. 24 and the statute of 25 Henry the 8. c. 19. Upon this Head I have no Controversie with the Doctor nor Sir Roger I only assert that such things as are the proper Business of Convocations cannot be transacted by the King alone without them His fourth particular is That Our Kings caused some to sit in them sc in his Ecclesiastical Councils to supervise their Actions and prohibit them on the behalf of the King and Kingdom ne quid ibi contra Regiam Coronam aut dignitation statuere attentarent Here the Reader is to observe that the Authority quoted for this is in Anno Dom. 1237. which was about the twentieth year of King Henry the Third before which time the Clergy had turn'd the King and the Laity out of their Synods And therefore it stood the King in stead to prohibit them who were but a small number of his Subjects and scarce half-Subjects from attempting any thing to the prejudice of the Rights of his Crown or the Liberties of his People and the Laws of the Realm which they had already made too great inrodes upon As no such Prohibitions as these can be produc'd in former times so they were altogether useless and unnecessary when the Kings themselves and all such of their Subjects as were admitted into Parliaments sat and had Votes in Ecclesiastical Synods as is undeniably evident by almost all the Ancient Councils collected by Sir Henry Spelman till within the Reign of King Steven Who owing his Crown to the Clergy was fain to suffer this and other Usurpations to secure his crack'd Title But after the Clergy took upon them to meet in Convocations neither assembled by the Kings Writ nor consisting as the Ancient Synods had done of the King and all the Estates of the Realm Prohibitions to them are frequent not to attempt any thing against the Law of the Land. Vid. Patt 8. Reg. Johan nu 1. Rex Archiepiscopis Episcopis Abbatibus Archidiaconis omni Clero apud sanctum Albanum ad Concilium convocato salutem Conquerente Vniversitate Militum Baronum aliorum sidelium nostrorum audivimus quod non solum in laicorum grave praejudicium sed etiam in totius Regni nostri intolerabile dispendium super Romescot praeter consuetudinem solvendo aliis perpluribus inconsuctis exactionibus Authoritate summi pontificis Concilium inire Concilium celebrare decrevistis Nos vero c. Vobis precise mandamus expresse prohibemus ne super praedictis vel aliquibus aliis Concilium aliquod in Authoritate aliquâ in fide qua nobis tenemini teneatis vel contrae Regni nostri Consuetudinem aliquid novi statuatis à celebratione hujusmodi Concilii supersedeatis quousque cum Vniversitate nostra super hoc Colloquium habuerimus This Writ appears to have been granted at the Complaint of the whole Parliament and Commands the Clergy not to proceed in their Exactions nor any other business contra consuetudinem Regni till the King had spoken with his Parliament about the matter But I lay no stress at all upon the Parliament's being here a party I produce this Writ only to confirm Sir Roger's fourth particular of the Kings prohibiting the Clergy to attempt any thing against the Rights of his Crown or the Law of the Land. It is a known Rule that whatever is forbidden by Law the King may forbid by his Proclamation and that whensoever any Court assumes an Authority not warranted by Law the King may prohibite them by his Writ What more natural then for the supreme Magistrate to whom the Law has committed the Execution of it self to prohibite all things that are contrary to Law As here we see the King at the complaint of the Vniversitas prohibits the Clergy from attempting any thing contrary to the Consuetudo Regni so in King Henry the Eighth's time there appears a prohibition to the King himself and the Clergy not to do any thing contrariant or repugnant to the King's prerogative Royal or the Customs Laws and Statutes of the Realm The Statute of 25 Hen. 8. cap. 19. which all men agree to be but declarative of the Common Law enacts that No Canons Constitutions or Ordinances of the Clergy shall be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the Kings prerogative Royal or the Customs Laws or Statutes of the Realm This Act had before provided that the Clergy should not make promulge or execute any Canons Constitutions or Ordinances in their Convocations without the Kings Licence and Assent under the Penalty of a Premunire so that without the Kings Assent their Canons would be Nullities and themselves under a premunire for making or Executing them And therefore when the Act provides in an after-clause that they shall make no
