those Times What Orders of Men were comprehended under the word Magnates is not material to our present purpose The Great Councils that made the Laws and without whom no Laws were made are frequently so described by our antient Historians In the year 692 Ina King of the West Saxons enacted many Constitutions for the Government of the Church as De formula vivendi Ministrorum Dei. De baptizandis Infantibus De opere in die Dominico De immunitate fani c. The Preface to which Laws runs thus Ego Inas Dei beneficio Occiduorum Saxonum Rex suasu instituto Cenredi Patris mei Heddae Erkenwaldi Episcoporum meorum Omnium Senatorum meorum natu Majorum sapientum Populi mei in magnâ servorum Dei frequentiâ religiose studebam tum animorum nostrorum saluti tum communi Regni Nostri conservationi ut legitima nuptiarum faedera c. Here the King his Bishops all his Senators the Natu Majores Sapientes of his People which are Descriptions of the Laity in Parliaments of those Times and a great number of Gods Servants by which the Clergy are meant make Ecclesiastical Laws This was a Parliament as appears not only by the presence of the Laity but by many Temporal Laws enacted at the same time Spelm. Conc. Tom. 1. Fol. 182 183 c. In the year 694. Concilium Magnum Becanceldae celebratum est Presidente Withredo Rege Cantiae necnon Bertualdo Archiepiscopo Britanniae cum Tobiâ Episcopo Roffensi Abbatibus Abbatissis Praesbyteris Diaconibus Ducibus Satrapis c. All these pariter tractabant anxie examinabant de Statu Ecclesiarum Dei c. Here the King 's Legislative Power in Ecclesiastical Matters exerted it self not Personally but in this Great Council They do all enact Statuimus decernimus praecipimus For when the King himself is spoken of the Singular Number is used Nullus unquam habeat licentiam accipere alicujus Ecclesiae vel Familiae Monasterii Dominium quae à meipso vel antecessoribus meis c. Spelm. Conc. Pag. 189 190. A Council was held at Berghamjtede Anno 5 to Withredi Regis Cantiae i. e. Anno Christi 697. Sub Bertualdo Archiepiscopo Cantuariensi praesentibus Gybmundo Episcopo Roffensi omnibus Ordinibus Gentis illius cum Viris quibusdam militaribus In quo de moribus cavetur ad Ecclesiae cognitionem plerumque pertinentibus These Ordines Gentis illius seem by the Preface to these Laws to be meant of the Ordines Ecclesiastici Gentis illius but withal that they cum viris utique militaribus humanissimè communi Omnium Assensu has Leges decrevêre Spelm. Conc. 194. So that these Ecclesiastical Laws were enacted by the assent of the viri Militares as well as of the King and the Clergy A Council was held at Cloveshoe sub Cuthberto Doroberniae Archiepiscope praesentibus praeter Episcopes Sacerdotes Ecclesiasticos quamplurimos Aedilbaldo Merciorum Rege cum suis Principibus Ducibus Anno Dom. 747. In quo decernebatur de unitate Ecclesiae de Statu Christianae Religionis de Concordiâ pace c. Spelm. Conc. 242 c. In the Year 787 Concilium Legatinum Pananglicum was held at Calchyth in which many Canons were made de fide primitùs susceptâ retinendâ aliisque ad Ecclesiae regimen pertinentibus This Council was held Coram Rege Aelfwaldo Archiepiscopo Eanbaldo omnibus Episcopis Abbatibus Regionis seu Senatoribus Ducibus Populo terrae who All confirmed them After these Ecclesiastical Laws had been thus enacted by Aelfwald King of Northumberland the Legates carried them into the Council or Parliament of the Mercians where the glorious King Offa cum Senatoribus Terrae una cum c. convenerat There they were read in Latin and Teutonick that All might understand and All promised to observe them and the King and his Princes the Archbishop and his Companions signed them with the Sign of the Cross Spelm. Conc. Vol. 1. Fol. 291 292 c. Many Instances of this kind might have been added as particularly that of the Council at Hatfield An. 680. wherein the Canons of five General Councils were received which was a Witena Gemote a Conventus Sapientum But I spare time am endeavouring only to open a Door By these Instances it is apparent that the same Body of Men that enacted the Temporal Laws of the Kingdom did in the very same Councils make Laws for the Government of the Church Indeed the whole Fabrick of the English Saxon Church was built upon Acts of Parliament nothing in which the whole Community was concerned was enacted decreed or established but by that Authority For whose reads impartially the Histories of those times and