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 Ʋnderstanding.

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. [Page 3]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 [Page 4]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 [Page 5]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 [Page 6]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 [Page 7]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 [Page 8]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 [Page 10]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 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. Cum (que) 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 [Page 11]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: [Page 12]Confounding the Election with the In­vestiture, and ascribing that to the King solely, which was the Act of the King and Parliament.

Bishop Ʋsher 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 Ʋr­bis Legionum tunc Archiepiscopo Arthu­rum Regni Britannici diademate insigni­tum; eundem (que) (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: [Page 13] & 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 [Page 15]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 Ʋniversi: 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 [Page 16] 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 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, [Page 17]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, [Page 18]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 [Page 19]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 [Page 20]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. [Page 21]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 being assembled, Singulis tri­bubus Gervisiorum (West-Saxonum) Sin­gulos constituerunt Episcopos, & quod olim duo habuerunt in quinque diviserunt. Spelm. Conc. 387, 388.

The Ecclesiastical Laws of King Ed­ward the Elder and Guthrune the Dane, begin with this Proaemium: Haec sunt Senatus consulta ac instituta, quae primò Aluredus & Guthrunus Reges, deindè Edwardus & Guthrunus Reges, illis ipsis temporibus tulêre, cum pacis faedus Daci & Angli ferierunt. Quaeque postea à sapi­entibus (Tha Witan) saepiùs recitata at­que ad Communem Regni utilitatem aucta atque amplificata sunt. The Titles of some of these Laws are, De Apostatis, De Correctione Ordinatorum, (i.e.) Sacris initiatorum, De incestu, De jejuniis, &c. All of Ecclesiastical Cognisance, or at least of After-times so reputed. These are called Senatûs Consulta, than which a more apposite Word could scarce have [Page 23]been used for Acts of Parliament, and were assented to by the Wyten; from which Word the Saxon term for Parlia­ments, Wytena Gemot, is derived. Spelm. Conc. 390, &c.

A Concilium Celebre was held under King Athelstane, in quo Leges plurimae, tum Civiles, tum Ecclesiasticae, statueban­tur. It's true, the Civil Laws are o­mitted; and Sir Henry Spelman gives us an account only of the Ecclesiastical Laws made at this Assembly, which conclude Decreta actaque haec sunt in cele­bri Gratanleano Concilio, cui Wulfelmus interfuit Archiepiscopus, & cum eo Op­timates & Sapientes ab Athelstano evo­frequentissimi. Spel. Conc. p. 396, &c.

King Edmund held a Council An­no 944, where many Ecclesiastical as well as Secular Laws were made, as, De vitae castitate eorum, qui Sacris ini­tiantur, De fani instauratione, De peje­rantibus, De iis qui barbara factitârunt Sacrificia, &c. And this Council is ex­pressed to have been Conventus tam Ec­clesiasticorum, quam Laicorum; celebris tam Ecclesiasticorum quam Laicorum frequentia. Spelm. Conc. p. 419, &c.

I will give no more instances before the Conquest, tho numbers are to be [Page 24]had which lye scattered up and down in the Monkish Histories; and being compared with one another, will suffi­ciently disclose what I assert. For some­times Laws that concern Temporal Af­fairs, as well as Ecclesiastical, are said to have been made by such or such a King in one Author; which very Laws another Historian tells us, were made in the Great Council; which yet they have no Uniform, appropriated Expres­sion, Term or Denomination for: Just as we in common Parlance say, King Edward the Third, or King Henry the Seventh, made such or such a Law; which yet every Man understands to have been made in Parliament, because else it were not a Law.

That Bishopricks and other Ecclesia­stical Dignities, For the Electi­on of Wulstan Bishop of Worc. Temp. Edw. Confess. v. Matt. Paris. p. 20. That in his E­lection there concurr'd Ple­bis Petitio, Vo­luntas Episco­porum, Gratia Procerum, Regis Authoritas. were in the Saxon times conferred in Parliament; we have the further Testimony of Ingulphus, who was Abbot of Crowland in King William the Conquerors Reign. A multis annis retroactis nulla erat electio Praelatorum merè Libera & Canonica: Sed omnes Dignitates tam Episcoporum quam Abba­tum Regis Curia pro sua complacentia conferebat. Ingulph. Hist. Fol. 509. b.

Concerning Appeals in Ecclesiastical Causes, I shall say more in the next Di­vision: Only here it will be proper to insert, that the Constitutions of Cla­rendon, one of which is expresly con­cerning Appeals, are said to contain the Avitae Consuetudines Regni. Malmesbur. de gestis Ponti­ficum Anglor. Lib. 3. And William of Malmesbury relates a remarkable Sto­ry of Wilfrid Archbishop of York, whose Archbishoprick being divided by the Common Council of the Northumbrian Kingdom, into four Bishopricks; he appealed to the Pope, who wrote Letters to the King in his behalf; upon the re­ceipt of which, the King told the Le­gates, Se quidem Legatorum Personis ho­norem ut parentibus deferre; caeterùm assensum legationi omninò abnuere, quod esset contra rationem homini jam bis à toto Anglorum Concilio damnato, propter quaelibet Apostolica Scripta, communicare. This shews, that tho a Prelate thought the Pope's Authority might stand him in stead, yet the Nation acknowledg­ed no Foreign Jurisdiction, and that the Supreme Judicature here from which the Archbishop appealed, was that of the Parliament and not of the King.

The Power of dispensing with Laws concerning Church Matters, could not be a Personal Perogative in the King in these days; for Dispensations were not born till Two hundred years after the Conquest; as will appear hereafter.

The fourth Period of Time shall be from the Norman Entrance, down to the Reign of King John: In this time it was, that the Ecclesiastical Jurisdiction of the Crown suffered a Rape, and that four very considerable Branches were cut off. By this time the Pope had shaken off his Dependance upon the Empe­ror; the Laity were excluded from vo­ting in his Election: And the Game plaid at Rome, was, by setting the Clergy in a state of Exemption from Temporal Laws, as to their Persons and Possessions; and excluding the Laity, King's them­selves as well as Parliaments, from Ec­clesiastical Power, to govern Mens Con­sciences first, and then all they had, di­rectly or indirectly. But this was a work of Time, and could not be effected but by degrees.

King William the First, made one step this way, by dividing the Spiritual and Temporal Courts; without which per­haps it had been impossible for the [Page 27]Canon Law to have broken in upon us.

But yet in his time, tho he was cer­tainly in the sense of his Great Council, Lambard de priscis Anglo­rum Regibus. p. 138, 142. & Hoved. p. 345. as much Head of the English Church as a­ny of his Predecessors were, or his Suc­cessors are by Law; for he was decla­red to be Vicarius summi Regis, ad hoc constitutus ut Regnum terrenum & Popu­lum, Domini & super omnia, Sanctam ve­neretur Ecclesiam ejus, & regat, & ab in­juriosis defendat, & maleficos ab eâ evellat, & destruat, & penitus disperdat: Quod nisi fecerit, nec Regis nomen in eo consta­bit. Yet in his time (I say) a Personal Supremacy, independant of the Great Council of the Nation, was never pre­tended to: For he reformed the Eccle­siastical Laws and Canons of the Church, no otherwise than de Communi Consilio Archiepiscoporum, Episcoporum, Seld. Not. & Specileg. ad Eadmer. p. 167 Lamb. de pris­cis Anglor. Le­gib. p. 158. Abba­tum & omnium Procerum Regni sui, &c.

Nor was this the Constitution of the English Church only: Ordericus Vita­lis, Folio 552. gives us a remarkable In­stance out of Normandy of the same plat­form there.

Rex Guillielmus in Festo Pentecostes Anno ab Incarnatione Domini 1080. apud Illebonam resedit, ibi (que) Gulielmum Archi­episcopum [Page 28]& omnes Episcopos & Abbates Comites (que) cum aliis Proceribus Norman­niae simul adesse praecepit: ut Rex jussit factum est. Igitur 8. Anno Papatus Do­mini Gregorii Papae 7. Celebre Concili­um apud Jullam bonam Celebratum est. Et de Statu Ecclesiae Dei totius (que) Regni Providente Rege cum Baronum suo­rum consilio utiliter tractatum est. Then he inserts the Laws made there, all concerning Ecclesiastical Matters.

In the next Reign, that of King William Rufus, there was a Schism in the Popedom between Clement and Ʋr­ban: Anselme whilst he was Abbot of Bec in Normandy, had Sworn Obedi­ence to Ʋrban: and being Elected Archbishop of Canterbury, desired leave to go out of the Realm to fetch his Pall from him. This the King opposed (for that Ʋrban had not been received for Pope in England) and told the Arch­bishop, he could not keep his Fealty to him (his Prince) saving the Obedience, which he owed to Ʋrban. Anselme up­on this referred himself to the Judg­ment of the Archbishops, Bishops, Pro­ceres, &c. in Parliament, who accord­ingly were Convened at Rochingham, Ex Regia Sanctione; and the matter [Page 29]discussed before them. If the Arch­bishop had had any Notion of a Personal Supremacy in the King, separate from, and independant of the Great Council of the Realm, it had been absurd in him not to acquiesce in the King's Judgment, but Appeal to a Parliament. If the King himself had been possessed with an opinion of any Legislative or Supreme Judicial Power in Ecclesiastical Matters, lodged in his Person, he would never have consented to call a Parliament to determine a cause which himself, as far as in him lay, had determined already. The History may be read at large in Eadmer. Hist. Nov. Lib. 2 page 24, 25, 26, &c.

In King Henry the First's time, Anno Dom. 1102. A Council was held at London, in which at Anselm's request to the King, the Laity were present, Quatenus quicquid ejusdem Concilii au­thoritate decerneretur utrius (que) Ordinis curâ & sollicitudine, ratum servaretur. Sic enim necesse erat. Quum multis re­tro annis Synodali culturâ cessante, viti­orum vepribus succrescentibus, Christia­nae Religionis fervor in Angliâ nimis te­puerat. This is a clear Testimony that the Assent of the Laity was necessary to [Page 30]the Enacting such Ecclesiastical Laws, as they were to be bound by: And that neither the King by his Prerogative, nor the King and the Clergy could impose a­ny Constitutions upon them without their Assent, Eadmer. Histor. Nov. Lib. 3. Will. Malmesb. De Gest. Pontif. An­glor. Lib. 1. p. 129.

