SOME OBSERVATIONS UPON THE Ecclesiastical Jurisdiction OF THE KINGS of ENGLAND. WITH AN APPENDIX In Answer to part of a Late Book Entitled, The KING'S Visitatorial Power Asserted.  
LONDON, Printed for William Battersby, at Thavies-Inn Gate in Holborn, and Thomas Basset, at the George in Fleetstreet. 1689.   

To the Reader.  
A Late Declaration for Liberty of Conscience, whereby the King Assumed a Power of Suspending All Penal Laws in matters of Religion, The Ecclesiastical Commission, and suspending by virtue of it the Bishop of London, and depriving the Fellows of Magdalen-Colledge, occasioned a general dissatisfaction in the Nation, and produced some Pamphlets to justify all those Proceed, viz. One Entitled The King's Right of Indulgence in Spiritual Matters, with the Equity thereof Asserted; Another, A Vindication of the Proceed of his majesty's Ecclesiastical Commissioners against the Bishop of London and the Fellows of Magdalen-Colledge; A Third, The Legality of the Court held by his majesty's Ecclesiastical Commissioners Defended; And last of all, The King's Visitatorial power asserted. Perusing these Pamphlets, I could not but observe that one and the same inveterate error ran through them All, viz. Their ascribing to the King all such power, Jurisdiction and Authority, as by the Law of England and the very Original Constitution of our Government, is lodged in the Legislative body of the Kingdom; and which the King is entrusted only with the Administration of, and that in his Courts of Justice. I had attempted the answering more than one of those Pamphlets, but I found that at every turn I met with that mistake in the Authors: who either through Ignorance or Design or both, argue for the King's Prerogative from whatever they find to have been done in Great Councils of the Realm, or in Ordinary Courts of Justice: this one mistake, together with some rash and unwarranted expressions gleaned out of a few, late Writers, will be found to be the main strength of their Cause. I thought therefore that it might be a work of some use, especially at this time, to endeavour the removal of this rubbish, and the laying open in some measure the nature of the Ecclesiastical Jurisdiction of the Crown of England: both because we have lately seen how dangerous and fatal these mistakes are, and because although much has been written since the Reformation by Mr. Prynn, Sir Roger Twisden and others, to vindicate the Ecclesiastical Supremacy from Foreign Pretensions and Usurpations, yet I know not whether any has yet taken in hand to give an Account of it, as stands by Law here at home. I do therefore offer these few Observations upon it to the public, desiring the Judicious Reader's pardon for what slips and imperfections he may find herein; and have added in an Appendix an Answer to a Section in the Book concerning Visitatorial Power; wherein I hope the Reader will be satisfied how groundless and weak most of the arguments are, which our Prerogative-mongers pretend to draw from Antiquity. These following Observations are brought down no lower then to the latter end of King Henry the eighth's Reign. I design a Continuation, with Remarks upon some Judicial Precedents, that have passed since the Reformation, if these Papers are well received; if not, I shall save time and be eased of trouble.   

SOME OBSERVATIONS Upon the Ecclesiastical Jurisdiction Of the King's of ENGLAND.  
IT is obvious enough to judicious and intelligent Persons, by what unhappy Circumstances it comes to pass, that one great Mean of our Preservation seems at present in a manner hid from our Eyes. But since Experience is said to be the Mistress of Fools, it is hoped that at least in this our Day we may see the things that belong to our Peace; 
Luke 19.42.  and remember that the reason why the Ostrich leaveth her Eggs in the Dust, 
Job 39.13, 14, 15, 17.  forgetting that the Foot may crush them, is, because God hath deprived her of Wisdom, neither hath he imparted to her Understanding.  
If Interest or Ambition have swayed with some of us, 
Prov. 22.28.  as far as in them lay, to remove the ancient Landmarks which our Forefathers 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 Archbishop may tell us, 
The Legality of the Ecclesiastical Commission defended. pag. 6, 7.  that the King may take what Causes he pleases to determine, from the Determination of the Judges, and determine 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 itself, under the Sanction of a Human Law, from the Mouth of an Archbishop, or from the whole Body of the Clergy; much less are we bound to submit to any Courtly Glosses upon that Sacred Text, concerning the Power of Kings; whose Authority, as we suppose it to be grounded wholly upon Municipal Laws, so we know the Law to be a better Foundation, and a better Security, than any imaginary Authority pretended from Scripture. And if the Defender would have observed what the Lord Coke in the Presence, and with the clear consent of all the Judges and Barons of the Exchequer, 
Coke 12. Rep. pag. 63, 64, 65.  answered upon that occasion before the King himself, both from Reason and Authority, he would have silenced the Arch-Bishops Divinity, and saved me the trouble of taking notice of that part of his Discourse. It was their Opinion, that the King could not in Person adjudge any Case: Which they confirm with such Reasons and Authorities from judicial Records and Acts of Parliament, that it seems very imprudent in the Defender, to urge that as an Authority, which received so solid, so learned, and so honest an Answer.  
Judges and Sergeants may entertain themselves with what Discourse they please post prandium, 
Legality of, etc. defended. pag. 10, 11. Coke 12. Rep. pag. 19, etc.  and in their mooting upon one extrajudicial Point may talk of another by the by; and if one of the Company put this transient Discourse into Paper, so that afterwards it gets into the Press, Good God what condition are we come into, when Tablechat must be obtruded upon us for Law!  
To go a little further; Judges in Courts of Justice may pretend to resolve what Points of Law they please; but if their Resolutions are not pertinent to the Matter depending before them in Judgement, 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, etc. 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, etc. by the Ancient Prerogative 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 more. Eliz. cap. 2. inflicts it only for the second? 
Pop. Rep. pag. 59, 60.  And resolved that the Statute is to be understood, when they prosecute upon the Statute by way of Indictment, and not to restrain the Ecclesiastical Jurisdiction. What's this to the Question, Whether such a Commission might have been issued without an Act of Parliament impowering the Queen to issue it?  
Nor do the Judges in that Case, nor the Lord Coke in his double-tongued Report of it, nor the post prandium Judges and Sergeants so much as pretend to any manner of Authority for their Opinion there delivered, that the King might grant such a Commission by his Prerogative at Common Law: Nor does the late Defender quote any ancient 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 resolver's.  
But though this Point be left so forlorn by the Defender, as having nothing to support it on his side, but an ipse dixit; and though 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 itself into the mistaken notion of a Personal unbounded Supremacy; and because some of our Clergy give us Schemes of Government, according to which this Commission is the most justifiable thing in the World; I am desirous to offer a few Observations concerning the Ecclesiastical Jurisdiction of the Kings of England; in doing of which, the only thing I aim at, is the putting others who are better qualified, and perhaps misinformed upon farther Inquiries, if haply I may compass that.  
We are told that our Common Lawyers have often affirmed, 
Legality of, etc. 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, etc. 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 Bravadoes, 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, etc. defended. pag. 8.  that they give no new Power, but recognize what always was de Jure the King's Right: Which naturally sends us back to Antiquity, to inquire how the Supremacy was then managed and exerted, before a Foreign 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 allege (if they intent to persuade) some Judicial or other Precedent, some Record or other, some anciently received Maxim or Rule of Law: They that resolve without such grounds for their Resolution, set up for Lawmakers and not Interpreters.  
Now it was to difficult matter to resolve that the Supreme Jurisdiction, Ecclesiastical as well as Temporal, did originally belong to the Crown of England. Every Chronicle Writer can tell us when the power of the Court of Rome prevailed, to lop off some of its Branches: And the Crown must needs have it before it could lose it. But whether our modern conceptions of the Supremacy are adequate to that Ancient Legal Supremacy at the Common Law, of which we agree the restoring of Ecclesiastical Jurisdiction by Act of Parliament to be but Declarative, is certainly worth their Enquiry, who pretending that All Laws concerning it are but declarative, must either justify 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 administered 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 Heresy: Upon which occasion a Synod was assembled at Verolam. Aderat Populus, expectabatur futurus Judex. Adstabant parts, etc. After a long debate Populus arbiter vix manus continet, Judicium clamore contestando, etc. In this first Synod that we read of in England, the People were present, and were Judges; and by their determination a great Controversy 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 sat, 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, etc. And they wrote Letters after this manner, The Apostles, and Elders, and Brethren send Greeting unto, etc. It seemed good to the Holy Ghost and to us, etc. 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 Bishoprics were conferred in Parliament. Petivit Rex [Arthurus] Eboracum, instantis Natalis Domini Festum celebraturus. Cumque urbem intrasset, visa Sacrarum Ecclesiarum desolatione, condoluit. Expulso namque beato Samsone Archiepiscopo, cunctisque sanctae Religionis viris, Templa semi-usta ab officio Dei cessabant. Tanta etenim Paganorum insania praevaluerat. Exin convocato Clero & Populo Capellanum suum Metropolitanae sedi Destinat. Ecclesias usque ad solum dirutas renovat: Atque Religiosis caetibus Virorum & Mulierum exornat. Galfrid Monumeth. lib. 9 cap. 8. Here King Arthur in an Assembly of his Clergy and People makes an Archbishop, 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, Archbishoprics, Bishoprics, 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 Dau. rep.  that before his time they were donative, and conferred by the King Per Traditionem annuli baculi: Confounding the Election with the Investiture, and ascribing that to the King solely, which was the Act of the King and Parliament.  
Bishop Usher in his Antiqu. 
p. 63.  Britan. Eccles. Gives us other Instances of Bishops Elected in Parliaments or Great Councils. Postquam praedicti senioris (Germanus & Lupus) Pelagianam Haeresin extirpaverant, Episcopos pluribus in locis Britanniae consecraverunt. Super omnes autem Britannos dextralis partis Britanni beatum Dubricium summum Doctorem à Rege & ab omni Parochia Electum Archiepiscopum consecraverunt. Hac dignitate ei à Germano & Lupo data, constituerunt ei Episcopalem sedem, concessu Regis Maurici, Principum, Cleri & Populi apud Podium Lantavi. Addit Galfridus ab eodem Dubricio Vrbis Legionum tunc Archiepiscopo Arthurum Regni Britannici diademate insignitum; eundemque (Dubricium) in Curia illa magna, quam apud urbem legionum Arthurus tenuisse dicitur, in eremiticam vitam anhelantem, sese ab Archiepiscopali sede deposuisse.  
Eodem tempore, Davide procurante, Meneviam Metropolitanae sedis factam esse translationem, refert Giraldus Cambrensis: & postea in Breviensi Synodo confirmatam. In illâ scil. Synodo magnâ omnium Episcoporum & Abbatum totius Cambriae, nec non & Cleri Universi, una cum Populo Collecta propter Pelagianiam Haeresin, (that Doctrine it seems revived, though it had been publicly overruled,) 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 Britain's 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 Bishoprics were made, etc. 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, etc.  
Nor was it peculiar to this Nation, 
V Dr. Burnet's History of the Rights of Princes in the disposing of Ecclesiastical Benefices, etc.  to have the People choose 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 ordained 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. Huntingdon. 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 Huntingdon, to have been done in such an Assembly of Men, as the Parliaments of those days are generally mentioned to consist of.  
After the Christian Religion had spread amongst the Saxons, the Bishops and Clergy frequently held Synods without the Laity for Church-Visitation, 
Vid. Spelm. Conc. ubique.  and made constitutions for the Regulation of the Clergy, which they obeyed and submitted to by reason of their Oath of Canonical Obedience: But, as nothing transacted in those Assemblies of the the Clergy bound the People, so can no instance be produced of the Clergies 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 Doctrine, Discipline and Ceremonies, were bound by the public Laws of the Kingdom, enacted in the Great Councils of the Nation.  
In the year 673, 
Matt. West. pag. 122, 123.  Concilium Herudfordiae celebratum est sub initio primi anni Lotharii Regis Cantiae, Praesidente Theodoro Cantuariae Archiepiscopo. At this Council says Matthew of Westm.) were present Episcopi Angliae, & Reges, & Magnates Vniversi: Where Theodore proposed decem capitula out of a Book of Canons before them All; which were there Assented to, and Subscribed. The first was concerning the observation of Easter; the ninth, that the number of Bishops should be increased crescente fidelium numero. The rest were concerning Bishops Bishoprics, Monks, Marriage, Fornication, etc. 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 ancient 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, etc. 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, etc. Here the King, his Bishops, all his Senators, the Natu Majores & Sapientes of his People (which are Descriptions of the Laity in Parliaments of those Times,) and a great number of God's 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, etc.  
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, etc. All these pariter tractabant, anxie examinabant de Statu Ecclesiarum Dei, etc. Here the King's Legislative Power in Ecclesiastical Matters exerted itself, 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, etc. Spelm. Conc. Pag. 189, 190.  
A Council was held at Berghamjtede, Anno 5 to. Withredi Regis Cantiae, i. e. Anno Christi 697. Sub Bertualdo Archiepiscopo Cantuariensi, praesentibus Gybmundo Episcopo Roffensi & omnibus Ordinibus Gentis illius, cum Viris quibusdam militaribus. In quo de moribus cavetur ad Ecclesiae cognitionem plerumque pertinentibus. These Ordines Gentis illius seem by the Preface to these Laws, to be meant of the Ordines Ecclesiastici Gentis illius; but withal, that they cum viris utique militaribus humanissimè & communi Omnium Assensu has Leges decreuêre. 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, etc. Spelm. Conc. 242, etc.  
In the Year 787, Concilium Legatinum & Pananglicum was held at Calchyth, in which many Canons were made de fide primitùs susceptâ retinendâ, aliisque ad Ecclesiae regimen pertinentibus. This Council was held Coram Rege Aelfwaldo & Archiepiscopo Eanbaldo & omnibus Episcopis & Abbatibus Regionis, seu Senatoribus & Ducibus & Populo terrae; who All confirmed them. After these Ecclesiastical Laws had been thus enacted by Aelfwald King of Northumberland, the Legates carried them into the Council or Parliament of the Mercians, where the glorious King Offa, cum Senatoribus Terrae, una cum, etc. 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, etc.  
Many Instances of this kind might have been added, as particularly that of the Council at Hatfield, An. 680. wherein the Canons of five General Councils were received; which was a Witena Gemote, a Conventus Sapientum: But I spare time, & am endeavouring only to open a Door.  
By these Instances it is apparent, that the same Body of Men that enacted the Temporal Laws of the Kingdom, did in the very same Councils make Laws for the Government of the Church. Indeed, the whole Fabric 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 Ancient 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 Forehead of Brass. For the Presence not of the King's only, but of the Deuces, Principes, Satrapae, Populus terrae, etc. shows 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 Deuces, Principes, etc. but sure I am, that they were Laymen; 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 shows how little the Supremacy is understood by Modern Asserters of it, and how little they are acquainted with the ancient 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 Westsaxons 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, etc. All of Ecclesiastical Cognisance, or at least of Aftertimes so reputed. These are called Senatûs Consulta, than which a more apposite Word could scarce have been used for Acts of Parliament, and were assented to by the Wyten; from which Word the Saxon term for Parliaments, Wytena Gemot, is derived. Spelm. Conc. 390, etc.  
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, etc.  
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, etc. And this Council is expressed to have been Conventus tam Ecclesiasticorum, quam Laicorum; celebris tam Ecclesiasticorum quam Laicorum frequentia. Spelm. Conc. p. 419, etc.  
I will give no more instances before the Conquest, though numbers are to be had which lie 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 Bishoprics 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 concurred 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 Conqueror's 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 expressly 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 Archbishopric being divided by the Common Council of the Northumbrian Kingdom, into four Bishoprics; 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 defer; caeterùm assensum legationi omninò abnuere, quod esset contra rationem homini jam bis à toto Anglorum Concilio damnato, propter quaelibet Apostolica Scripta, communicare. This shows, that though 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 Prerogative 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 Dependence upon the Emperor; the Laity were excluded from voting in his Election: And the Game played 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 men's Consciences first, and then all they had, directly or indirectly. But this was a work of Time, and could not be effected but by degrees.  
King William the First, made one step this way, by dividing the Spiritual and Temporal Courts; without which perhaps it had been impossible for the Canon Law to have broken in upon us.  
But yet in his time, though 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, independent of the Great Council of the Nation, was never pretended to: For he reform 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, etc.  
Nor was this the Constitution of the English Church only: Ordericus Vitalis, Folio 552. gives us a remarkable Instance out of Normandy of the same platform there.  
Rex Guillielmus in Festo Pentecostes Anno ab Incarnatione Domini 1080. apud Illebonam resedit, ibique Gulielmum Archiepiscopum & omnes Episcopos & Abbates Comitesque cum aliis Proceribus Normanniae simul adesse praecepit: ut Rex jussit factum est. Igitur 8. Anno Papatus Domini Gregorii Papae 7. Celebre Concilium apud Jullam bonam Celebratum est. Et de Statu Ecclesiae Dei totiusque Regni Providente Rege cum Baronum suorum consilio utiliter tractatum est. Then he inserts the Laws made there, all concerning Ecclesiastical Matters.  
In the next Reign, that of King William Rufus, there was a Schism in the Popedom between Clement and Vrban: Anselme whilst he was Abbot of Bec in Normandy, had Sworn Obedience to urban: 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 urban 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 urban. Anselme upon this referred himself to the Judgement of the Archbishops, Bishops, Proceres, etc. in Parliament, who accordingly were Convened at Rochingham, Ex Regia Sanctione; and the matter discussed before them. If the Archbishop had had any Notion of a Personal Supremacy in the King, separate from, and independent of the Great Council of the Realm, it had been absurd in him not to acquiesce in the King's Judgement, 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. Nou. Lib. 2 page 24, 25, 26, etc.  
In King Henry the First's time, Anno Dom. 1102. A Council was held at London, in which at Anselm's request to the King, the Laity were present, Quatenus quicquid ejusdem Concilii authoritate decerneretur utriusque Ordinis curâ & sollicitudine, ratum servaretur. Sic enim necesse erat. Quum multis retro annis Synodali culturâ cessante, vitiorum vepribus succrescentibus, Christianae Religionis fervor in Angliâ nimis tepuerat. This is a clear Testimony that the Assent of the Laity was necessary to the Enacting such Ecclesiastical Laws, as they were to be bound by: And that neither the King by his Prerogative, nor the King and the Clergy could impose any Constitutions upon them without their Assent, Eadmer. Histor. Nou. 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 Praemunire for submitting to him, and owning his Authority. But the Statutes of Praemunire were then in being. Can 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 Sovereignty, 
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 virtue of their Ecclesiastical Supremacy, permit the Pope's 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 Lodge 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. Nou. p. 138. And so the Legate went back as he came. He tells it him as a known, truth (Constaret) that the giving him leave to exercise his Office here, was too great a work for him to go about (as his affairs then stood) for that it could not be done, but in and by the Parliament. If the Parliament had not a share in the Ecclesiastical Jurisdiction, how came their Assent to be necessary? If they had, when did they lose it? If the King's Supremacy was personal, why might not he (if he would) have licenced 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, show 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 persuaded to withdraw his claim, and it was granted in a Parliament held at London; Astantibus Archiepiscopis, caeteraque multitudine maxima Procerum & Magnatum, ut ab eo tempore in anteâ nullus electus per dationem Baculi pastoralis vel Annuli de Episoopatu vel. Abbathia investiretur per Regem vel aliam quamcunque personam secularem. Ibid. Et Sim. Mon. Dun. 228, 229, 230.  
But tho' Investitures were lost, Elections remained as they were (at least of right) till King John's time. 
Concessit Rex Johannes liberas in omnibus Ecclesiae Anglicanae electiones, Matth. Par. p. 262, 263. The Charter itself, 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 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 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 Schismatics Excommunicated. The History is in Nubrig. Lib. 2. c. 9  
Pursuant to which Precedent, when there happened in King Richard the Second 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 Universal 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 consists in ascribing Things, Acts, Powers, etc. 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 Abridgement of Law has it; so Fox, 
Rolls, cap. 8. vid. Chron. Geru. 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 Penance 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 faciant quaerere per consuetudinem terrae, illos qui à Regno recesserunt, & nisi redire voluerint infra terminum nominatum, & stare Juri in Curiâ Domini Regis, utlagentur, etc. 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 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 saluò & securè per terram & aquam, saluâ fide nostra, etc. Then Appeals to Rome multiplied for every little Cause, and the Masterpiece 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 styled the Avitae Consuetudines Regni: Which shows 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 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 Ancient 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 Prerogative at Common Law; and 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 Divines; no more have the Lawyers in these Matters of the Supremacy, any thing to warrant their late Hyperboles, 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 usurped upon Four hundred years before they were born. For it is in vain to look for a true Scheme of the Ancient 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 be found in our Old Books of Law, as Bracton, Glanvil, Britton, Fleta, the Mirror, nor in the Ancient 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 entered 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 puzzling Questions, by telling us Magisterially, that so and so it was at the Common Law, as occult in these Matters to many of them, as any Secret of Nature to the Philosophers.  
That Branch of 1 o. Eliz. which unites Ecclesiastical Jurisdiction to the Crown, appears by the Journal of the House of Lords to be in the sense of the Parliament, 
V Sir Simon Dewes.  that past it but Declarative: But that all other Acts and Clauses of Acts which were passed 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, etc. 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 Ancient 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 show of an Election in the Consistory, they authorise the King to name the Man. The power of making Laws and Constitutions Ecclesiastical for the Government of the whole Kingdom, we find no Resumption of, no declarative Act concerning it, other than in the Recital of 25 Hen. 8. cap. 21. For that Point had never been gained from them.  
From the Reign of King Henry the Second downward, to King Henry the Eighth, we find little or nothing of any Canons and Constitutions for the Government of the Church, made with assent of the Laity: For the Clergy had now established their Exemption, and had set up Imperium in Imperio: But many Acts we meet with, setting Bounds to their Encroachments, and limiting their Jurisdiction, and all made by the same Authority that enacted the Temporal Laws of the Kingdom: And therefore the Supremacy, so far forth as it remained in the Crown, was not Personal, but exerted itself in the Legislative Body of the Kingdom. For the Parliaments, though in a great measure Anti-Christ-ridden, did not even in these Times, so far forget the old Constitution, as to let the Church and Religion run adrist for all them, and be wholly managed either by the King or their Ghostly Fathers.  