compares them with one another will find that as most of those Antient Councils commonly so called were no other than to speak in our Modern Language Parliaments so not any thing whatsoever in Religion obligatory to the People whether in matters of Faith Discipline Ceremonies or any Religious Observances was imposed but in such Assemblies as no Man can deny to have been Parliaments of those Times that has not a Fore-head of Brass For the Presence not of the King 's only but of the Duces Principes Satrapae Populus terrae c. shews sufficiently that neither the Kings nor the Kings and the Clergy without the concurrent Authority of the same Persons that enacted Temporal Laws could prescribe General Laws in matters of Religion I do not dispute what Orders of Men among the Saxons were described by Duces Principes c. but sure I am that they were Lay-men and as sure that they assented to and confirmed those Laws without whose assent they had been no Laws So that the Kings of those Times had no greater Legislative Power in Ecclesiastical Matters than in Temporal The tearing the Ecclesiastical Power from the Temporal was the cursed Root of the Kingdom of Antichrist It was that that mounted the Papacy Those Powers never were distinct in England nor most other Nations till that See got the ascendant And it is a strange inconsistency to argue one while that whatever the Pope de facto formerly did by the Canon Law that of right belongs to our Kings and another while that the several Acts that restore the Ecclesiastical Jurisdiction to the Crown are but Declarative It shews how little the Supremacy is understood by Modern Asserters of it and how little they are acquainted with the antient Government of England The Third Period of Time to be considered shall be from the uniting of the several Kingdoms of the Saxons under one Monarchy to the Norman Conquest In this Division we find a Letter from Pope Formosus to King Edward the Elder wherein the Pope complains that the Country of the West-Saxons had wanted Bishops for seven whole Years Upon the receipt of this Letter the King calls Synodum Senatorum Gentis Anglorum who
Second King Stephen and so backwards And yet we find no Resolutions concerning what the Supremacy at Common Law was and wherein it consisted grounded upon Authorities of those Times which only can afford a right Idea of it Nor indeed can any thing be found in our Old Books of Law as Bracton Glanvil Britton Fleta the Mirrour nor in the Antient Histories of those Times that warrants such an Ecclesiastical Supremacy in the Crown as we now a-days dream of no Supremacy in Ecclesiastical Matters other than in Temporal which in a Nation of Saxon descent could never exclude the Ordines Regni having ever entred into the thoughts of Man as lodged in the King's Person or any Temporal Prince The Pope pretended to it but our Kings never did Only where the Constitutions of Clarendon mention Appeals from the Archbishop to the King they take up with the Letter and examine no farther As some Philosophers have ascribed Phaenomena in Nature which they could give no rational Account of to occult Qualities so the Lawyers resolve puzling Questions by telling us Magisterially that so and so it was at the Common Law as occult in these Matters to many of them as any Secret of Nature to the Philosophers That Branch of 1 o. Eliz. which unites Ecclesiastical Jurisdiction to the Crown appears by the Journal of the House of Lords to be in the sense of the Parliament V. Sir Simon Dewes that past it but Declarative But that all other Acts and Clauses of Acts which were pass'd at the time of the Reformation with respect to the Ecclesiastical Jurisdiction are so too I can't believe till I see Authorities of Antiquity proving it Those particular Branches of the Supremacy concerning the making of Bishops Appeals c. with some Temporary Laws now expired as they were guided and limited by positive Laws made in King Henry the Eighths time and King Edward's and revived in Queen Elizabeth's so they are grounded upon those Laws only and have no other Foundation so far forth as they are Personal For the Antient and Legal Supremacy having been so long overshadowed as to be almost forgot they did not upon the Restitution of it return all things to their former estate They prescribed another course for Appeals than had ever been known in our Law before They did not resume the Elections of Bishops to the Parliament