But tho' the King could not make Laws Himself, could he not permit a Legate to exercise his Legatine Power here? King Henry the Eight indeed per­mitted Wolsey to exercise his Office here, and afterward brought the whole Clergy under a Premunire for submitting to him, and owning his Authority. But the Statutes of Praemunire were then in being. Could not our ancient Kings, that Reigned before any Act of Parliament now upon Record was ex­tant, they that must needs have had all the inherent Prerogatives that are invol­ved in the Notion of Imperial Soveraign­ty, Doctor Hicks. they that understood their power somewhat better perhaps than it is now understood, because they lived nearer to the creation of it, and exer­cised it before it was sophisticated; could not they (I say) by vertue of their Ecclesiastical Supremacy, permit the [Page 31]Popes Legate to domineer a while with­in the Realm? Why, King Henry the First was very well satisfied that himself had no such power: For when Petrus Monachus Cluniacensis was sent hither by Calixtus the Pope, to exercise his Office of Legate within this Realm, the King would not suffer him so much as to Lodg upon the Road in any Religious House: And when he came into his presence, and had told him his Errand, Rex obtensâ expeditione, So Anno Dom. 1225. Magister Otto, Domini Papae nuncius, in Angliam ve­niens, promag­nis Ecclesiae Rom. negotiis, Regi literas praesentavit, sed Rex cognito li­terarum teno­re, Respondit, quod solus non potuit definire, nec debuit, ne­gotium quod omnes Clericos & laicos totius Regni tange­bat. Matth. Pa­ris. p. 325. in quâ tunc erat (nam super Walenses eâ tempestate exer­citum duxerat) dixit se tanto negotio o­peram tunc quidem dare non posse, cum Legationis illius stabilem authoritatem non nisi per conniventiam Episcoporum, Abbatum & Procerum ac totius Regni Conventum roborari posse constaret. E­admer Hist. Nov. p. 138. And so the Legate went back as he came. He tells it him as a known, truth (Constaret) that the giving him leave to exercise his Office here, was too great a work for him to go about (as his affairs then stood) for that it could not be done, but in and by the Parliament. If the Par­liament had not a share in the Ecclesia­stical Jurisdiction, how came their As­sent to be necessary? If they had, when [Page 32]did they lose it? If the King's Suprema­cy was personal, why might not he (if he would) have licensed him himself? If it was not personal then, but is so now; then do not assert over and over that the late Acts of Restitution are all declarative, and give no new power. If the Pope's power de facto exercised, be translated to the King, shew the con­veyance.

This same King in a Letter to Pope Paschall about Investitures, tells him that if himself should be so mean (in tantâ me dejectione ponerem) as to part with them, yet Optimates mei, imò to­tius Angliae Populus id nullo modo pate­retur. Decem Scriptores 999. The Investitures were performed by the King in person, but subsequent to an E­lection by the Parliament; and yet the Parliament were so concerned in them, that they were not, nor could be part­ed with, but by an Act of Parliament: Which accordingly ensued, notwith­standing the King's resoluteness at first; for when Anselme came from Rome, the King was perswaded to with-draw his claim, and it was granted in a Parlia­ment held at London; Astantibus Archi­episcopis, caetera (que) multitudine maxima [Page 33]Procerum & Magnatum, ut ab eo tempo­re in anteâ nullus electus per dationem Ba­culi pastoralis vel Annuli de Episoopatu vel. Abbathia investiretur per Regem vel aliam quamcun (que) personam secularem. Ibid. Et Sim. Mon. Dun. 228, 229, 230.

But tho' Investitures were lost, Ele­ctions remained as they were (at least of right) till King John's time. Concessit Rex Johannes libe­ras in omnibus Ecclesiae Angli­canae electiones, Matth. Par. p. 262, 263. The Charter it self, which was cer­tainly an Act of Parliament. See Presidents of many Bishops and Abbots Elected in Parliament in the Reigns of King Stephen and King Henry the Se­cond. In Spelm. Conc. Second. Part. p. 42 & 119.

Innumerable are the instances of Ca­nons and Constitutions made in the Reigns of the first Norman Kings in their Great and General Councils, concerning Churchmen and Church Matters: Which any one may have recourse to in Spelm. Concil. Eadmer. Hist. Mat. Paris. and o­thers.

In the beginning of King Henry the Second's Reign, there was another Schism in the Popedom between Ale­xander and Victor, upon which a great Council of Clergy and Laity out of the Kingdoms of England and France met to determine, whether of the two should [Page 34]be acknowledged Pope within those Realms. The matter was debated in Conspectu Regum & Praesulum, coram u­niversâ, quae convenerat, multitudine Cleri & Populi. And Alexander was received for Pope, and the Schismaticks Excommunicated. The History is in Nubrig. Lib. 2. c. 9.

Pursuant to which President, when there hapned in King Richard the Se­cond's time to be another Schism in the Papacy, and Act. of Parliament was made, to declare who should be received Pope in England; and a Law made for punish­ing any of the Clergy that should ac­knowledge the other Pope. Vide Catt. Records, Ann. 2. Rich. 2. p. 180.

What thing can be more purely Ec­clesiastical, than the determining who it lawfully chosen to be the Ʋniversal Bishop? And yet neither the King, nor the King and the Clergy would settle the point without the Laity.

By what has been said it appears, That the Ancient Supremacy, of the Kings of England in Ecclesiastical Matters, was a very different thing, not so much from what it is now by Law, as from what it is apprehended to be by many amongst us. The Error is fundamental, and [Page 35]consists in ascribing Things, Acts, Powers, &c. to the King in person, which belonged to, were done and ex­ercised by him no otherwise, than in his Courts. Appeals are said to have been to the King at Common Law: And so an Abridgment of Law has it; so Fox, Rolls, cap. 8. vid. Chron. Gerv. p. 1387. Speed, and others. And the Authority quoted is the Assize of Clarendon, which in one Chapter directs that Appeals shall be from the Bishop to the Arch­bishop; from the Archbishop to the King.

But another Act of Parliament made about 12 years after clears the matter. Sir Roger Twisden. For in the mean time Becket was Mur­dered, and King Henry the Second be­ing put to hard Pennance for it, part of his satisfaction was, that he should a­gree not to hinder Appeals to Rome in Causes Ecclesiastical, Mat. Paris p. 126. yet so as the party going was to give Security that he would not endeavour Malum Regis nec. Regni. But within Four Years af­ter, the Nation Assembled in Parlia­ment would not quit their interest: But the Assize of Clarendon was again renewed, and a more close expression used concerning Appeals, and such per­sons as had prosecuted any; Justitiae [Page 36]faciant quaerere per consuetudinem terrae, illos qui à Regno recesserunt, & nisi redire voluerint infra terminum nominatum, & stare Juri in Curiâ Domini Regis, utla­gentur, &c. This Gervas. Dorobern. (who well understood it) tells us, was but renewing the Assize of Clarendon: Rex Angliae Henricus, convocatis Regni Pri­moribus apud Northamptoniam, reno­vavit Assizam de Clarendon. Here we see, that such as were aggrieved by a Sentence given by the Archbishop, were, pursuant to the Statutes of Clarendon, not to appeal to Rome, but to the King: Which the Statute of Northampton, made but twelve years after, explains to be to the Curia Regis.

By this, and by what has been said before upon this Subject, it appears, that the ultimate Appeal in Causes Ecclesia­stical as well as Temporal, was to the Curia Regis or Parliament; and that, as the same Assemblies made Laws both for the Government of Church and State, so the Supreme Judicature Ecclesiastical and Temporal, was one and the same.

After that time Appeals were some­times prosecuted in the Court of Rome, that Statute and the Assize of Clarendon notwithstanding; but this was only by [Page 37]connivance. At last, when the Pope got the better of King John, who lay under great Disadvantages, as all our Historians tell us; and that in his Mag­na Charta these words were inserted: V. Matth. Pa­ris. Pag. 258. Liceat unicuique de caetero exire de Reg­no nostro, & redire salvò & securè per terram & aquam, salvâ fide nostra, &c. Then Appeals to Rome multiplyed for e­very little Cause, and the Master-piece of Papal Encroachments was wrought effectually.

But it cannot be too often incul­cated, that the Laws of Clarendon which gave the ultimate Appeal to the Curia Regis, as aforesaid, are so often stiled the Avitae Consuetudines Regni: Which shews sufficiently where the Supreme Judicature resided, according to our old Constitution.

It appears by what has been said, that King William the Conqueror was acknowledged to be God's Vicar, ap­pointed to govern his Church; and yet, that neither He nor his Successors pre­tended to make any Ecclesiastical Laws to bind the whole Kingdom, but in a General Council of the Kingdom: That the King's Supremacy was so far from be­ing Personal, that an Archbishop did as [Page 38]it were, appeal from himself in Person to himself in Parliament, and that the King submitted and owned the Jurisdicti­on: That the same Archbishop under­stood the Law to be, that the Assent of the Laity was necessary to the making of Ecclesiastical Laws, by which they were to be bound: That the King could not of his own Authority, permit a Legate to exercise his Office within the Realm: That leave to exercise his Of­fice could not be given him but in Par­liament: That the King could not part with Investitures if he would, without the Assent of the People: That Parlia­ments determined, who ought to be received as Pope within the Realm: That Appeals were to the Curia Regis, by the Avitae Consuetudines Regni: And that Bishops were elected in Parliament. Whence I conclude, that a Personal Supremacy has no warrant from An­tiquity.

