I brought these general considerations only to shew the reverend
opinion which of course would be entertained of this mixt person, THE
SUPREME HEAD OF THE CHURCH, compounded of a king and a pope; and how
natural a foundation it was for the superstructure of despotic power in
all its branches. But I now hasten to the particulars which demonstrate
that this use was actually made of that title.
And, first, let me observe, that it gave birth to that great and
formidable court of the HIGH-COMMISSION; which brought so mighty an
accession of power to the crown, that, as experience afterwards shewed,
no security could be had for the people’s liberties, till it was
totally abolished. The necessity of the times was a good plea for the
first institution of so dangerous a tribunal. The restless endeavours
of papists and puritans against the ecclesiastical establishment gave
a colour for the continuance of it. But, as all matters that regarded
religion or conscience were subjected to its sole cognizance and
inspection, it was presently seen how wide an entrance it gave to the
most tyrannical usurpations.
It was, further, natural that the king’s power in civil causes should
keep pace with his authority in spiritual. And, fortunately for the
advancement of his prerogative, there was already erected within the
kingdom another court of the like dangerous nature, of ancient date,
and venerable estimation, under the name of the court of STAR-CHAMBER;
which brought every thing under the direction of the crown that could
not so properly be determined in the high-commission. These were the
two arms of absolute dominion; which, at different times, and under
different pretences, were stretched forth to the oppression of every
man that presumed to oppose himself to the royal will or pleasure. The
star-chamber had been kept, in former times, within some tolerable
bounds; but the high and arbitrary proceedings of the other court,
which were found convenient for the further purpose of reformation, and
were therefore constantly exercised, and as constantly connived at by
the parliament, gave an easy pretence for advancing the star-chamber’s
jurisdiction so far, that in the end its tyranny was equally
intolerable as that of the high-commission.
Thus the king’s authority in all cases, spiritual and temporal, was
fully established, and in the highest sense of which the words are
capable. Our kings themselves so understood it; and when afterwards
their parliaments shewed a disposition to interfere in any thing
relating either to church or state, they were presently reprimanded;
and sternly required not to meddle with what concerned their
prerogative royal and their high points of government. Instances of
this sort were very frequent in ELIZABETH’S reign, when the commons
were getting up, and the spirit of liberty began to exert itself in
that assembly. The meaning of all this mysterious language was, that
the royal pleasure was subject to no control, but was to be left to
take its free course under the sanction of these two supreme courts, to
which the cognizance of all great matters was committed.
This, one would think, were sufficient to satisfy the ambition of our
kings. But they went further, and still under the wing of their beloved
supremacy.
The parliament were not so tame, or the king’s grace did not require
it of them, to divest themselves entirely, though it was much checked
and restrained by these courts, of their legislative capacity. But
the crown found a way to ease itself of this curb, if at any time it
should prove troublesome to it. This was by means of the DISPENSING
POWER; which, in effect, vacated all laws at once, further than it
pleased the king to countenance and allow them. And for so enormous a
stretch of power (which, being rarely exercised, was the less minded)
there was a ready pretence from the papal privileges and pre-eminencies
to which the crown had succeeded. For this most invidious of all the
claims of prerogative had been indisputable in the church; and it
had been nibbled at by some of our kings, in former times, from the
contagious authority of the pope’s example, even without the pretence
which the supremacy in spirituals now gave for it.
The exercise of this power, in the popes themselves, was thought so
monstrous, that MATTHEW PARIS honestly complains of it in his time,
as _extinguishing all justice_—EXTINGUIT OMNEM JUSTICIAM[17]. And on
another occasion, I remember, he goes so far, in a spirit of prophecy,
almost, as to tell us the ill use that hereafter kings themselves might
be tempted to make of it[18]. His prediction was verified very soon:
for HENRY III. learned this lesson of tyranny, and put it in practice.
On which occasion one of his upright judges could not help exclaiming,
CIVILIS CURIA EXEMPLO ECCLESIASTICÆ CONQUINATUR[19]. And afterwards,
we know, HENRY VII. claimed and exercised this dispensing power in
the case of sheriffs, contrary to act of parliament[20]. It was early
indeed in his reign, and when the state of his affairs was thought to
give a colour to it.
I mention these things to shew, that since the pope’s example had
been so infectious in former times, it would now be followed very
resolutely, when the translation of the very supremacy, from which it
had sprung, seemed to justify it. And we have a remarkable instance
in ELIZABETH’S reign, by which it may appear that this prerogative
was publickly and solemnly avowed. For upon some scandal taken by the
popish party upon pretence that the book of consecration of bishops was
not established by law, the queen made no scruple to declare by her
letters-patent, that she had, by her supreme authority, dispensed with
all causes or doubts of any imperfection or disability in the persons
of the bishops. My learned friend, Dr. STILLINGFLEET, in commenting
this case, acknowledges the very truth. “It was customary,” says he,
“in the pope’s bulls, to put in such kind of clauses; and therefore she
would omit no power in that case to which the pope had pretended[21].”
And it is in this dispensing spirit that JAMES I, having delivered it
for a maxim of state, “that the king is above law,” goes on to affirm,
in one of his favourite works, that general laws, made publickly in
parliament, may, upon known respects to the king, by his authority be
mitigated and SUSPENDED upon causes only known to him[22].
We perceive the ground of that claim, which was carried so high by the
princes of the house of STUART, and, as we have just seen, brought
on the ruin of the last of them. And to how great a degree this
prerogative of the dispensing power had at length possessed the minds
even of the common lawyers, (partly from some scattered examples of
it in former times, and partly from reasons of expediency in certain
junctures, but principally from the inveteracy of this notion of the
papal supremacy) we had an alarming proof in HALE’S case, when eleven
out of the twelve judges declared for it.