Canons c. contrary to the Kings prerogative or the Laws of the Realm this is a prohibition to the King and them not to make any such Canons Constitutions or Ordinances as are contrary to Law. Sir Roger's fifth particular is That our Kings suffered no synodical decree to be of force but by their Allowance and Confirmation For which he quotes Florentius Wigornensis Anno 1127. Where 't is said Rex auditis Concilii Gestis consensum praebuit authoritate Regia potestate concessit confirmavit statuta Concilii à Gulielmo Cantuariensi Archiepiscopo sanctae Romanae Ecclesiae legato apud Westmonasterium celebrati Now that Council consisted not of the Clergy only but as Ecclesiastical Synods did in those days of the Clergy and Laity Confluxerunt quoque illic magnae multitudines Clericorum Laicorum tam divitum quam mediocrium fact us est conventus grandis inestimabilis ibidem And this we have heard before out of Malmesbury was necessary quatenus quicquid ejusmodi Concilii Authoritate decerneretur utriusque Ordinis cura sollicitudine ratum servaretur Now that the Acts of such Synods were of no force within the Realm without the Kings Assent I agree as his Assent is necessary to make an Act of Parliament a binding Law in Temporals so his Assent is and till the Clergy had turn'd him out of their Synods always was necessary and Essential to an Ecclesiastical Law. But what inference can be drawn from hence to prove any personal Supremacy in the King separate and distinct from the Assent of his People in their Synods and Councils I do not apprehend But one Observation I cannot omit upon this Council compar'd with that other held Anno Dom. 1175. Ann. 21. Hen. 2. For whereas in the former the Laity were present as well as the Clergy we find the King gave his Royal Assent to their Canons and so they became Ecclesiastical Laws binding to the whole Nation In the latter the Laity were not present by any account that I can find of it and therefore to make their Canons general Laws the Kings Assent would not have been sufficient nor was it singly had for Gervas Dorob Anno Dom. 1175. pag. 1429. Collect tells us in hoc Concilio ad Emendationem Anglicanae Ecclesiae assensu Domini Regis primorum Regni haec subscripta promulgata sunt Capitula And that the Clergy in those days when they took upon them to hold Synods apart from the Laity did not imagine that the King alone could give their Canons any Validity in Law where they entrench'd upon or interser'd with the Laws of the Land will appear by observing that when in King Henry the Third's Time the Clergy in opposition to the Gravamina Laicorum had made many provisional Articles for the enlarging their own Jurisdiction pro quibus Episcopi Angliae fuerant pugnaturi Mathew Paris says thus of them viz. Formati sunt Articuli circiter quinquaginta quos praelati in seripta redegerunt ut apto tempore coram Rege magnatibus praelatis lecti effectum debitum sortirentur Additamenta ad Math. Paris pag. 199 c. so that it was the magnates praelati as well as the King and not the King without them that could give life to them Sir Roger's sixth particular is That our Kings permitted no Bishops to Excommunicate or inflict any Ecclesiastical Censure on any Baron or Officer nisi praecepto suo concerning which I have spoken already The seventh is That they caused the Bishops to appear in their Courts to give an Account why they Excommunicated the Subject This makes nothing for any personal Authority in the King. Whatever he does in his Courts he does by his Judges who have the Law of the Realm for their guide and Rule And ought to keep all inferiour Courts within their Bounds and therefore might and do yet every day grant Prohibitions when the Bishops and their Officials proceed to Excommunicate where the Law does not allow that Censure to be apply'd And if the Writ of Prohibition be not obey'd but that the Bishop or other Ecclesiastical Judge proceeds notwithstanding an Attachment is the next process Vid. Fitz. Nat. Br. tit prohibition For Excommunication whatever pretence of Divine Right the Clergy may have for their Jurisdiction was always regulated by the Laws of the Realm but never by the Kings Arbitrary Will and Pleasure The Eighth is That they caused such as were imprisoned after forty days standing Excommunicate