The clearing the Antient Supremacy and stating the Matter aright, is of great use in this present Age; in which, as one sort of Men over-stock us with Jure Divino's, so the Lawyers accost us often with the Common Law, and the King's Perogative at Common Law; and [Page 39]that this and the other Act is but de­clarative of the Common Law, and gives the King no new Power. And yet, as the Divines have little or no ground for their Jure Divine's; no more have the Lawyers in these Matters of the Supremacy, any thing to warrant their late Hyperbole's, but Shadows and Imaginations: They found a Power exercised by the Pope, which they had good reason to think injurious to the Crown; they had heard, that from the beginning it was not so: And thus far they were right. But how it was ex­ercised before the Court of Rome and the Clergy invaded it, they had forgot; it having been usurpt upon Four hundred years before they were born. For it is in vain to look for a true Scheme of the Antient Legal Supremacy at a nearer distance than from the Reigns of King John, King Richard the First, King Henry the 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 [Page 40]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 [Page 41]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 [Page 42]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 [Page 43]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 [Page 44]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, [Page 45]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 [Page 46]themselves to the Prelates, no more than their Ancestors had done. And in the 25. H. 8. cap. 21. They tell the King, That this his Grace's Realm, re­cognising no Superiour under God but on­ly his Grace, hath been and is free from subjection to any Man's Laws, but only to such as have been devised, made and ordained within this Realm, for the wealth of the same, or to such other, as by sufferance of your Grace and your Progenitors, the People of this your Realm have taken at their free Liberty, by their own consent, to be used amongst them, and have bound themselves by long use and custom to the observance of the some, not as to the Laws of any foreign Prince, Potentate, or Prelate, but as to the accustomed and anoient Laws of this Realm, originally establisht as Laws of the same, by the said sufferance, consent, and custom, and none otherwise. By those other Laws, not ordained within the Realm, they mean the Canon Law. For the Clergy extended the bounds of it daily, and always got ground. But the Sufferance and Cousent here spoken of, was not a bare tacit Submission to it by the People, but a Consent in Par­liament: Where they not only received [Page 47]foreign Canons into the body of our Municipal Laws, but also from time to time came to a Compremise with the Clergy, with respect to several Mat­ters, of which the Clergy claimed Cog­nisance, as appertaining to what they called. Spiritual Jurisdiction, First (For our Records of Parliament, yet extant, go no higher) by the Statute De Cir­cumspecte agati [...], but that would not sa­tisfie them. In King Edward the Se­cond's time they got Jurisdiction in ma­ny other Causes, as you may see in the Statute of Articuli Cleri. And in King Edward the Third's time they went yet farther; Nine new Points were gained, 25 Edw. 3. by the Statutum pro Clero. The Conusance of these Matters, which by these Statutes were left to the Clergy, belonged before to the King's Courts, as part of the Common Laws of the Realm, by which the King govern­ed his People, and which he admini­stred in his ordinary Courts of Justice, and by the ordinary proceedings of Law. And therefore before they were allowed to the Cognisance of the Ecclesiastical Courts by Act of Parliament, Prohibi­tions were granted.

The King's Right of Indul­gence, page 28. The granting of Prohibitions in these Cases, is urged by a late Author, as an instance of the King's Ancient Supremacy, and urged amongst other things, to prove a right in the King's Person to dispense with Civil Laws a­bout Ecclesiastical Matters. Whereas Prohibitions were granted then, no o­therwise than as they are now, to Spi­ritual and other Courts, when they ex­ceed the bounds of their Jurisdiction. When the Spiritual Jurisdiction broke in upon the Temporal, and the Ecclesi­astical Courts assum'd an Authority in Cases not allowed by the Laws of the Realm, to be within their Cognisance, this was an Offence against the King's Crown and Regality (as the Statutes of Premunire run) and Contra Coronam & Dignitatem Regis, as the forms of some Prohibitions in the Register run, and yet the Kings Temporal Jurisdiction was not personal.

In this period of time it was that Dispensations brake forth. They began in King Henry the Third's time, which is not old enough to give the Crown a title to them by Prescription; for it is within the time of Memory. The Hi­story of their Nativity may be read in [Page 49] Matth. Paris. The Pope led up the Dance, taking upon him by Non Obstan­te's to revoke his own Grants, and to dispense with the Canons upon a pre­tence of some plenitudo potestatis or other, derived to him, as Pastor of the Ʋniversal Church by Succession from St. Peter. And Secular Princes Writ after his Copy in taking upon them to dis­pence with their own Penal Laws. Which before were religiously observed as the Laws of the Medes and Persians, Sir John Da­ries Case, De Commenda. which could not be dispensed with. And therefore a Canonist says that Dis­pensatio vulnerat jus commune. And a­nother says that all Abuses would be re­formed, Si duo tantum verba, viz. Non Obstante, non impedirent. And Mat­thew Paris, Anno Dom. 1246. having re­cited certain Decrees made in the Coun­cil of Lyons, which were beneficial to the Church of England, Sed omnia haec & alia (says he) per hoc repagulum, Non Obstante, infirmantur, Dav. Rep. 69, 70. &c. Secular Princes, it seems, had not learnt that part of their Prerogative, till they were taught it by their Ghostly Father. Nor could they well have any notion of it, since as Sir Henry Spelman tells us in his Glossary, tit. Assisa, Reges & [Page 50]Proceres in condendis Legibus earum o­lim jurabant observantiam. Hence Bra­cton calls the Laws of England Leges Juratas. Now the taking of an Oath to observe them, and the being allowed a power by Law to break them, seem to me very inconsistent things. It's ob­servable to this purpose what Bracton tells us concerning the Laws of Eng­land, Legis vigorem habet quicquid de Consilio & Consensu Magnatum & Reipub­licae Communi sponsione, authoritate Re­gis sive Principis praecedente, justè fuerit definitum & approbatum. So that a Sta­tute of the Kingdom of England is an Agreement betwixt all parties concern­ed: Which for any one of them to set aside, is against Natural Reason.

And Fortescue who was Lord High Chancellor of England in the Reign of King Henry the Sixth, cannot be sup­posed to have known of any such Prero­gative in the King, by the account that he gives us of the Solemnity of Enacting Laws here in England, and of the course that was to be taken when any of them were found by Experience to be inconvenient. Pag. 39, 40. Statuta tunc Angliae bona sunt necne, solum restat exploran­dum. Non enim emanant illa Principis solùm voluntate, ut Leges in Regnis, quae [Page 51]Regaliter tantum gubernantur, ubi quan­do (que) Statuta ità constituentis procurant commodum singulare, quod in ejus subdito­rum ipsa redundant dispendium, & ja­cturam. Quando (que) enim inadvertentiâ Principum hujusmodi, & sibi consulenti­um inertiâ, ipsa tam inconsultè eduntur, quòd corruptelarum potiùs quàm Legum nomina mereantur. Sed non sic Angliae Statuta oriri possunt, dum nedum Prin­cipis voluntate, sed & totius Regni assensu ipsa conduntur, quo Populi laesuram illa essicere nequeunt, vel non eorum commo­dum procurare. Prudentiâ enim & Sa­pientiâ necessariò ipsa esse referta putan­dum est, dum non unius, aut centum solùm consultorum virorum prudentiâ, sed plus­quam trecentorum electorum hominum, quali numero olim Senatus Romanorum re­gebatur, ipsa edita sunt. Et si Statuta haec tanta solemnitate & prudentia edita, efficaciae tantae, quantae conditorum cupi­ebat intentio, non esse contingant; con­cito reformari ipsa possunt, & non sine Communitatis & Procerum Regni illi­us assensu, quali ipsa primitùs emanarunt. A Power in the Prince to suspend Laws by whole-sale, is altogether needless in a Constitution wherein Concitò reforma­ri possunt, by the same Authority that [Page 52]made them. In Forty days time a Par­liament may be summoned to consent to what alteration they shall think fit to be made. And it is the constant pra­ctice observed to this day, that at the beginning of every Parliament a Com­mittee is appointed, to consider what Laws are inconvenient, and have need to be altered, continued or repealed. If the Parliament shall not think fit to make any alteration, the Laws must re­main in force, and ought to be put in execution, for there can be no Reforma­tion of them made Sine Communitatis & Procerum assensu. And the reason is, because by such assent Primitus emanâ­rant. The Repealing of a Law, or, which is all one, a total Suspension of a Law, is making a new Law, whatever quibbles and foolish distinctions may be pretend­ed to be made in the Case. Now the Laws of England do not oriri Principis voluntate, and rherefore a Repeal or to­tal Suspension of a Law grounded upon the voluntas Principis only, is not war­ranted by that model of the English Go­vernment, that Fortescue presents us with. He that asserts such a Power in the King to Suspend Laws Enacted by the Consent of the whole Kingdom, turns [Page 53]the Government of this Nation topsie turvie: Lord Chief Justice Herbert in Sir Edward Hales his Case. And makes the Laws of Eng­land indeed the King's Laws; contrary to the style of all Antiquity, of all Histo­ry, and contrary to the forms of Legal Proceedings even to this day; Lex terrae, and Leges terrae, Leges & Consuetudines Angliae, Leges Angliae, Statuta Angliae, & Assiza Regni, are known and com­mon Expressions: Leges Regis sounds harsh: the phrase is uncouth, because the Notion included in it, is false; nor was ever thought of by our Fore­fathers.

The Statutes of Praemunire and Pro­visors, and the method of dispensing with them before the Reformation, will abundantly disclose to us where the power of dispensing with Acts of Par­liament, even in Ecclesiastical Matters, was vested. In the 16th Year of King Richard the Second, the Archbishop of Canterbury declared the Causes of the Parliament: The second of which was, to provide some remedy touching the Sta­tute of Provisors, for eschewing debate betwixt the Pope and the King, and his Parliament, Cot. Records, p. 346.

King Richard needed not have put himself to the trouble of convening his Parliament, in order to provide a Re­medy in such case, if by the Law, as it was then understood, he might by his Perogative have dispensed with the Sta­tutes of Provisors, and all other Laws concerning Ecclesiastical Matters. In the 17th. R. 2. It was enacted in Par­liament, that Tydeman, late Abbot of Beawliew and Elect of Landaffe, by the Popes Provision, should enjoy the same Bishoprick, notwithstanding any Act, so always as this be taken for no Example. Ibid. p. 354. So that tho Tydeman had a Dispensation from the King, he durst not trust to it, without getting his Ti­tle to his Abby confirmed in Parliament. The like President occurs in 18 H. 6. The Archbishop of Roan had the Profits of the Bishoprick of Ely granted to him by the Pope, and confirmed in Parlia­ment. Ibid. p. 623. But in the Fif­teenth year of King Richard the Second, the Commons for the great Affiance which they reposed in the King, grant­ed, that the King by the Advice of his Lords, might make such Toleration touching the Statute of Provision, as to him should seem good until the next [Page 55]Parliament, so as the Statute be repealed in no Article thereof, nor none disturb­ed of his lawful Possession: So also, as they may disagree thereto at the next Parliament, with this Protestation, That this their Assent being in truth a Novel­ty, be had or taken for no Example. Ibid. p. 342. And in the Sixteenth year of the same King, the Commons grant to the King, that he, by the Ad­vice of his Lords, should have power to moderate the Statute of Provisions, to the Honour of God, and saving the Rights of the Crown, and to put the same in execution, so as the same be declared in the next Parliament, to the end the Commons may then agree to the same or no. Ibid. pag. 347. The occasions of these Concessions were the then circum­stances of the Kings Affairs, who was often at enmity with France, and made advantage of the Pope's Friendship, which he obtained by this, and other Methods of the like kind. The like In­stances occur in the same Collection, p. 362, In the Twentieth year of the same King. p. 393, In the First year of King Henry the Fourth. p. 406, In the Second year of King Henry the Fourth.