The Writs of Summons to Parliaments both ancient and modern, have this special Clause in them: Pro quibusdam arduis & urgentibus negotiis, nos, Statum & defensionem Regni Angliae & Ecclesiae Anglicanae concernentibus, quoddam Parliamentum, etc. 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 Churchmen, the Ecclesiastical Jurisdiction, Matters of Religion, etc. As the Statutes of Mortmain, Circumspect agatis, the Statute upon the Writ of Consultation, Articuli Cleri, several Statutes entitled Pro Clero, the Statutes of Praemunire and Provisors, concerning Priests and Salaries, against Appeals to Rome, prohibiting Bishops to meddle in Matters of the Peace, removing Bishops from Temporal Offices, restraining the Pope's 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, etc. Exempting of Pilgrims from the Punishment of Vagrants, Hunting on holidays, Consecrations of Churchyards, 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 holidays, Entering into Religion without Consent of Parents, Tithes, Chalices, Ornaments of the Church, etc. So that whatever remained of the Supremacy, remained in the Legislative Body of the Kingdom, and was there exerted.  
During this time the question was not, Whether the King could by his Prerogative impose Laws upon the Clergy, or in concurrence with the Clergy conclude the Laity (these are Notions started up since the Reformation, which has brought to light in Politics, as well as Religion, Mysteries that had been hid from Ages) but whether the Spirituality or State Ecclesiastical, of whom the Pope was now the 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 Mother's 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; 
Rot. Par. 40. Edw. 3. nu. 7, 8. Rot. Parl. 5 Ed. 3. art. 46. Rot. Parl. 6 Rich. 2. nu. 62.  that they would not be bound by any Ordinances of the Clergy, without their Assent: That they would not subject themselves to the Prelates, no more than their Ancestors had done. And in the 25. H. 8. cap. 21. They tell the King, That this his Grace's Realm, recognising no Superior 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 established 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 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 Circumspect agati●, but that would not satisfy them. In King Edward the Second 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 administered in his ordinary Courts of Justice, and by the ordinary proceed 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 assumed 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 Praemunire run) and Contra Coronam & Dignitatem Regis, as the forms of some Prohibitions in the Register run, and yet the King's Temporal Jurisdiction was not personal.  
In this period of time it was that Dispensations broke 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 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 Universal Church by Succession from St. Peter. And Secular Princes Writ after his Copy in taking upon them to dispense 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 common. And another says that all Abuses would be reform, Si duo tantum verba, viz. Non Obstante, non impedirent. And Matthew Paris, Anno Dom. 1246. having recited certain Decrees made in the Council of Lions, which were beneficial to the Church of England, Sed omnia haec & alia (says he) per hoc repagulum, Non Obstante, infirmantur, Dau. Rep. 69, 70. etc. Secular Princes, it seems, had not learned 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 & 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 Regaliter tantum gubernantur, ubi quandoque Statuta ità constituentis procurant commodum singular, quoth in ejus subditorum ipsa redundant dispendium, & jacturam. Quandoque 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 wholesale, is altogether needless in a Constitution wherein Concitò reformari possunt, by the same Authority that 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 aught 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 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 Proceed 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 Prerogative 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 Pope's Provision, should enjoy the same Bishopric, notwithstanding any Act, so always as this be taken for no Example. Ibid. p. 354. So that though Tydeman had a Dispensation from the King, he durst not trust to it, without getting his Title to his Abbey confirmed in Parliament. The like Precedent occurs in 18 H. 6. The Archbishop of Rouen had the Profits of the Bishopric 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 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 King's 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 Prerogative 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 happened 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 that Office many years without control, and was submitted to almost universally. I remember but one Obstruction offered to have been made to him, and that was by Hun 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 testify. 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 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 bore 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 Do, 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 Process or Judgement 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 the Common Law; and this I learned in that Case, since that time being of the Council, when many Proclamations were devised against the Carriers out of Corn; at such time as the Transgressor's 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 Judgement has been lately given in favour of a Dispensation, with an Act of Parliament, 
Sir Edward Hales' 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, under-sheriff, etc. 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 time, it was enacted, That no Man who had been Sheriff of any County by one whole year, should be another time chosen into the said Office within three years ensuing, etc. 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 Judgement of Parliaments, may be seen by divers Instances in Cotton's Abridgement 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, etc. 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 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 virtue 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 itself, both before and after the pretended Judgement in 2 H. 7.  
The first is that of 28 Hen. 6. cap. 3. Whereby it is ordained and granted that the Sheriffs, etc. which were for the year last passed, shall be quit and discharged against our Sovereign 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, etc. So that such Sheriffs 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 indemnify 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 () and that of the 23th of King Hen. 6. concerning Sheriffs, and that contrary to the said Ordinances divers Sheriffs, etc. 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, under-sheriffs, etc. in the said Three first Years of his Reign or any space within the same for the occupation of the Office of Sheriff, etc. 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, although their Occupation were against the Ordinances above recited, be damnified nor in any wise hurt by any Action, Pain, or Forfeiture in the same Ordinances or any of them comprised, etc. Yet nevertheless the said Ordinances, and every of them to remain in their strength and force against all Sheriffs, under-sheriffs, etc. 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, than 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 Judgement of 2 H. 7. show 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 guests at, by observing 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 under-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 under-sheriffs, and other Sheriff's 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 Judgement 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 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 Judgement, if any such had been given; but the truth of it is, there never was any such Judgement given, as that the King might by his Prerogative dispense with the said Statute of 23 Hen. 6. by which it is expressly enacted, That not 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 Judgement upon the Nonobstante therein; for there is not a word spoken of the Nonobstante, 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 also of the five Points pretended to have been agreed by the Judges in Sir Edward Hales' Case, and a sufficient Answer to that slight Pamphlet, entitled, A short Account of the Authorities in Law, upon which Judgement was given in Sir Edward Hales' 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 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, etc. 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 show our Charter of Licence and Process thereupon, by an Inquest of Ad quod damnum, or of our Grace, or by Fine, they shall be freely let in Peace, without being further impeached for the same purchase: And in case they cannot sufficiently show, that they have entered 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 comprised in this Parliament.  
But Non Obstante's with the Statute of Mortmain, having been introduced, as aforesaid, though 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 though 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 entitled to an Action, as pars gravata; 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 displayed, are these following: Coke's 8th. Report, the Prince's Case. The Case of the City of London. 11th. Report, the Case of the Tailors of Ipswich, and the Case of Monopolies. Dyer, 52. a. 54. a. 224. b. 270. a. 303. a, b. Plo. Com. Grendon against the Bishop of Lincoln. Vaughan's Reports; Thomas and Sorell's Case. V rolls Abridgement: Second Part, p. 179, 180. Lett. Y. Co. 12th. Report. p. 18, 19 Sir John Davie's Reports. Le Case de Commenda. p. 68, etc. Moor's Reports, p. 244, 245, etc. cs. 384.  
But how correspondent the reason of some of these Judgements is to the sense of former Parliaments, and consequentially to the Judgement 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 Lion's Merchant of London, was impeached and accused by the Commons, of many Deceits, Extortions, and other evil Deeds, committed by him, against our Lord the King and his People, as well in the time that he had been belonging to the House and Council of the King as otherwise, during the time that he was Farmer of the Subsidies and Customs of the King; and more especially, for that the said Richard, by Covin had between him and some of the Privy Council of our Lord the King, for their singular Profit and Advantage, had procured and gotten many Patents and Writs of Licence to be made, to carry great Faith and Credit, whereby Skins, Wool and other Merchandizes, were transported otherwise than to the Staple of Calais, 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 entitled. The Privileges of the Baronage of England. pag. 34, 35, 36, etc. So that Licences for the shipping of Wool, contrary to an Act of Parliament, though mentioned by Rocliffe in the Book of King Henry the Seventh, as legal, and grantable by the King with a Non Obstante, and countenanced sufficiently by latter Judicial Authorities. Vide Dyer, 52. a, 54. a, etc. Yet appeared otherwise to ancient Parliaments; and if the Judgement 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 Precedents do not make the Law, but aught to declare it only; then is the Legal Prerogative in dispensing with Acts of Parliament much straighter, if any at all, than modern Opinions would represent it to us.  
And that Parliamentary Precedents 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 Precedents, that they frequently adjourned the Matter, ad proximum Parliamentum.  
By the Statute of Westminster the Second, made Anno 13. Edwardi primi; cap. 23. It's enacted, That Quotiescunque de caetero evenerit in Cancellaria, quod in uno Casu reperitur breve, & in consimili casu, cadente sub eodem Jure, & simili indigente Remedio, non reperitur, concordent Clerici de Cancellariâ in brevi faciendo, vel atterminent querentes in proximum Parliamentum & escribantur Casus, i● quibus concordare non possunt, & referant eos ad proximum Parliamentum. My Lord Coke in his Second Institutes, pag. 407. tells us, That before this Act the Justices did punctually hold themselves to the Writs in the Register, because they could not change them without an Act of Parliament: And pag. 408. That Matters of great Difficulty were in ancient Times usually adjourned into Parliament, to be resolved and decided there. And that this was the ancient 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 Precedents in the Rolls of Parliament, and quotes in his Margin many Presslents out of the Year Books. Observable to this purpose is the Statute of 14 Edw. 3. cap. 6. which reciting that divers Mischiefs have happened for that in the Chancery, King's Bench, Common Bench and Exchequer, Judgements 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 Judgements 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 Judgement. So that our Parliaments of ancient Time looked upon the Judges, not as absolute Oracles of the Law, but as Men that were both liable to Mistakes, and under the Regulation and Direction of Parliaments, even in their Ordinary Proceed. 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 determine, who are wise enough to declare Acts of Parliament void.) 
Co. 8. Rep. Fol. 118. a. Moor's Reports, pag. 828.  But what shall we say of them in 40 Edward 3. who because the Statute of 14 Edw. 3. cap. 6. had impowered them to amend the misprision of a Clerk, in writing a Letter or a Syllable too much or too little, not only made a Question, Whether they might amend where there was a Word wanting, but went to the Parliament to know the Opinion of them that made the Law? See the Story in Coke's 8 Report, 158. a. So sacred were Acts of Parliament accounted in those days, and so little was the Authority of the Judges in Westminster-Hall; or rather of so great Credit and Authority were the Resolutions of Judges in those days, when they were wary and cautious of making Alterations, and in difficult Matters consulted their Superiors. Other Examples of Adjournments ad proximum Parliamentum, may be seen in Cotton's Abridgement of the Records in the Tower. But that which surpriseth 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 passed. Sure I am, that no Precedent 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 virtue of their Ecclesiastical Supremacy they may dispense with such Acts of Parliament, as concern Religion. But they that say so, do not consider, that before the Reformation, the Kings of England had much less power in Ecclesiastical Matters than in Temporal, and therefore they cannot have greater now, unless some Act of Parliament give it them. And therefore this power of dispensing with Acts of Parliament in Matters of Religion, must be given by some Acts of Parliament since the Reformation; or else the King has it not.  
And admit for the present their Hypothesis, who would invest the King with whatever power the Pope de facto exercised here: Yet that will not serve the turn, for as much as the Pope himself, whatever power he might claim, and attempt to exercise, yet was never allowed a power to dispense with Acts of Parliament concerning Ecclesiastical Matters, even when it was full Sea with him here in England. Take one remarkable Precedent 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 Pope's 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 vigour, concessionum authoritas, Statuta Jura & Privilegia debilitantur & evanescunt. And it cannot but seem strange, that after such public 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 Sovereignty, as to frustrate Laws, Statutes, and Acts of Parliament; and that by virtue 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 Precedents 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 Catholics: 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 Trial. 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 ita posse, cùm erit usus, exploratum habeat Serenitas vestra, omnibus ut dictorum Catholicorum Romanorum animis mansuetudine ac lenitate nostrâ conciliatis, etc. he had promised that no Romish Priest, or Catholic 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 yourself a Liberty to throw down the Laws of the Land at your pleasure.  
And in the Second Year of King Charles the First, the King commanded his Attorney General to charge the Earl of Bristol at the Bar of the House of Lords with High Treason and other Offences and Misdemeanours, that they might proceed in a legal Course against him, according to the Justice and usual Proceed 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 intent 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 Majesty's 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 Public Laws of this Kingdom, were imprisoned or restrained; and to grant and to allow unto the Papists and Professors of the Romish Religion, free Toleration, and silencing of all Laws made and standing in force against them. Vide Rushworth, Vol. 1. p. 251. and Prinne 's Introduct. p. 32.  
So that King James thought himself had no power to rescind or repeal the Laws Seorsim, tho' he could so moderate the execution of them, as to make his Roman-Catholick Subjects be obliged to him. Yet when afterwards, in hopes of obtaining the Infanta for his Son, he had agreed to issue a Proclamation for Indulgence to Roman Catholics, and a Proclamation was drawn accordingly, but never published; we may read the Sense of the Church of England upon it in Archbishop Abbot's Remonstrance. The Reason why the Proclamation was not published, was because the putting of it in practice or not, was to depend upon the success of the Match, which miscarrying, the Proclamation was stifled. And that may be the reason why the Parliament in 21 Jacobi take no notice of it. But in the Parliament of 2 Car. 1. The Earl of Bristol was charged by the King's own Direction, for having persuaded the King to it, as having committed a very high Crime in so doing. Whereas if the King had a power by Law to do it, it could not well be a Crime in him, to persuade him to make use of his Power, when the Circumstances of his Affairs required it.  
And as it was then conceived a Misdemeanour to Advise the King to it, so who knows how far future Parliaments may account it a Misdemeanour to have been in any wise instrumental towards the carrying on of a design, which some will not stick to say now, as the Archbishop did then, is to give the King a Power of throwing down all the Laws of the Land at his pleasure?  
Thus I have endeavoured to give some small account of the rise and progress of Dispensations with Acts of Parliament; by which it does appear, that as the clause of Non Obstante was first introduced by Popes, and first applied by the instigation of the Popish Clergy, to break through Acts of Parliaments, (tho' our Parliaments never Countenanced them, and our Courts of Justice never extended the dispensing power farther than to particular persons, or at most to Corporations) so Dispensations suspending at one blow the whole effect of Laws, were invented at Rome too, in favour of English Papists, upon the Treaty of the Spanish Match in King James' time: But they never appeared bare-faced in view till King Charles the Second time; in whose Reign they were twice damned in Parliament. The third effort has been made of late, since which no Parliament has yet sat down.  
It may seem strange, considering the great Solemnity and Caution that is used in passing Acts of Parliament, that so impudent a conceit, as that of the Legality of a dispensing Power, should ever enter into the thoughts of Men.  
For if a Bill be first brought into the House of Lords, after it is read, it is committed to a Committee of Lords, and certain Judges are appointed to attend them, that nothing may be put into the Act, which may be mischievous to the King or Kingdom. After which, when it comes to be read in the House again, the Judges sit as Attendants upon the House, and hear all the Debates of the Lords upon it. Indeed they have no Voice in the House of Lords, but if any Bill that is passing should in their Judgements have any ill Consequences to the King or Kingdom, they might either have offered their Reasons at the Committee, or suggested what their thoughts were to some of the Lords in the House, who would have acquainted the House with it. A Bill having passed the House of Lords with all this Caution, is afterwards sent down to the Commons by some of the Judges themselves, and sometimes by the Chief Justices and Chief Baron, who coming into the House of Commons with Reverence, and the respect of three Bows, deliver the Bill to the Speaker. And the method is the same in case of a Bill coming from the House of Commons, and committed by the Lords, some of the Judges are always appointed to attend and wait upon the Committee of the Lords.  
After all this Solemnity, the Bill yet signifies nothing, without the Royal Assent.  
In order to which, before the King is to give it, the Clerks of the House of Lords are to bring the Bills before the King and the Privy Council, before whom they are read, and not only the King's Council are ordered to attend, and be present, but likewise all the Judges in Westminster Hall: And if any Bills should be thought of mischievous Consequence, they, as being the King's Council in Matters of Law, are bound by the express tenor of their Oath, to show and disclose it to the King.  
But if no such thing be done, than 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 entered upon Record, as a Statute binding to the whole Kingdom; it must needs seem strange, that the Judges in Westminster Hall should dare to allow of Dispensations with such a Law, grounded upon the sole Act of the Prince: and much more, that they should, as a late Honourable Author tells us they have done, declare Acts of Parliament to be void, 
Coke 8 Rep. Fol. 118. Heb. 87.  and contrary to the Law of God or Natural Equity, or that they should suppose any Law thus made to be so, without assuming a power to themselves of Impeaching both Houses of Parliament, the King himself, all the Privy Councillors, nay and themselves too, or at least their Predecessors, for want of Knowledge, Prudence or Foresight, as not being capable to judge of common Sense, or not foreseeing 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 tolerable Pen, by some scurrilous Authors, whose names I cannot prevail upon myself 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 movable Goods and of their Lands, therewith to sustain impotent Men and Women, etc. And that the same Hospitals be now for the most part decayed, and the Goods and Profits of the same withdrawn and spent in other uses: And therefore Enacts, That as to the Hospitals which be of the Patronage and Foundation of the King, the Ordinaries by virtue of the King's Commissions to them directed, shall inquire 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 certify into the King's Chancery; And as to other Hospitals, which be of another Foundation and Patronage than of the King, the Ordinaries shall inquire 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 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, aught 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 Found'st 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 expressed in the Foundation, 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 inquire 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 Universities are pretended to be visitable by the King's Commission, by virtue 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 alleged to the contrary) visitable by the Bishop of the Diocese, or (if exempt from Episcopal Jurisdiction) by the King's Commission. But what Power have these Visitors? The Founder inquires, 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 inquire, Whether they profess the Doctrine, 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 Precedent, 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 was a mere 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,  
Whereas the late Noble Prince of Famous Memory, King Henry the Eighth, Father unto our most Gracious Sovereign Lady the Queen, amongst other his godly Acts and Do, did erect, make and establish divers and sundry Churches, as well Cathedral as Collegiate, and endowed every of the same with divers Manors, Lands, Tenements and Possessions, for the maintenance of the Deans, Prebendaries and Ministers within the same, and for other charitable Acts to be done and executed by the same Deans, Prebendaries and Ministers, and also did incorporate the same Deans, Prebendaries and Ministers, and made them Bodies politic in perpetual Succession, according to the Laws of this Realm of England: And where also, as the said late King, for the better maintenance and preservation of the said Churches, in a godly Unity, and good Order and Governance, granted unto the several Corporations and Bodies Corporate of every of the said Churches, that they should be ruled and governed for ever, according unto certain Ordinances, Rules and Statutes, to be specified in certain Indentures, then after to be made by his Highness, and to be delivered and declared to every of the Bodies Corporate of the said several Churches, as by the said several Erections and Foundations of the said Churches, more plainly it doth and may appear: Since which said Erections and Foundations, the said late King did cause to be delivered to every of the said Churches, so as is aforesaid erected and incorporated, by certain Commissioners by his Highness appointed, divers and sundry Statutes and Ordinances, made and decreed by the same Commissioners, for the Order, Rule and Governances of the said several Churches, and of the Deans, Prebendaries, and Ministers of the same; which said Statutes and Ordinances were made by the said Commissioners, and delivered unto every of the Corporations of the said several Churches in writing, but not indented, according to the Form of the said Foundations and Erections; by reason whereof the said Churches, and the several Deans, Prebendaries, and Ministers of the same, have no Statutes or Ordinances of any Force or Authority, whereby they should be ruled and governed, and therefore remain as yet not fully established in such sort, as the godly intent of the said late King Henry the Eighth was, to the great imperfection of the Churches, and the hindrance of God's Service, and good Order and Regiment to be had and continued amongst the Ministers of the same.  
And forasmuch as the Authority of the making of the said Statutes, Ordinances, and Orders, was reserved only unto the said King, and no mention made of any like Authority to be reserved unto his Heirs and Successors, the same Orders, and Statutes, cannot now be made and provided without Authority of Parliament.  
And then the Act proceeds to empower that Queen during her Life, to prescribe such Orders and Statutes; and to alter, transpose, change, augment or diminish the said Orders, Statutes, etc. 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 rastal'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, etc. as aforesaid, and coming to die without executing that Power, his Successor could not make such Laws, though for the Government of Colleges, etc. of which the King himself was Founder (as most evidently, according to the Opinion of those two Queens and their Parliaments, she could not) and for the Government of Colleges, etc. that had no private Laws at all for their good Order and Government, than a power given by Commission to Survey, Altar, Reform, Amend, etc. the Statutes of the Foundation of Colleges, Halls, etc. was not in those days looked upon as Law.  
Secondly, If the King could not appoint New Laws for the Government of Colleges, etc. of his own Foundation, than 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 Queen's Power but for Life; has been the pattern for that Clause in a late Commission, which relates to the Colleges in Universities, etc. 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 Universities, 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 Doctrine, and Church Discipline, and Ceremonies, not to meddle with the private Statutes of their Foundation: Which he disclaimed any Right to inquire into. V Rushworth's Collections.  
I mention this only to show 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 University, 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 Ancient Legal Jurisdiction, which in former Ages the Crown claimed and exercised in Ecclesiastical and Spiritual Matters; come we now to King Henry the Eighth's Reign, in whose time all Foreign Power was excluded, the Ancient Supremacy restored, and New Powers given, some to that King personally, some to Him, his Heirs and Successors. I shall run through the Acts, as they lie 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, authentic 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: Unto whom a Body Politic, compact of all sorts and degrees of People, divided in Terms, and by Names of Spiritualty and Temporalty, been bounden and own to bear, next to God, a natural and humble Obedience: He being also institute and furnished, by the Goodness and Sufferance of Almighty God, with plenary, whole and entire Power, Pre-eminence and Authority, Prerogative and Jurisdiction, to render and yield Justice, and final determination to all manner of folk Resiants, or Subjects within this his Realm, in all Causes, Matters, Debates and Contentions, happening to occur, insurge and begin within the Limits thereof, without restraint or provocation to any Foreign Princes and Potentates of the World; The Body Spiritual whereof having Power, when any cause of the Law divine cometh in question, or of Spiritual Learning, that it was declared and showed, by that part of the said Body Politic, 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, etc. it hath been thought, and is sufficient and meet of itself, without the intermeddling 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 trial of Property of Lands and Goods, and for the conservation of the People of this Realm in Unity and Peace, without Rapine or Spoil, was and yet is administered, adjudged and executed by sundry Judges and Ministers of the other part of the said Body Politic, 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, authentic Histories and Chronicles; and consequently, wherein the power of this One Supreme Head doth consist, must be learned 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 administered 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 shown by the Spiritualty, (which is to be understood of ordinary Proceed.) And 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 precedent 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 independent of the Estates of the Realm, or which might be administered otherwise than in the Course settled 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, etc. any Appeal to the See of Rome, and in all other cases of Appeals, in and for the Causes aforesaid, 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  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 Judgement, 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, etc. 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 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 Upper 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 Upper House of Convocation, and their Sentences respectively are appointed to be final and definitive. And therefore, neither the Clergy in their Submission, wherein they Recognised the King to be the Supreme Head of the English Church, 
V Burnet's Collect. add. Vol. 1. p. 128, 129.  nor this Parliament, who had been informed by Old Authentic 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 virtue 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 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 Governors of Monasteries, etc. and places exempt, etc. 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 Judgement in Causes Ecclesiastical referred by the Parliament to the Bishops, Archbishops, or to Commissioners appointed by virtue of an Act of Parliament, etc. 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, 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 restrained by the Act, as much as it was capable of being restrained; and that by these words, viz. that such Judgement 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 restrained more expressly, than by these words? They are not named 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 Uses, is final; upon which no Bill of Review is to be allowed? 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 Uses 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 Judgement in the Controversial, profitable part of the Law, in which he was unquestionably a very great Man) follow him blindfold 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 wished. 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 used to grant a Commission ad revidendum, and such Authority as the Pope had, claiming as Supreme Head, doth of right belong to the Crown, and is annexed thereunto by the Statutes of 26 Hen. 8. cap. 1. and 1 Eliz. cap. 1. And so it was resolved, says he, in the King's Bench, Trin. 39 Eliz.  