to be free'd by Writ without the assent of the prelate or satisfaction giving the King and his Judges communicating with them tam in Divinis quam profanis and commanding none to shun them though by the ordinary denounced Excommunicate Now the ground of this is no other then the Writ de cautione admittenda by which the Bishops are commanded quod accepta ab A. B. the Person Excommunicate cautione ipsum à prisona quâ occasione praedict detinetur deliberari mandent alioqui quod nostrum est in hac parte exequemur To which Writ if the Bishop did not yield Obedience then a Writ went to the Sheriff to deliver the Prisoner if the Bishop should persist in his refusal to accept Caution v. Regist fol. 66. a. Fitz. Nat. Brev. Fol. 63. Now these Writs in the Register were made in Parliament as Bracton tells us Lib. 5. Fol. 413. b. sunt quidem brevia formata de certis casibus de communi consilio totius Regni concessa approbata And therefore says he and the Lord Coke out of him 2 Instit 407.8 Rep. fol. 48 49. nullatenus mutari possunt absque consensu voluntate eorum The Acts indeed by which most of the Writs in the Register are appointed are lost as all the Records of Parliament are before Magna Charta but by Acts of Parliament yet upon record many writs are directed and the forms of them express'd in the body of the Acts. So that Writs in the Register are the very Law of England they are Statute-Law and the oldest Statute-Law we have And consequently the King 's commanding the Bishops to discharge persons that were in prison upon a Capias Excommunicatum and commanding the Sheriff to deliver them in the Bishop's default is no Act of Personal Prerogative in them But the ordinary course of the Law of the Realm and warranted by Acts of Parliament though the Records of those Acts being lost we now call it Common-Law Sir Roger's ninth Instance is That our Kings suffer'd no Legates to come into England without their leave Of which has been discours'd already The tenth is That they determin'd Matters of Episcopacy Inconsulto Romano Pontifice Which is true they did and had good Right to do but not Inconsultis Magnatibus Witness the Degradation of Stigand Arch-bishop of Canterbury temp Willielmi primi And the intended deprivation of Wolstan Bishop of Worcester The Controversie betwixt King William Rusus and
out of Parliament endow Bishopricks because they could not distrahere patrimonium Regni And a further Consideration to this purpose may be drawn from the Exemptions which the possessions of the Church enjoy'd from all secular service Except the Trinoda necessitas Which Exemptions were all Granted by Charters Assented to in Parliament as appears undeniably by the several Charters Granted in divers Kings Reigns successively to the Abby of Crowland All inserted in haec verba into Ingulphus his History of that Monastery and by the Monasticon In which it appears further that all Exemptions from Episcopal Jurisdiction Except of the King 's free Chappels which were of his own Foundation were granted in Parliament I mean all such Exemptions granted by our Kings For the Pope used to grant Exemptions by Bulls and those Papal Exemptions were confirm'd by Parliament temp Henr. 8. King William the Conquerour Founded Battle-Abby in Sussex in the place where he overcame Harald and Exempted it from Episcopal Jurisdiction But whether he did it in Parliament or not let the Charter it self testifie viz. Willielmus Dei Gratia Rex Anglorum c. Notum sit Vobis me Concessisse confirmasse cum Assensu Lanfranci Archiepiscopi Cantuariensis Stigandi Episcopi Cicestrensis Consilio etiam Episcoporum Baronum meorum ut Ecclesia Sancti Martini de Bello quam Fundavi ex voto ob Victoriam quam mihi Deus in eodem loco concessit libera sit quieta in perpetuum ab omni servitute omnibus quaecunque humana mens excogitare potest c. Nec liceat Episcopo Cicestrensi quamvis in illius Dioecesi sit in Ecclesia illa vel Maneriis ad illam pertinentibus ex consuetudine hospitari contra voluntatem Abbatis nec Ordinationes aliquas facere ibidem nec Abbatiam in aliquo gravare sed neque super illam Dominationem aliquam aut vim aut potestatem exerceat sed sicut mea Dominica Capella libera sit omnino ab omni ejus Exactione c. Hoc etiam Regali Authoritate Episcopolum Baronum meorum Attestatione constituo quatenus Abbas Ecclesiae suae leugae circumjacentis per omnia Judex sit Dominus The Fourteenth Particular is that our