who had had them formerly but leaving a shew of an Election in the Consistory they authorize the King to name the Man. The power of making Laws and Constitutions Ecclesiastical for the Government of the whole Kingdom we find no Resumption of no declarative Act concerning it other than in the Recital of 25 Hen. 8. cap. 21. For that Point had never been gained from them From the Reign of King Henry the Second downward to King Henry the Eighth we find little or nothing of any Canons and Constitutions for the Government of the Church made with assent of the Laity For the Clergy had now established their Exemption and had set up Imperium in Imperio But many Acts we meet with setting Bounds to their Encroachments and limiting their Jurisdiction and all made by the same Authority that enacted the Temporal Laws of the Kingdom And therefore the Supremacy so far forth as it remained in the Crown was not Personal but exerted it self in the Legislative Body of the Kingdom For the Parliaments tho in a great measure Anti-Christ-ridden did not even in these Times so far forget the old Constitution as to let the Church and Religion run adrist for all them and be wholly managed either by the King or their Ghostly Fathers The Writs of Summons to Parliaments both antient and modern have this special Clause in them Pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum c. So that the State of the Church is as properly within the care of a Parliament as the State of the Realm And in the Prologues to most Acts of Parliaments the Honour the Profit the Reverence the Benefit the Advancement of Holy Church is mentioned as the End of their Meeting no less than the Safety and Defence of the Realm Accordingly innumerable Acts of Parliament were made and are now in print concerning Church-men the Ecclesiastical Jurisdiction Matters of Religion c. As the Statutes of Mortmain Circumspecte agatis the Statute upon the Writ of Consultation Articuli Cleri several Statutes entituled Pro Clero the Statutes of Premunire and Provisors concerning Priests and Salaries against Appeals to Rome prohibiting Bishops to meddle in Matters of the Peace removing Bishops from Temporal Offices restraining the Popes Exactions and Usurpations and Encroachments of the Canons upon the Civil Jurisdiction freeing Clergy Men from Arrests during the time of Divine Service for the Instruction of the People by Preaching concerning Priors dative and removable c. Exempting of Pilgrims from the Punishment of Vagrants Hunting on Holy-days Consecrations of Church-yards and Appropriations of Churches and Alms concerning Provisions of Exemptions from regular or ordinary Obedience granted to Religious Persons from Rome the Suppression of Sectaries Heretical Books Schools Working on Holy-days Entring into Religion without Consent of Parents Tythes Chalices Ornaments of the Church c. So that whatever remained of the Supremacy remained in the Legislative Body of the Kingdom and was there exerted During this time the question was not Whether the King could by his Prerogative impose Laws upon the Clergy or in concurrence with the Clergy conclude the Laity these are Notions started up since the Reformation which has brought to light in Politicks as well as Religion Mysteries that had been hid from Ages but whether the Spirituality or State Ecclesiastical of whom the Pope was now de facto the Head could bind the Laity without their Assent in Parliament This was a fifth Encroachment which was attempted by introducing the Canon Law and drawing to themselves by a side wind all Temporal Jurisdiction in ordine ad Spiritualia But the design was never brought to perfection such was the Genius of a Government built upon this noble Foundation that no man ought to be bound by a Law that he does not consent to that muffled up in Darkness and Superstition as our Ancestors were yet that Notion seemed to be engraven in their Nature born with them sucked in with their Mothers Milk the impression was so strong that nothing could deface it Accordingly we often find them protesting that this and the other thing did not bind them because it was done without their Assent Rott Par. 40. Edw. 3. nu 7 8. Rott Parl. 5 Ed. 3. art 46. Rott Parl. 6 Rich. 2. nu 62. that they would not be bound by any Ordinances of the Clergy without their Assent That they would not subject themselves to the Prelates no more than their Ancestors had done And in the 25. H. 8. cap.