You see the English on't is; the King may do so, because the Pope did so; for the Pope was Supreme Head then, or claimed to be so, and the King is acknowledged to be so now.  
This pretended Translation of the Pope's Power to the King, is another fiction, that has contributed exceedingly to raise the Supremacy in some men's 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 abolished and abrogated. 
Stat. 28. Hen. 8. cap. 10.  The Ancient Jurisdiction of the Crown, which by the Common Law and Fundamental Constitution of our Government, was inherent in it, was restored; only some branches of it put into another method of Administration: And that by the Supreme Power of the Nation, from whose Authority and Jurisdiction nothing within this Kingdom is exempted.  
That such Authority as the Pope had, does of right belong to the King, he would prove by the Statutes of 26 Hen. 8. cap. 1. & 1 Elizabeth, cap. 1. The first of which, to wit, that of 26 Hen. 8. cap. 1. was repealed long before the Case in 39 Eliz. came in question, and consequently is there alleged to no purpose. As for the Second, that of 1 Eliz. cap. 1. how far that goes, we shall have occasion to inquire 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 virtue 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 cumulatiuè, non privative, sic Rex subditis suis Jurisdictionem communicat in causis Ecclesiasticis, vigore Statuti in ejusmodi casibus editi, & provisi cumulatiuè, & non privatiuè, 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 Upper 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 lodged in the King's Person? What means then the Act of 16 Car. 1. cap. 10. That neither his Majesty nor his Privy Council, have or aught 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 aught to be tried 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 sat 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 Prerogative originally inherent in the King: That our Kings have sometimes sat 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 denied, that Writs of Error lie 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 Judgements and Decrees, as they see Cause: And were it not more honourable to ascribe no Judicial Power at all to the King in Person, than to make him Judge of an Inferior Court. But you'll find that our Kings never sat in the King's Bench or the Star Chamber Juridically: The Courts gave the Judgements, 
Co. 12. Rep. p. 64.  and they were entered per Curiam.  
Nay, take in their Hypothesis, 
Brady, Johnson, Filmer.  who would persuade us, that Parliaments of old time before they were christened by that Name, were but Assemblies of the King's Tenants, in the nature of a Courtbaron. Why, even in a Courtbaron 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 Ancient Law of the Realm, were to the Curia Regis, had been gained from it to the Court of Rome. That King Henry the Eighth caused such Foreign Appeals to be restrained, 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 informed 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  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, allege, claim, or put in ure any Constitutions or Ordinances, Provincial or Synodals, or any other Canons; nor shall enact, promulge, or execute any such Canons, Constitutions or Ordinances Provincial, by whatsoever Name or Names they may be called, in their Convocations in time coming (which always 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 penned in Negative Words. It is but declarative of what the Ancient Law of the Kingdom was. The Clergy had frequent Provincial Synods ever since the Christian Faith was introduced 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 obtained as Ecclesiastical Laws here, without the Assent of the Temporalty. But when the Clergy had got an Exemption from the Temporal Laws, and looked upon themselves as a distinct, separate Body of Men from the rest of the King's Subjects, as having a dependence 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 entrenched upon the Common Law of the Realm, which was the Subjects Fence and Protection, the Temporal Courts galled 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 bond, 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 bond the whole Body of the Clergy, never had any Royal Assent to them since King Stephen's days. No Ecclesiastical Laws, other than what were enacted in Parliament, having since that King's Reign derived their Authority from the King. This Act therefore ties up the Clergy from any power of making Canons and Constitutions without the King. But since it gives them no manner of Power or Authority whatsoever, their Power (even the Royal Assent taken in) is no other since this Act, than it was before they had withdrawn themselves from the King and the Laity: Which how far it extended has been sufficiently explained 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 Upper 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 retained. 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, though as cautiously penned 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 Prerogative 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 gained, but leaving a shadow of Election in the Consistory, empowers 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 Congee 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 allowed 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 Power, as some have imagined.  
Next comes the Act entitled, No Imposition shall be paid to the Bishop of Rome, etc. 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 established 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, 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 imagined, 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 authorise some Elect Person or Persons, to dispense with those and all other humane Laws of this your Realm, etc. and also the same to abrogate, amplify or diminish, as it shall seem to your Majesty, and the Nobles and Commons of your Realm, present in your Parliament, meet and convenient, etc. 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 joined with him in tying up the hands of the Clergy from promulging any Constitutions, without the Royal Assent; their Authority concurred in appointing how Bishops should be Elected, Invested, and Consecrated; and here they empower 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 empower 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? Can not the King by virtue of his inherent Prerogative dispense with himself? 
Dr. Hicks.  Was not this involved in the formal conception of Imperial Sovereignty? 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 virtue of this Act may dispense in; only in cases unwont to be dispensed in at Rome, he must advertise the King or his Council; who if they determine that such Dispensation shall pass, than the Archbishop, having the King's Licence, shall dispense accordingly: But who ever heard of the King's Licensing an Archbishop to dispense with 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 virtue of that Act, is with the Canon Law only, which in effect was no Law at all.  
To say that the King is not restrained by this Act, 
Hob. p 146. in Colt and Glover's 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. All 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. the granter dispensations: quia tout l'authority, que le Pape usoit, est done all Corone. But these and many other scattered Cases and extravagant Expressions of Reporters (which have been made use of as Judgements in after times) there may possibly be some account given hereafter in a Discourse by itself.  
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, etc.  
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 virtue of any Bulls, Licences, or Dispensations from Rome only) if it had not been especially and expressly 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, Privileges, or Jurisdiction of any Monasteries, Abbeys, 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 Sovereign 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, Preeminences, Jurisdictions, Privileges, Authorities, Immunities, Profits, and Commodities to the said Dignity of Supreme Head of the same Church belonging and appertaining.  
What was then meant, understood, recognised etc. by the word Supreme Head, will appear by these following Considerations; First, that the recital of the Act shows 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 aught 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, etc. So that this Act so far forth, as it gives or acknowledges the Title of SUPREME HEAD, is but Declarative. And consequently they, that upon this Act ground a Translation of the Pope's Power by the Canon-law, to the King, utterly mistake the matter: For our King's Ecclesiastical Jurisdiction was not grounded upon the Canon Law, but the Common Law of the Realm; it was a Native of our own, and not of any foreign extraction: Secondly, That this Supreme Head-ship of the Church, consists only in his being Supreme head of that Church of England, which then was called Anglicana Ecclesia; and who they were, appears First, by the Statute of 24. Henr. 8. cap. 12. aforementioned: The body Spiritual whereof (of the Realm of England) having Power, when any Cause of the Law Divine, happened to come in question, or of Spiritual Learning, that it was declared, interpreted, and showed by that part of the said body Politic, called the Spiritualty; now being usually called the English Church. So that the Spiritualty are the Ecclesia Anglicana, of whom the King is here declared 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, etc. do pray that for the more surety, continuance, and augmentation of his Highness Royal estate, being not only now recognised (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, etc. 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 recognised, because they had acknowledged formerly another Supreme Head. Secondly, That they gave no new Power by that word, since they tell us, that indeed he had always been so. And Thirdly, That his Supremacy consists only in a power of Governance. Fourthly, This title of Supreme Head does not give the King any power of dispensing with Acts of Parliament in Matters of Religion or Ecclesiastical Affairs whatsoever. That power was never yielded to the Pope himself, during that whole time that he was uncontrollably submitted to, as Head of the Church. That power they complain of in the Act of 25 H. 8. cap. 21. as an Usurpation, an Abuse, a Cheat. They declare it to be in the King and themselves. Fifthly, Dr. Burnet in his History of the Reformation, p. 142, 143. First Part, has these words; But at the same time that they pleaded so much for the King's Supremacy, and power of making Laws for restraining and coercing his Subjects, it appears that they were far from vesting him with such an absolute Power, as the Popes had pretended to; for they thus defined the extent of the King's Power. 
Institution of a Christian Man.  To them (speaking of Princes and Magistrates specially and principally it appertaineth to defend the Faith of Christ and his Religion, to conserve and maintain the True Doctrine of Christ, and all such as be true Preachers and setters forth thereof, and to abolish Heresies, Abuses, and Idolatries, and to punish with corporal pains, such as of Malice be the occasion of the same. And finally to oversee and cause that the said Bishops and Priests do execute their Pastoral Office truly and faithfully, and speally in these Points which by Christ and his Apostles were given and committed to them; and in case they shall be negligent in any part thereof, or would not diligently execute the same, to cause them to double and supply their lack; and if they obstinately withstand their Prince's kind monition, and will not amend their faults, then and in such case, to put others in their rooms and places: And God hath also commanded the said Bishops and Priests to obey with all humbleness and reverence, both Kings and Princes and Governors, and all their Laws not being contrary to the Laws of God) whatsoever they be, and that not only propter iram, but also propter conscientiam. Thus it appears, that they both limited obedience to the King's Laws, with the due caution of not being contrary to the Law of God; and acknowledged the Ecclesiastical Jurisdiction in discharge of the Pastoral Office, committed to the Pastors of the Church by Christ and his Apostles; and that the Supremacy then pretended to, was no 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 acknowledgement that the King is (not an absolute Dominus fac-totum in Spiritualibus, but) the Fountain of Justice to be administered according to Law in Cases commonly called Ecclesiastical, as well as Temporal, without any dependence upon a Foreign Potentate.  
Hence it is, that in these Acts of King Henry the Eighth concerning Ecclesiastical Affairs, the Crown of 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 Judgement: 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 confessed, that the Word Supreme Head, though legally understood, it be no such , 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 learned from a Jurisdiction pretended to be exercised by the Pope as such; and claiming to be so, as Vicar General to Christ. Papists thought the Right of St. Peter's Successor injuriously invaded; and Protestants, though universally submitting to the Legal Power of the Crown, yet many of them boggled at the Title, as making too bold with our Saviour's 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 occasioned 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 looked 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 open a very fine Scene, and gives an undeniable Answer to the only material Argument that can be produced in favour 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 denied 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 expressly impowered to issue such a Commission; the Commission was warranted by the Common Law. This being the Argumentum palmarium, though foolishly omitted by those that have undertaken to write in Vindication of the Proceed 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 reform, repressed, ordered, redressed, corrected, restrained or amended, most to the Pleasure of Almighty God, the increase of Virtue in Christ's Religion, and for the conservation of the Peace, Unity, and Tranquillity of this Realm, any Usage, Custom, foreign Laws, foreign Authority, Prescription, or any thing or things to the contrary hereof notwithstanding. By these Words a Personal Authority (not of Legislation) but of visiting, redressing, correcting, etc. 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 passed, out comes Cromwell's Commission of Vicegerency, and not till then, though the Clergy had recognised 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 recognised, restored and declared Supremacy looked 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 revived; there is now no ground from this Act, or from that Precedent of Cromwell's Commission, for a like Commission in our Days. How far the Statute of 1 Eliz. 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, entitled, 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 Style, Title and Name of a Bishop of such a See, etc. provides for the Consecration of such Bishops; limits what Authority they shall have in the Diocese, etc.  
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 bond 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 King's 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 Virtue of any Provision or other Foreign Authority, Licence, Faculty or Dispensation, keep, enjoy, and retain their Archbishoprics and Bishoprics, in as large and ample manner as if they had been promoted, elected, confirmed and consecrated according to the due Course of the Laws of this Realm: And that every Archbishop and Bishop of this Realm, and of other the King's Dominions, may minister, use and exercise all and every thing and things pertaining to the Office or Order of an Archbishop or Bishop, with all Tokens, Insigns and Ceremonies thereunto lawfully belonging.  
Here the Parliament empowers the Archbishops and Bishops that then were, to use and exercise their Offices and Orders, not by Virtue of any Foreign Authority, but by Authority of this present Parliament. This the King could not have done without consent of Parliament, because he could not dispense with the Statutes of Praemunire and Provisors, as has been said already, and as appears by a notable Act in the Twenty fifth Year of this King's Reign, 
Burnett's Collect. of Records. ad Vol. 1. pag. 121, 122, 123.  concerning the Deprivation of the Bishops of Salisbury and Worcester: The Act recites, That where by the laudable Laws and Provisions of this Realm, it had been established that no Person or Persons of of what Degree, Estate or Quality, should take or receive within this Realm of England, to Farm by any Procuracy, Writ, Letter of Attorney, Administration, by Indenture, or by any other Mean, any Benefice or other Promotion within this Realm, of any Person or Persons, but only of the King's true and lawful Subjects, being born under the King's Dominions: And also, that no Person or Persons of what Estate and Degree soever, by reason of any such Farm, Procuracy, Letter of Attorney, Administration, Indenture, or by any other Mean, should, etc. Notwithstanding which said wholesome 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, etc. belonging to the same; And hath also nominated, preferred and promoted Hierome, being another Stranger, to the See of Worcester, etc. 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, etc. Here we see the King was not allowed to act contrary to Acts of Parliament concerning Ecclesiastical Matters: We see Bishops deprived 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 enjoyment of their Bishoprics and authorised 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 searched, 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 shows both that the King's Supremacy was not accounted any such unbounded Power, as some fancy, and that the Parliament retained 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 Heresy, 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 King's Advice and Confirmation by his Letters Patents, shall be made and ordained by the Archhishops, Bishops, and Doctors, appointed or to be appointed by his Royal Majesty, or else by the whole Clergy of England, (nota benè) in and upon the matter of Christian Religion, and Christian Faith, and the lawful Rites, Ceremonies, and Observations of the same, shall be in every point thereof believed, obeyed, and performed to all intents and purposes, upon the pains therein comprised. Here Matters of Doctrine and Worship are given up to the King's determination and appointment. But he was to determine by such Advice, as was appointed by the Act. And this Power was personal, died with him, and was never pretended to by any of his Successors. It was given him by Parliament, who could not have given it him, if they had not had it themselves: for there was no Act of Convocation in the case. He had it not before, for then there would have been no need of the Act. It is greater to give than to receive. They give it him with a restriction, that affords a good Argument against a pretended power in the King, of dispensing with all Acts of Parliament concerning matters of Religion, viz. Provided that nothing shall be ordained or defined which shall be repugnant to the Laws and Statutes of the Realm. It seems the Parliament at that time was so far from apprehending any power lodged in the King, either by virtue of any inherent Prerogative, or by virtue of his Imperial Sovereignty, or as incident to his lately recognised 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 acknowledgement 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 blazed 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 virtue of the Stat. of 26 Hen. 8. cap. 1. (as hath been said) a Legislative Power was given him by 32 Hen. 8. cap. 26. But that Act did not enable him to make any binding Laws about Marriage, for the Declarations, Decrees, Definitions, Resolutions and Ordinances which he was impowered to make according to God's Word and Christ's Gospel, with his Bishops and Doctors to be appointed, were only in Matters of Christian Faith and the lawful Rites and Ceremonies of the same. And the settling 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 settling or using of any Books of the Old or New Testament of Tindal's Translation, or comprising any Matter of Christian Religion, Articles of Faith or Holy Scripture, contrary to the Doctrine 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, etc. under severe Penalties. In which there is this farther Clause: And be it farther enacted, That the King's Majesty, our said Sovereign. 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 Prerogative 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 Virtue of the Act of 32 Hen. 8. cap. 26. For that Act gave him a Power concerning Matters of Christian Faith and Ceremonies only: Nor could the King and the Clergy settle these Canons and Constitutions, without an Act of Parliament; for the Laity in all Matters Ecclesiastical, in all things of Spiritual Conusance, were to be bound by them: Nor would the Parliament trust the King and the Spiritualty to settle the Canon Law, without an equal number of the Temporalty added to them.  
The next and last Act that I shall observe in this King's Reign, is the 37 Hen. 8. cap. 17.' which Act reciting, That the Archbishops, Bishops, Archdeacon's 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 Married Men, being Doctors of the Civil Law, may lawfully execute and exercise all manner of Jurisdiction, and all Censures and Coertions appertaining to, or in any wise concerning the same, etc. 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 Laymen and Marryed-men were disabled to exercise any Jurisdiction Ecclesiastical, or be Judge or Register in any Court commonly called Ecclesiastical Court.  
I cannot well deny but that the King might have dispensed with those Canons and Constitutions by Virtue 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 abolished, 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, Archdeacon's, and other Ecclesiastical Persons practised the contrary; which might give occasion to some evil disposed Persons to think, and little to regard the Proceed and Censures Ecclesiastical, made by your. Highness and your Vicegerent, Officials and Commissaries, Judges and Visitors, being also Lay and Married Men, to be of little or none Effect or Force; Therefore it is ordained and enacted by Authority of this present Parliament, That all and singular Persons, as well Lay as those that be Married, being Doctors of the Civil Law, etc. The enacting of a thing by Parliament to silence all Doubts, to give credit to the Proceed of such Laymen as then did actually exercise Ecclesiastical Jurisdiction by Commission, or otherwise, shows sufficiently, that even in Matters never so Spiritual, the Act of King, Lords and Commons, carried 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 King's Reign, concerning Church men and Matters confessedly of Ecclesiastical Conusance, as 21 Hen. 8. cap. 5. concerning Probates of Wills. Cap. 6. Concerning Mortuaries taken by Priests and others. Cap. 13. Against Pluralities of Benefices and taking of Farms by Spiritual Men. 23 Hen. 8. Cap. 1. Abridging the Power of Ordinaries, and taking away the Benefit of Clergy in some Cases. Cap. 9 That no Man be cited into any Ecclesiastical Court out of the Diocese 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 Heresy and Heretics, limiting the manner of proceeding against them, defining what shall be Heresy, how it shall be punished, 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 Privilege of Sanctuary in Cases of High Treason. Cap. 15. Against some Exactions of Spiritual Men within the Archdeaconry of Richmond. 27 Hen. 8. Cap. 8. That the King's Spiritual Subjects shall pay no Tenths whilst they are in their First Fruits. Cap. 19 Limiting Sanctuaries and Sanctuary Persons. Cap. 20. Concerning the Payment of Tithes 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 Live. Cap. 16. Releasing such as had obtained 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 Bishoprics, 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 Tithes and Offerings. Cap. 10. For the Punishment of incontinent Priests and Women offending with them. Cap. 12. Concerning Sanctuaries and the Privileges of Churches and Church-Yards. Cap. 15. Prescribing the manner of proceeding against Heretics, and impugners of the Act for abolishing of enormous Opinions in Christians Religion. Cap. 25. Dispensing with the Marriage between the King and the Lady. Ann of Cleve. 33 Hen. 8. Cap. 29. For enabling Religious Persons to sue and be sued. Cap. 31. Severing the Bishoprics of Chester and the Isle of Man from the Jurisdiction of the Archbishop of Canterbury, and uniting them to the Province and Archbishopric of York. Cap. 32. Making the Church of Whitegate a Parish Church by itself, 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 Fabric of the English Church, both as to the Doctrine, Discipline, Ceremonies, Censures, Rights, Jurisdictions, Endowments, Privileges, etc. 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 mere Supremacy; nor by the Clergy, upon the score of any pretended Authority derived from from Christ, or from the King as SUPREME HEAD on Earth: That no one Pin was fastened 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 Forefathers 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 show, that our King's were not, nor are entitled to them of common Right, nor can justify the executing any such Authority by Precedents in his Reign, which were grounded upon Laws then in being, but which are now of no force: so they show unquestionably, that there is a greater and more Sovereign Supremacy in Matters Spiritual and Ecclesiastical, in the King and both Houses of Parliament, than is lodged in the King himself, or in the King and Convocation. It appears farther, that those Temporary Powers given to that King expiring with him, and the Act of 26 Hen. 8. Cap. 1. being now Repealed, 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 passed in this Reign; only that a new Course is now settled, and that by Act of Parliament too, for the Electing of Bishops and Prosecuting of Appeals.  
Only one Thing more I shall add, viz. That in Matters Spiritual, as well as Temporal, several Resolutions of the Judges being grounded on Temporary Acts of Parliament then in being, following Judges both Ecclesiastical and Civil, meeting with such Resolutions, and not considering that those Acts upon which such Resolutions were made, were but Temporary or Repealed; they have made such Judgements to be Precedents, to graft their Modern Opinions upon.   
FINIS.  

An Answer to CHAP. 4. SECT. 1. Of a late BOOK, Entitled, the King's Visitatorial Power Asserted, By way of APPENDIX.  
SInce the foregoing Papers were Written, a late Mercenary Writer, One Nathaniel Johnson, Doctor in Physic, has published a Book, Entitled, The King's Visitatorial Power, Asserted; in which Book he has inserted a long Section (how pertinently to his main design, in that Treatise, may perhaps be shown hereafter) concerning the King's Supremacy and Power in Ecclesiastical Causes, and Visitations, page 144. etc. to page 160.  
In which Section, because he pretends to set up an imaginary Personal Supremacy, quite different from what I have endeavoured to assert from some Remarks, upon Ancient Histories, and late Acts of Parliament, but agreeable enough with some Opinions that have been espoused of late, and made use of to warrant some late Proceed. I thought it might not be amiss to trace him through that Section, and submit to the Judgement of the Unprejudiced Reader, whether the Doctor has afforded the World a right Scheme of the King's Ecclesiastical Supremacy.  
I beg the Reader's Pardon, if he meet with some few passages over again here, that were touched upon in the foregoing Discourse. I hope their usefulness will excuse the repetition of them; and the Answer would not have been so clear without it.  