Kings have by their Writs commanded Bishops to keep resident Which considering that it was their Duty incumbent on them by Law what great Power does it argue in the King to command his Subjects to do what the Law enjoyns them The Sixteenth is That they have commanded their Bishops by reason of Schism or Vacancy in the Popedom c. not to seek Confirmation from Rome but the Metropolitans to be charged by the King 's Writ to bestow it on the Elected For this Sir Roger quotes Rot. Parl. 16. Mart. 3 Hen. 5. nu 11. Anno Domini 1414. Now that was done by Act of Parliament Which because it is observable to many purposes shall be transcrib'd at large Our Lord the King considering the long Vacancy of the Apostolick See by reason of the damnable Schism which has now continued a long time in Holy Church and is not known how long it may yet last And that certain Cathedral Churches within the Kingdom which are of the Foundation of his Noble Progenitors and belong to his Patronage have been for some while and are yet destitute of Parochial Government because the Persons that are elected into the same cannot be confirmed in Parts beyond the Sea for want of an Apostle Altho' our said Lord the King bath thereunto given his Royal Assent to the Great decrease of Divine Service in the said Churches substraction of Hospitality Great peril of many Souls Devastation and Destruction of the Lordships and Possessions belonging to the same and the Impoverishment of such Bishops Elect And that by possibility all the Cathedral Churches within the Realm may become void in like manner and so be destitute of Government and the King and his Realm of Council Comfort and Aid which they ought to have of the Prelacy And considering also that in divers foreign Parts since the Voidance of the said See divers Confirmations have been and are daily made by the Metropolitans of the places as he is credibly informed and Willing for that cause for ousting the said Mischiefs chiefs to provide such remedy as it behoves By the full and deliberate Advice and Assent of the Lords and Commons of his Realm in this present Parliament Wills and Ordains that the persons so chosen and to be chosen within his Kingdom during the Vacancy of the said See Apostolick shall be comfirmed by the Metropolitans of the Places without Excuse or further delay in that behalf And that the King's Writs if need be be directed to the Metropolitans straitly charging them to make the said Confirmations And to perform all that to their Office belongeth As also to the Bishops Elect that they on their part Effectually prosecute their Confirmations that through default of such Metropolitans or Bishops Elect dammage or prejudice may not ensue to our Lord King and his Kingdom and to his Realm and to the said Churches for the Cause aforesaid which God forbid Here it is plain that what Sir Roger ascribes to the King was really done by the full and deliberate Advice and Assent of the Lords and Commons of his Kingdom in Parliament And therefore that the supreme Jurisdiction in matters Ecclesiastical was not in the notion of that Age Lodg'd personally in the King but in the King by Law in the King with his Parliament about him Pursuant to this President we find in King Henry the Eighth's time a Notable Act in the 28th Year of his Reign cap. 16. In which there is this clause viz. And that it may be also Enacted by Authority of this present Parliament that all Arch bishops and Bishops of this Realm or of any the King's Dominions Consecrated and at this present time taken and reputed for Arch-bishops and Bishops may by Authority of this Present Parliament and not by vertue of any Provision or other Forein Authority Licence Faculty or Dispensation keep enjoy and retain their Arch-bishopricks in as large and ample manner as if they had been promoted Elected and consecrated according to the due course of the Laws of this Realm And that every Arch-bishop and Bishop of this Realm and of other the King's Dominions may minister use and Exercise all and every thing and things pertaining to the Office or Order of an Arch bishop and Bishop with all Tokens Ensigns and Ceremonies thereunto Lawfully belonging This Act in the 2d paragraph had made void all Bulls Dispensations Breves c. obtain'd at Rome contrary to the statutes of Premunire Provisors whereby many Bishopricks would have become void To prevent which the Clause here recited makes them legal Bishops notwithstanding and supplies all the Ceremonies of Election and Consecration Which I suppose no man will take upon him to say that the King might then