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
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
SOME OBSERVATIONS UPON THE Ecclesiastical Jurisdiction OF THE KINGS of ENGLAND WITH AN APPENDIX In Answer to part of a Late Book Intitled The KING' 's Visitatorial Power Asserted LONDON Printed for William Battersby at Thavies-Inn Gate in Holborn and Thomas Basset at the George in Fleet-street 1689. To the Reader A Late Declaration for Liberty of Conscience whereby the King Assum'd a Power of Suspending All Penal Laws in matters of Religion The Ecclesiastical Commission and suspending by vertue of it the Bishop of London and depriving the Fellows of Magdalen-Colledge occasioned a general dissatisfaction in the Nation and produc't some Pamphlets to justifie all those Proceedings viz. One Entituled The King 's Right of Indulgence in Spiritual Matters with the Equity thereof Asserted Another A Vindication of the Proceedings of his Majestie 's Ecclesiastical Commissioners against the Bishop of London and the Fellows of Magdalen-Colledge A Third The Legality of the Court held by his Majestie 's Ecclesiastical Commissioners Defended And last of all The King 's Visitatorial power asserted Perusing these Pamphlets I could not but observe that one and the same inveterate error ran through them All viz. Their ascribing to the King all such power Jurisdiction and Authority as by the Law of England and the very Original Constitution of our Government is lodged in the Legislative body of the Kingdom and which the King is intrusted onely with the Administration of and that in his Courts of Justice I had attempted the answering more than one of those Pamphlets but I found that at every turn I met with that mistake in the Authors who either through Ignorance or Design or both argue for the King's Prerogative from whatever they find to have been done in Great Councils of the Realm or in Ordinary Courts of Justice this one mistake together with some rash and unwarranted expressions glean'd out of a few late Writers will be found to be the main strength of their Cause I thought therefore that it might be a work of some use especially at this time to endeavour the removal of this rubbish and the laying open in some measure the nature of the Ecclesiastical Jurisdiction of the Crown of England both because we have lately seen how dangerous and fatal these mistakes are and because although much has been written since the Reformation by Mr. Prynn Sir Roger Twisden and others to vindicate the Ecclesiastical Supremacy from Forein Pretensions and Vsurpations yet I know not whether any has yet taken in hand to give an Account of it as stands by Law here at home I do therefore offer these few Observations upon it to the publick desiring the Judicious Reader 's pardon for what slips and imperfections he may find herein and have added in an Appendix an Answer to a Section in the Book concerning Visitatorial Power wherein I hope the Reader will be satisfied how groundless and weak most of the arguments are which our Prerogative-mongers pretend to draw from Antiquity These following Observations are brought down no lower then to the latter end of King Henry the eighth's Reign I design a Continuation with Remarks upon some Judicial Presidents that have pass't since the Reformation if these Papers are well received if not I shall save time and be eas'd of trouble SOME OBSERVATIONS Upon the Ecclesiastical Jurisdiction Of the King 's of ENGLAND IT is obvious enough to judicious and intelligent Persons by what unhappy Circumstances it comes to pass that one great Mean of our Preservation seems at present in a manner hid from our Eyes But since Experience is said to be the Mistress of Fools it is hoped that at least in this our Day we may see the things that belong to our Peace Luke 19.42 and remember that the reason why the Ostrich leaveth her Eggs in the Dust Job 39.13 14 15 17. forgetting that the Foot may crush them is because God hath deprived her of Wisdom neither hath he imparted to her Vnderstanding If Interest or Ambition have swayed with some of us Prov. 22.28 as far as in them lay to remove the antient Land-Marks which our Fore-Fathers have set Josh 7.19 let such give Glory to God and take Shame to themselves In the mean time what effect soever these ensuing Papers may have upon our Friends at least let our Adversaries see that there is a Remnant left in Israel 1 Kings 19.18 that have not bowed their Knees to Baal An Arch-Bishop may tell us The Legality of the Ecclesiastical Commission defended pag. 6 7. that the King may take what Causes he pleases to determin from the Determination of the Judges and determin them himself and that it is clear in Divinity that such Authority belongs to the King by the Word of God. But as we are not to receive even the Word of God it self under the Sanction of a Human Law from the Mouth of an Arch-Bishop or from the whole Body of the Clergy much less are we bound to submit to any Courtly Glosses upon that Sacred Text concerning the Power of Kings whose Authority as we suppose it to be grounded wholly upon Municipal Laws so we know the Law to be a better Foundation and a better Security than any imaginary Authority pretended from Scripture And if the Defender would have observed what the Lord Coke in the Presence and with the clear consent of all the Judges and Barons of the Exchequer Coke 12. Rep. pag. 63 