He tells us (pag. 144.) that long before the Reformation, several Kings of England permitted no Canons, or Constitutions of the Church, or Bulls and Breves of the Apostolic See, to be executed here [without their Allowance.] Which I agree to be very true, only the Doctor saying [without their Allowance] implies (and it appears by the whole drift of his Discourse in this Chapter, and indeed by the main Scope of his Book, that he would be understood) that With their Allowance such Canons and Constitutions, Bulls and Breves might lawfully be Executed. Which I deny: And hope to make it evident, that Our Kings could not by their own Personal Authority let in upon their Subjects a foreign Jurisdiction.  
He adds (pag. 145.) that since the Supremacy has been Established by Act of Parliament in the Crown, The Kings of England may according to the Laws in force, not only Exercise all the Powers they could, 
What Powers those are, no Man knows but Filmer, Brady, Johnson, Hicks, Sir. Roger L'Estrange, and a very few others of yesterday.  as Sovereign Princes; but likewise whatever the Pope de jure, if not de facto could, or did do, in the outward Regiment of Ecclesiastical matters; and consequently, that whatsoever was done in Visitations by the Authority of the Popes, Metropolitans, or Diocesan Bishops, may now be done by the Kings of England, as Supreme Ordinaries.  
Which is a very wild Assertion, and without the least Foundation of Truth. He does not here speak it out roundly, That the King may by the Law do whatever the Pope de facto did; but minces the matter a little by saying, Whatever the Pope de jure, [if not de facto] could, or did do: And, yet with the same breath, he says positively, that whatever was done in Visitations by Authority of the Pope, may now be done by the King. So that however the King may be limited, and tied up in other Parts of his Ecclesiastical Jurisdiction, to what the Popes de jure could do, in Visitations, at least he has Authority to do whatever the Popes, Archbishops, or Bishops actually did.  
The Doctor did not consider that the several Branches of the Supremacy, now restored by Act of Parliament, are guided, directed, and limited by positive and particular Laws, made about the time of the Reformation: And that the Act of primo Elizabeth, in that general Clause, which Restores the Supremacy, Unites and Annexes only such Jurisdiction, and Authority, as had, or might be lawfully Exercised by any Spiritual Person, etc. Not that the Pope (to speak strictly) could Exercise any Jurisdiction lawfully within this Realm, for the Old Laws and Customs of the Realm, and the Statutes of Praemunire and Provisors were firm Bars to his Right; but a Jurisdiction may be lawful in itself (that is (for so I would be understood) the Acts of a Person Assuming Jurisdiction, may be lawful in themselves) considered separate and apart from the Person of him that Exerts it; though the Person Exercising such Jurisdiction, have no legal Authority. If an Usurper should possess himself of any Government, and carry on the Administration of it, in the same Method and Course of Justice, that the Lawful Prince did, or aught to do, in strictness of Law there might perhaps be a Nullity in all his Acts; and yet, considered Abstracted from his Person, his Government would be said to be lawful; that is, according to Law, and the course of Proceed, that had been settled, and obtained before his Usurpation. So, whatever the Pope did in this Nation, as pretending to be Head of the English Church, which was not in itself contrary to the Law of the Realm in Church, or State; but might lawfully be done, though not by him, is by the said Act of primo Elizabeth, United and Annexed, to what? Why, to the Imperial Crown of this Realm. Whereas by the Act of Supremacy that passed in King Henry the Eighths' time, All such Jurisdiction, Authority, etc. was personally vested in the King, his Heirs and Successors. But of that distinction more shall be said, God willing, some other time.  
Pursuant to this imagination of the Pope's Power, being Translated to the King, he tells us, that latter Laws have devolved upon the King even the Power of the Pope in foro externo, pag. 145.  
He says (pag. 145, 146.) that during the Schism (in the Papacy between urban and Clement) King William Rufus claimed as other Princes did, a Right to declare to which Pope he would adhere: And that none should be received, as Pope, in England, without his Licence and Election. Here if I understand the Doctor aright, he takes for granted, that if there should happen a Schism in the Popedom, the King might declare whether, or which of the Competitors himself thought fit, to be Pope within this Realm. Which I deny that he could do, without the Assent of the Clergy and Laity in a General Assembly.  
He says (pag. 145.) that, if the Archbishop of Canterbury called, and presided in a General Council of Bishops, King William allowed nothing to be appointed, or forbidden, unless they were accommodated to his Will, and were first ordained by him. These are the Words of Eadmerus, out of whom the Doctor Quotes them: (Eadm. Lib. 1. Fol. 6.) But if the Doctor would here insinuate, as he does, and consonantly to his own Hypothesis, must mean, that the King's Will concurring with the Assent of a General Council of Bishops, could make an Ecclesiastical Law to bind the whole Kingdom, without the Assent of the Laity, that is what I deny; and hope to make it very clear in the following Discourse.  
Whereas he says (pag. 145.) out of the same Author Eadmerus, that King William suffered not any of his Barons, or Officers to undergo any Ecclesiastical Censure, but by his precept. I hope it will appear, that this was not an Arbitrary Power assumed by the King, but that the Law of the Realm was so.  
He says (pag. 146, 147.) that the Oath of Fidelity, which Anselme had taken to King William Rufus, was no ways like the present Oath of Supremacy.  
He says (pag. 148, 149.) As to the legantine Power, it is apparent by several Instances, that none Exercised any here without the King's leave. Which is true, and as true it is, and apparent by as many Instances, that the King singly could not give any such leave.  
He says (pag. 154.) that What Visitations were made of the University of Oxford by the Pope's Legates, do no ways infer that thereby the King's Power of Visiting is Exauctorated, but that whatever they did was in Subordination to the King's pleasure, or as ordained by his Laws. The Doctor does well to disjoin the King's Pleasure and his Laws, for they did not always agree. But this Paragraph must be altered to make it tolerable Sense; viz. Whatever the legates did in Visiting the University of Oxford, if it were not contrary to the King's Laws, was in Subordination to the King's Authority.  
Some other passages tending to the same purpose, with those already taken notice of, will offer themselves as we go along through the several parts of the Chapter.  
Whereas the Doctor says, that several Kings permitted no Canons, or Constitutions of the Church, or Bulls, etc. to be Executed here [without their Allowance:] Intimating thereby that those Kings might of their own Personal Authority give such Allowance, And that [with their Allowance] Foreign Canons and Constitutions might be Executed here; I take leave to say, That it never was in the Power of a King of England legally to Subject his People to a Foreign Jurisdiction, nor to Oblige them to the Observance of any Law, without their own Assent: And therefore the King's Allowance could not make a Foreign Canon Obligatory here, unless it were received by the People with their own Assent: Nor could his giving leave, legally Subject his People to Processes from Rome, as will abundantly appear by and by.  
But before I go on, I desire the Doctor to take notice of an Old Act of Parliament (for such it was, though the Word Parliament was not then in being amongst us) made in King Edward the Confessor's Time, if not before, and Confirmed by King William the First: Debet Rex omnia ritè facere in Regno & [per Judicium Procerum Regni.] Debet enim Jus & Justitia magis regnare in Regno, quàm voluntas prava. Lex est semper quod jus facit: Voluntas autem, Violentia & Vis non est Jus. And again in the same Chapter; Debet Rex Judicium Rectum in Regno facere, & Justitiam [per Consilium Procerum Regni sui tenere.] Ista verò debet omnia Rex in propriâ personâ, inspectis & tactis Sacrosanctis Evangeliis, & super sacras & sanctas reliquias coram Regno, Sacerdotio & Clero jurare, antequàm ab Archiepiscopis & Episcopis Regni coronetur. Lambard. de Priscis Anglorum legibus, page 138. & page 142. Hence we see that Judicium Procerum & Consilium Procerum are Essential to the English Government: Without which Right and Justice cannot Reign, but a Perverse Will would Rule the Roast.  
Hence it was that King Edward the First, 
Prynn's Collect. Tom. 3. Pag. 158.  When Pope Gregory the Tenth sent Reymundus de Nogeriis his Chaplain, as his Nuntio into England, etc. amongst other things to Demand, and Receive from the King Eight Years Arrears of the Annual Tribute, and Peter-pences then due to the Church of Rome, Wrote to him a very remarkable Letter; In which, among other things, he tells him, That his last Parliament was Dissolved the sooner, by reason of his own Sickness, so that he could not then Super Petitione census ejusdem deliberationem habere cum Praelatis & Proceribus Regni sui, sine Quorum Communicato Consilio Sanctitati Vestrae super praedictis non possumus respondere, & jurejurando in Coronatione nostra praestito sumus Astricti, quod jura Regni nostri servabimus illibata, nec aliquid quod diadema tangit Regni ejusdem absque ipsorum requisito Concilio faciemus. And therefore he deferred returning the Pope an Answer, till the next Session of Parliament; Pro firmo scituri, Pie Pater & Domine, quòd in alio Parliamento nostro, quod ad festum Sancti Michaelis intendimus celebrare, habito & Communicato Consilio cum Praelatis & Proceribus memoratis, Vobis super praemissis ipsorum consilio dabimus Responsionem. By this Letter it appears, that whatever did Diadema Regni tangere, could not, nor aught to be done sine Concilio Prelatorum & Procerum Regni: By which, as is evident enough by the Letter itself, a Parliament is meant.  
Now that the Bringing in of Bulls and Executing Process from Rome within the Realm, did Diadema Regni tangere with a Witness, will appear by perusing the Statutes of Praemunire and Provisors.  
Anno 27 Edward the Third, cap. 1. Because it is shown unto Our Lord the the King, by the Grievous and Clamorous Complaints of the great Men and Commons, how that divers of the People be, and have been drawn out of the Realm to Answer of divers things, the Cognisance whereof appertaineth to the King's Court; and also that the Judgements given in the same Court be impeached in another Court, [In Prejudice and Disherison of Our Lord the King and of his Crown] and of all the People of his Realm, and to the Undoing and Destruction of the Common Law of the said Realm at all times used.  
Another Statute mentioning Citations out of the Court of Rome, and Provisions of Benefices, and Offices in the Church, says, that by means thereof the Good Ancient Laws, Franchises and Usages of the Realm have been greatly Impeached, Blemished and Confounded, [the Crown of Our Lord the King abated] and the great Men, Commons and Subjects of the Realm in Bodies and Goods damnified 38 Statute. Edwardi tertii, cap. 1, 2, 3, 4.  
The Statute of 16 Rich. 2. cap. 5. Entitled Praemunire for purchasing Bulls from Rome: The Crown of England subject to none; mentions frequently All these things, as being to the Disherison of the King's Crown, and against his Crown and Regality.  
And therefore in the five and twentieth Year of King Edward the Third, the Commons prayed the King, that since the Right of the Crown of England and the Law of the Realm was such, that upon the Mischiefs and Damages, which happened to his Realm he ought and was bound by his Oath, with the Accord of his People in his Parliament, thereof to make remedy and Law, That it may please him thereupon to Ordain remedy: Which he does accordingly by the Assent of the Great Men and Commonalty of the said Realm; having regard to a Statute made in the time of his Grandfather, (Anno 25th. Edward the First, against Provisions) which holdeth his force and was never Defeated, Repealed or Annulled in any Point, and by so much he is bounden by his Oath to cause the same to be kept, as the Law of the Land. The Laws of Praemunire and against Provisions were but Declaratory Laws of the Usages of the Realm in opposition to Papal Bulls, etc. And here we see our Kings did not scruple to own that they were under the obligation of their Coronation Oath to see to the Execution of them.  
Anno Grat. 1225. Magister Otto, Domini Papae Nuncius, in Angliam veniens, pro magnis Ecclesiae Romanae negotiis, Regi litteras praesentavit; sed Rex cognito litterarum tenore, Respondit, Quod solus non potuit definire, nec debuit, negotium quod omnes Clericos & Laicos Generaliter totius Regni tangebat. Matth. Par. pag. 325.  
It was an Old Rule of Law in this Nation, the very Foundation upon which our Government is built, and the only thing that differences Freedom from Slavery, that Quod omnes tangit, ab omnibus tractari debet.  
And the Commons tell the King in Statute Twenty fifth of Henry 8. cap. 21. That his Grace's Realm Recognising no Superior under God, but his Grace hath been, and is free from Subjection to any Man's Laws, but only to such as have been devised within the same, for the Wealth thereof, or to such other, as by Sufferance of his Grace and his Progenitors, the People of his Realm had taken at their free Liberty by their Own Consent to be used amongst them, and had bound themselves by long Use and Custom to the Observance of the same, as to Laws Established by the said Sufferance, Consent and Custom, and none otherwise.  
And the Judges Resolved in 12 Jacobi primi, that the King could not change the Ecclesiastical Laws of the Realm. 12 Co. Reports, pag. But if he could let in Foreign Canons, and [by his Allowance] give them the force of Laws here, than he could change the Ecclesiastical Laws of the Realm, and then might the People be bound to other Laws, than such as by their own Sufferance and Consent they had submitted to; and then could the King do things Solus, which concern generally all the Clergy and Laity of England; If the King's Allowance could Subject his People to Processes from Rome, than he could by Law departed with the Rights of his Crown, which by his Coronation Oath he is bound to maintain, as he hath so often and so publicly acknowledged.  
The Doctor tells us (pag. 145.) out of Eadmerus, Lib. primo, pag. 6. That King William the Conqueror introduced this here, That none in his Dominions should own the Pope, but by his Command, Nor receive his Letters, Unless shown first to him, And if the Archbishop of Canterbury called and presided in a General Synod of the Bishops, he allowed nothing to be appointed or forbidden, unless they were accommodated to his Will, and were first Ordained by him, Nor suffered any of his Barons, or Officers to undergo any Ecclesiastical Censure, but by his Precepts.  
These things he would represent to us, as Arbitrary Constitutions made by the Sole Authority of that King; whom a few Men of late have endeavoured to represent under a strange Vizor. But these were really Laws made in his time by the same Authority, that made Laws in this Nation before he was Born, and after his Death. He caused Leges Episcopales to be amended: But how did he do it? Of his own Head, or by the Advice of such only, as himself thought fit to consult with? No; it was done Communi Consilio, & Consilio Archiepiscoporum, Episcoporum, Abbatum & omnium Procerum Regni sui. V Seldeni Not. & Specileg. ad Eadmerum. pag. 167, 168. And the same Author in his Titles of Honour, pag. 580, 581, hath these Words; viz. In the Fourth Year of his (King William the Conqueror's) Reign, or Anno Domini MLXX. (which was the Year, wherein he first brought the Bishops and Abbots under the Tenure of Barony) Consilio Baronum suorum (saith Hoveden out of a Collection of Laws, written by Glanvill, as also the Author of the Book of Litchfield) fecit summoneri per universos Consulatus Angliae, Anglos Nobiles & Sapientes & in sua lege eruditos, ut eorum Jura & Consuetudines ab ipsis audiret. And Twelve were returned out of every County who shown what the Customs of the Kingdom were, which being written by the Hands of Aldred Archbishop of York, and Hugo Bishop of London, were with the Assent of the same Barons for the most part, confirmed in that Assembly, which was a Parliament of that time. And so much also is showed by that Law of King Henry the First; viz. Lagam Regis Edwardi vobis reddo cum illis Emendationibus, quibus Pater meus illam emendavit [Consilio Baronum suorum.] He goes on to show other Instances of Parliaments, in King William the First's Time. And a few pages after (pag. 583.) calls one of these very Constitutions, which Eadmerus blames him for, A Law made by King William the First.  
Indeed the several General Councils held in his Time, of the Clergy and the Laity, for the making of Laws, and determining Great Controversies; the Confirming of King Edward the Confessor's Laws, of which one was (as hath been said) that all things were to be done per Judicium & Consilium Procerum Regni, and the tenor of such Charters of his as are extant, show undeniably that, what Constitutions are said to have been made by him, must be understood to have been made by him More Anglico, cum Assensu Ordinum Regni: As Mr. Selden expresseth himself in his Book de Synedriis.  
The First of these Four Constitutions complained of by Eadmerus, as Innovations, is, That none in his Dominions should own the Pope but by his Command. And yet afterwards, when in King Henry the Second Time there was a Schism in the Popedom, between Alexander and Victor; of whom the latter having been Elected and Declared Pope, by a Council of Germane and Italian Bishops at Papia, the Emperor Illustres Francorum & Anglorum Reges omnibus modis sollicitare curavit, ut ad perpetuandam amicitiam mutuam sibi hâc in parte concordes existerent. Illi celebrem ex utroque Regno Episcoporum & Nobilium, loco & tempore congruo, conventum fecêre; where the Matter was debated in Conspectu Regum & Praesulum, coram Vniversâ, quae convenerat, multitudine Cleri & Populi: And Alexander was admitted as Pope, and the Schismatics Excommunicated. Nubrig. lib. 2. cap. 9  
And after that, in King Richard the Second Time, When there was another Schism betwixt urban and Clement, This Memorable Act of Parliament passed to declare urban the true Pope;  
VIZ.  
Pur ceo que nostre Seignor le Roy ad entendus, cybien per certains Letters Patents novelment venus de certain Cardinalx rebels contre nostre Saint Pere Vrban a ore Pape, come auterment per comen fame, que division & discord sont parenter nostre dit Saint Pere & les dits Cardinals, les queux s'afforcent a tout lour poar de deposer nostre dit Saint Pere de l'Estate de Pape, & d'Exciter & commover per lour meyns verrois suggestions les Roys & Princes & le Peuple Chrestien encounter luy, a grand peril de lour aulms, & a tresmale ensample; Nostre Seignor le Roy fist monster ses dites Letters as Prelates, Seignors & auters Grand Sages de son Royalme esteant a dit Parliament, Et views & entendus les Letters avant dits, Et ewe moult deliberation sur la matter estoit per Les dits Prelate's pronunciez & publiez per plusors grands & notables reasons illeoques monstrez en plein Parliament; cy bien per matter trove en les dites Letters que autrement, que le dit Vrban etoit duement esleu en Pape, & que ensy est, & doit etre veroy Pape, & luy come Pape & Chef de Saint Esglise ●●on doit accepter & obeyir. Et a ceo faire s'accordent touts les Prelates, Seignors, & commons en la Parlement avant dit, etc. Stat. 2 Rich. 2. cap. 7.  
Here the Whole Parliament heard the Reasons debated, and after a full Hearing agreed to admit urban. Now whereas the Government, as to the Essential parts of it, was in King William the Conqueror's Time, the same that it is now, saving some Inroads that have since been made by the Prerogative; And whereas in times subsequent to his, the King in Parliament determined who should be received as Pope, and who not; And since there is nothing more common with the Monks, than to mention things as done by Our Kings, which were either Judicial Acts of their Courts, or done by them in their Great Councils, and consequently were Acts of Parliament (of which some Instances will be given hereafter in this Discourse) upon what Grounds can any rational Man conceive otherwise, than that the Constitution  to be made by King William the Conqueror, was a Law, or an Act of Parliament made in his Time, And that his Commanding who should be owned as Pope within his Dominions, was to be a Command by him in Parliament; since the Law in his Time was such, That the King was to do all public things not otherwise, than per Judicium & Consilium Procerum Regni.  
The Second Complaint of Eadmerus, is, That None should receive the Pope's Letters, unless they were first showed to him. By which if Letters of Provision only are meant; I shall have occasion to speak further of them hereafter. If all Provisions and Process from Rome be meant, then was not this introduced by King William, for that the bringing in of Bulls, Citations, Exemptions, Faculties, Dispensations, Provisions, etc. from Rome, was in those Days, and antecedent to this Constitution, contrary to Law, and in Derogation of the Rights of the Crown, and the Liberties of the People: Nor could the showing them to the King and his Personal Approbation, or Allowance, give them any Legal Authority within this Kingdom, and consequently the Concurrence of the Great Council must be here understood, though not expressed by the Monk.  
The Third is, That If the Archbishop of Canterbury called and presided in a General Synod of the Bishops, he allowed nothing to be Appointed, or Forbidden, unless they were accommodated to his Will, and were first Ordained by him. Which is such another Law, as that of the Twenty fifth of King Henry the Eighth, cap. 19 That the Clergy shall not presume to Attempt, Allege, Claim, or put in Vre any Constitutions, or Ordinances, Provincial, or Synodal, or any other Canons, nor Enact, Promulge, or Execute any such Canons, etc. in their Convocations, etc. without the King's Assent. This Law of King Henry the Eighth, was not Introductory of a new Law; for there the King's Humble and Obedient Subjects of the Clergy of this Realm of England acknowledged [According to Truth,] that the Convocations of the same Clergy, are, always have been, and aught to be Assembled by the King's Writ: And that their Promise in verbo sacerdotii that from thenceforth they would not presume to Attempt, Allege, Claim, or put in Vre, Enact, Promulge, or Execute any New Canons, Constitutions, etc. unless the King's most Royal Assent and Licence may to them be had, etc. was but in Affirmance of the Old Law of the Realm, even before King William the Conqueror's Reign, appears abundantly by Sir Henry Spelman's Councils, where (I think) no Ecclesiastical Laws appear to have been made without the King's Assent before the Conquest, nor for some Reigns after.  
His Fourth Complaint, is, That He would not suffer any of his Barons, or Officers to Undergo any Ecclesiastical Censure, but by his Precept. This was afterwards One of the Laws of Clarendon. Vid. Decem Script. pag. 1387. Matth. Par 100 And the reason of it, given by Radulphus de Diceto, is, Ne Rex ignorantiâ lapsus Communicet Excommunicato. Decem Scriptor. pag. 596. This Mr. Selden calls a Law first made by King William the First. Titl. of Honour, pag. 583.  
The Doctor (pag. 145, 146, 147.) relates the Controversy betwixt King William Rufus, and Anselm in such a manner, as If the Episcopi, Abbates & Principes Regni had had no more to do in it, than to carry Messages betwixt him and the King. Whereas upon Anselm's desiring to go and fetch his Pall from Pope Vrban, whom the Nation had not then received for Pope, When the King told him that he could not keep the Faith, which he owed to him, Simul & obedientiam Apostolicae se dis contra suam voluntatem, Anselmus petivit inducias ad istius rei examinationem, quatenus Episcopis, Abbatibus, Cunctisque Regni Principibus unà coeuntibus, [commun-Assensu definiretur,] utrum saluâ reverentiâ & obedientiâ sedis Apostolicae posset fidem terreno Regi servare, anon? For Anselm, whilst he was Abbot of Bec in Normandy, had submitted to Vrban, as Pope, and (as he told the Parliament afterward) had professed as much, when the King and they chose him Archbishop. This Question betwixt the King and Himself, he desired the Parliament might decide. Dantur ergo Induciae, atque ex Regiâ sanctione fermè totius Regni Nobilitas quinto Idus Martii pro ventilatione illius causae in unum apud Rochingham coit. And the Matter was discussed and debated before them. Vid. Eadmer. pag. 25, 26, 27, 28, 29, etc.  