From hence it appears, that those Times had no notion of any absolute Power, any inseparable Perogative in the King himself of dispensing with those Laws without his Parliaments consent: For they grant the King such Power, and that but for a time, and so as they may disagree to it at their next Meeting, and with a protestation that this their Assent be not drawn into Example, and declare their giving the King such Power to be a Novelty: And all this they do with a saving to the Rights of the Crown; which let them (if they can) explain the meaning of, who imagine that the unit­ing of Ecclesiastical Jurisdiction to the Crown of England, by the Statute of 1 Eliz. is a vesting of it in the King's Person.

In this same interval of Time, the Statutes of Praemunire were enacted, viz. 27 Edw. 3. cap. 1. and 38 Edw. 3. cap. 1. 16 R. 2. and some others, with which how far it was lawful for the King to dispense, take an account from what hapned to Cardinal Wolsey in King Hen­ry the Eighths time. He had a Com­mission from the Pope to exercise his Office of Legate here in England; he had the King's leave so to do; he exer­cised [Page 57]that Office many years without controul, and was submitted to almost universally. I remember but one Ob­struction offered to have been made to him, and that was by Hunne a Merchant-Taylor in London. The History of which may be read at large in Fox, and Dr. Bur­net's History of the Reformation: And yet the whole Clergy were afterwards attainted of a Praemunire, for submitting to such Foreign Authority, as the same Authors, the Lord Herbert, and others abundantly testifie. But Stephen Gar­diner's Letter to the Duke of Somerset concerning that Matter, as it is very remarkable for many other Passages, so this ensuing part I think proper to be here inserted, because it will save me the trouble of relating the History, and of endeavouring to open the Reasons of that Proceeding. Now whether the King may command against an Act of Par­liament, and what Danger they may fall in that break a Law with the King's consent? I dare say, no Man alive at this day, hath had more Experience with the Judges and Lawyers than I: First I had experience in my old Master the Cardinal, who obtained his Legacy by our late Sovereign Lord's request at [Page 58] Rome, and in his sight and knowledge, occupied the same with his two Crosses and Masses born before him many years; yet, because it was against the Laws of the Realm, the Judges conclud­ed it the Offence of the Praemunire, which conclusion I bare away, and take it for the Law of the Realm, because the Lawyers so said, but my Reason digested it not. The Lawyers for con­firmation of their Doings, brought in a Case of the Lord Tiptoft, as I re­member, a jolly Civilian; he was Chancellor to the King, who (because in the Execution of the King's Commis­sion he had offended the Laws of the Realm, he suffered on Tower-Hill,) they brought in many Examples of ma­ny Judges that had Fines set on their Heads in like Cases, for doing against the Laws of the Realm by the King's Commandment, and then was brought in the Judge's Oath, not to stay any Pro­ces [...] or Judgment for any Commandment from the King's Majesty: And one Ar­ticle against my Lord Cardinal was, that he had granted Injunctions to stay the Common Law, and upon that occa­sion Magna Charta was spoken of, and it was made a great matter the stay of [Page 59]the Common Law; and this I learned in that Case, sithence that time being of the Council, when many Proclamati­ons were devised against the Carriers out of Corn; at such time as the Trans­gressors should be punished, the Judges would answer, It might not be by the Laws, whereupon ensued the Act of Proclamations, in the passing of which Act many liberal Words were spoken, and a plain Proviso, that by Authority of the Act for Proclamations, nothing should be made contrary to an Act of Parliament or Common Law.

A known and notorious Judgment has been lately given in favour of a Dis­pensation, with an Act of Parliament, Sir Edward Hales's Case. in a cause of extraordinary great conse­quence; and the Court grounded them­selves upon a Case pretended to have been adjudged in the Second year of King Henry the Seventh, concerning Sheriffs. It had been enacted by several Statutes, That no Sheriff, Ʋnder-Sheriff, &c. should abide in his Office above one whole year, as by the 14 Edw. 3. cap. 7. and the 42 Edw. 3. cap. 9. And in King Richard the Second's time, it was en­acted, That no Man who had been Sheriff of any County by one whole [Page 60]year, should be another time chosen into the said Office within three years ensuing, &c. Notwithstanding which Statutes, the contrary was often practi­sed by colour of Dispensations with those Laws: Which Dispensations of what validity they were in Law in the Judg­ment of Parliaments, may be seen by divers Instances in Cotton's Abridgment of the Records of the Tower; V. Cott. Abr. p. 387. Anno 1. H. 4 [...] One Artic. of Im­peachment a­gainst King Rich. 2. some of which are very untoward.

To obviate the mischief of these Non Obstante's, the Parliament in the Twenty Third year of King Henry the Sixth, enacts, That the said Statutes above recited, shall be duly observed, and inflicts the Penalty of 200 l. upon any Sheriff, Under-Sheriff, &c. that shall hold the said Office longer than a year: And farther enacts, That e­very Pardon thereafter to be made for such Offence, or Occupation, or for­seiture of Sums before recited, shall be void, and not available; and that all Patents made, or to be made of any of the said Offices, for term of Years, for term of Life, or in Fee Simple, or in Fee Tail, shall be void, and of no va­lue by the same Authority; any Clause or Word of Non Obstante, in any wise [Page 61]put, or to be put in any such Patents notwithstanding. And moreover, that whosoever shall take upon him to have or occupy the said Office of Sheriff by vertue of such Grants or Patents, now to be made for term of Years, for term of Life, Fee Simple, or Fee Tail, shall stand for ever, and at all times disabled to bear the Office of Sheriff within any County of England.

That that Statute was ever after look­ed on as a Law binding to the King, and restraining any Non Obstante's in such case for the future, will appear by considering some Statutes subsequent to the Law it self, both before and af­ter the pretended Judgment in 2 H. 7.

The first is that of 28 Hen. 6. cap. 3. Whereby it is ordained and granted that the Sheriffs, &c. which were for the year last passed, shall be quit and discharged against our Soveraign Lord the King and all his Liege People, of the Penalties and Forfeitures of 200 l. which they or any of them might fall in, or incur by force of the said Statute made in the 23d. Year of the said King, as for the occupation or exercise of the Office of Sheriff longer than by a Year, &c. So that such Sheriffs [Page 62]as had exercised their Office longer than a Year, contrary to the said Statute of 23 Hen. 6. could not be safe by any Dispensation granted by the King, with­out an Act of Parliament to indemnifie them against him and his People.

In the Eighth Year of King Edw. 4. cap. 4. the Parliament reciting the Sta­tute of the 14th of King Edward 3. and of the 42 of the said King (above-menti­oned) and that of the 23th of King Hen. 6. concerning Sheriffs, and that contra­ry to the said Ordinances divers Sheriffs, &c. in the First, Second, and Third Years of the said King Edward the 4th. that then was, the Realm then being in great trouble, and the Peace not fully e­stablished, did occupy over a Year, the said King by Advice and Assent of the Lords Spiritual and Temporal, and at the Request of the Commons ordained and established, That no manner of persons be­ing Sheriffs, Ʋnder-Sheriffs, &c. in the said Three first Years of his Reign or a­ny space within the same for the occupati­on of the Office of Sheriff, &c. in the said Three Years, or any part or space within the same, or of the same, or any of the same above a Year, altho their Occupati­on were against the Ordinances above re­cited, [Page 63]be damnified nor in any wise hurt by any Action, Pain, or Forfeiture in the same Ordinances or any of them com­prised, &c. Yet nevertheless the said Or­dinances, and every of them to remain in their strength and force against all She­riffs, Ʋnder-Sheriffs, &c. for their oc­cupation all other Years than the said Three Years as aforesaid. If the King's Pardon could have saved them harm­less, the Act of 26 H. 6. notwith­standing, which provided that all such Pardons should be void, then these Of­fenders had not need to have recourse to an Act of Parliament for their Secu­rity.

These two Laws subsequent to the said Act of 23 H. 6. cap. 8. and prior to the said pretenced Judgment of 2 H. 7. shew it to have been the Sense of the Parliaments and People of those times, that all Pardons and Dispensati­ons with the said Statute were nullities in Law. Whether they received any fur­ther light as to the King's Prerogative in Dispensing with it, notwithstanding all the caution that the Wisdom of a Nation could use in such a case, from the pretended Opinion of the Judges in that Case we may guess at, by obser­ving [Page 64]the Act of 6 H. 8. cap. 18. Which Act, reciting the Act of 13 Ed. 3. and of the 23 of King H. 6. and the Forfei­tures and Penalties thereby imposed, and that every Pardon for such Offence should be void, and all Patents with Non Ob­stante's of the said Statute void in like manner, does yet Enact, Establish and Ordain, that the Ʋnder-Sheriffs, and other Officers of Sheriffs in the Shire of the Town of Bristol, may continue to oc­cupy their Offices in like manner as the Ʋnder-Sheriffs, and other Sheriffs Of­ficers in London do, without any Penal­ty or Forfeiture for the same, the said Acts or any other Act to the contrary not­withstanding.

By this Act it appears that in the Judgment of that Parliament a Patent to exercise the Office of Sheriff longer than a Year with a Non Obstante of the Sta­tute of 23 Hen. 6. cap. 8. was a Patent void in Law: For they recite the Act, not only as an Act in force, but that par­ticular clause in it, whereby Non Ob­stante's to it are declared to be void, as a reason why the Under-Sheriffs of Bri­stol could not be safe in acting contrary thereunto; without Assent of Parlia­ment, which was therefore had for their [Page 65]Security, and would have been need­less, if a Patent with a Dispensation had then been accounted legal.