cum aliis Proceribus Normanniae simul adesse praecepit ut Rex jussit factum est Igitur 8. Anno Papatus Domini Gregorii Papae 7. Celebre Concilium apud Jullam bonam Celebratum est Et de Statu Ecclesiae Dei totiusque Regni Providente Rege cum Baronum suorum consilio utiliter tractatum est Then he inserts the Laws made there all concerning Ecclesiastical Matters In the next Reign that of King William Rufus there was a Schism in the Popedom between Clement and Vrban Anselme whilst he was Abbot of Bec in Normandy had Sworn Obedience to Vrban and being Elected Archbishop of Canterbury desired leave to go out of the Realm to fetch his Pall from him This the King opposed for that Vrban had not been received for Pope in England and told the Archbishop he could not keep his Fealty to him his Prince saving the Obedience which he owed to Vrban Anselme upon this referred himself to the Judgment of the Archbishops Bishops Proceres c. in Parliament who accordingly were Convened at Rochingham Ex Regia Sanctione and the matter discussed before them If the Archbishop had had any Notion of a Personal Supremacy in the King separate from and independant of the Great Council of the Realm it had been absurd in him not to acquiesce in the King's Judgment but Appeal to a Parliament If the King himself had been possessed with an opinion of any Legislative or Supreme Judicial Power in Ecclesiastical Matters lodged in his Person he would never have consented to call a Parliament to determine a cause which himself as far as in him lay had determined already The History may be read at large in Eadmer Hist Nov. Lib. 2 page 24 25 26 c. In King Henry the First 's time Anno Dom. 1102. A Council was held at London in which at Anselm's request to the King the Laity were present Quatenus quicquid ejusdem Concilii authoritate decerneretur utriusque Ordinis curâ sollicitudine ratum servaretur Sic enim necesse erat Quum multis retro annis Synodali culturâ cessante vitiorum vepribus succrescentibus Christianae Religionis fervor in Angliâ nimis tepuerat This is a clear Testimony that the Assent of the Laity was necessary to the Enacting such Ecclesiastical Laws as they were to be bound by And that neither the King by his Prerogative nor the King and the Clergy could impose any Constitutions upon them without their Assent Eadmer Histor Nov. Lib. 3. Will. Malmesb. De Gest Pontif. Anglor Lib. 1. p. 129. But tho' the King could not make Laws Himself could he not permit a Legate to exercise his Legatine Power here King Henry the Eight indeed permitted Wolsey to exercise his Office here and afterward brought the whole Clergy under a Premunire for submitting to him and owning his Authority But the Statutes of Praemunire were then in being Could not our ancient Kings that Reigned before any Act of Parliament now upon Record was extant they that must needs have had all the inherent Prerogatives that are involved in the Notion of Imperial Soveraignty Doctor Hicks they that understood their power somewhat better perhaps than it is now understood because they lived nearer to the creation of it and exercised it before it was sophisticated could not they I say by vertue of their Ecclesiastical Supremacy permit the Popes Legate to domineer a while within the Realm Why King Henry the First was very well satisfied that himself had no such power For when Petrus Monachus Cluniacensis was sent hither by Calixtus the Pope to exercise his Office of Legate within this Realm the King would not suffer him so much as to Lodg upon the Road in any Religious House And when he came into his presence and had told him his Errand Rex obtensâ expeditione So Anno Dom. 1225. Magister Otto Domini Papae nuncius in Angliam veniens promagnis Ecclesiae Rom. negotiis Regi literas praesentavit sed Rex cognito literarum tenore Respondit quod solus non potuit definire nec debuit negotium quod omnes Clericos laicos totius Regni tangebat Matth. Paris p. 325. 