The Doctor tells us (pag. 146.) that When in the same King's Reign, the Archbishop was Solicitous to have leave to go to Rome, and Visit the Successor of St. Peter, for the being better Instructed in the Government of the Church; he received Answer from the King, That if he went he should for certain know, that he would seize his whole Archbishopric into his Hands, nor would he receive him for Archbishop any more, like as now the Writ Ne Exeat Regnum is used with a Penalty specified. Notwithstanding which the Archbishop went beyond Sea, and the King was as good as his Word. This the Doctor says, may be a document to some, not obstinately to oppose their Prince.  
But now, if by the Law of the Land, no Archbishop, Bishop, or other Great Man, might departed the Realm without the King's leave, than did Anselm's contempt consist in Disobeying the Law, and not the King's Personal and Arbitrary Will and Pleasure.  
If any Man depart the Realm at this Day, after a Writ of Ne Exeat Regnum served upon him, he becomes a Fugitive, and the King may seize his Estate, as he did the Archbishop's Temporalities. And yet we have no Act of Parliament for this now upon Record, but Custom Time out of Mind, which we call Common-Law. Yet among the Laws of Clarendon, this is one;  
VIZ.  
Archiepiscopis, Episcopis & Personis Regni non liceat Exire Regnum, absque Licentia Domini Regis. Decem Scriptores. pag. 1386, 1387. Matth. Paris. pag. 100  
And Polydore Virgil, pag. 171. carries this Law up as high as to the Reign of King William Rufus; Publico Edicto Vetuit (says he) Vnumquemque sine Licentiâ suâ, Ex Angliâ egredi; qui mos lexve dicitur, Ne Exeas Regnum: Quae adhuc, cùm ita res requirit, usurpatur. And it appears by the Register, Fol. 193, 194. That Religious Persons purchased Licences to go beyond the Sea.  
And Bracton tells us; Lib. Quinto, Fol. 413. b. That those Writs were de Communi Consilio totius Regni Concessa & Approbata: Of which more hereafter. And great Reason there was, that they, who were then struggling with the Government, to Introduce a Foreign Jurisdiction, should, when they went beyond Sea, Assecurare Regem, quod nec in eundo, vel redeundo, vel moram faciendo, perquirerent malum sive damnum Domino Regi. Constitution. Clarend. Suprad. But (as Mr. Selden says in his Metamorphosis Anglorum, pag. 237.) Huc referas (Scil. ad temp. Henrici Secundi) an cum Polydoro ad Rufum, an ad posteriora tempora rescriptum, quod in Regesto, NE EXEAS REGNUM, habetur, haud ità multùm interest, nec quaestionem accurare operae pretium est; Quis enim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 verum potis est elicere? It being almost impossible to find out the Original of this Law; and it appearing by the Register, that whenever it did begin, it began by Authority of Parliament; and since nothing is known to the contrary, but that it might begin in King William Rufus his Time, to whose Time Polydere Virgil refers it; and, if it did not, since Parliaments were frequently held then, and One famous one at Rochingham during this very Controversy betwixt the King and Anselm, (Eadmer. pag. 38.) about his going to Rome, in which he asked leave to departed, and was denied it; Who knows but there might then be a particular Prohibition to him by the King in that Great Council? But be that how it will, the Truth in this Matter lies too deep, by reason of the loss of almost all the Civil Laws made in the Reigns of Our First Norman Kings, through the Embezelment of Records, and the Carelessness of the Monks of those times, for the Doctor to draw a good Argument from hence of the Danger of disobeying the King's Personal Command.  
Nay further, if this Instance were never so much for him; First, It was in King William Rufus his Reign, the Irregularities and Tyranny of whose Government, was such, and the Matters of Fact so lamely Reported to us, that no Argument drawn from what he might do, will be very conclusive to the Legality, or Illegality of any thing. And, Secondly, There is a very good Law made since,  
VIZ.  
Ann. 14 Edwardi 3. cap. 6. to Protect the Clergy from incurring any such prejudice for the future, for not doing whatsoever they are bid to do: We Will and Grant for Us and our Heirs, that from henceforth We, nor our Heirs shall not take, nor cause to be taken into our Hands the Temporalities of Archbishops, Bishops, Abbots, Priors, nor other People of Holy Church, of what Estate or Condition they be, without a Just and True Cause, [according to the Law of the Land] and Judgement thereupon given.  
The Doctor makes account (pag. 146, 147.) that the Oath, which he says Anselm had taken, whereby he promised the King, 
Eadmer. pag. 39 lib. 2.  se usus ac leges suas usquequaque deinceps servaturum, & eas sibi contra omnes homines fideliter defensurum, was no ways like the present Oath of Supremacy. Whereby he would represent the Supremacy as a quite other thing, and much more Exorbitant, since the Reformation, than it was in King William Rufus his Time; Which is a great Error. For the Ecclesiastical Jurisdiction of the Kings of England, was then almost entire and in puris naturalibus; Foreign Jurisdiction had not then grown upon our Constitution: The Bishops indeed were warping Rome-wards, which caused the Government to have a watchful Eye upon them, and to enjoin Oaths upon them for security, against Usurpations then feared, because attempted; as after the Reformation they were enjoined to prevent the return of them. But the Oath of Supremacy, prescribed by primo Elizabeth, being only to Assist and Defend all Jurisdictions, Privileges, Preeminencies and Authorities, Granted, or Belonging to the Queen's Highness her Heirs and Successors, Or United and Annexed to the Imperial Crown of this Realm, is the same in Substance with Swearing in King William Rufus his Time, to Keep and Defend the Laws and Usages of the Realm. For those Jurisdictions, Privileges; Preeminencies and Authorities, which, having been torn from the Crown, were restored by the primo Elizabeth; and by the several Acts of King Henry the Eighth thereby revived, were in being, and actually enjoyed in King William Rufus his Time, and before and for some time after. He was the Supreme Governor of the Realm in Spiritual, or Ecclesiastical Things and Causes, as well as Temporal. Witness that Law of King Edward the Confessor, revived and confirmed by King William the First: Rex, quia Vicarius summi Regis est, ad hoc est Constitutus, ut Regnum terrenum & populum Domini, & super omnia Sanctam Veneretur Ecclesiam ejus & Regat, & ab injuriosis defendat, & maleficos ab eâ evellat, & destruat, & penitùs disperdat. Lambard. leg. pag. 142. And the several Branches afterwards lopped off from the King's Supremacy, were endeavoured to be preserved and secured by the Laws of Clarendon. The Third Chapter of which provides against the Exemption of Clerks from the King's Justice: The Eighth against Appeals to Rome: The Twelfth secures the King's Right and Interest in the Elections of Archbishops, Bishops, Abbots, and Priors, etc. These Constitutions, than called the Avitae Consuetudines Regni, Archbishop Becket promisit in verbo sacerdotali de plano se velle custodire. Similiter Episcopi promiserunt & Juraverunt. Geru. Dorob. Coll. pag. 1366. This was no other than the Modern Oath of Supremacy, without any material difference. The Archbishop did not pretend that the Laws of Clarendon, as Wicked and Unjust as he might think them, were any other than Explanations and Assertions of the Ancient Usages of the Realm. His Suffragans tell him in a Letter, That the King desired only dignitates Regibus ante debitas sibi exhiberi. Hoved. pag. 292. b. And in another Letter to the Pope on the King's behalf, they declare the same, ibid. pag. 292, 293. Our Archbishops indeed used to fetch their Palls from Rome, but that Entitled the Pope to no Jurisdiction here. So that the Subject Matters of the Laws of Clarendon, then Enacted into Statute-Laws, were in King William Rufus his Time the Laws and Usages of the Realm, and therefore Anselm's and Becket's Oaths were in Substance the same: And those Laws and Usages having been usurped upon since, and the Usurpation purged by the Laws made about the time of the Reformation, the Oath of Supremacy is now the same in Substance with those Ancient Oaths aforementioned. Not but that the Ecclesiastical Jurisdiction, in some of its Branches may now be settled in another course of Administration, than it was so long ago. But those Alterations (which yet are not very considerable) have been made by Acts of Parliament; by which if Men had been content to stand or fall, many Notions, that are now too rise amongst us, would never have been hatched.  
The Writ from R. de Glanville to the Abbot of Battle (mentioned by the Doctor pag. 148.) whereby he Commands him on the King's behalf, by the Faith which he owed him, not to proceed in the Cause that was depending betwixt the Monks of Canterbury and the Archbishop, donec indè mecum fueris locutus, was no other than a Probibition to him to proceed in a Cause depending before him, and the Abbots of Feversham and St. Augustine, as Judges appointed by the Pope to hear and determine it. They had cited the Archbishop to appear before them, they had sent him Comminatoriam Epistolam, eique diem peremptorium praefixerant. They had no Legal Authority to Exercise Jurisdiction within the Realm; for the Pope could give them none: And therefore the Chief Justice prohibits them in the King's Name. The Writ may be Read in Chron. Gervas'. Coll. pag. 1503. from whence the Doctor Quotes the Story: Though he relates it Knavishly enough. We find a Writ (saith he) to the Abbot of Battle, etc. wherein he Commands him on the part of the King, by the Faith which he owes him, and by the Oath, which he made to him, to do what he then enjoined. Never telling us that the thing enjoined, was the keeping of his Oath, and observing the Law, and that the Method observed by the King in sending him this Injunction, was according to the Ordinary course of Justice, and of proceed at Law in the like Cases. But the Doctor would raise a little Dust by this, and a few other such pitiful Scraps, to amuse his Readers, and create an Opinion that the King may enjoin any thing.  
As to the Legantine Power (he says, pag. 148.) It is apparent by several Instances, that none Exercised any here without the King's leave, whether by the Grant of Pope Nicholas to Edward the Confessor, he disputes not.  
But the Doctor takes for granted, that with the King's leave a a Legate might be sent and Exercise his Office here. Though what he Quotes for it out of Eadmerus pag. 125, 126. concerning what passed betwixt King Henry the First, and Pope Calixtus at guysor's, makes nothing for his purpose. Rex à Papa impetravit, ut omnes Consuetudines, quas Pater suus in Angliâ habuerat & in Normanniâ, sibi concederet, & maximè ut neminem aliquando legati Officio in Angliâ fungi permitteret, si non ipse, aliquâ praecipuâ querelâ exigente, & quae ab Archiepiscopo Cantuariorum, caeterisque Episcopis Regni terminari non posset, hoc fieri à Papâ postularet. The coming in of a Legate at the King's Request, to determine some great and difficult Controversy in particular, which could not be decided by all the Bishops of England, is one thing; and the coming in of a Legate with a General Power to Exercise Jurisdiction over all the King's Subjects, and to hold a Legantine Court is a quite other thing.  
The Doctor says (pag. 151.) that Anno Domini 1138, & Tertio Regis Stephan. Albert or Alberic Cardinal of Hostia, was the Pope's Legate and Consecrated Theobald Archbishop of Canterbury, and called the Clergy to a Colloquium by Apostolical Authority, by which it appears, says he, That the Canons of the Church now obtained, and the King Assented to the Powers the Legate had, so that what was Decreed had the King's Allowance. It seems, provided what was Decreed had the King's Allowance, all was well, and there needed no more. But Geru. Dorobern. Coll. pag. 1344. tells us that Praedictus Albericus Apostolicâ Legatione functus venit in Angliam, Domini Papae litteras ad Regem deferens; lectis itaque litteris coram Rege & Primoribus Angliae, licèt non in primis, vix tandèm pro Reverentiâ Domini Papae susceptus est. So that this Legate was admitted by the Consent of the Primores Angliae, as well as of the King. And consequently, his Exercising his Office here, with such Assent, as aforesaid, is no Argument, that the King's Personal Assent to his Powers, without the Concurrence of his Primores, would have made them ever a whit the better. And when this Legate Celebrated his Synod at Westminster; there were present Episcopi diversarum Provinciarum, Numero XVII, Abbates ferè XXX, & Cleri & Populi Multitudo Numerosa. See Spelman's Councils, Volume the Second, pag. 39 and Geru. Dorobern. Collect. pag. 1347. So that as the Assent of the Primores was had to his Entry, so the Multitudo Numerosa Cleri & Populi Assented to the Canons then made. And the King's single Assent to either would not have been sufficient.  
Besides this, I shall take leave to oppose the Judgement and Opinion of King Henry the First to that of the Doctor, concerning the King's having, or not having Authority to Admit a Legate hither from Rome. When in his Reign Petrus, Monachus Cluniacensis came hither from Pope Calixtus, with a Legantine Power, perductus ad Regem, dignè ab eo susceptus est; Et expositâ sui adventûs causâ, Rex, obtensâ expeditione, 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. Lib. 6. pag. 137, 138. He tells it him as a known Truth (constaret) that his Legacy could not be of any validity in this Nation, without the Consent of the whole Kingdom in Parliament: Which, by reason of his Wars with the Welsh, he was not then at leisure to call. The Words following are Remarkable;  
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Super haec patrias Consuetudines ab Apostolicâ sede sibi concessas, nunquam se aequanimiter amissurum fore testabatur (in quibus haec, & de maximis una erat, quae Regnum Angliae liberum ab omni legati ditione constituerat) donec ipse vitae praesenti superesset. So that this Patria Consuetudo of the Kingdoms being free from the Jurisdiction of any Legate, and which had been confirmed by the Pope, was not a Privilege Granted to the King himself, nor was he the Object of that Papal pretended Indulgence; but the Kingdom, whom he declares that himself could not deprive of the Benefit thereof, without their own Consent. And therefore the King's Assent and the King's Leave, so frequently mentioned in the Monks upon this occasion, must be understood of his Assent in a Great Council, or Parliament.  
Hence it was, that when Johannes Cremensis came Legate hither Anno Domini 1125. And was permitted so to do by the King, being then in Normandy (for what private considerations betwixt the Pope and himself, I know not) it was looked upon by the Wise Men of the Nation, as a notorious breach of the Ancient and known Laws and Liberties of the Kingdom.  
Quam gravi multorum mentes scandalo vulneravit, & inusitata negotii Novitas, & Antiqui Regni Anglorum detrita libertas satis indicat. Toti enim Regno Anglorum & circumjacentibus Regionibus cunctis notissimum est, eatenùs à primo Cantuariensi Metropolitano Sanctissimo Augustino, usque ad istum Wilhelmum (Cantuariensem Archiepiscopum) omnes ipsius Augustini Successores Monachos, Primates & Patriarchas nominatos, & habitos, nec ullius unquam Romani legati ditioni addictos. Gervas'. Dorob. Collect. pag. 1663.  
And when afterwards in King Henry the Third's Time Circa festum Apostolorum Petri & Pauli Otto sancti Nicholai in carcere Tulliano Diaconus Cardinalis, nesciebatur ad quid, per Mandatum Regis venit Legatus in Angliam, [Nescientibus Regni Magnatibus,] plures adversus Regem Magnam conceperunt indignationem, dicentes; Omnia Rex pervertit, Jura, fidem, promissa in omnibus transgreditur. 
Nota bend.  Nunc se matrimonio sine suorum amicorum & hominum naturalium consilio Alienigenae copulavit; Nunc Legatum, Regni totius immutatorem, [clam] vocavit, etc. Dictum est autem quod Archiepiscopus Cantuariensis Edmundus Regem talia facientem increpavit, praecipuè de Vocatione Legati, sciens inde in suae dignitatis praejudicium magnam Regno imminere Jacturam. Matth. Par. 440. The Historian blames those that went to meet this Legate, and that made him Honourable Presents of Scarlet Cloth, etc. In quo facto (says he) nimis à multis meruerunt reprehendi, tam pro dono, quàm pro dandi modo, quia in panno & ejus colore videbatur legationis Officium & Adventum acceptari. Which is a remarkable testimony, that the King's calling in a Legate did not, in the judgement of those times, give him any Legal Authority here, if it were done Nescientibus Regni Magnatibus: i. e. (to speak in Eadmerus his Words) if he were otherwise admitted than per Conniventiam Episcoporum, Abbatum & Procerum & totius Regni conventum. The same Historian (Matth. Parnell) speaking afterward (pag. 446.) of the same Legate, Rex (says he) spreto naturalium hominum suorum consilio, magis & magis, ut caepit, deliravit: Et se voluntati Romanorum, & praecipuè Legati, quem inconsultiùs advocaverat, mancipavit, etc. And again, His & aliis deliramentis Rex omnium Nobilium suorum corda cruentavit. Consiliarios quoque habuit suspectos & infames, qui hujus rei fomentum esse dicebantur, quos idcircò magis habebant Nobiles Angliae exosos.  
But the Instance, which the Doctor himself giveth (pag. 154.) of Henry Beaufort Bishop of Winchester, and Great Uncle to King Henry the Sixth, is as full against him, as any thing that he could have pitched upon. For that Bishop, being Cardinal of St. Eusebius, was sent Legate into England Anno 1429. Which was Anno Octavo of King Henry the Sixth: And was fain to be beholden to an Act of Parliament for his Pardon, for having offended against the Laws made against Provisors, by bringing in and Executing Papal Bulls within the Realm. For Anno 10. Henr. 6. The King, [by the Common Assent of all the Estates] pardoneth too the said Cardinal all Offences, Punishments, and Pains incurred by him against the Statutes of Provisors. Vid. Cotton 's Abridgement of Records, 10. Henr. 6. nu. 16. Which would have been needless, if either the King's giving leave to his Entrance, or Assent to his Decrees, could have justified his Proceed, and added any Legal Authority to them.  
By what has been said, I conceive it to be very clear, that all Foreign Jurisdiction being utterly against the Law of the Realm, and an intolerable Usurpation upon the King's Crown and Regality, and upon the Rights and Liberties of his Subjects, it was never conceived that the King could by his own Personal Authority, without the Consent of his People in Parliament, subject them to it; no more than he could subject himself and his Crown in Temporal Matters. Which that he could not do, we have these two Remarkable Authorities.  
When after the Death of Alexander the Third, King of Scots, the Succession to that Crown was in dispute, and Ten several Competitors claimed it; and that Edward the First, King of England challenged a Jurisdiction of determining to which of them the Right of Succession appertained; the Pope that then was, pretended that it belonged to him, in Right of his Apostleship, to decide the Controversy; and Wrote to the King a Letter, requiring him to desist any further Proceeding therein: In answer to which Letter of the Pope, the King wrote a long Letter containing Historical Proofs of his being Supreme Lord of Scotland, and that the King of Scots was his Homager; and at the same time the Parliament of England, then Assembled at Lincoln, wrote another Letter to the Pope upon the same Subject: In which are these Words;  
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Ad observationem & defensionem Libertatum, Consuetudinum & Legum Paternarum ex debito praestiti Sacramenti adstringimur, quae manutenebimus toto posse, totisque viribus cum Dei Auxilio defendemus, nec etiam permittimus, aut aliquatenùs permittemus, sicut nec possumus nec debemus, praemissa tam insolita, indebita, praejudicialia & alià inaudita Dominum nostrum Regem, [etiamsi vellet] facere seu quomodolibet attemptare, praecipuè cùm praemissa cederent in exhaeredationem juris Coronae Regis Angliae & Regiae Dignitatis, ac subversionem Status Ejusdem REgni notoriam, necnon in praejudicium Libertatum, Consuetudinum ac Legum Paternarum. Sealed by One hundred and four Earls and Barons, and in the Name of all the Commonalty of England. V Co. 2d. Inst. pag. 196. and Fox his Book of Martyrs, Vol. 1. pag. 387, 388, 389. By which it appears that the King could not legally, if he would, have given way to the Pope's determining the Controversy about the Succession in Scotland; since it belonged to himself in jure Coronae as directus Dominus Scotiae.  
The Second Authority shall be that of Rot. Parl. 40 Edw. 3. nu. 7, 8. Where it was resolved in full Parliament by the Praelates, the Earls and the Commons, that neither the King, nor any other could put the Realm nor People thereof into such subjection, [sans Assent d'Eux.] The Occasion was King John's having surrendered his Crown to the Pope, and received it back again, to hold it as a Feudatary to the Papal See. And it appeared to them by many Evidences, that he had done so [sans lour Assent] and contrary to his Coronation Oath. Mr. Selden, in his dissertatio ad Fletam, pag. 552, 553. gives this Account of it. Cum sub Edwardo Tertio in Ordinum consessu quaestio habebatur de donatione illâ decantatissimâ Johannis Regis factâ Innocentio Papae Tertio & Successoribus Ejus, unde Vrbanus. Quintus tum annuum inde natum mille Marcarum, Angliae simul & Hiberniae nomine, Censum sibi tunc solvi petebat, tum Regnum utrumque jure tantum beneficiario, atque ut sedis Romanae Feudum, à Regibus nostris contendebat possideri; Ordines Vniversi, idque tam Generis Hieratici (quod mirere) quàm Proceres, seu Senatus Populusque in Comitiis illis, solemni initâ deliberatione, responderunt unanimes, irritam planè fuisse Johannis Donationem illam, utpote tam [sine Ordinum Assensu,] quàm [juramento ejus Inaugurali Adversam.] Et outre ceo (sic loquuntur Archiva) Les Ducs, Counts, Barons, Grands & Comens accorderent & Granterent, que en cas que le Pape se afforceroit ou rien attempteroit per process, ou en autre manner de faire de constreindre le Roy, ou ses subgitts de perfaire ceo que est dit, qu'il voit claimer cell party, qu'ils resisterent & Contreesterent ove tout lour Puissance. And with this agreed the Scottish Laws; Et idem Rex Scotiae dicit, sicut prius, quod de aliquo Regnum suum contingente, non est Ausus nec Potest hic Respondere, Inconsultis probis hominibus Regni sui. Plac. Parl. Inter. Johann. Reg. Scotiae & Magdulph. 21 Edw. 1. pag. 157.  