64 65. answered upon that occasion before the King himself both from Reason and Authority he would have silenced the Arch-Bishops Divinity and saved me the trouble of taking notice of that part of his Discourse It was their Opinion that the King could not in Person adjudge any Case Which they confirm with such Reasons and Authorities from judicial Records and Acts of Parliament that it seems very imprudent in the Defender to urge that as an Authority which received so solid so learned and so honest an Answer Judges and Serjeants may entertain themselves with what Discourse they please post prandium Legality of c. defended pag. 10 11. Coke 12. Rep. pag. 19 c. and in their mooting upon one extrajudicial Point may talk of another by the by and if one of the Company put this transient Discourse into Paper so that afterwards it gets into the Press Good God! what condition are we come into when Tablechat must be obtruded upon us for Law To go a little further Judges in Courts of Justice may pretend to resolve what Points of Law they please but if their Resolutions are not pertinent to the Matter depending before them in Judgment and necessary for the deciding it such Resolutions go for nothing because the Judges had no Authority so to resolve And I am fully assured that this Point Legality of c. defended Pag. 8.9 Coke 5. Rep. Cawdry's Case viz. Whether any King or Queen of England for the time being might issue an
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
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
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
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
bound by the settling or determining any point of Religion any where else than by themselves in Parliament then at least the power of settling and determining Points of Doctrine and Practice either is no part of the King 's Ecclesiastical Supremacy or is not personal But must be exerted in Parliament In the British times Bishopricks were conferred in Parliament Petivit Rex Arthurus Eboracum instantis Natalis Domini Festum celebraturus Cumque urbem intrasset visa Sacrarum Ecclesiarum desolatione condoluit Expulso namque beato Samsone Archiepiscopo cunctisque sanctae Religionis viris Templa semi-usta ab officio Dei cessabant Tanta etenim Paganorum insania praevaluerat Exin convocato Clero Populo Capellanum suum Metropolitanae sedi Destinat Ecclesias usque ad solum dirutas renovat Atque Religiosis caetibus Virorum Mulierum exornat Galfrid Monumeth lib. 9. cap. 8. Here King Arthur in an Assembly of his Clergy and People makes an Arch-Bishop restores ruinous Churches and replenishes Monasteries with Monks and Nuns If a Judge or a Lawyer should say tho' he took along with him the concurrence and assistance of his Parliament yet he might have done all this by his Prerogative without them I must insist upon proof of such Prerogative If a Divine tells me that by the Law of God such Prerogatives belong to Princes for that the Power of the Prince is Superior to that of the Law not given by Law but from God then cannot I comprehend how our Churchmen can value themselves upon their being Established by Law if they acknowledge a Power upon Earth above the Law. But if it shall appear by what follows that till the Reign of King John Arch-Bishopricks Bishopricks and other Ecclesiastical Dignities were conferred in and by the Parliament then will a common mistake appear to run through many of the Books of Law wherein we frequently read Cr. Jac. 553 554. Ro. rep 2d part 130. Sir John Dav. rep that before his time they were donative and conferred by the King Per Traditionem annuli baculi Confounding the Election with the Investiture and ascribing that to the King solely which was the Act of the King and Parliament Bishop Vsher in his Antiqu. p. 63. Britan. Eccles Gives us other Instances of Bishops Elected in Parliaments or Great Councils Postquam praedicti senioris Germanus Lupus Pelagianam Haeresin extirpaverant Episcopos pluribus in locis Britanniae consecraverunt Super omnes autem Britannos dextralis partis Britanni beatum Dubricium summum Doctorem à Rege ab omni Parochia Electum Archiepiscopum consecraverunt Hac dignitate ei à Germano Lupo data constituerunt ei Episcopalem sedem concessu Regis Maurici Principum Cleri Populi apud Podium Lantavi Addit Galfridus ab eodem Dubricio Vrbis Legionum tunc Archiepiscopo Arthurum Regni Britannici diademate insignitum eundemque Dubricium in Curia illa magna quam apud urbem legionum Arthurus tenuisse dicitur in eremiticam vitam anhelantem sese ab Archiepiscopali sede deposuisse Eodem tempore Davide procurante Meneviam Metropolitanae sedis factam esse translationem refert Giraldus Cambrensis postea in Breviensi Synodo confirmatam In illâ scil Synodo magnâ omnium Episcoporum Abbatum totius Cambriae nec non Cleri Universi una cum Populo Collecta propter Pelagianiam Haeresin that Doctrin it seems revived tho it had been publickly over-ruled ubi unanimi totius Conventus tam Electione quam Acclamatione quanquam invitus renitens David in Archiepiscopum est sublimatus Usher Britan. Antiqu. pag. 64. Now if in the times of the Britains the People assembled in the Common Councils of the Nation had decisive Votes in Controversies of Religion in the Election of Arch-Bishops and Bishops if by their Authority ruinous Churches and Houses of Religion were repaired and furnished with Monks and Nuns