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 Hist Nov. p. 138. And so the Legate went back as he came He tells it him as a known truth Constaret that the giving him leave to exercise his Office here was too great a work for him to go about as his affairs then stood for that it could not be done but in and by the Parliament If the Parliament had not a share in the Ecclesiastical Jurisdiction how came their Assent to be necessary If they had when did they lose it If the King's Supremacy was personal why might not he if he would have licensed him himself If it was not personal then but is so now then do not assert over and over that the late Acts of Restitution are all declarative and give no new power If the Pope's power de facto exercised be translated to the King shew the conveyance This same King in a Letter to Pope Paschall about Investitures tells him that if himself should be so mean in tantâ me dejectione ponerem as to part with them yet Optimates mei imò totius Angliae Populus id nullo modo pateretur Decem Scriptores 999. The Investitures were performed by the King in person but subsequent to an Election by the Parliament and yet the Parliament were so concerned in them that they were not nor could be parted with but by an Act of Parliament Which accordingly ensued notwithstanding the King's resoluteness at first for when Anselme came from Rome the King was perswaded to with-draw his claim and it was granted in a Parliament held at London Astantibus Archiepiscopis caeteraque multitudine maxima Procerum Magnatum ut ab eo tempore in anteâ nullus electus per dationem Baculi pastoralis vel Annuli de Episoopatu vel Abbathia investiretur per Regem vel aliam quamcunque personam secularem Ibid. Et Sim. Mon. Dun. 228 229 230. But tho' Investitures were lost Elections remained as they were at least of right till King John's time Concessit Rex Johannes liberas in omnibus Ecclesiae Anglicanae electiones Matth. Par. p. 262 263. The Charter it self which was certainly an Act of Parliament See Presidents of many Bishops and Abbots Elected in Parliament in the Reigns of King Stephen and King Henry the Second In Spelm. Conc. Second Part. p. 42 119. Innumerable are the instances of Canons and Constitutions made in the Reigns of the first Norman Kings in their Great and General Councils concerning Churchmen and Church Matters
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
whereas Subjects might Collate in those Days Churches of their own Foundation to any Clerk in Orders and give him the Investiture even without so much as a Presentation to the Bishop yet our Antient Kings Collated Bishopricks no otherwise than in Curia suâ For though Bishopricks were Royal Foundations yet they were Founded by Acts of Parliament as will appear by and by And one Great Reason why our Kings at least in those Days could not Erect Bishopricks and endow them otherwise was because they could not in those Days Alien their Crown Lands without the Assent of their Barons Non poterat Rex distrahere Patrimonium Regni And though King John told Pandulphus the Legate Omnes Praedecessores mei contulerunt Archiepiscopatus Episcopatus Abbathias in thalamis suis Monast Burton pag. 264. That must be understood to have been done since the Norman Conquest only though the contrary was frequently practised even in those Days and especially since the Constitutions of Clarendon For the Instance that he there gives of Wolstan's being made Bishop of Worcester in King Edward the Confessor his Time was far from a Collation in Thalamo if we believe himself when he resigned his Pastoral Staff at the Confessor's Tomb There concurred Electio Plebis Petitio Voluntas Episcoporum Gratia Procerum a full Parliament as well as the Authoritas Voluntas of the King himself Matth. Paris pag. 20 21. As for our Kings seizing the Temporalties of Bishops into their Hands and so suspending them à beneficio which the Doctor speaks of pag. 155. of which he says many Instances may be found in Mr. Prynn 's Historical Collections I suppose he would not be understood as if our Kings either might or used to seize them ad Libitum but by legal process and for some contempt for which by the Law they were liable to Seizure They were held of the King by Barony and though the Bishops pretended to an Exemption as to their Persons from the Laws of the Land yet their Temporalties which were held of the King and for which they did him Fealty were no-wise Exempted but that if they should commit Offences for which the King might by Law capere se ad Baronias suas they as well as the Laity that held by the same Tenure were equally liable to the Course and Rigour of the Law. What use this is of to the Doctor for the setting up some Notional