These Acts of Parliament might be thought sufficient to invalidate the Au­thority of that Judgment, if any such had been given; but the truth of it is, there never was any such Judgment given, as that the King might by his Perogative dispense with the said Sta­tute of 23 Hen. 6. by which it is ex­presly enacted, That no Non Obstantes in such case shall be available. The Question indeed was upon the validity of a Grant made by King Edward the Fourth, of the Shrivalty of Nor­thumberland to the Earl of that Coun­ty, for his Life: And the Judges held the Patent to be good. But they did not ground their Judgment upon the Non-Obstante therein; for there is not a word spoken of the Non-Obstante, but by Rocliffe (who was then second Baron of the Exchequer,) after the Court had agreed the Patent to be good, By reason of a Proviso in an Act of Resumption. But I shall forbear meddling any more with that Case, for that a very good Account of it will be shortly given by another Hand; as [Page 66]also of the five Points pretended to have been agreed by the Judges in Sir Ed­ward Hales's Case, and a sufficient An­swer to that slight Pamphlet, entitu­led, A short Account of the Authorities in Law, upon which Judgment was given in Sir Edward Hales's Case: Written by Sir Edward Herbert in Vindication of himself.

Indeed Non Obstante's, as they were first invented and introduced by Popes between the years of our Lord 1200 and 1250, V. Matth. Paris. p. 810, 811. Ibid. p. 817, 818. p. 854. p. 875. and afterwards inserted into the King's Patents and Protections in imitation of them by King Henry the Third; so they were never made use of by any of our Kings to elude Acts of Parliament, till after the Statute of Mortmain, which was made in the 7th. of Edw. 1. Which first attempt, as it must needs be illegal, First, because contrary to Magna Charta, cap. 36. (which is the first Law that prohibits Alienations in Mortmain, and was not only sworn to, when enacted and con­firmed, but is also by many after Acts of Parliament, ordered to be observed in all Points, as by 2 Edw. 3. cap. 1. 4 Edw. 3. cap 1.14 Edw. 3. cap. 1. and innumerable others.) Secondly, Because [Page 67]when the Clergy petitioned King Ed­ward the First, for a relaxation of it: His Answer was, Hen. Knighton, p. 2502. in Dec. Script. that he could not do it, because it was enacted de Consilio Magnatum suorum, & sine eorum Consilio non erat revocandum. And Thirdly, Because the sole Act of the King could not with any colour of Reason prejudice the Rights and Interest of the Mesne Lords; yet such was the misguided Piety and Devotion of those Times, that such Non Obstante's were obtained, as appears by the Patent and Charter Rolls in the Tower, from 8 Edw. 1. downwards, abounding with special Licences to pur­chase and hold Lands, &c. Statuto de terris & tenementis in manum mortuam non ponendis non Obstante. And yet were not these Licences accounted legal, or the Clergy safe in purchasing Lands, Rents, Advowsons, &c. by virtue of them, till it was enacted in Parliament, Anno 18 Edw. 3. cap. 3. That if Prelates, Clerks beneficed, or Religious People, which have purchased Lands, and the same have put to Mortmain, be impeach­ed upon the same before our Justices, and they shew our Charter of Licence and Process thereupon, by an Inquest of Ad quod damnum, or of our Grace, or by [Page 68]Fine, they shall be freely let in Peace, without being further impeached for the same purchase: And in case they cannot sufficiently shew, that they have entred by due Process, after Licence to them grant­ed in general or in special, that they shall well be received to make a convenient Fine for the same, and that the Enquiry of this Article shall wholly cease, accord­ing to the accord comprized in this Par­liament.

But Non Obstante's with the Statute of Mortmain, having been introduced, as aforesaid, tho undeniably illegal at first, and gaining afterwards a counte­nance from this Act of Parliament, have given occasion to the dispensing with o­ther Acts of Parliament.

Tho at first they were very rare, and seldom occur in the Old Books; and tho they are more frequent in the New, and that Judges and Courts of Justice have in­vented little Distinctions betwixt malum in se and malum prohibitum; betwixt Laws made pro bono publico, and Laws of a more private regard; betwixt Laws in which the King's Profit and Interest is concerned only, and Laws in which the Subject has an interest, and is intituled to an Action, as pars grava­ta; [Page 69]yet the Cases that have hitherto come before them judicially, have been Questions upon Dispensations granted to particular Persons, to exempt them prohîc & nunc, from incurring the Pe­nalty of such or such a Law. A Dis­pensation suspending the Effect of a Law at once, has been so far from receiving any countenance from Courts of Justice hitherto, Thomas and Sorell's es. of Wine-Liceneer. that it has always been a fa­tal Objection against any particular Dis­pensation, if it was such as consequen­tially quite eluded and frustrated the whole Law: For that such a Dispen­sation is in effect a Repeal of the Law.

It would be endless to launch out in­to a Discourse upon such particular Dis­pensations as have been granted, and ei­ther allowed or condemned: The prin­cipal Cases in our Modern Books, in which the conceits of latter times are display'd, are these following: Coke's 8th. Report, the Princes Case. The Case of the City of London. 11th. Re­port, the Case of the Taylors of Ipswich, and the Case of Monopolies. Dyer, 52. a. 54. a. 224. b. 270. a. 303. a, b. Plo. Com. Grendon against the Bishop of Lincoln. Vaughan's Reports; Thomas and [Page 70] Sorell's Case. V. Roll's Abridgment: Second Part, p. 179, 180. Lett. Y. Co. 12th. Report. p. 18, 19. Sir John Da­vie's Reports. Le Case de Commenda. p. 68, &c. Moor's Reports, p. 244, 245, &c. cs. 384.

But how correspondent the reason of some of these Judgments is to the sense of former Parliaments, and consequen­tially to the Judgment of the whole Na­tion, and the very Constitution of this Government, take a hint from a notable Record in the Fiftieth Year of King Ed­ward the Third, whereby it appears, That Richard Lyons Merchant of Lon­don, was impeached and accused by the Commons, of many Deceits, Extor­tions, and other evil Deeds, commit­ted by him, against our Lord the King and his People, as well in the time that he had been belonging to the House and Council of the King as otherwise, during the time that he was Farmer of the Subsidies and Customs of the King; and more especially, for that the said Richard, by Covin had between him and some of the Privy Council of our Lord the King, for their singular Profit and Advantage, had procured and gotten many Patents and Writs [Page 71]of Licence to be made, to carry great Faith and Credit, whereby Skins, Wool and other Merchandizes, were trans­ported otherwise than to the Staple of Calice, against the Ordinances and Defences made in that behalf concerning the same before time in Parliament. He was charged with other particular Crimes; to some of which he offered to make a Defence, but to others, and this amongst the rest he made no answer: Wherefore the said Richard was a ward­ed to Prison during the King's plea­sure, and distrained to Fine and Ran­som according to the quantity of his Trespass, and that he should lose his Freedom of the City of London, and be no more in Office under the King, and to incur other Penalties and Forfei­tures; as may be seen at large in the Record printed by Mr. Selden, in a Book entituled. The Priviledges of the Baro­nage of England. pag. 34, 35, 36, &c. So that Licences for the shipping of Wool, contrary to an Act of Parliament, tho mentioned by Rocliffe in the Book of King Henry the Seventh, as legal, and grantable by the King with a Non Obstante, and countenanced sufficiently by latter Judicial Authorities. Vide [Page 72]Dyer, 52. a, 54. a, &c. Yet appeared otherwise to antient Parliaments; and if the Judgment of a Parliament be of greater Authority than that of a Court in Westminster-Hall, or indeed than that of all the Judges put together, and if Judicial Presidents do not make the Law, but ought to declare it only; then is the Legal Perogative in dispensing with Acts of Parliament much straiter, if any at all, than modern Opinions would repre­sent it to us.

And that Parliamentary Presidents are of the highest Authority in this Nati­on, will appear by considering, that in former Times it was very frequent with the Judges in Westminster-Hall, if any Case of Difficulty came before them, e­specially if it depended upon the Con­struction of an Act of Parliament, to be so cautious of making any new, un­warranted Presidents, that they frequent­ly adjourned the Matter, ad proximum Parliamentum.

By the Statute of Westminster the Se­cond, made Anno 13. Edwardi primi; cap. 23. It's enacted, That Quotiescun­que de caetero evenerit in Cancellaria, quod in uno Casu reperitur breve, & in consimili casu, cadente sub eodem Jure, [Page 73]& simili indigente Remedio, non reperi­tur, concordent Clerici de Cancellariâ in brevi faciendo, vel atterminent queren­tes in proximum Parliamentum & escri­bantur Casus, i [...] quibus concordare non possunt, & referant eos ad proximum Parliamentum. My Lord Coke in his Second Institutes, pag. 407. tells us, That before this Act the Justices did punctual­ly hold themselves to the Writs in the Register, because they could not change them without an Act of Parliament: And pag. 408. That Matters of great Diffi­culty were in antient Times usually ad­journed into Parliament, to be resolved and decided there. And that this was the antient Custom and Law of the Kingdom, Bracton bears witness; Si a­liqua nova & inconsueta emerserint, quae nunquam priùs evenerunt, & obscurum & difficile sit eorum judicium, tunc ponan­tur judicia in respectu usque ad Mag­nam Curiam, ut ibi per Concilium Curiae terminentur: And hereof the Lord Coke says, There are infinite Presidents in the Rolls of Parliament, and quotes in his Margent many Presslents out of the Year Books. Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mis­chiefs [Page 74]have hapned for that in the Chan­cery, King's Bench, Common Bench and Exchequer, Judgments have been de­layed, sometimes by Difficulty, and some­times by divers Opinions of the Judges, and sometimes for some other Cause: It is assented, established and accorded, That from henceforth at every Parlia­ment shall be chosen a Prelate, two Earls, and two Barons, which shall have Commission and Power of the King, to hear, by Petition delivered to them, the Complaints of all those that will com­plain them of such Delays, and they shall have power to cause to come before them at Westminster, or elsewhere, the Tenor of Records and Processes of such Judgments so delayed, and cause the same Justices to come before them, which shall be then present, to hear the cause of such Delays: Which Cause and Reason so heard; by good Advice of themselves, the Chancellor, Treasurer, the Justices of the one Bench and of the other, and other of the King's Council, as many, and such as they shall think conveni­ent, shall proceed to take a good Ac­cord and make a good Judgment. So that our Parliaments of antient Time looked upon the Judges, not as abso­lute [Page 75]Oracles of the Law, but as Men that were both liable to Mistakes, and under the Regulation and Direction of Parliaments, even in their Ordinary Proceedings. The Nation did not so far intrust them, as they themselves would persuade us of late.