Bishops Sees founded and translated if in those Assemblies Resignations of Bishopricks were made c. Then we may reasonably conclude that the Supremacy commonly so called was lodged and vested just where the Legislative Power in Temporal Matters resided to wit in the King 's together with their Commune concilium Regni But the first is true as appears by the foregoing Authorities Ergo c. Nor was it peculiar to this Nation V. Dr. Burnet's History of the Rights of Princes in the disposing of Ecclesiastical Benefices c. to have the People chuse Bishops It was the Universal Practice of all Christendom for many hundred years as is notoriously known to all that read any History In the second place I will exhibit a very few Instances of the Saxon Times during the Heptarchy The Reader may consult many more at his leisure No marvel if we find this People submitting to nothing in Religion but what was ordain'd by themselves Tacitus de moribus Germanorum cap. 11. De majoribus omnes was one of their Fundamental Constitutions before they came hither and it is continued here to this day And Matters of Religion were amongst their Majora even before they received Christianity Accordingly Edwin King of Northumberland Vid. Bed. Eccl. Hist Lib. 2. Cap. 13. Huntington Lib. 3. Pag. 188. habito cum sapientibus concilio renounced his Paganism and he and they embraced the Christian Faith. This is described in Bede and Huntington to have been done in such an Assembly of Men as the Parliaments of those days are generally mentioned to consist of After the Christian Religion had spread amongst the Saxons the Bishops and Clergy frequently held Synods without the Laity for Church-Visitation Vid. Spelm. Conc. ubique and made constitutions for the Regulation of the Clergy which they obeyed and submitted to by reason of their Oath of Canonical Obedience But as nothing transacted in those Assemblies of the the Clergy bound the People so can no instance be produced of the Clergy's being bound by any Act of the King not assented to in the Provincial Synods of those Times But the Clergy themselves both as to Doctrin Discipline and Ceremonies were bound by the publick Laws of the Kingdom enacted in the Great Councils of the Nation In the year 673 Matt. West pag. 122 123. Concilium Herudfordiae celebratum est sub initio primi anni Lotharii Regis Cantiae Praesidente Theodoro Cantuariae Archiepiscopo At this Council says Matthew of Westm were present Episcopi Angliae Reges Magnates Vniversi Where Theodore proposed decem capitula out of a Book of Canons before them All which were there Assented to and Subscribed The first was concerning the observation of Easter the ninth that the number of Bishops should be encreased crescente fidelium numero The rest were concerning Bishops Bishopricks Monks Marriage Fornication c. Spelm. Council Vol. 1. pag. 152 153. The Presence of the Bishops and all the Magnates makes this Assembly appear to have been a Parliament of
and goes no higher And since there were no such Commissions of Charitable Vses before that Statute therefore the Statute being introductive of a new Law must be pursued and where the Statute does not provide a Remedy there is none Now the Statute of 24 H. 8. cap. 12. and 25 Hen. 8. cap. 19. So far forth as they concern Appeals are for the most part introductive of New Laws too And the latter of them gives Appeals to the King in Chancery which never lay before And therefore as the Act gives them he ought to take them and no otherwise for the Act is his title and it has negative words But the Lord Coke's Error in ascribing that Power Jurisdiction and Authority to the King in person which was ab origine in King Lords and Commons runs through almost all that he has written upon that Subject And our Lawyers who look upon him as an Oracle for his Learning and Judgment in the Controversial profitable part of the Law in which he was unquestionably a very great Man follow him blind-fold in some mistakes They study Resolutions of Judges in cases of Property and till of late have gone by that lazy rule that the latest authorities are the best So they forget Antiquity and hardly cast their thoughts further backward than Dyer and Plowden Those of them that are more inquisitive go as high as to the Quadragesms and Book of Assizes But the Government is not so much beholden to them as were to be wisht They deserve worse of it than other Men for it being the only honour of their Profession to support it by understanding and asserting it and the natural bent of their Studies carrying them into it their narrow Spirits private Interests Et illud quod dicere nolo prevail with too many of them to betray it by neglecting it The Lord Coke's second Reason for a Commission of Review to examine a definitive Sentence given by the Delegates is because the Pope as Supreme Head by the Canon Law us'd to grant a Commission ad revidendum and such Authority as the Pope had claiming as Supreme Head doth of right belong to the Crown and is annexed thereunto by the Statutes of 26 Hen. 8. cap. 1. and 1 Eliz. cap. 1. And so it was resolved says he in the King's Bench Trin. 39 Eliz. You see the English on't is the King may do so because the Pope did so for the Pope was Supreme Head then or claimed to be so and the King is acknowledged to be so now This pretended Translation of the Pope's Power to the King is another fiction that has contributed