The arguments

prerogative.

not help obferving, that all the authorities for the dispensing prerogative are exprefs, open, and unambiguous; and that all the arguments (for exprefs authorities I find none,) against it are a priori, or ab incongruo.

So violently were the two oppofite opinions upon this point formerly agitated, that neither argument nor authority feemed to make the smallest impression upon the adverin favour of this fary. Those, who maintained the prerogative argued, that ftatutes, which provide for particular cafes, notwithstanding any patent made to the contrary, with clause of non obftante, or notwithstanding any claufe of non obftante to the contrary &c.* evidently prefuppofe the existence, validity, and legality of fuch non obftante difpenfations. They quoted cafes in point from the year books, and the explanations and applications of them, by the greatest lawyers of all fubfequent times, who are unequivocally clear and decifive in their opinions upon the legality of fuch difAuthorities of penfations. Thus lord chief juftice Herbert for this purpofe first quotes Fitzherbert,

the greatest

lawyers in favour of this

prerogative.

*" who lived near this time, and could not eafily be mistaken in the fenfe of the year

1

Such Acts were, 4 Hen. IV. c. 31. Hen. VI, c. 23, &c.

+ Herbert, ubi fupra, p. 12, 13, 20.

books.

books. Next to him fhall be Plowden, who, as all lawyers will confefs, is as little likely to be mistaken in the fenfe of the year books, as any reporter we have. Next is my lord Coke." And when he quotes the words of my lord Vaughan, he fays, " Whom I cite the oftner, because every body remembers him, and it is very well known he was never guilty of ftraining the king's prerogative too high." I wish not to charge and clog my readers attention with a dry tedious difcuffion of a point of obfolete law; but fhall refer their final judgment and determination, whether a difpenfing prerogative or power did or did not exist in the crown before the revolution, to the following parliamentary declarations, made upon very different occafions, at the distance of above two hundred years from each other.

"The Proved from

In the year 1413, 1 Henry V. commons pray, that the ftatutes for voiding of aliens out of the kingdom may be kept and executed; to which the king agreeth, faving his prerogative, that he may difpenfe with whom he pleases; and upon this the commons answered, that their intent was no other, nor never fhall be by the grace of God."

* Rot. Parl. 1 Hen. V. n. 15.

act 1 Hen. V.

jurifdiction of a bishop, the bishop is subject to the king in his real fpiritual character; and therefore by the conftitution of our laws, the king is more than merely the fupreme head of the civil eftablishment of religion. In answer to this it may be faid, that the king's appointment to a bishoprick operates in a fimilar manner, as does the presentation of a lay patron to a living; the clerk appointed cannot acquire any cure of fouls or fpiritual charge, if he be not properly ordained; and his jurifdiction no more exceeds the limits of his parish, than that of a bishop does thofe of his diocefe; yet from the alliance between church and state, where there is a civil establishment of religion, the civil and the spiritual power fo far accommodate themselves to each other, as to Original diftri- avoid any confufion from their refpective

bution of dio

cefes.

jurifdictions; and this has been always attended to in all Chriftian countries, where the Christian religion had acquired a civil establishment, as it is clearly and conftitutionally explained in a book publifhed in the year 1701, commonly attributed to bishop Fleetwood.

*«The apostle's commiffion reaching to

Account of Church Government and Governors, P. 39, & feq.

all

all parts of the world, and they being commanded to make all nations difciples, to go into all the world, and to preach the gofpel to every creature, (Matt. xviii. 19.) could not be long fixed to any one place; yet it was neceffary that paftars and teachers fhould be fettled among all believers, who might continue to inftruct and teach them, to offer up prayers for them in the public affemblies, and to adminifter the facrament to them. Hereupon they ordained them elders in every church; (Acts i. 14. 23.) that is, a bishop with a competent number of prefbyters and deacons to affift him, as will be evident from what fhall be faid hereafter. (Heb. xiii. 7. 17.) These were rulers of the church wherein they were placed, and the people were commanded to obey them. But though they were rulers, yet their authority extended not over the whole church, but only that flock over which the Holy Ghoft (Acts xx. 28.) had made them overfeers or bishops. They were fixed to a particular place, and the fpiritual government of all perfons within those limits was committed to them; and in this divifion into particular diftricts (which was prudential at the apoftles difcretion) the general division of the empire was observed, It was neceflary that particular churches fhould

fhould be circumfcribed within certain bounds; but it was indifferent where those boundaries fhould be fixed. The apostles therefore took the limits already laid out for them, and accordingly fettled churches, and either (Tit. i. 1. 5.) ordained themselves, or appointed others to ordain elders in every city, or city by city, as Dr. Hammond renders it. And herein they thought it expedient strictly rally accommo- to obferve the imperial divifion; fo that the

The fpiritual divifion gene

dated to the

civil divifion of Council of Calcedon decreed, (6 Can. 17.)

diocefes.

that if the emperor fhould change the condition of a city by his authority, the order of the parish churches fhould follow the civil conftitution. Thus the power of these elders was confined within the compafs of that particular city and its territories, where they were ordained to minifter; and all within thofe limits were under their care and jurisdiction. They were, indeed, bifhops and prefbyters of the univerfal church, (for the true church is but one and the fame in all parts of the world) but for the fake of decency and order, and that each paftor might know his own peculiar flock, it was neceffary, that the catholic church fhould be divided into particular churches." For "whilft our Sa

* Account of Church Government and Governors, P. 36, 37.