In the Three and thirtieth of H. 6. a Question arose in the Exchequer Cham­ber, Whether a Record then and there certified as an Act of Parliament, were really an Act of Parliament or no? Fortescue who gave the Rule, says, They would be well advised before they annulled an Act of Parliament; and the Matter was adjourned to the next Parliament, that they might be certi­fied by them of the certainty of the Matter. 33 Hen. 6. Fol. 18.

Indeed the Question, Whether such or such a Record certified, were an Act of Parliament or no, may seem too high for 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 [Page 76] 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 [Page 77]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 [Page 78]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, [Page 79]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 [Page 80]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 [Page 81]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 [Page 82]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 [Page 83]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 [Page 84]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 [Page 85]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 [Page 86] 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, [Page 87]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 [Page 88]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 of the Pa­tronage and Foundation of the King, the Ordinaries by vertue of the King's Commissions to them directed, shall enquire of the manner and foundation of the said Hospitals, and of the Govern­ance and Estate of the same, and of all o­ther matters requisite and necessary in that behalf, and the Inquisitions thereof shall certifie into the King's Chancery; And as to other Hospitals, which be of another Foundation and Patronage than of the King, the Ordinaries shall enquire of the manner of the Foundation, Estate and Governance of the same, and of all other Matters and Things necessary in this behalf, and upon that make due cor­rection and reformation, according to the Laws of Holy Church, as to them be­longeth.

This Act apparently makes a distin­ction betwixt Hospitals that are, and that are not of the King's Foundation and Patronage, with respect to the Right of Visitation. Those of the King's Foundation the Ordinaries were to visit by the King's Commission. But [Page 89]those that were not of the King's Foun­dation the Ordinaries were to visit too, but how? Not by any Commission from the King, but as special Commissioners, special Visitors, appointed by that Act. The King did not pretend to issue a Commission to Visit an Hospital of a Sub­ject's Foundation. The Parliament were strangers to such a conceit. The right of Visiting, de communi Jure be­longs to the Founder; he that gave the Laws, ought to see them executed. If the Parliament had appointed that Hos­pitals of the Foundation of Subjects, should be Visited by the Ordinaries by Commission from the King; they had in effect translated the Rights of all Foun­ders that were Subjects to the King, which they never intended.

For the Legal Notion of Visitation in such Cases, is no more than this, viz. A Man Founds and Endows a College. The Rule of Law and of Natural Rea­son teaches, cujus est dare, ejus est dis­ponere. As a Man may give Lands to a private person upon what condition the Donor pleases, provided it be not against Law: so a Man may give Lands to a Society of Men upon what terms he pleases. The terms exprest in the Foun­dation, [Page 90]are called the private Laws, by which the Society is to be ordered and governed. And just as when a Man makes a Lease for Life or Years, the Lessor may enter of right to see whe­ther waste be done or no, so a Founder may come and enquire whether those of his Foundation observe the Rules and Orders prescribed by him or his Ance­stors; and proceed according to the Statutes and the Powers thereby re­served, in case he find any neglect or misdemeanour. What right the King has to interpose his Authority in such case, any more than in the Government of a private Family, I cannot dis­cern.

But Colleges in Ʋniversities are pre­tended to be visitable by the King's Commission, by vertue of his Ecclesiasti­cal Authority: Here we must distin­guish. A College of Divines, for Ex­ample, founded by a Subject and En­dowed, and receiving Laws for their Governance from their Founder, are visitable by their Founder and his Heirs or Successors. They may be also (for any thing here alledged to the contrary) visitable by the Bishop of the Diocess, or (if exempt from E­piscopal [Page 91]Jurisdiction) by the King's Com­mission. But what Power have these Visitors? The Founder enquires, whe­ther the Statutes of the Foundation are observed, and punishes according to the Statutes, but goes no farther. The Ordinary, or Archbishop, or (if the place be exempt) the King's Visitors enquire, Whether they profess the Doctrin, and observe the Rites and Ceremonies of the Church of Eng­land.

If the King had any thing to do to intermeddle with the Statutes and Go­vernment of such a College in the first Instance, by virtue of his Ecclesia­stical Supremacy, it seems very strange that in the third and fourth Year of Queen Elizabeth's Reign, when the Bishop of Winchester, Founder of Maud­lyn College in Oxford, had at a Visi­tation deprived the President, and he appealed to the Queen in Chancery; the Judges and Civilians having had a Conference upon the Business, agreed, that the Appeal lay not as the Law then stood; for that this Case was out of the Statutes of 24 and 25 Hen. 8. (which direct Appeals to the King in Chancery) and this Depriva­tion [Page 92]was a meer Temporal Thing, and inflicted as by a Lay Patron: And that, if he were wrongfully expelled, he might have an Assize, or other Suit at Common Law.

Concerning the King's Power with respect to the private Statutes of a College of a Subjects Foundation, I will acquaint the Reader with one Act of Parliament made 1 Mariae, which will yield some very useful Inferences. The Act recites,

And then the Act proceeds to empower that Queen during her Life, to prescribe such Or­ders and Statutes; and to alter, trans­pose, change, augment or diminish the said Orders, Statutes, &c. And gives her likewise Authority to make, ordain, and establish Statutes, Ordinances and Foundations for the good Order and Go­vernment of Grammar Schools erected by King Hen. 8. or King Edw. 6. and to alter Statutes already made. V. Ra­stall's Statutes, 1 Mar. Par. 2. Act 9.

And she dying before the work was finished, there was another Act in Queen Elizabeth's time impowering her to do the like, and to alter the Statutes in being.

Hence I infer, first, if King Henry the Eighth having reserved a Power to himself of appointing private Laws, &c. as aforesaid, and coming to die without executing that Power, his Suc­cessor could not make such Laws, though for the Government of Colleges, &c. of which the King himself was Founder (as most evidently, according to the Opinion of those two Queens [Page 96]and their Parliaments, she could not) and for the Government of Colleges, &c. that had no private Laws at all for their good Order and Government, then a power given by Commission to Survey, Alter, Reform, Amend, &c. the Statutes of the Foundation of Col­leges, Halls, &c. was not in those days look'd upon as Law.

Secondly, If the King could not ap­point New Laws for the Government of Colleges, &c. of his own Foundation, then he could not alter the Statutes of Colleges founded by Subjects.

I infer from hence in the third place, that some Commission grounded upon these Statutes of Queen Mary, and Queen Elizabeth, which were Tempo­rary, and gave those Queens Power but for Life; has been the pattern for that Clause in a late Commission, which relates to the Colleges in Ʋniversi­ties, &c. And that the Gentleman who drew the late Commission, had forgot those two Acts of Queen Mary and Queen Elizabeth, because the latter ne­ver was printed, and the former, being expired long before his Statute-Book was printed, is left out of it (but it is to be seen in Rastall.)

And finding such a Commission upon the Roll, he concluded the King had a Power by the Common Law to grant it.

Archbishop Laud pretended to visit both Ʋniversities, Jure Metropolitico, and it was decreed at the Council Ta­ble, that he had right to visit; but he claimed only a Right to visit them, as to their Doctrin, and Church Discipline, and Ceremonies, not to meddle with the private Statutes of their Founda­tion: Which he disclaimed any Right to enquire into. V. Rushworth's Col­lections.

I mention this only to shew how a College may be subject to a double Vi­sitation diverso respectu.

The Question is not here concern­ing the King's Authority to visit the Ʋniversity, but what Authority he has to visit a private College for their good Government, and to meddle with their Statues, himself not being the Founder, I cannot see as yet.

HAVING given some Account of the Nature of the Antient Legal Jurisdicti­on, which in former Ages the Crown claim'd and exercis'd in Ecclesiastical and Spiritual Matters; come we now to King Henry the Eighth's Reign, in [Page 98]whose time all Foreign Power was ex­cluded, the Antient Supremacy restor'd, and New Powers given, some to that King personally, some to Him, his Heirs and Successors. I shall run through the Acts, as they lye in order of Time.

The first Act that made an open Breach with Rome, was that of 24 Hen. 8. cap. 12. That no Appeals should be used, but within the Realm: The Preamble to that Act will afford us considerable Observations, and very pertinent to the chief Subject and Oc­casion of this present Discourse. It runs thus: Where by divers, sundry, old, authentick Histories and Chronicles, it is manifestly declared and expressed, That this Realm of England is an Empire, and so hath been accepted in the World, governed by one Supreme Head and King, having the Dignity and Royal Estate of the Imperial Crown of the same: Ʋnto whom a Body Politick, compact of all sorts and degrees of People, divided in Terms, and by Names of Spiri­tualty and Temporalty, been bounden and own to bear, next to God, a natural and humble Obedience: He being also institute and furnished, by the Goodness and Suf­ferance of Almighty God, with plenary, [Page 99]whole and entire Power, Pre-eminence and Authority, Prerogative and Juris­diction, to render and yield Justice, and final determination to all manner of folk Resiants, or Subjects within this his Realm, in all Causes, Matters, Debates and Contentions, happening to occur, in­surge and begin within the Limits there­of, without restraint or provocation to any Foreign Princes and Potentates of the World; The Body Spiritual where­of having Power, when any cause of the Law divine cometh in question, or of Spiritual Learning, that it was declared and shewed, by that part of the said Bo­dy Politick, called the Spiritualty, now being usually called the English Church; which always hath been reputed, and al­so found of that sort, that both for Know­ledge, &c. it hath been thought, and is sufficient and meet of it self, without the intermedling of any exterior Person or Persons, to declare and determine all such Doubts, and to administer all such Offices and Duties, as to their Rooms Spiritual doth appertain: And the Law Temporal, for tryal of Property of Lands and Goods, and for the conservation of the People of this Realm in Ʋnity and Peace, without Rapine or Spoil, was and [Page 100]yet is administred, adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politick, cal­led the Temporalty; and both their Ju­risdictions and Authorities, do conjoin together in the due Administration of Justice, the one to help the other.