exceedingly to raise the Supremacy in some Mens Imaginations But it will appear by running through the several Acts made in King Henry the Eighth's King Edward the Sixth's and Queen Elizabeth's Reigns concerning Religion and Church Government that no Power given to the King or acknowledged to be in him has any respect or relation whatsoever to the Pope's pretended Power heretofore exercised The Pope's Power was abolish'd and abrogated Stat. 28. Hen. 8. cap. 10. The Ancient Jurisdiction of the Crown which by the Common Law and Fundamental Constitution of our Government was inherent in it was restored only some branches of it put into another method of Administration And that by the Supreme Power of the Nation from whose Authority and Jurisdiction nothing within this Kingdom is exempted That such Authority as the Pope had does of right belong to the King he would prove by the Statutes of 26 Hen. 8. cap. 1. 1 Elizabeth cap. 1. The first of which to wit that of 26 Hen. 8. cap. 1. was repealed long before the Case in 39 Eliz. came in question and consequently is there alledged to no purpose As for the Second that of 1 Eliz. cap. 1. how far that goes we shall have occasion to enquire hereafter when we come to it in order of time He gives us a Corollary viz. that upon a Sentence given by the High Commissioners a Commission of Review may be granted by vertue of an express Clause in the Commission and if no such Clause had been says he yet a Commission of Review might have been granted Quia sicut fontes Communicant aquas fluminibus cumulativè non privative sic Rex subditis suis Jurisdictionem communicat in causis Ecclesiasticis vigore Statuti in ejusmodi casibus editi provisi cumulativè non privativè by construction upon that Act. But a Commission of Review upon a Sentence given by the High Commissioners is not now disputed The High Commission was erected long after the 25 Hen. 8. And consequently a Review of their Sentences which it seems some construction upon that Act gave colour for was not provided against by that Statute But by what Law a Review should be granted of a Sentence given by the Delegates which by the Act is to be Definitive I am yet to seek I would fain know whether a Cause determined by Virtue of this Act in the Vpper House of Convocation for there Ecclesiastical Causes in which the King himself is concerned are to be definitively determined may be drawn in question ever after before Commissioners ad revidendum or not And if not why is a Sentence of the Delegates liable to be examined any more than that Do these Men really believe that the Judicial Authority of the Nation is by the Law lodg'd in the King's Person What means then the Act of 16 Car. 1. cap. 10. That neither his Majesty nor his Privy Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other Arbitrary Way whatsoever to examine or draw in question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any the Subjects of this Realm but that the same ought to be tryed and determined in the Ordinary Courts of Justice and by the Ordinary Course of Law. If it be said the King appoints the Judges and hath formerly sate in the King's Bench in Person For his appointing the Judges since the time is known when it was otherwise that cannot be urged as a Perogative originally inherent in the King That our Kings have sometimes sate in the King's Bench in Person I yield and will agree to all the Inferences that can be drawn from it do but allow me which cannot be deny'd that Writs of Error lye from the Court of King's Bench and Appeals out of Chancery whoever sits there before the Lords in Parliament who whether the King be present or absent agreeing with or disagreeing from the Sense of the House affirm or reverse the Judgments and Decrees as they see Cause And were it not more honourable to ascribe no Judicial Power at all to the King in Person than to make him Judge of an Inferior Court. But you 'l find that our Kings never sate in the King's Bench or the Starr Chamber Juridically The Courts gave the Judgments
his Heirs and Successors by Commission under the Great Seal to be directed to such persons as shall be appointed requisite for the same c. This Act of Parliament having abrogated the Pope's Power here in England those places that had been exempt from ordinary Jurisdiction would naturally have fallen back within the Visitation of the Diocesan I mean such places as had been exempt by vertue of any Bulls Licences or Dispensations from Rome only if it had not been especially and expresly provided that nothing in the said Act should be taken nor expounded to the derogation or taking away of any grants or confirmations of any Liberties Priviledges or Jurisdiction of any Monasteries Abbies Priories or other Houses or places exempt which before the making of this Act have been obtained at the See of Rome and if the Visitation of them by Commission under the Great Seal had not been provided for In the next Year Ann. 26 H. 8. The Statute was made which enacts that the King our Soveraign Lord his Heirs and Successors Kings of this Realm shall be taken accepted and reputed the Only Supreme Head on Earth of the Church of England called Anglicana Ecclesia and shall have and enjoy united and annexed to the Imperial Crown of this Realm as well the title and stile thereof as all Honours Dignities Preheminences Jurisdictions Priviledges Authorities Immunities Profits and