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
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
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