From this part of the Preamble we may observe, First, That for the King­dom of England's being an Empire, consisting of two Estates of Men, and governed by One Supreme Head, the King and Parliament appeal to old, au­thentick Histories and Chronicles; and consequently, wherein the power of this One Supreme Head doth consist, must be learnt from Antiquity. Se­condly. That the Exclusion of Foreign Jurisdiction was the main thing in their Eye; without restraint or provocation to any Foreign Princes or Potentates of the World. Thirdly, That as this Supreme Head administred ordinary Justice to his Subjects in Matters Temporal, by proper Officers, sundry Judges and Mi­nisters; so in Causes of the Law Divine, or of Spiritual Learning, the same was to be declared, interpreted and shewn by the Spiritualty, (which is to be under­stood of ordinary Proceedings.) And [Page 101]consequently, not by Commissioners ap­pointed by the Supreme Head: For he can appoint no Commissioners to deter­mine Matters of civil Right, but where special Acts empower him, and no Act had yet impowered him to do so in Ecclesiastical Matters; nor did his Predecessors or himself, practise it till af­terwards: For his divers, sundry, old Hi­stories and Chronicles, afforded him no president of any such thing; and there­fore it could not be either in the nature of the thing, or in the sense and mean­ing of the King and his Parliament, any essential part of his Legal Supreme Headship, to have a Personal Supre­macy, either independant of the Estates of the Realm, or which might be ad­ministred otherwise than in the Course setled by Law, i. e. by proper Officers, appointed thereunto either by express Act of Parliament, or the Original Con­stitution of the Government, or both.

The Body of the Act prohibits Ap­peals to the See of Rome, and enacts, That in such Cases, where heretofore any of the King's Subjects and Resiants have used to pursue, &c. any Appeal to the See of Rome, and in all other cases of Appeals, in and for the Causes aforesaid, [Page 102]they may and shall from henceforth take, have and use their Appeals within this Realm, and not elsewhere, in manner and form as hereafter ensueth, and not otherwise; that is to say, First, From the Arch-deacon or his Official, if the Matter or Cause be there begun, to the Bishop Diocesan of the said See, if in any case the Parties be aggrieved.

And in like wise, if it be commenced be­fore the Bishop Diocesan, or his Commis­sary, from the Bishop Diocesan or his Com­missary, within fifteen days next ensuing the Judgment, or Sentence thereof there given, to the Archbishop of the Province of Canterbury, if it be within his Pro­vince; and if it be within the Province of York, then to the Archbishop of York, and so likewise to all other Archbishops within the King's Domini­ons, &c. there to be Definitively and Finally ordered, decreed and adjudged, according to Justice, without any other appellation or provocation to any Person or Persons, Court or Courts.

By the next Clause, Matters or Con­tentions to be commenced before the Arch­deacon of any Bishop or his Commissary are appointed, in case either Party be ag­grieved, to be brought by Appeal to the [Page 103]Court of Arches or Audience of the same Archbishop of the Province, there to be Definitively and Finally deter­mined.

The next Clause appoints that Causes to be commenced before any of the Arch­bishops, shall before the same Arch­bishop be definitively determined; sa­ving always the Prerogative of the Arch­bishop and Church of Canterbury, in all the aforesaid Causes of Appeals, in such and like wise as they have been accustomed and used heretofore.

Then it is Enacted that Causes touch­ing the King, his Heirs and Successors, shall be finally decreed by the Prelates, Abbots, and Priors of the Ʋpper House of Convocation.

Hitherto no Appeal lay to the King in Person, or in Chancery: You have heard already, that originally the ultimate Appeal in Ecclesiastical and Temporal Matters, was to one and the same Tribunal. Afterwards the See of Rome gained Appeals by Usurpation and Con­nivance. Now they are lodged in the Diocesan, the Archbishop, and Ʋpper House of Convocation, and their Sen­tences respectively are appointed to be final and definitive. And therefore, [Page 104]neither the Clergy in their Submission, wherein they Recogniz'd the King to be the Supreme Head of the English Church, V. Burnet's Collect. ad. Vol. 1. p. 128, 129. nor this Parliament, who had been inform'd by Old Authentick Hi­stories and Chronicles, that the Spiritu­alty and Laity of this Realm are go­verned by One Supreme Head and King, did so much as imagine, that by ver­tue of that Office or Title the Supreme Cognisance of Appeals, belonged to him personally. If Appeals to the King in Person or in Chancery, or Commissions of Review had then been dreamt of, there needed not another Act in the Year ensuing, to take off the odium of these definitive Sentences from the Archbishops. It is the Stat. of 25. H. 8. cap. 19. Wherein it is Enacted, That for lack of Justice at or in any of the Courts of the Archbishops of this Realm, or in any of the King's Do­minions, it shall be lawful to the par­ties grieved, to Appeal to the King's Ma­jesty in the King's Court of Chancery. And that upon every such Appeal a Com­mission shall be directed under the Great Seal, to such persons as shall be named by the King's Highness, his Heirs or Successors, like as in case of Appeals [Page 105]from the Admiral's Court, to hear and Definitively to determine such Ap­peals.

By a subsequent Clause Appeals from the Jurisdiction of any Abbots, Priors, or other Heads and Governours of Mo­nasteries, &c. and places exempt, &c. shall be made immediately to his Majesty into the Court of Chancery; which Ap­peals so made, shall be Definitively de­termined by Authority of the King's Com­mission.

It looks like a blemish to the Notion of Supreme Head, in the modern ac­ceptation of the Word, to have the fi­nal Judgment in Causes Ecclesiastical referr'd by the Parliament to the Bi­shops, Archbishops, or to Commissioners appointed by vertue of an Act of Par­liament, &c. and yet the Parliament in 25 Hen. 5. cap. 21. takes Notice of, and allows the Clergy's Recognition, nor was it till many Years after, to wit, the 39 of Eliz. that the Lawyers found out a way to make these Acts consistent with their imaginary personal Supreme Headship; and that was by introducing Commissions of Review. Which they tell us the King, after such a definitive sentence may grant, as Supreme Head, [Page 106]Ad revidendum, 4 Instit. p. 341. Where two reasons are given for it, First, For that it is not restrained by the Act, which seems to be a mistake: For it is restrain'd by the Act, as much as it was capable of being restrain'd; and that by these words, viz. that such Judgment and Sentence as the said Com­missioners shall make and decree, in and upon such Appeals, shall be good and effectual, and also definitive. How could Commissions of Review be restrain'd more expresly, than by these words? They are not nam'd indeed, and good reason why, viz. because there never had been any such things in our Law before. For he, that will apply to this Case that common Rule of Law, viz. that where the King is not named in a Statute, he is not intended to be bound by it; must prove that Appeals lay to the King in Person or in Chancery, before these Acts were made. And then perhaps I may yield, that such Commissions of Review are not hereby restrained.

How comes it to pass, V. Cr. Car. 40 Jones Rep. p. 147. Duke's Law of Char. Uses; p. 62. Windsor and Hilton's Case. that the Chan­cellor's Decree upon Complaint of a person aggrieved by a Decree of the Commissioners of Charitable Ʋses, is fi­nal; upon which no Bill of Review is [Page 107]to be allow'd? Why, because the Statute of 43 Eliz. cap. 4. gives an Appeal to him, and goes no higher. And since there were no such Commissions of Charitable Ʋses 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 [Page 108]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 [Page 109]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 [Page 110]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, [Page 111]& 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 Ʋpper 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 [Page 112]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 [Page 113]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, 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 [Page 115]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 Clergy­men 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 [Page 116]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 [Page 117]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 Ʋpper 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.

This Prerogative that our Kings now have in the Election of Bishops, stands upon the foundation of this Act of Par­liament, and other it has none. The Supreme Headship, it seems, did not in­clude the power of appointing Bi­shops, for that had been allow'd two Years ago, and is acknowledged by way of recital in this Session, cap. 21. and yet the Election and Consecration of Bishops is appointed by Act of Parli­ament; so that the title of Supreme Head did not then imply any such exor­bitant [Page 120]Power, as some have imagin'd.

Next comes the Act entituled, No Imposition shall be paid to the Bishop of Rome, &c. It recites, That where this your Grace's Realm, recognising no Supe­rior under God, but only your Grace, hath been and is free from subjection to any Man's Law, but only to such as have been devised, made and ordained within the same, for the Wealth of the said Realm, or to such other, as by sufferance of your Grace and your Progenitors the People of this Realm have taken at their free Will and Liberty by their own Consent to be used among them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of the Laws of any foreign Prince, Potentate, or Prelate, but as to the accustomed and ancient Laws of this Realm originally e­stablish'd as Laws of the same, by the said sufferance, consent, and custom, and none otherwise. These other Laws, which the People of this Realm are said to have taken at their free Will and Liberty, by their own Consent, and are said to have bound themselves to, as to the Established Laws of the Realm, by the said sufferance, consent, [Page 121]and custom, and none otherwise, are the Canon Laws. Which here the Parli­ament disclaim any Obligation to the observance of, otherwise than as they had bound themselves by their own suf­ferance and consent. And consequently they did not look upon any Ecclesiasti­cal Laws, as obligatory to themselves and their Posterity, but what them­selves had, or for the time to come should Consent to. This would never have proceeded from them, if they had imagin'd, that the Legislative Power in Ecclesiastical Matters, was or ever had been vested in the King's Person, as some amongst us have not stuck to assert of late.

But the Act goes on; It standeth therefore with natural equity and good Reason, that in all and every such Laws humane, made within this Realm, or in­duced into this Realm, by the said suf­ferance, consent, and custom, your Roy­al Majesty, and your Lords Spiritual and Temporal and Commons, repre­senting the whole state of your Realm in this your most high Court of Parlia­ment, have full Power and Authority, not only to dispense, but also to au­thorize some Elect Person or Persons, to dispense with those and all other [Page 122]humane Laws of this your Realm, &c. and also the same to abrogate, am­plifie or diminish, as it shall seem to your Majesty, and the Nobles and Commons of your Realm, present in your Par­liament, meet and convenient, &c. Here is no dispensing Power acknowledged to be personal in the King. Nor is the Parliament so much a stranger to Mat­ters of Religion, as not to have a share even in the dispensing, as well as the ab­rogating Power, with respect to Ec­clesiastical Laws. You see, as soon as ever the foreign Yoke was cast off, they put in for their share of the Supremacy, nor did the King look upon it as any di­minution to his own legal right, to ad­mit their claim. It was in concurrence with them, and with their assent that the method of prosecuting Appeals had been settled; they joyn'd with him in tying up the hands of the Clergy from promulging any Constitutions, without the Royal Assent; their Authority con­curr'd in appointing how Bishops should be Elected, Invested, and Consecrated; and here they impower the Archbishop and the King to grant Dispensati­ons.