He mentions (pag. 155.) the Claims, which our Ancient Kings made to Investitures, and the Interposing their Authority, even in Allowing or Disallowing the Persons of Bishops. And it is very true, that till the beginning of King Henry the First his Reign, they not only Claimed, but actually did Invest Bishops and Archbishops per Traditionem Annuli & Baculi: And subjects in ancient time, that Founded Churches, had the same Right of Collation or Investiture, whereby the Incumbents received full Possession, without Aid of the Bishop or other Churchman. Vid. Selden 's History of Tithes, cap. 6. sect. 3. And the Kings Right of Investing Bishops, because all Bishoprics were Royal Foundations, was such, as could not be parted with, but by Act of Parliament. For that the Kings were bound by their Coronation-Oaths (as hath been said) Jura Regni servar illibata, nec aliquid, quod Diadema tangit Regni, absque Praelatorum & Procerum requisito Concilio facere. And therefore King Henry the First in a Letter to Pope Paschal upon this Subject of Investitures, which the Pope then contended hard to gain from him, tells him plainly; Si Ego (quod absit) in tantâ me dejectione ponerem, (viz. as to forego them) Optimates mei, imò totius Angliae Populus id nullo modo pateretur. Collect. p. 999. And therefore, when afterwards they were given up, it was done in Parliament; Postmodum Kalend. Augusti Clero & Populo ad Concilium Londoniae Congregato, Adstantibus Archiepiscopis, Episcopis, caeterâque multitudine maximâ Procerum & Magnatum, statuit Rex & concessit, ut ab eo tempore in anteà nullus electus per dationem Baculi Pastoralis vel Annuli de Episcopatu vel Abbathiâ Investiretur per Regem vel quamcunque aliam persenam saecularem Collect. pag. 1000  
And for the King's interposing his Authority in Allowing or Disallowing the Persons of Bishops; Before the Reign of King William the First, Nulla erat Electio Prelatorum merè Libera & Canonica, sed omnes Dignitates tam Episcoporum, quàm Abbatum Regis Curia pro suâ Complacentia conferebat. Ingulphus; pag. 509. And in King William the Conqueror's time, Lanfrank was chosen Archbishop of Canterbury, Consensu & Consilio omnium Baronum suorum, omniumque Episcoporum & Abbatum totiusque populi Angliae: Brev. Relat. de Will. Com. Normann. Auth. Anonym. Eligentibus eum senioribus ejusdem Ecclesiae cum Episcopis & Principibus, Clero & Populo Angliae, in Curiâ Regis in Assumptione sanctae Mariae: Gervas'. Dorob. Col. pag. 1653. In the Reign of his Successor King William Rufus, Anselm was chosen in like manner. Vid. Eadmer. lib. 1. And in King Henry the First's time, Radulphus, who succeeded Anselm, was chosen Archbishop at Windsor, whither Rex instinctu Dei permotus Episcopos & Principes Angliae in unum fecit venire, corum Consilium in Constituendo Archiepiscopo Cantuariensi volens habere. Vid. Eadmer. Lib. 5. cap. 109, 110. Many Examples occur of other Bishops and Abbots elected, either in Parliaments, or, which is all one, in Ecclesiastical Assemblies, consisting of the same Members, that Parliaments of those times were composed of, betwixt the Conquest and King John's time. Vid. Spelm. Councils, Tome 2. pag. 39 ibid. pag. 119. But Elections were not uniform in those days: The Clergy struggled hard to gain them wholly to themselves: And the Kingdom was sometimes disquieted about the matter, especially in King John's time. Sometimes Elections were by the Chapter, sometimes by the Clergy and People of the Diocese, sometimes in Great Councils. King Henry the Second endeavoured to have settled them by the Laws of Clarendon, cap. 12. Vid. Collect. pag. 1387, 1388. But the Pope broke in upon them, by forcing him to swear, when he was absolved for Becketi's Death, Quod Consuetudines, quae suis temporibus contrà Libertatem Ecclesiae fuerant introductae, revocarentur in irritum: Radulph. de Dioeto; Coll. pag. 560. This altered no Right; but it gave the Clergy a colour to innovate upon him. But in King John's time the pretended Right of Election was yielded up to the Clergy by a Law Consensu Baronum. Only a Congé d'eslire was to issue, and Electi post Electionem celebratàm debebant Domino Regi praesentari, & post confirmationem, ante administrationem in spiritualibus vel temporalibus faciendam, ei Juramentum fidelitatis praestare. Matth. Paris. pag. 635. And so the Right continued till King Henry the Eighth's Time, that it was altered by Parliament. Hence it appears that Our Kings had no Personal Inherent Right and Prerogative in these Elections, since all were of Old to be made in Parliament, and since the several Legal Alterations, that have been made therein, have been made in and by Parliaments.  
Nor is it to be wondered, that whereas Subjects might Collate in those Days Churches of their own Foundation to any Clerk in Orders, and give him the Investiture, even without so much as a Presentation to the Bishop; yet our Ancient Kings Collated Bishoprics, no otherwise than in Curia suâ: For though Bishoprics were Royal Foundations, yet they were Founded by Acts of Parliament, as will appear by and by: And one Great Reason, why our Kings at least in those Days, could not Erect Bishoprics and endow them otherwise, was because they could not in those Days Alien their Crown Lands without the Assent of their Barons. Non poterat Rex distrahere Patrimonium Regni.  
And though King John told Pandulphus the Legate, Omnes Praedecessores mei contulerunt Archiepiscopatus, Episcopatus & Abbathias in thalamis suis: Monast. Burton. pag. 264. That must be understood to have been done since the Norman Conquest only, though the contrary was frequently practised even in those Days, and especially since the Constitutions of Clarendon: For the Instance that he there gives of Wolstan's being made Bishop of Worcester in King Edward the Confessor his Time, was far from a Collation in Thalamo; if we believe himself, when he resigned his Pastoral Staff at the Confessor's Tomb: There concurred Electio, Plebis Petitio, Voluntas Episcoporum & Gratia Procerum (a full Parliament) as well as the Authoritas & Voluntas of the King himself. Matth. Paris. pag. 20, 21.  
As for our Kings seizing the Temporalties of Bishops into their Hands, and so suspending them à beneficio; (which the Doctor speaks of, pag. 155.) of which (he says) many Instances may be found in Mr. Prynn 's Historical Collections: I suppose he would not be understood, as if our Kings either might, or used to seize them ad Libitum, but by legal process, and for some contempt, for which by the Law they were liable to Seizure. They were held of the King by Barony; and though the Bishops pretended to an Exemption, as to their Persons, from the Laws of the Land, yet their Temporalties, which were held of the King, and for which they did him Fealty, were no-wise Exempted; but that if they should commit Offences, for which the King might by Law capere se ad Baronias suas, they, as well as the Laity, that held by the same Tenure, were equally liable to the Course and Rigour of the Law. What use this is of to the Doctor, for the setting up some Notional Supremacy lodged in the King Personally, I know not as yet. Irregularities and Oppressions might well be used upon such occasions, and Seizures made, when there was no cause, but the Statute of the fourteenth of Edward the Third, cap. 6. aforementioned, was provided to prevent such Mischiefs for the future.  
But the Doctor was very ill advised in quoting (pag. 155.) to clear the point, the Statutes of Provisions. For those Statutes, which every body knows, and the Doctor will not deny, to be only new Bulwarks to secure Old Rights, were yet such, as the King could never dispense with: But when the Circumstances of his Affairs were such, that to gratify the Pope, and tie him to his Interest, he found it convenient to have some Relaxation, made of those Laws, than were Parliaments called, and at their first meeting, one cause of their Convention declared to be, to provide remedy touching the Statutes of Provisions, for eschewing debate between the Pope and the King, and his Realms. And then we find leave given to the King, from time to time to dispense with those Laws, and that but for a time, and this declared to be a Novelty. Vid. Cotton's Abridgement, pag. 341. 346. Annis 15. & 16. Rich. 2.  
And the Complaints of the English Nation in Matth. Paris against the Pope's Provisions, were grounded upon this,  
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That Patroni Ecclesiarum, ad eas, cum Vacaverint, Clericos idoneos praesentare non poterant, sed conferebantur Ecclesiae Romanis: qui penitùs Idioma Regni ignorabant, & pecuniam extra Regnum asportabant. These Oppressions fell chief upon the Clergy, as appears by most of the Laws against Provisions, of which hereafter; for the Pope assumed a greater Power over them and Churches, of which they were Patrons, than he could pretend to over the Laity; and they sometimes complied with his Provisions, and submitted to collate Italians and Foreigners, as at other times they did to heavy Exactions, insomuch that in the year 1240. misit Dominus Papa praecepta sua Domino Cantuariensi Archiepiscopo Edmundo, & Sarisberiensi, & Lincolniensi Episcopis, ut trecentis Romanis in primis beneficiis Vacantibus providerent; scientes se suspensos à beneficiorum Collatione, donec tot competenter providerentur. Matth. Paris, pag. 532. And it appears by the same Author, that these, and more were provided of Ecclesiastical Benefices in England: Praebendas, Ecclesias & varios redditus opimos plusquam trecentos ad suam vel Papae contulerat (legatus Otto) voluntatem: id. p. 549. But many grievous Complaints and Petitions in Parliaments, and in Letters to the Pope, occur in Mr. Prynne's Historical Collections, and in the Parliament Rolls against these Provisions, as intolerable Grievances, and contrary to all Law and Reason. If at some times they were complied with, upon condition, that the Persons recommended by the Pope, were of good condition, and worthy of Promotion, how does that relate to its being in the King's power even to admit the persons to the Dignity and Office, as the Doctor ignorantly and childishly asserts? But his conclusion,  
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That the Exercise of their Government, was according to the King's Laws, I do not Quarrel with him about, for it was, or aught to have been so: But not according to the King's Pleasure.  
Nor would any  Man in Reading King Alfred's Laws, have readily made such an Inference, as the Doctor does (pag. 155, 156,) telling us out of L. l. Aluredi, that King Alfred reserved to himself the liberty even of Dispensing with the Marriage of Nuns: Which he would represent, as a thing prohibited by the Canons only, and that the King reserved to himself a Power of Dispensing with it, though without his Especial Dispensation he suffered the Canon to take place: Now the Marriage of Nuns was really prohibited by a Law of the State, by an Act of Parliament of that Age; For Brompton, giving us an Account of King Alfred's Laws, says thus; Ego Alfredus West-Saxonum Rex ostendi haec [omnibus sapientibus meis,] & dixerunt; Placet ea Custodire. And many Temporal Laws are amongst them, all Enacted by the same Authority. And the same Law or Canon that prohibits Nuns from Marrying, gives the King, and not only him, but the Bishop of the Diocese leave to Dispense; so that the Doctor might as well have argued for the Bishops as the Kings reserving a Power to himself of Dispensing: The Words are, Si quis Sanctimonialem ab Ecclesiâ abduxerit, sine Licentia Regis vel Episcopi, etc.  
Then he says, That our Kings Presided sometimes in Councils of the Clergy of their Kingdom, though the Pope's Legates were present, and Quotes Spelman's Councils, pag. 292, 293. Out of which Book it will not be amiss to give an Account of that Assembly, which the Doctor in this place calls a Council of the Clergy.  
Anno Gratiae 787, Concilium Calchythense Legatinum & Pananglicum a Gregorio Ostiensi & Theophylacto Tudentino Episcopis, & Legatis Hadriani Papae Calchythae celebratum est. In quo decernitur de fide primitùs susceptâ retinendâ, aliisque ad Ecclesiae regimen pertinentibus: Et de Conferendâ parte Archiepiscopatûs Cantuariae ad Ecclesiam Litchfeldensem, jam in Archiepiscopatum promovendam. Habebatur in duabus Sessionibus (says Sir Henry Spelman, rectiùs fortè concilia dicendis) quarum prima fuit in regno Northanhymbrorum, coram Alfwoldo illic Rege [& Magnatibus suis:] Praesidente è Legatis Gregorio Ostiensi Episcopo. Secunda Sessio in Regno Merciorum fuit, coram Offâ Rege ibidem [& suis Magnatibus:] Praesidente etiàm in eâdem Gregorio ipso Ostiensi. So that here appears the Doctor's First mistake, in saying that the Kings presided, though the Legates were present. I confess our Kings frequently did preside in Ecclesiastical Assemblies; nor was the Grandeur of Popes arrived in those Days to such an Extravagant pitch, as to Usurp Precedency before Kings and Emperors. But I observe this, to show the Doctor's carelessness in his Quotations, not to argue any Inferiority of the King's Persons, by reason of their not presiding, when they were Present. For we find Instances of Archbishops of Canterbury presiding, though the Kings were Present. The Doctor's Second mistake is, in calling this an Assembly of the Clergy: For, though this Council was Assembled for Ecclesiastical Matters, nor do we find any Temporal Laws made, or Temporal Affairs transacted in it, (saving, that in the Twelfth Chapter it is decreed what sort of Persons shall be chosen to be Kings, and by whom) yet were all Persons present, that in those Days constituted the General Legislative Assemblies of the Nation, which in latter Ages we have Christened by the Name of Parliaments. And this appears by the Letter, which one of the Legates wrote to the Pope, giving him an account of the Success of their Mission. Pervenimus ad aulam Offae Regis Merciorum; at ille cum iugenti gaudio ob Reverentiam Beati Petri & vestri Apostolatûs, honore suscepit tam nos, quàm sacros apices, à summâ sede delatos. Tunc convenerunt in unum Concilium Offa Rex Merciorum & Chinulphus Rex West-Saxonum, cui etiàm tradidimus vestra Syngrammata Sancta: Ac illi continuò promiserunt se de his vitiis corrigendos. Tunc [inito concilio cum praedictis Regibus, Pontificibus, Senioribus terrae,] perpendentes quod angulus ille longè latèque protenditur, permisimus Theophylactum Venerabilem Episcopum, Regem Merciorum & Britanniae partes adire. Ego autem, assumpto mecum Adjutore, quem filius vester Excellentissimus Rex Carolus ob reverentiam Vestri Apostolatûs nobiscum misit, Virum probatae fidei Wighodum, Abbatem Presbyterum, perrexi in regionem Northanhymbrorum, ad Oswaldum Regem, & Archiepiscopum Sanctae Ecclesiae Eboracae Civitatis Eanbaldum. Sed quia praefatus Rex longè in Borealibus commorabatur, misit jam dictus Archiepiscopus missos suos ad Regem, qui continuò omni gaudio Statuit diem concilii: 
Note here the manner of receiving Foreign Canons in those days.  Ad quem Convenerunt [Omnes Principes Regionis,] tamburlaine Ecclesiastici quàm Saeculares. And a little after; Qui omni Humilitatis Subjectione, & clarâ voluntate, tam admonitionem Vestram, quàm parvitatem nostram amplexantes, sposponderunt se in omnibus obedire. Then follow the Canons themselves: And afterwards, these Words;  
VIZ.  
Haec decreta, Beatissime Pater Adriane, in Concilio publico, coram Rege Aelfwaldo & Archiepiscopo Eanbaldo, [& omnibus Episcopis & Abbatibus regionis, seu Senatoribus & Ducibus & Populo terrae] proposuimus, & illi, etc. se in omnibus custodire decreverunt, & signo crucis in vice vestrâ in manu nostrâ confirmaverunt. Then follow the Witnesses Names, of whom part are Secular, part Ecclesiastical Persons. And afterwards; His peractis perreximus, Assumptis nobiscum Viris illustribus, Legatis Regis & Archiepiscopi, etc. qui unà nobiscum pergentes, & ipsa decreta secum deferentes in Concilium Merciorum, ubi Gloriosus Rex Offa [cum Senatoribus terrae] unà cum Archiepiscopo Janbrichto sanctae Ecclesiae Dorovernensis & caeteris Episcopis regionum convenerat, & in Conspectu Concilii Clarâ voce singula Capitula perlecta sunt, & tam Latinè quàm Teutonicè, quo [omnes] intelligere possent, dilucidè reserata, qui [omnes] consonâ voce, alacri animo, gratias referentes, promiserunt se in omnibus haec Statuta custodire. In this Convention the Canons of the six first General Councils were received: And several Constitutions made for the Government of the English Church. All which were Assented to by the Clergy and the Laity of these two Kingdoms of the Heptarchy: And by Virtue of that Assent, became incorporated into the Municipal Laws of those Kingdoms. So that though this, and many other such Councils as this was, show abundantly the King of England's Supremacy in Ecclesiastical Affairs, in opposition to a Foreign Power, yet no Argument can be drawn from hence to prove any other or greater power in Ecclesiastical Matters to be lodged in the King, than he has in Temporals: The Supreme Power in both being in the King, in conjunction with his Great Council or Parliament, but not in him, separate and apart from them.  
Another Example produced by the Doctor, of our Kings having presided in a Council of the Clergy, though the Pope's Legates were present, is out of Sir Henry Spelman's Counc. pag. 189. But in this he has as bad luck, as in the former; for, as in the former the Kings did not preside, but one of the Legates, so in this the King indeed presided, but no Legate appears by the Book to have been present. And the Acts of the Council begin thus;  
VIZ.  
In Nomine Domini Dei Nostri & Salvatoris Jesu Christi Congregatum est Magnum Concilium in loco qui vocatur Becancelde, Praesidente in eodem Concilio Withredo Clementissimo Rege Cantuariorum, nec non Bertualdo Reverendissimo Archiepiscopo Britanniae, simulque Tobiâ Episcopo Roffensis Ecclesiae, caeterisque Abbatibus, Abbatissis, Presbyteris, Diaconibus, Ducibus, Satrapis in unum glomeratis, paritèr tractantes, anxiè examinantes de statu Ecclesiarum Dei, etc. Here the King presides in a General Council of his own People, or in a Parliament assembled for Matters concerning the State and Government of the Church. And what use the Doctor can make of all this, I know not.  
The Charter of King William the Conqueror, whereby he severed the Ecclesiastical Courts from the Temporal, and which the Doctor would have us believe, was an Act of the King's Personal Authority in Ecclesiastical Affairs, was a Parliamentary Charter, or an Act of Parliament. Willielmus Dei gratiâ, etc. Sciatis, etc. quod leges Episcopales, quae non benè, nec secundum sanctorum Canonum praecepta, usque ad mea tempora in Regno Anglorum fuerunt, Communi Consilio Archiepiscoporum meorum, & caeterorum Episcoporum & Abbatum & omnium Procerum Regni mei, emendandas Judicavi. Propterea mando & praecipio, ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundret placita teneat, etc. This Mr. Selden understood to be an Act of Parliament, for having given an account of his Diaploma to Battle-Abbey, and recited it at length in his Notes & Specilegium ad Eadmerum; p. 165, 166. which was granted Assensu Lanfranci Archiepiscopi Cantuariensis, & Stigandi Episcopi Cicestrensis & Concilio etiam Episcoporum & Baronum meorum: says he, id genus etiam est sancitum ejus, quo Sacrum à Civili discriminavit Forum. The same Author speaking in another of his Works of King William the Conquerour's bringing the Possessions of the Church under Military Service, of which, though Roger Wendover (out of whom Matthew Paris took the Relation) says, that Episcopatus & Abbathias omnes, quae Baronias tenebant in purâ & perpetuâ Eleemosynâ, & eatenus ab omni servitute Seculari Libertatem habuerant, sub servitute statuit Militari, irrotulans singulos Episcopatus & Abbathias pro Voluntate suâ quot milites sibi & successoribus suis, hostilitatis tempore voluit à singulis exhiberi. Yet (says Mr. Selden) how it is likely he brought them to this kind of Tenure, may be conjectured by other circumstances of the stories of the the same time. And observe especially, That he held a Parliament the same Year; so that perhaps this Innovation of their Tenors was done by an Act of that Parliament. Seld. Titles of Honour, p. 578. Which I mention only to show, that things said to have been done by the Conqueror, and especially Laws and Constitutions mentioned to have been made by Him, must not presently be supposed to have proceeded from his own, single, personal Authority, but to have been made More Anglico, cum assensu Ordinum Regni, as has been even now observed out of Mr. Selden.  
What follows in the Doctor (p. 156, 157) concerning the King's Temporal Courts, being Judges, whether a Cause belonged to the Jurisdiction of the Temporal or Ecclesiastical Courts, is very true: And so is the Account, that he gives of King William the First, his settling many particulars to belong to the Jurisdiction of the Ecclesiastical Judges, in a Council at Illibon in Normandy, Anno 1080. But it is an inveterate Error of the Doctor's, to confound the King's personal Authority with his Authority in his Courts, and his Authority in, and with the Assent of his Great Councils or Parliaments. That Council of Illebon, mentioned by the Doctor, is related by Ordericus Vitalis in this manner; viz. Anno ab Incarnatione Domini MLXXX, Rex Gulielmus in festo Pentecostes apud Illebonam resedit, ibique Gulielmum Archiepiscopum & [omnes Episcopos & Abbates, Comitesque cum aliis Proceribus Normanniae] simul adesse praecepit.  Rex jussit, factum est. Igitur Octavo Anno Papatus Domini Gregorii Papae septimi Concilium apud Jullam— bonam celebratum est, & de statu Ecclesiae Dei, totiusque Regni, providentiâ Regis [cum Baronum suorum consilio] utiliter tractatum est. And then follow the Canons, all being concerning matters Ecclesiastical. Now what use the Doctor makes of this Paragraph, I know not. For the Jurisdiction of the King in his Courts, (where the Law of the Land is the Judge's rule) to restrain All Inferior Courts within their proper bounds, no man denies: And the King's Authority to limit, erect and appoint Consilio Baronum suorum, And unà cum Episcopis, Comitibus & Proceribus Regni sui, what Causes shall belong to the cognisance of Ecclesiastical Judges, and what not, no man, that is a Protestant, questions. How many Acts of Parliament in every Age might be reckoned of this nature; vid. Stat. de Circumspect agatis temp. Edwardi 1. Stat. de Articulis Cleri, tempore Edward. 2. & Statutum pro Clero, tempore Edw. 3. and innumerable others.  
Then the Doctor refers his Readers for farther satisfaction how far the Kings of England have exercised Jurisdiction in Ecclesiastical matters, to Sir Roger Twiselen, pag. 108, 109, etc. who instanceth in eighteen particulars. I will not stand with the Dr. for the number, but refer him to Mr. Prynn's second Tome of his Chronological Vindication of the King's Supreme Ecclesiastical Jurisdiction, out of the Introduction to which Volume he might have named five and twenty. But because he has chosen to quote Sir Roger Twisden's eighteen, let us examine those Particulars, and Sir Roger's Authorities, upon which he grounds them, and it will presently appear how far they make for his Hypothesis.  
1. The first is, that they permitted none to be taken for Pope, but by the King's appointment. For which he quotes Eadmerus, pag. 26. But of this matter having spoken already, I shall say no more of it in this place.  