Supremacy lodged in the King Personally I know not as yet Irregularities and Oppressions might well be used upon such occasions and Seizures made when there was no cause but the Statute of the fourteenth of Edward the Third cap. 6. aforementioned was provided to prevent such Mischiefs for the future But the Doctor was very ill advised in quoting pag. 155. to clear the point the Statutes of Provisions For those Statutes which every body knows and the Doctor will not deny to be only new Bullwarks to secure Old Rights were yet such as the King could never dispense with But when the Circumstances of his Affairs were such that to gratify the Pope and tye him to his Interest he found it convenient to have some Relaxation made of those Laws then were Parliaments called and at their first meeting one cause of their Convention declared to be to provide remedy touching the Statutes of Provisions for eschewing debate between the Pope and the King and his Realms And then we find leave given to the King from time to time to dispense with those Laws and that but for a time and this declar'd to be a Novelty Vid. Cotton's Abridgment pag. 341. 346. Annis 15. 16. Rich. 2. And the Complaints of the English Nation in Matth. Paris against the Pope's Provisions were grounded upon this VIZ. That Patroni Ecclesiarum ad eas cum Vacaverint Clericos idoneos praesentare non poterant sed conferebantur Ecclesiae Romanis qui penitùs Idioma Regni ignorabant pecuniam extra Regnum asportabant These Oppressions fell chiefly upon the Clergy as appears by most of the Laws against Provisions of which hereafter for the Pope assum'd a greater Power over them and Churches of which they were Patrons then he could pretend to over the Laity and they sometimes comply'd with his Provisions and submitted to collate Italians and Foreigners as at other times they did to heavy Exactions insomuch that in the year 1240. misit Dominus Papa praecepta sua Domino Cantuariensi Archiepiscopo Edmundo Sarisberiensi Lincolniensi Episcopis ut trecentis Romanis in primis beneficiis Vacantibus providerent scientes se suspensos à beneficiorum Collatione donec tot competenter providerentur Matth. Paris pag. 532. And it appears by the same Author that these and more were provided of Ecclesiastical Benefices in England Praebendas Ecclesias varios redditus opimos plusquam trecentos ad suam vel Papae contulerat legatus Otto voluntatem id p. 549. But many grievous Complaints and Petitions in Parliaments and in Letters to the Pope occur in Mr. Prynne's Historical Collections and in the Parliament Rolls against these Provisions as intolerable Grievances and contrary to all Law and Reason If at some times they were comply'd with upon condition that the Persons recommended by the Pope were of good condition and worthy of Promotion how does that relate to its being in the King's power even to admit the persons to the Dignity and Office as the Doctor ignorantly and childishly asserts But his conclusion VIZ. That the Exercise of their Government was according to the King's Laws I do not Quarrel with him about for it was or ought to have been so But not according to the King's Pleasure Nor would any unbyassed Man in Reading King Alfred's Laws have readily made such an Inference as the Doctor does pag. 155 156 telling us out of L. l. Alvredi that King Alfred reserved to himself the liberty even of Dispensing with the Marriage of Nuns Which he would represent as a thing prohibited by the Canons only and that the King reserved to himself a Power of Dispensing with it though without his Especial Dispensation he suffered the Canon to take place Now the Marriage of Nuns was really prohibited by a Law of the State by an Act of Parliament of that Age For Brompton giving us an Account of King Alfred's Laws says thus Ego Alfredus West-Saxonum Rex ostendi haec omnibus sapientibus meis dixerunt Placet ea Custodire And many Temporal Laws are amongst them all Enacted by the same Authority And the same Law or Canon that prohibits Nuns from Marrying gives the King and not only him but the Bishop of the Diocess leave to Dispense so that the Doctor might as well have argu'd for the Bishops as the Kings reserving a Power to himself of Dispensing The Words are Si quis Sanctimonialem ab Ecclesiâ abduxerit sine Licentia Regis vel Episcopi c. Then he says That our Kings Presided sometimes
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