Commodities to the said Dignity of Supream Head of the same Church belonging and appertaining What was then meant understood recognis'd c. by the word Supreme Head will appear by these following Considerations First that the recital of the Act shews they intended not by that recognition to invest him with any new Power For they recite that the King's Majesty justly and rightfully is and ought to be the Supreme head of the Church of England and so is recognised by the Clergy of the Realm in their Convocations yet nevertheless for corroboration and confirmation thereof c. So that this Act so far forth as it gives or acknowledges the Title of SUPREME HEAD is but Declarative And consequently they that upon this Act ground a Translation of the Pope's Power by the Canon-law to the King utterly mistake the matter For our King 's Ecclesiastical Jurisdiction was not grounded upon the Canon Law but the Common Law of the Realm it was a Native of our own and not of any foreign extraction Secondly That this Supreme Head-ship of the Church consists only in his being Supreme head of that Church of England which then was called Anglicana Ecclesia and who they were appears First by the Statute of 24. Henr. 8. cap. 12. aforementioned The body Spiritual whereof of the Realm of England having Power when any Cause of the Law Divine happened to come in question or of Spiritual Learning that it was declared interpreted and shew'd by that part of the said body Politick called the Spiritualty now being usually called the English Church So that the Spiritualty are the Ecclesia Anglicana of whom the King is here declar'd the supreme head Secondly It appears by the Recognition of the Clergy who having no Authority to declare a Supreme Head in Ecclesiastical matters for the Laity did but by that Submission acknowledge themselves to be to all intents and purposes the King's Subjects and not the Pope's But Thirdly This same Parliament in this very Session tells us that the King had of right always been so It is in the third Chapt. for the payment of first-fruits to the King. The words are Wherefore his said humble and obedient Subjects as well the Lords Spiritual and Temporal as the Commons in this present Parliament Assembled c. do pray that for the more surety continuance and augmentation of his Highness Royal estate being not only now recognis'd as he always indeed hath heretofore been the only Supreme Head in Earth next and immediately under God of the Church of England but also their most assured and undoubted natural Lord and King having the whole Governance of this his Realm c. They tell him That he was not only the Supreme Head of the Church of England but their viz. the Temporalties Lord and King so that he had the Governance of the whole Realm and Subjects of the same What can be more plain than first That by Supreme Head of the Church of England was meant the Supreme Head of the Spiritualty which was necessary to be recogniz'd because they had acknowledged formerly another Supreme Head. Secondly That they gave no new Power by that word since they tell us that indeed he had always been so And Thirdly That his Supremacy consists only in a power of Governance Fourthly This title of Supreme Head does not give the King any power of dispensing with Acts of Parliament in Matters of Religion or Ecclesiastical Affairs whatsoever That power was never yielded to the Pope himself during that whole time that he was uncontroulably submitted to as Head of the Church That power they complain of in the Act of 25 H. 8. cap. 21. as an Vsurpation an Abuse a Cheat. They declare it to be in the King and themselves Fifthly Dr. Burnet in his History of the Reformation p. 142 143. First Part has these words But at the same time that they pleaded so much for the King's Supremacy and power of making Laws for restraining and coercing his Subjects it appears that they were far from vesting him with such an absolute Power as the Popes had pretended to for they thus defined the extent of the King's Power Institution of a Christian Man. To them speaking of Princes and Magistrates specially and principally it appertaineth to defend the Faith of Christ and his Religion to conserve and maintain the True Doctrine of Christ and all such as be true Preachers and setters forth thereof and to abolish Heresies Abuses and Idolatries and to punish with corporal pains such as of Malice be the occasion of the same And finally to oversee and cause that the said Bishops and Priests do execute their Pastoral Office truly and faithfully and speally in these Points which by Christ and his Apostles were given and committed to them and in case they shall be negligent in any part thereof or would not diligently execute the same to cause them to double and supply their lack and if they obstinately withstand their Prince's kind monition and will not amend their faults then and in such case to put others in their rooms and places And God hath also commanded the said Bishops and Priests to obey with all humbleness and reverence both Kings and Princes and Governors and all their Laws not being contrary to the Laws of God whatsoever they be and that not only propter iram but also propter conscientiam Thus it appears that they both limited obedience to the King's Laws with the due caution of not being contrary to the Law of God and acknowledged the Ecclesiastical Jurisdiction in discharge of the