The Second is, That none were to receive Letters from the Pope, without showing them to the King, who caused all words prejudicial to him or his Crown, to be renounced. For which he quotes Eadmerus, pag. 113. In whom are these words, in a Letter from Pope Paschal to King Henry the First, viz. Sedis eni● Apostolicae Nuntii vel Literae, praeter jussum sum Regiae Majestatis, nullam in potestate tuâ susceptionem aut aditum promerentur. This was but the Law of England, not to be subject to any Foreign Power; asserted by a Law in King William the Conquerour's time, and afterwards over and over in opposition to Papal Encroachments and Usurpations; confirmed by the Statutes of Praemunire and Provisors, and effectually secured by the Laws made at and since the Reformation, and particularly by that Remarkable Statute of 14 Henr. 8. cap. 12. concerning Appeals. And that the King could not of himself let in a Foreign Power upon his People, appears sufficiently by what has been said already. The two Passages quoted by Sir Roger out of Thorn, Collect. pag. 2151, 2152, and 2194, show that two Persons, to whom the Pope had conferred by Provisions, the Monastery of St. Austin in Canterbury, were enforced, before their Admittance, to renounce all such words in their Bulls of Provision, as were prejudicial to the King and his Crown; i.e. to the Laws of the Realm, in and over which the King was Supreme Magistrate and Governor. After which renunciation made, they did fealty to the King, and were by the Escheator put into possession of their Temporalties. The King might by Law have opposed these Provisions, but the Monks, who had the Right of Election, being willing to receive the Persons so collated, and the King to admit them (as any Private Patron might admit a Clerk to be collated to a Church of his own Gift, by Provision) it was very reasonable that the King should require a renunciation of such Clauses in their Bulls of Provision, as intersered with the Jurisdiction, which the Law gave him over his Spiritual Subjects. And this appears by Sir Roger Twisden's third quotation upon this Head, compared with an Act of Parliament in Queen Mary's time.  
The quotation is out of Coke's 3 Instit. pag. 27. where the Form of the Renunciation is set down; viz. I renounce all the words comprised in the Pope's Bull to me made of the Abbey of, etc. the which be contrary or prejudicial to the King our Sovereign Lord, and to his Crown, etc. A true and Gonuine Explanation of which, take from an Act of a Popish Parliament, viz. 1 & 2 Phil. & Mar. cap. 8. Be it Enacted by Authority of this present Parliament, That all Bulls, Dispensations and Privileges obtained before the Twentieth Year of King Henry the Eighth, or which shall hereafter be obtained of the See of Rome, not containing matter contrary or prejudicial to [the Authority, Dignity, or Pre-eminence Royal or Imperial of the Realm, or to the Laws of the Realm,] now being in force, may be put in execution, etc. So that such Bulls, as were not contrary to the known Laws of the Realm, were allowed to be valid, so long as the Pope was acknowledged to be the Head of the English Church: But such Bulls, or clauses in Bulls, as were contrary to the Laws, were to be renounced, as Prejudicial to our Sovereign Lord the King and his Crown; i. e. as this Law of Phil. and Mary explains it; to the Pre-eminence Imperial of the Realm, and the Laws of the same.  
Sir Roger's third Particular is, That Our Kings permitted No Councils, but by their liking, to assemble, which gained the name of Convocations; as that always had been and aught to be assembled by the King's Writ. For this Sir Roger quotes Eadmer. pag. 24, and the statute of 25 Henry the 8. c. 19 Upon this Head I have no Controversy with the Doctor nor Sir Roger, I only assert, that such things as are the proper Business of Convocations, cannot be transacted by the King alone without them.  
His fourth particular is, That Our Kings caused some to sit in them (sc. in his Ecclesiastical Councils) to supervise their Actions and prohibit them, on the behalf of the King and Kingdom, ne quid ibi contra Regiam Coronam aut dignitation statuere attentarent. Here the Reader is to observe, that the Authority quoted for this, is in Anno Dom. 1237. which was about the twentieth year of King Henry the Third, before which time the Clergy had turned the King and the Laity out of their Synods. And therefore it stood the King in stead to prohibit them, who were but a small number of his Subjects, and scarce half-Subjects, from attempting any thing to the prejudice of the Rights of his Crown, or the Liberties of his People, and the Laws of the Realm; which they had already made too great inroads upon. As no such Prohibitions as these, can be produced in former times, so they were altogether useless and unnecessary, when the Kings themselves and all such of their Subjects as were admitted into Parliaments, sat and had Votes in Ecclesiastical Synods: as is undeniably evident by almost all the Ancient Councils collected by Sir Henry Spelman, till within the Reign of King Steven; Who owing his Crown to the Clergy, was fain to suffer this and other Usurpations, to secure his cracked Title. But after the Clergy took upon them to meet in Convocations, neither assembled by the King's Writ, nor consisting, as the Ancient Synods had done, of the King and all the Estates of the Realm, Prohibitions to them are frequent, not to attempt any thing against the Law of the Land. Vid. Patt. 8. Reg. Johan. nu. 1. Rex Archiepiscopis, Episcopis, Abbatibus, Archidiaconis, & omni Clero apud sanctum Albanum ad Concilium convocato, salutem. Conquerente Vniversitate Militum & Baronum & aliorum sidelium nostrorum, audivimus quod non solum in laicorum grave praejudicium, sed etiam in totius Regni nostri intolerabile dispendium, super Romescot praeter consuetudinem solvendo, & aliis perpluribus inconsuctis exactionibus Authoritate summi pontificis Concilium inire & Concilium celebrare decrevistis: Nos vero etc. Vobis precise mandamus & express prohibemus, ne super praedictis vel aliquibus aliis Concilium aliquod in Authoritate aliquâ, in fide qua nobis tenemini, teneatis, vel contrae Regni nostri Consuetudinem aliquid novi statuatis, & à celebratione hujusmodi Concilii supersedeatis, quousque cum Vniversitate nostra super hoc Colloquium habuerimus. This Writ appears to have been granted at the Complaint of the whole Parliament, and Commands the Clergy not to proceed in their Exactions, nor any other business contra consuetudinem Regni, till the King had spoken with his Parliament about the matter. But I lay no stress at all upon the Parliament's being here a party. I produce this Writ only to confirm Sir Roger's fourth particular of the Kings prohibiting the Clergy to attempt any thing against the Rights of his Crown or the Law of the Land. It is a known Rule, that whatever is forbidden by Law, the King may forbid by his Proclamation; and that whensoever any Court assumes an Authority, not warranted by Law, the King may prohibit them by his Writ. What more natural, then for the supreme Magistrate, to whom the Law has committed the Execution of itself, to prohibit all things that are contrary to Law?  
As here we see the King, at the complaint of the Vniversitas, prohibits the Clergy from attempting any thing contrary to the Consuetudo Regni, so in King Henry the Eighth's time there appears a prohibition to the King himself and the Clergy, not to do any thing contrariant or repugnant to the King's prerogative Royal, or the Customs, Laws and Statutes of the Realm. The Statute of 25 Hen. 8. cap. 19 (which all men agree to be but declarative of the Common Law) enacts that No Canons, Constitutions or Ordinances of the Clergy, shall be [made] or put in Execution within this Realm by Authority of the Convocation of the Clergy, which shall be contrariant or repugnant to the King's prerogative Royal, or the Customs, Laws, or Statutes of the Realm. This Act had before provided, that the Clergy should not make, promulge or execute any Canons, Constitutions or Ordinances in their Convocations without the King's Licence and Assent, under the Penalty of a Praemunire; so that without the Kings Assent their Canons would be Nullities, and themselves under a praemunire for making or Executing them. And therefore when the Act provides in an after-clause, that they shall [make] no Canons, etc. contrary to the King's prerogative, or the Laws of the Realm, this is a prohibition to the King and them not to make any such Canons, Constitutions or Ordinances, as are contrary to Law.  
Sir Roger's fifth particular is, That our Kings suffered no synodical decree to be of force, but by their Allowance and Confirmation. For which he quotes Florentius Wigornensis, Anno 1127. Where 'tis said, Rex auditis Concilii Gestis, consensum praebuit, & authoritate Regia & potestate concessit & confirmavit statuta Concilii à Gulielmo Cantuariensi Archiepiscopo & sanctae Romanae Ecclesiae legato apud Westmonasterium celebrati. Now that Council consisted not of the Clergy only, but as Ecclesiastical Synods did in those days, of the Clergy and Laity; Confluxerunt quoque illic magnae multitudines Clericorum & Laicorum, tam divitum quam mediocrium, & fact us est conventus grandis & inestimabilis. ibidem. And this we have heard before out of Malmesbury was necessary, quatenus quicquid ejusmodi Concilii Authoritate decerneretur, utriusque Ordinis cura & sollicitudine ratum servaretur. Now, that the Acts of such Synods were of no force within the Realm without the King's Assent, I agree: as his Assent is necessary to make an Act of Parliament a binding Law in Temporals, so his Assent is, and till the Clergy had turned him out of their Synods, always was necessary and Essential to an Ecclesiastical Law. But what inference can be drawn from hence to prove any personal Supremacy in the King, separate and distinct from the Assent of his People in their Synods and Councils, I do not apprehend.  
But one Observation I cannot omit upon this Council, compared with that other held Anno Dom. 1175. & Ann. 21. Hen. 2. For whereas in the former the Laity were present, as well as the Clergy, we find the King gave his Royal Assent to their Canons, and so they became Ecclesiastical Laws, binding to the whole Nation; In the latter the Laity were not present, by any account that I can find of it, and therefore to make their Canons general Laws the King's Assent would not have been sufficient, nor was it singly had; for Gervas'. Dorob. Anno Dom. 1175. pag. 1429. Collect. tells us in hoc Concilio ad Emendationem Anglicanae Ecclesiae assensu Domini Regis & primorum Regni haec subscripta promulgata sunt Capitula.  
And that the Clergy in those days, when they took upon them to hold Synods apart from the Laity, did not imagine that the King alone could give their Canons any Validity in Law, where they entrenched upon or intersered with the Laws of the Land, will appear by observing, that when in King Henry the Third's Time the Clergy in opposition to the Gravamina Laicorum, had made many provisional Articles for the enlarging their own Jurisdiction, pro quibus Episcopi Angliae fuerant pugnaturi, Matthew Paris says thus of them; viz. Formati sunt Articuli circiter quinquaginta, quos praelati in seripta redegerunt, ut apto tempore coram Rege & magnatibus & praelatis lecti, effectum debitum sortirentur. Additamenta ad Math. Paris. pag. 199, etc. so that it was the magnates & praelati, as well as the King, and not the King without them, that could give life to them.  
Sir Roger's sixth particular is, That our Kings permitted no Bishops to Excommunicate or inflict any Ecclesiastical Censure on any Baron or Officer, nisi praecepto suo; concerning which I have spoken already.  
The seventh is, That they caused the Bishops to appear in their Courts, to give an Account why they Excommunicated the Subject, This makes nothing for any personal Authority in the King. Whatever he does in his Courts, he does by his Judges, who have the Law of the Realm for their guide and Rule. And aught to keep all inferior Courts within their Bounds; and therefore might and do yet every day grant Prohibitions, when the Bishops and their Officials proceed to Excommunicate, where the Law does not allow that Censure to be applied. And if the Writ of Prohibition be not obeyed, but that the Bishop or other Ecclesiastical Judge proceeds notwithstanding, an Attachment is the next process. Vid. Fitz. Nat. Br. tit. prohibition. For Excommunication, whatever pretence of Divine Right the Clergy may have for their Jurisdiction, was always regulated by the Laws of the Realm, but never by the King's Arbitrary Will and Pleasure.  
The Eighth is, That they caused such as were imprisoned, after forty days standing Excommunicate, to be freed by Writ, without the assent of the prelate or satisfaction giving; the King and his Judges communicating with them, tam in Divinis, quam profanis, and commanding none to shun them, though by the ordinary denounced Excommunicate. Now the ground of this is no other, than the Writ de cautione admittenda, by which the Bishops are commanded, quod accepta ab A. B. (the Person Excommunicate) cautione, ipsum à prisona, quâ occasione praedict. detinetur, deliberari mandent; alioqui quod nostrum est in hac parte exequemur. To which Writ if the Bishop did not yield Obedience, than a Writ went to the Sheriff to deliver the Prisoner, if the Bishop should persist in his refusal to accept Caution. v. Regist. fol. 66. a. & Fitz. Nat. Brev. Fol. 63. Now these Writs in the Register were made in Parliament, as Bracton tells us; Lib. 5. Fol. 413. b. & sunt quidem brevia formata de certis casibus, & [de communi consilio totius Regni] concessa & approbata; And therefore (says he, and the Lord Coke out of him, 2 Instit. 407.8. Rep. fol. 48, 49.) nullatenus mutari possunt absque consensu & voluntate eorum. The Acts indeed by which most of the Writs in the Register are appointed, are lost, as all the Records of Parliament are before Magna Charta; but by Acts of Parliament yet upon record many writs are directed, and the forms of them expressed in the body of the Acts. So that Writs in the Register are the very Law of England; they are Statute-Law, and the oldest Statute-Law we have. And consequently the King's commanding the Bishops to discharge persons, that were in prison upon a Capias Excommunicatum, and commanding the Sheriff to deliver them in the Bishop's default, is no Act of Personal Prerogative in them; But the ordinary course of the Law of the Realm, and warranted by Acts of Parliament, though, the Records of those Acts being lost, we now call it Common-Law.  
Sir Roger's ninth Instance is, That our Kings suffered no Legates to come into England, without their leave. Of which has been discoursed already.  
The tenth is, That they determined Matters of Episcopacy Inconsulto Romano Pontifice. Which is true, they did and had good Right to do, but not Inconsultis Magnatibus. Witness the Degradation of Stigand Archbishop of Canterbury, temp. Willielmi primi. And the intended deprivation of Wolstan Bishop of Worcester. The Controversy betwixt King William Rusus and Anselm, about Anselm's going to fetch his Pall from urban: And that betwixt Lanfrank Archbishop of Canterbury, and Thomas Archbishop of York, concerning the Profession of Canonical Obedience, which the former required of the Latter: the Choosing Bishops and Arch-Bishops: the Controversies betwixt King Henry the 2d. and Thomas Becket; all heard, debated and determined in General Assemblies of Clergy and Laity, and not by our Kings apart from their Great Counsels.  
The Eleventh is, That they permitted No appeals to Rome. 'Tis true; nor did they ever determine them themselves, either in person or by Commission. And therefore the Statute of Clarendon, which gives Appeals from the Archbishop to the King, was never understood to be to the King in person, but to the King in his Court. As we may see by what Ger. Dorobern. Anno 1176. Coll. p. 1433: And Hoveden, fol. 313, 314: tell us of the statute made at Northampton in King Henry the second's time. Which both of them call a renewing of the Assize of Clarendon. Now in these Laws made at Northampton there is this close Expression concerning Appeals; Justiciae faciant quaerere per consuetudinem terrae illos, qui à Regno recesserunt, & nisi redire voluerint infrà terminum nominatum, & stare ad Rectum [in Curià Domini Regis,] Vtlagentur. So that, though King Henry, as far as in him lay, had given ways to Appeals to Rome (for when he was absolved of the Gild, that he was supposed to have contracted by having occasioned the death of Thomas Becket, part of the satisfaction enjoined him, was, quod licebit Appellationes libere fieri; Radulph: de Diceto. p. 560) yet the Kingdom afterward meeting in Parliament at Northampton, would not quit their interest; But renewed the Laws of Clarendon against foreign Appeals; And explain the Appeals ad Regem to be meant of Appeals ad Curiam Regis. But it is a common error with Men, that are ignorant of our Laws, wherever they find they King's name in any Acts of Parliament, or Judicial Proceed, to imagine, that the King has some Personal Authority out of his Courts; But for the present, I will give but one Instance, to detect that mistake. The Stat. of Westm. 1. Enacts (cap. 15.) what persons shall be replevisable, and what not. Amongst others, those that are taken by [Commandment le Roy] are appointed not to be bailed by that Statute. My Lord Coke, in his Commentary upon that Law; 2d Institut. pag. 186. says thus, viz. 1. The King, being a body Politic, cannot command but by matter of Record; for Rex praecipit and lex praecipit, are all one. For the King must command by matter of Record, according to Law. 2. When any Judicial Act is by Act of Parliament referred to the King, it is to be understood to be done in some Court of Justice, according to Law. The words of the Statute of Rich. 2. cap. 12. are, si non, que il sort per brief, ou altar mandment del Roy. And yet, it was resolved by all the Judges of England, that the King cannot do it by any Commandment, but by Writ, or by Order or Rule of some of his Courts of Justice, where the Cause dependeth. And Fortescue, speaking to the Prince, to instruct him against he should be King; Melius (says he) per alios, quàm per teipsum Judicia reddes, quo proprio ore Nullus Regum Angliae usus est, & tamen sua sunt omnia Judicia Regni; licet per alios ipsa reddantur; sicut & judicum ●lim sententias Josaphat asseruit esse judicia Dei.  
The Great Case in tertio Caroliprimi of Habeas Corpus turned upon this point. The Judges indeed betrayed the Nation in that cause, as they have done in others in these Hundred years last passed, as far as in them lay: but how that Judgement was resented in Parliament, the Reader may inform himself out of the 1st Vol. of Rushworth's Collections, and the 1st part of Doctor Nalson. The Law was declared upon that occasion to be, that Voluntas Regis est secundum legem et Justiciarios suos, in Guriâ suâ & non in Camerâ; according to 2 R. 3. f.  
The Twelfth particular is, that Our Kings bestowed Bishoprics on such as they liked: and translated Bishops from one See to another: concerning our Kings bestowing Bishoprics something has been said already. As for their translating Bishops from one See to another, I desire to hear any one Instance in any age of any Bishop translated by the King, against his own will. The Pope pretended to such a power, and sometimes Exercised it: and that was one of the mischiefs, which occasioned the making of the Statutes of Provisors. But could never yet find, that any of our Kings attempted it.  
The Thirteenth particular is, Erecting New Bishoprics. The Instances given by Sir Roger, are 1st, the erecting of the Bishopric of Ely by King Henry the 1st, Anno 1009. taking it out of Lincoln-Diocess. And yet nothing is more evident, then that this was done by Act of Parliament. The Instrument Runs thus; viz. In Nomine sanctae & individuae Trinitatis Patris & Filii & spiritus sancti, Anno ab Incarnatione Domini MCVIII Indictione. Anno Pontificatus Domini Paschalis Papae 2. decimo, Regni quoque mei similiter decimo; Ego Henricus Providente Divina Clementia Rex Anglorum & Normannorum Dux, Wilhelmi Magni Regis Filius, qui Edwardo Regi Haereditario jure successit in Regnum; videns & Ecclesiae messem in Regno meo multam esse, & Agricolas quidem paucos, et ab hoc plurimum laborantes in Messe, et in ipsa Lincolniensem Ecclesiam multa plebe foecundam, ex Authoritate & Consilio predicti Papae Paschalis, & Assenfu simul & prece Roberti Lincolniensis Episcopi, & totius Capituli sui, cum ipso annuente Domino Anselmo Beatae memoriae Cantuariensi Archiepiscopo, & Thoma secundo Venerabili Eboracensium Archiepiscopo, [& Universis Episcopis & Abbattibus totius Angliae, sed & omnibus Ducibus, Comitibus & Principibus Regni mei] Elyense Monasterium etc. in Episcopalem sedem, sicut & caeteros Episcopatus Regni mei liberam & absolutam perenniter statuo & confirmo. vid. Mr. Selden 's Notas & Spicilegium ad Eadmer. Et Dugdale's Monasticon.  
And what if All the Bishoprics of England, Erected both before and after, were Erected by Acts of Parliament, and not by the King's Letters Patents only?  
In King Edward the Elder's time, upon the Letter of Pope Formosus, Congregata est synodus Senatorum, Procerum & Populorum, & Nobilium Gentis Angliae, In quâ Presidebat Plegmundus Archiepiscopus. Tum sibi Rex cum suis, et Plegmundus Archiepiscopus salubre Concilium iniverunt, and Constituted and Elected five Bishops in the Province of the Gewissi, where there had till then been but two, dividing those two Bishoprics into five by Act of Parliament. Spelman's Counc. Volume. 1. pag. 387, 388. Malmesbury de Gestis Regum Anglorum; Lib. 2. cap. 5. This Council Matthew Westminster, pag. 181. Anno Dom. 9051 calls, Concilium Grande Episcoporum, Abbatum, & fidelium populorum in Provinciâ Geviseorum. In the same Council the bounds of their Dioceses were Limited: which the same Historian describes. He tells us likewise, that in the same Council two other Bishops were chosen, One to the Bishopric of Dorchester and another to that of Chichester.  
In King Henry the Eighth's time, six New Bishoprics were erected by the King's Letters Patents; viz. Gloucester, Bristol, Chester, Peterborough, Oxford and Westminster. But those Letters Patents had the Authority of an Act of Parliament to warrant them, made in the One and thirtieth year of that King's Reign, cap. 9 Be it Enacted by the Authority of this present Parliament, that his Highness shall have full power and Authority, from time to time, to declare and nominate by his Letters Patents, etc. such number of Bishops, such number of Cities, Sees for Bishops, Cathedral Churches and Dioceses, by meats and bounds, etc. as to his most Excellent Wisdom shall be thought necessary and convenient. And also shall have power and Authority, to make and devise Translations, Ordinances, Rules and Statutes concerning them, All and every of them, etc. And that all and singular such Translations, Nominations of Bishops, Cities, Sees and limitation of Dioceses for Bishops, Erections, Establishments, Foundations, Ordinances, Statutes, Rules etc. shall be of as good strength, force, value and effect, to all Intents and purposes, as if such things, etc. had been done, made and had by Authority of Parliament. This is most apparently an Enabling Act; Power is here given to the King by Authority of Parliament, and it is Enacted, that the Contents of his Letters Patents, to be made for perfection of the Premises, shall be as valid, as if they had been Enacted in Parliament. So that, in that King's Judgement, force and validity was by this Act given to his Letters Patents, which otherwise they would have been destitute of, and have been invalid for the End to which they were designed.  
This was but a Temporary Act, and died with that King, for no such Power is given by the Act to his Successors. And therefore in King Edward the sixth's time a Bill was brought into the House of Commons, and read the first time, To authorise that King to make New Bishoprics by Letters Patents: As I find in a Manuscript Journal of King Edward the Sixth's Parliaments, Anno Regni 7. What became of it afterwards, I know not. It was brought in towards the End of the Session, and did not pass into a Law. But the bringing of it in shows, that the King was not conceived to have any such Authority of Common Right. Nor did that King exercise any such Authority. For the Bishopric of Durham was in his Reign divided into two by Act of Parliament. And when it was restored to its former Estate in Queen Mary's time, it was done by Act of Parliament. Vid. Dr. Burnet's History of the Reform. vol. 2. p. 215. Rastal's Statutes, 1 Mariae, Parl. 2.  