Then they proceed to Enact how, and by whom, and in what cases Dis­pensations shall be granted for the future. And first they impower the Archbishop of Canterbury for the time being, and his Successors to grant Dispensations to the King, his Heirs and Successors, for causes not contrary to the Scriptures and the Laws of God. How? Could not the King by vertue of his inherent Preroga­tive dispense with himself? Dr. Hicks. Was not this involv'd in the formal conception of Im­perial Soveraignty? No. If he will act contrary to Law, he must have a Dispensation, and that Dispensation granted by a Subject, impowered by Act of Parliament so to do. This is the first and only Act that gives the King a power of dispensing in Ecclesiastical Matters, and the Archbishop of Can­terbury may dispense in all cases, which the King by vertue of this Act may dis­pense in; only in cases unwont to be dis­pensed in at Rome, he must advertise the King or his Councel; who if they de­termine that such Dispensation shall pass, then the Archbishop, having the King's Licence, shall dispense accordingly: But who ever heard of the King's Li­censing an Archbishop to dispence with [Page 124]an Act of Parliament? How would it found in our Ears, if Divinâ Providen­tiâ Cantuariensis Archiepiscopus should issue a Non Obstante to an Act of the King, Lords, and Commons in Parlia­ment? And yet the Archbishop may grant Dispensations with the King's al­lowance in all Cases whatsoever, that that Act extends to. Therefore, I say, the King's Power of dispensing by vertue of that Act, is with the Canon Law only, which in effect was no Law at all.

To say that the King is not restrain'd by this Act, Hob. p 146. in Colt and Glovers Case. but his power remains full and perfect as before, and he may grant them still, as King, for all Acts of Ju­stice and Mercy flow from him, is a sound of words only, vox & praetereà nihil. And yet we find by Experience, that hae nugae seria ducunt in mala; there is likewise a strange Expression in Moor's Reports, 542. cs. 719. Al tierce point ils semblont que la Royne poit granter dispensations come le Pape puissoit en ca­ses lou l'Archevesque n'ad authority per le Stat. de 25 H. 8. de granter dispen­sations: quia tout l'authority, que le Pape usoit, est done al Corone. But these and many other scattered Cases [Page 125]and extravagant Expressions of Repor­ters (which have been made use of as Judgments in after times) there may possibly be some account given hereaf­ter in a Discourse by it self.

The latter part of the Statute of 25 H. 8. c. 21. concerns the visiting of Colleges, Hospitals, and places ex­empt. It is enacted that the Archbi­shop of Canterbury or any other person or persons, shall have no Power and Au­thority, by reason of this Act, to visit or vex any Monasteries, Abbeys, Priories, Colleges, Hospitals, Houses, or other places Religious, which be or were ex­empt before the making of this Act, but that Redress, Visitation, and Confirma­tion shall be had by the King's Highness, 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, [Page 126]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 [Page 128]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 [Page 129]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 [Page 130]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 Ʋsurpation, 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 [Page 131]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 Pastoral Office, commit­ted to the Pastors of the Church by Christ and his Apostles; and that the Supremacy then pretended to, was no [Page 132]such extravagant Power as some ima­gine. Sixthly, That the Supremacy ascribed to the King by this Act, had no reference to any such absolute Power as the Pope pretended to, ap­pears by the whole course of the King's Reign; forasmuch as the Exercise of this Supremacy in every Branch of it, was directed by particular and positive Laws made much about the same time; nor perhaps were any Acts of Su­premacy exerted during this King's Reign, that some Act of Parliament or other did not warrant, as will appear in our Progress.

The truth of it is, that no more can be made of it, than an utter Exclusi­on of the Pope's pretended Authority, and an acknowledgment that the King is (not an absolute Dominus fac-totum in Spiritualibus, but) the Fountain of Justice to be administred according to Law in Cases commonly called Ecclesiastical, as well as Temporal, without any dependance upon a Foreign Potentate.

Hence it is, that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs, the Crown of [Page 133] England is so often mentioned to be an Imperial Crown and the Realm of Eng­land, an Empire. Sir Edward Hale [...]'s Case. Tho that Word has been made use of of late to countenance a very strange and unheard of Judg­ment: But the Gentleman that made use of the Word, either understood it not, or wilfully misapplyed it. The Crown of England is said to be an Imperial Crown, because it is subject to no Foreign Jurisdiction. The Kings of England are not Homagers nor e­ver were, for their Kingdom to any other, as many Kings have been. A Regal Crown does not ex vi termini, exclude a Subordination; an Imperial Crown does. The Emperor of Germa­ny (whose Crown must needs be Impe­rial) has less Power in the Empire than most Princes in their own Do­minions.

But it must be confess'd, that the Word Supreme Head, tho legally un­derstood, it be no such Bug-bear, yet was a Term borrowed from Antichrist; a Word that gave offence, especially to those that knew little of its Sig­nification, but what they had learnt from a Jurisdiction pretended to be ex­ercis'd [Page 134]by the Pope as such; and claim­ing to be so, as Vicar General to Christ. Papists thought the Right of St. Peters Successor injuriously invaded; and Protestants, though universally sub­mitting to the Legal Power of the Crown, yet many of them boggl'd at the Title, as making too bold with our Saviours Prerogative of be­ing the only HEAD of the Church. And so great Powers were given to King Henry the Eighth by Acts of Parliament, (of which by and by) in Ecclesiastical and Spiritual Matters; which, though given by particular Laws, and those Laws occasion'd by the then Circumstances of Affairs; yet by some unadvised Persons are confounded with his Legal and Original Supremacy at the Common Law, or at least are lookt upon as incident to the Title, Style, and Dignity of Supreme Head; that no wonder the Title has found little countenance from Protestant Writers.

The other part of this short Act of 26 Hen. 8. cap. 1. is very observa­ble, and discovers a Secret that few observe; but rightly considered, lays [Page 135]open a very fine Scene, and gives an undeniable Answer to the only ma­terial Argument that can be produced in favor of the late Ecclesiastical Com­mission. The Argument lies thus: King Henry the Eighth issued a Commissi­on to Cromwell, whereby he constitu­ted him his Vicegerent in Ecclesiasti­cal Matters, and delegated to him the Exercise of all his Ecclesiastical Juris­diction, long before the 1 Eliz. which impowered Queen Elizabeth and her Successors from time to time, to issue such Commissions: And this Commis­sion to Cromwell cannot be deny'd to have been a Legal Commission, be­cause it is recited in an Act of Par­liament, 31 Hen. 8. cap. 10. admitted to be according to Law, and a place appointed him in respect of that Office, above the Arch­bishop of Canterbury in the House of Lords. And there having been no Act of Parliament in King Henry the Eighths time, whereby he was ex­presly impowered to issue such a Commission; the Commission was war­ranted by the Common Law. This being the Argumentum palmarium, tho foolishly omitted by those that have [Page 136]undertaken to write in Vindication of the Proceedings of the late Com­missioners, receives a full and satisfa­ctory Answer from this very Act of Parliament, this being the Act which was the Ground and Foundation of that Commission, and, as far as I know of the Commission, did really warrant it. The Words are these, viz. And that our Sovereign Lord the King, his Heirs and Successors, Kings of this Realm, shall have full Power and Authority from time to time, to visit, repress, re­dress, reform, order, correct, restrain, and amend all such Errors, Heresies, Abuses, Offences, Contempts and Enor­mities, whatsoever they be, which by any manner Spiritual Authority or Juris­diction ought or may be lawfully reform­ed, repressed, ordered, redressed, cor­rected, restrained or amended, most to the Pleasure of Almighty God, the in­crease of Vertue in Christs Religion, and for the conservation of the Peace, Ʋnity, and Tranquillity of this Realm, any Ʋsage, Custom, foreign Laws, foreign Authority, Prescription, or any thing or things to the contrary hereof notwithstanding. By these Words a Personal Authority [Page 137](not of Legislation) but of visiting, re­dressing, correcting, &c. is given; to whom? To the King, his Heirs and Successors. This Power was given by the Parliament, nor was enjoyed or exercised by the King or any of his Predecessors before; and being vested in the King, his Heirs and Succes­sors, may consequentially be delega­ted to Commissioners. After this Act was pass'd, out comes Cromwell's Com­mission of Vicegerency, and not till then, tho the Clergy had recogniz'd the Supremacy two years ago; and the Parliament in the 24 Hen. 8. cap. 12. and the 25 Hen. 8. cap. 21. had in effect done so too: Yet was not the recognis'd, restor'd and de­clar'd Supremacy lookt upon as any Warrant for an Ecclesiastical Commis­sion, till a new Power was given to the King by this Act: And this Act of Parliament having been Repealed by the First and Second of Phil. and Mar. and never since reviv'd; there is now no ground from this Act, or from that President of Cromwell's Com­mission, for a like Commission in our Days. How far the Statute of 1 Eliz. [Page 138]gives countenance thereunto, shall be enquired into when we come to it.

The next Act that I shall take no­tice of, is the Thirteenth Chapter of this same Session, entituled, By whom Suffragans shall be nominated and elect­ed: The Act recites, that sithen the beginning of this present Parliament, good and honourable Laws and Statutes have been made and established for E­lections, Presentations, Consecrations, and investing of Archbishops and Bi­shops of this Realm, with all Ceremo­nies appertaining to the same; yet ne­vertheless, no Provision hath been made for Suffragan Bishops; and therefore enacts, what Towns shall be taken and accepted 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 [Page 140]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 [Page 141]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: [Page 142]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 [Page 143]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, [Page 144]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 [Page 145]power lodged in the King, either by vertue 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 [Page 147]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 [Page 148]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, [Page 150] 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 [Page 151]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 [Page 152]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 [Page 153]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 [Page 154]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 [Page 155]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 [Page 156]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 [Page 157]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, [Page 158]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 [Page 159]Temporary or Repeal'd; they have made such Judgments to be Presi­dents, to graft their Modern Opini­ons upon.