That Act of King Henry the Eighth, by which he was impowered to Erect New Bishoprics, was Repealed 1 & 2 Phil. & Mar. And to the End, that by the Repeal of the Act, those Bishoprics that had been Erected by virtue of it, might not be consequentially dissolved, A Clause was inserted into the Act of Repeal, That all Bishoprics, Cathedral Churches, Hospitals, Colleges, Schools, and such other Foundations then continuing, made by Authority of Parliament, or otherwise, according to the Order of the Laws of the Realm, since the schism, should be confirmed and continued for ever. So that then the Bishoprics, that had been newly Erected by King Henry the Eighth, stood upon this Foundation, viz. A Confirmation by Parliament, notwithstanding the Repeal of 31 Henr. 8. cap. 9 But now, that the Statute of 1 & 2 Phil. et Mar. cap. 8. is Repealed by Primo Eliz. and this clause of Confirmation not excepted out of the Repeal, I know not upon what bottom they stand at this day.  
So far were our Kings from assuming a Power to Erect and divide Bishoprics at their pleasure (as a late Author, in a Book entitled, A Vindication of the King's Sovereign Rights, etc. pag. 12. takes upon him to affirm) That they never so much as divided Parishes, nor could make Unions and Consolidations of Parochial Churches without Authority of Parliament. Witness the Statutes of 33 Henr. 8. cap. 32.32 Hen. 8. cap. 44.37 Hen. 8. cap. 21.17 Car. 2. cap. 3.22 Car. 2. cap. 11.22 & 23 Car. 2. cap. 15. etc.  
Sir Roger mentions likewise the Bishopric of Carlisle, which was Erected by King Henry the First, Anno Dom. 1133. The Prior of Hagulstad speaks of this in General terms (Coll. pag. 257.) Consecratus est Adulphus Prior de Nostlia ad Vrbem Karleol, quam Rex Henricus initiavit ad sedem Episcopalem. Math. Westm. in like manner, pag. 241. Rex Henricus Novum fecit Episcopatum, apud Carleolum, in Limbo Angliae et Galwalliae, et posuit ibi primum Episcopum, nomine Ethelulphum sancti Oswaldi Priorem. Abbas Jorvallensis tells us the story in like terms, Collect. pag. 1019. Eodem Anno Rex fecit Novum Episcopatum apud Karliolum, quem Arnulfo, Priori de sancto Bertulpho Contulit. But it appears by Radulph. de Diceto, Coll. pag. 505. that in this very year a Parliament was held, and a very solemn one. Rex Henricus, Convocatis Regni sui Principibus, filiam suam & haeredes filiae suae sibi successorres instituit. In which Parliament it is not unlikely that this Bishopric of Carlisle was erected, notwithstanding these lose Expressions of the Monks. For the same Authors express themselves in the same terms concerning the Bishopric of Ely: Which yet was erected by Act of Parliament. Radulphus de Diceto; Collect. pag. 501. Rex Henricus Abbathiam Elyensem ad Episcopalem mutavit sedem, & Herveum ibi praesecit. Math. Westminst. pag. 238. Rex Henricus Abbbathiam Elyensem in Episcopalem sedem commutavit. Abbas Jorvallensis; pag. 1003. Collect. Abbathiam de Ely ad sedem Episcopalem convertit, & primum Episcopum Herveum Bangorensem constituit. So that no Argument can be drawn from these Historians mentioning the King's Founding the Bishopric of Carlisle, without naming the Parliament, as a party to it, to prove that therefore it was not Erected by Authority of Parliament. For if the Charter of the Foundation of the Bishopric of Ely had been lost, the same Argument would have lain against it. And all the Bishoprics in England, of whose first Foundations there is any particular Account given by our Historians, appear to have been Founded by Our Kings in Parliament, or by virtue of an Authority given by Act of Parliament.  
I suppose it will not be denied, but whenever any Bishopric in Particular was Founded, at the same time it was endowed. Now Our Ancient Kings could not out of Parliament endow Bishoprics, because they could not distrahere patrimonium Regni. And a further Consideration to this purpose may be drawn from the Exemptions, which the possessions of the Church enjoyed from all secular service, Except the Trinoda necessitas; Which Exemptions, were all Granted by Charters Assented to in Parliament, as appears undeniably by the several Charters Granted in divers Kings Reigns successively to the Abbey of Crowland, All inserted in haec verba into Ingulphus his History of that Monastery; and by the Monasticon. In which it appears further, that all Exemptions from Episcopal Jurisdiction, Except of the King's free Chapels, which were of his own Foundation, were granted in Parliament: I mean all such Exemptions granted by our Kings. For the Pope used to grant Exemptions by Bulls: and those Papal Exemptions were confirmed by Parliament, temp. Henr. 8. King William the Conqueror Founded Battle-Abby in Sussex, in the place where he overcame Harald; and Exempted it from Episcopal Jurisdiction. But whether he did it in Parliament, or not, let the Charter itself testify; viz. Willielmus Dei Gratia Rex Anglorum, etc. Notum sit Vobis me Concessisse & confirmasse, cum Assensu Lanfranci Archiepiscopi Cantuariensis, & Stigandi Episcopi Cicestrensis, [& Consilio etiam Episcoporum & Baronum meorum,] ut Ecclesia Sancti Martini de Bello, quam Fundavi ex voto, ob Victoriam, quam mihi Deus in eodem loco concessit, libera sit & quieta in perpetuum ab omni servitute & omnibus quaecunque humana mens excogitare potest, etc. Nec liceat Episcopo Cicestrensi, quamvis in illius Dioecesi sit, in Ecclesia illa vel Maneriis ad illam pertinentibus, ex consuetudine hospitari, contra voluntatem Abbatis, nec Ordinationes aliquas facere ibidem, nec Abbatiam in aliquo gravare; sed neque super illam Dominationem aliquam, aut vim aut potestatem exerceat, sed, sicut mea Dominica Capella, libera sit omnino ab omni ejus Exactione, etc. Hoc etiam Regali Authoritate & Episcopolum & Baronum meorum Attestatione constituo, quatenus Abbas Ecclesiae suae & leugae circumjacentis per omnia Judex sit & Dominus.  
The Fourteenth Particular is, that our Kings have by their Writs commanded Bishops to keep resident. Which, considering that it was their Duty, incumbent on them by Law, what great Power does it argue in the King, to command his Subjects to do what the Law enjoins them?  
The Sixteenth is, That they have commanded their Bishops, by reason of Schism or Vacancy in the Popedom, etc. not to seek Confirmation from Rome, but the Metropolitans to be charged by the King's Writ, to bestow it on the Elected. For this Sir Roger quotes Rot. Parl. 16. Mart. 3 Hen. 5. nu. 11. Anno Domini 1414. Now that was done by Act of Parliament. Which, because it is observable to many purposes, shall be transcribed at large.  
Our Lord the King, considering the long Vacancy of the Apostolic See, by reason of the damnable Schism, which has now continued a long time in Holy Church, and is not known how long it may yet last, And that certain Cathedral Churches within the Kingdom, which are of the Foundation of his Noble Progenitors, and belong to his Patronage, have been for some while and are yet destitute of Parochial Government, because the Persons that are elected into the same, cannot be confirmed in Parts beyond the Sea, for want of an Apostle, Although our said Lord the King bathe thereunto given his Royal Assent, to the Great decrease of Divine Service in the said Churches, substraction of Hospitality, Great peril of many Souls, Devastation and Destruction of the Lordships and Possessions belonging to the same, and the Impoverishment of such Bishop's Elect; And that by possibility all the Cathedral Churches within the Realm, may become void in like manner, and so be destitute of Government, and the King and his Realm of Council, Comfort and Aid, which they ought to have of the Prelacy; And considering also that in divers foreign Parts since the Avoidance of the said See, divers Confirmations have been and are daily made by the Metropolitans of the places, as he is credibly informed, and Willing for that cause, for ousting the said Mischiefs, chiefs, to provide such remedy, as it behoves, By the full and deliberate Advice and Assent of the Lords and Commons of his Realm in this present Parliament, Wills and Ordains, that the persons so chosen and to be chosen within his Kingdom during the Vacancy of the said See Apostolic, shall be comfirmed by the Metropolitans of the Places without Excuse or further delay in that behalf, And that the King's Writs, if need be, be directed to the Metropolitans, straight charging them to make the said Confirmations, And to perform all that to their Office belongeth, As also to the Bishop's Elect, that they on their part Effectually prosecute their Confirmations, that through default of such Metropolitans or Bishops Elect, damage or prejudice may not ensue to our Lord King, and his Kingdom, and to his Realm, and to the said Churches for the Cause aforesaid, which God forbidden.  
Here it is plain, that what Sir Roger ascribes to the King, was really done [by the full and deliberate Advice and Assent of the Lords and Commons of his Kingdom in Parliament.] And therefore that the supreme Jurisdiction in matters Ecclesiastical, was not, in the notion of that Age, Lodged personally in the King, but in the King by Law, in the King with his Parliament about him.  
Pursuant to this Precedent we find in King Henry the Eighth's time a Notable Act in the 28th Year of his Reign; cap. 16. In which there is this clause; viz. And that it may be also Enacted by Authority of this present Parliament, that all Arch bishops and Bishops of this Realm, or of any the King's Dominions, Consecrated and at this present time taken and reputed for Archbishops and Bishops, may [by Authority of this Present Parliament,] and not by virtue of any Provision, or other Foreign Authority, Licence, Faculty or Dispensation, keep, enjoy and retain their Archbishoprics, in as large and ample manner, as if they had been promoted, Elected and consecrated according to the due course of the Laws of this Realm, And that every Archbishop and Bishop of this Realm, and of other the King's Dominions, may minister, use and Exercise all and every thing and things, pertaining to the Office or Order of an Arch bishop and Bishop, with all Tokens, Ensigns and Ceremonies thereunto Lawfully belonging. This Act in the 2d paragraph had made void all Bulls, Dispensations, Breves etc. obtained at Rome, contrary to the statutes of Praemunire & Provisors: whereby many Bishoprics would have become void. To prevent which the Clause here recited, makes them legal Bishops notwithstanding, and supplies all the Ceremonies of Election and Consecration. Which I suppose no man will take upon him to say, that the King might then have done, notwithstanding his Newly restored Supremacy.  
Sir Roger's 16th Particular is, that Our Kings placed by a Lay hand Clerks in Prebendary or Parochial Churches, Ordinariis penitus irrequisitis. But, if he had considered, that Originally all Church livings in England were Donatives, And that Presentations to Ordinaries, Admissions, Institutions and Inductions thereupon, obtained in England, in compliance with the Canons many years after the Conquest, he would not have mentioned that, as a special prerogative in the King, which was but common to him with All his subjects, that had been Founders and were Patrons of Benefices. Mr, Selden tells us in his History of Tithes, cap. 12. sect. 5. that it was not till about the year MCC that the Decretals and the Increasing Authority of the Canons had settled the Universal course here of filling Churches by Presentation to the Bishop, Archdeacon, Vicar of the Bishop or Guardian of the Spiritualties: and that then the use of Investitures of Churches and tithes severally or together, practised by Laymen, was left off, And a Division of secular and Ecclesiastical Right from thence been continued in practice. And in the same Section (pag. 392.) he says, that whilst the use of Lay-Investitures was in being all Churches so given were properly Donatives. For further satisfaction as to that Particular, I refer to him.  
Sir Roger's seventeenth Particular is, that Our Kings prohibited the Laity from yielding Obedience, or answering by Oath to their Ecclesiastical Superior, enquiring de peccatis subditorum. This take out of the Additaments to Matth. Paris: pag. 200. num. 9 from whence Sir Roger quotes it. Item, cum Praelati Ecclesiastici inquirere volunt de peccatis subditorum, prohibentur laici ne de veritate dicendâ, aut de credulitate aliquod juramentum exponant, aut Praelatis super hujusmodi obediant; propter quod multorum excessus & peccata mortalia incorrecta & impunita relinquuntur, & sic praestatur audacia delinquendi, & peccandi facultas. Now this was no other, then protecting the Laity from being imposed upon by the Oath ex officio. And innumerable Authorities might be cited, to prove that no kinds nor forms of Oaths can be made or imposed on the King's Subjects, nor prescribed to them in any new cases, but by Act of Parliament only; And that no Bishop or Subject whatsoever hath any power to make or enjoin any new Oaths or forms of Oaths, nor any Authority to administer an Oath to any Man, without some Legal Commission from the King under the Great Seal, or some Act of Parliament, especially Authorising him to give or take an Oath, unless in Courts of Record or other Courts, who have Authority to administer Oaths by Prescription. But Anno Dom. 1237. Otho the Pope's Legate in a Council at London made this Constitution touching Oaths in Spiritual Causes in Ecclesiastical Courts, till that time not known, nor used in England, as appears by the words of the Constitution: Jusjurandum Calumniae in causis Ecclesiasticis quibuslibet, & de veritate dicenda in spiritualibus quoque, ut Veritas aperiatur facilius, & causae celerius terminentur statuimus de caetero Praestari in Regno Angliae, secundum canonicas & Legitimas sanctiones, [Obtentâ in contrarium Consuetudine Non obstante.] vid. Matth. Paris; 454. A clear resolution, that till that time the custom of England, and the Law of the Land was to the contrary, and that they could not enforce any Man to his Oath in such cases. After which, Grosthead Bishop of Lincoln, Anno 1246. Upon the suggestion of the Friar's Predicant and Minorites, raged more than was meet or Expedient (they are the words of Matthew Paris) against those of his Diocese, making strict inquisition in his Bishopric by his Arch-deacons and Deans, concerning the Chastity and manners, as well of noble as ignoble (upon Oath) to the enormous hurt and scandal of the reputations of many. [Quod nunquam antea fieri consueverat] The King hearing the Grievous Complaints of his people, Consilio Curiae suae scripsit Vicecomiti Hertfordiae in haec verba: Henricus Dei Gratia Rex Angliae etc. Praecipimus tibi, quod sicut teipsum & omnia tua diligis, non permittas, quod aliqui laici de Balliuâ tuâ ad voluntatem Episcopi Lincolniensis, Achidiaconorum, vel Officialium, seu Decanorum Ruralium, in aliquo loco Conveniant de caetero, ad cognitiones per sacramentum eorum vel attestationes aliquas faciendas, nisi in causis matrimonialibus & Testamentariis. Matth. Par. p. 716. And the very next year following, in pursuance hereof, the King by Parliament Enacted and Commanded, That if any Layman were convented before any Ecclesiastical Judge for breach of Faith and Perjury, that they should be prohibited by the King: and that the Ecclesiastical Judge should be prohibited to hold plea for all Causes against Laymen, unless they were of Matrimony and Testament: All which Matth. Paris precisely relates; pag. 727. Which Prohibition and Statute nullified the Constitution of Otho, and put a stop to this his innovation. But yet about nine years after Boniface Archbishop of Canterbury published this peremptory Constitution in affront to them both; Statuimus quod laici, ubi de subditorum peccatis & excessibus corrigendis per Praelatos & Ecclesiasticos judices inquiritur, ad praestandum de Veritate dicendâ juramentum, per Excommunicationis sententias, si opus fuerit, Compellantur; Impedientes vero ne hujusmodi juramenta praestentur (for the Judges, with many others then generally oppugned and hindered the ushering in of this Innovation) per interdicti & excommunicationis sententiam arceantur. To evacuate which illegal Constitution, trenching both upon the people's Liberties, and the Courts of Justice too; the Judges frequently Granted out sundry General Prohibitions to all or most of the Sheriffs of England, as is evident by the Register of Writs, Pars 2. fol. 36.43.50. Fitzherbert's Nat. Brev. fol. 41. A. Auxy home poit sure prohibition direct all Viscount que le Viscount ne permit ne suffer les lay subjects deal Roy de vener a ascun lieu all citation del Evesque ad faciend▪ aliquas recognitiones, vel sacrament prestand. nisi in causis matrimonialibus & Testamentariis. Rastal's Abridment of the statutes, Title, Prohibit. nu. 5. Upon which Prohibitions this Attachment followed; The King to the Sheriffs Greeting. 'Cause such a Bishop to put in sureties to appear before our Justice's &c. to show cause why he made certain Lay persons to be summoned and distrained by Ecclesiastical censures, to appear before him at his pleasure, to take an Oath against their Wills, In Grave Praejudicium Coronae & Dignitatis nostrae Regiae, necnon contra consuetudinem Regni nostri. By all which and by the Petition of Right itself, it appears evidently that this Juramentune Calumniae, or Oath ex officio was utterly against Law. For one of the Grievances complained of in that Petition, was, that the King's Subjects had had an Oath administered to them, not warrantable by the Laws and Statutes of the Realm. Now what use the Doctor can make of this Particular; viz. of the King's prohibiting the Clergy from Oppressing his Lay-Subjects contrary to Law, I cannot discover.  
Sir Roger's eighteenth and last particular, is an observation in Matth. Paris; where the ecclesiastics having enumerated several cases, in which they held themselves hardly dealt with, add, That in all of them if the Spiritual Judge proceeded contrary to the King's prohibition, he was attached, and appearing before the Justices, constrained to produce his proceed, that they might determine to which Court the Cause belonged. By which, says he, it is manifest how the King's Courts had the superintendency over the Ecclesiastic. This makes nothing for any Extrajudicial, Personal, Arbitrary power in the King in the Ecclesiastical matters, and is so far from impugning, that it corroborates my hypothesis.  
That the Temporal and Ecclesiastical Courts often quarrelled about their Jurisdiction, and that the Clergy sometimes made and attempted to put in execution Canons directly contrary to the Laws of the Realm, thereby endeavouring to usurp and encroach upon many matters, which apparently belonged to the Common Laws, as, the trial of Limits and Bounds of Parishes, the Right of Patronage, the trial of right of Tithes by Indicavit, Writs to the Bishop upon a recovery in a Quare impedit, the trial of Titles to Church-Lands, concerning Distresses and Attachments within their own Fees, and many other things which belonged to the King's Temporal Courts; That the Temporal Courts granted Prohibitions in these and other like cases; that the Clergy hereupon complained not to the King but to the Parliament, Ann. 51 H. 3. twice during the Reign of Edw. 1. and afterwards nono Edw. 2. may be read at large in the Lord Coke's second Institutes, 599, 600, 601, etc. So that the King determined to which Court Causes belonged, either in his Courts of Ordinary Justice, or, if the Clergy remained unsatisfied with the Opinions of the Judges, in his High Court of Parliament, and no otherwise.  
But we need not wonder that such a Prelate as Arch bishop Bancroft, whose Divinity had taught him that the King may take what causes he shall please to determine, from the determination of the Judges, and determine them himself, and that such Authority belonged to Kings by the Word of God in the Scripture, we need not wonder, I say, to find him in King James the First's time Exhibiting Articles of Abuses in granting Prohibitions, against the Judges, to the Lords of the Privy Council; As if the Lords of the Privy Council had any Authority to direct the Judges in their administration of Justice, or to set bounds to the Jurisdiction of any Court. Vid. 2 Inst. 601, 602, etc. & 12 Co. p. 63, 64, 65.  
By what has been said I hope it appears sufficiently, that the Ancient Jurisdiction of our Kings in Ecclesiastical matters was such a Jurisdiction, and no other than they had in Temporal matters, viz. in their Great Counsels, and in their Ordinary Courts of Justice: And that not only our Mercenary Doctor, but more learned and wiser men than he, have unwarily confounded that Jurisdiction with a Fiction of their own brains, by which they have ascribed to the King a Personal Supremacy, without any warrant from Antiquity, Law, or History.  
Witness these lose Expressions in Sir Roger Twiden's Historical Vindication etc. It cannot be denied, but the necessity of being in union with the true Pope (at least in time of schism did wholly depend on the King: pag. 2. The English have ever esteemed the Church of Canterbury in Spirituals, that is, quae sui sunt ordinis, without any intervening Superior omnium nostrum mater comunis sub sponsi sui Jesu Christi dispositione: in other things, as points of Government, the Ordering that of Right and Custom ever to have belonged to the King, assisted with his Council of Bishops, and others of the Clergy, who was therefore called, Vicarius Christi, etc. pag. 21. The King and the Arch bishop, or rather the Archbishop by the King's will and appointment had ever taken cognizance of all matters of Episcopacy, as the Erection of Bishoprics, disposing and translating of Bishops etc. p. 24. and innumerable others.  
But to go on with Dr. Johnston and draw to a conclusion; he acknowledges (pag. 157) that he does not find that by immediate Commission the Kings of England Visited before King Henry the Eighth's time. And if no such thing can be found, then what authority can our Kings now have to exercise such a Jurisdiction unless by virtue of some Act of Parliament made in or since his time?  
But (says he) we have sufficient grounds to judge, that whatever was done, was by the King's Power and Authority: which is a wild, extravagant, ignorant expression, and hardly common sense. And therefore (says he) Sir Edward Coke in cawdry's case, Lays it down for a Rule. That as in Temporal Causes, the King by the Mouth of the Judges in the Courts of Justice doth judge and determine the same by the Temporal Laws of England, so in causes Ecclesiastical and spiritual by his Ecclesiastical Judges according to the Ecclesiastical Laws of the Realm: and that so many of the Ecclesiastical Laws, as were proed, approved and allowed here, by and with general consent, are aptly and rightly called the King's Ecclesiastical Laws: and whosoever denyeth this, denyeth the King to have full and plenary power to deliver Justice in all cases to all his Subjects, etc. pag. 157. which that he has, he proves by the Preamble of stat. 24 Hen. 8. cap. 12. And what then? May the King therefore erect New Courts directly contrary to positive Laws, Command things arbitrarily upon pain of suspension, deprivation, etc. and Command things contrary to Law by virtue of his Ecclesiastical Laws?  
The Doctor concludes this Section with the Act of 26 Hen. 8. cap. 1. commonly called the Act of Supremacy (which now stands Repealed) And with 1 Eliz. by which (he says) all the Powers given by the Act of 26 H. 8. are restored to the Crown under the name of Supreme Governor.  
But, the former Discourse was designed to be brought down no lower then to the end of King Henry the Eighth's Reign: And therefore I shall say nothing in this place of the Act of 1 Eliz. but perhaps I may have occasion to show hereafter that the Doctor understands the Act of 1 Eliz. as little, as any thing else that he pretends to write upon.  
FINIS.