leaving Aliens or Foreigners of the Reform'd Churches that were then allow'd or tolerated by the King's Majesty or that should be allow'd by him his Heirs and Successors to be secured under the Wing of Prerogative from all the Penalties in that Act was a greater President of a Parliament's deference to the Dispensative Power But here it falls in my way to ask you if the Parliament in that Act interpreting and expounding the Sulscription to the 36th Article as you before mention'd did not shew some want of tenderness to the Regal Power of interpreting B. Not in the least The King thought fit in his Legislative Capacity and with the Concurrence of the three Estates to issue forth such interpretation to the end it might be perpetuated But you will find that they were so tender of that branch of Prerogative namely of the Regal Power of interpreting out of Parliament that having referr'd to the King's Declaration of the 25th of October 1660. i. e. that concerning Ecclesiastical Affairs we spoke of before and mention'd that according to that he had granted his Commission to several Bishops and other Divines to review the Book of Common Prayer and to prepare such Alterations and Additions as they thought fit to offer and that afterwards the Convocations of both the Provinces of Canterbury and York being by His Majesty called c. His Majesty hath been pleas'd to Authorize the Presidents of the said Convocation and other the Bishops and Clergy of the same to review the Book of Common Prayer and the Book of the form and manner of the making and consecrating of Bishops Priests c. and that they should make such Additions and Alterations in the said Books as to them should seem meet and should present the same to His Majesty for his further Allowance or Confirmation and then setting forth that the same was accordingly done and that some alterations were inserted into those Books by the Convocations and by them Presented to His Majesty and all which His Majesty having consider'd hath fully approved it then follows that His Majesty hath recommended to this present Parliament that the Books of Common Prayer c. with the Alterations and Additions which have been so made and presented to His Majesty by the said Convocations be the Book which shall be appointed to be used c. in all Parish Churches and Chapels c. And it is upon the foundation of what His Majesty did as before-mention'd that the following enacting Clauses with their Sanctions and Penalties are built And you may if you will take notice of a Proviso toward the end of the Act being very tender of not hurting what King Iames by his Prerogative did in Uniting the Prebendship to the Professor of Law in Oxon for the time being and whereby that King dispens'd with the incapacity of Lay-men as to the enjoyment of such Prebendship but the Act and the Proviso takes care to perpetuate the King's Professor's enjoying the same and leaves the Prerogative at liberty to dispense with such disability in the Case In short you see how tender that Parliament was of Prerogative and tho they thought it not fit to give such loud Applauses to his late Majesty's Declaration of October the 25th A. 1660. before-mention'd wherein so much of the Dispensative Power was exerted yet you find they refer to it with respect A. I have almost forgot the particulars of the Dispensative Power therein exerted B. I shall tell you that the King having there mention'd and what the Act takes notice of his saying that he would appoint some Divines to review the Common Prayer Book and to make such Alterations as shall be thought most necessary c. it then saith Out Will and Pleasure is that none be punish'd or troubled for not using it until it be review'd and effectually reform'd He there speaks several times of Dispensing with Ceremonies that were by Law establish'd It is there likewise said Because some men otherwise Pious and Learned say They cannot conform unto the Subscription required by the Canon nor take the Oath of Canonical Obedience we are Content and it is Out Will and Pleasure so they take the Oaths of Allegiance and Supremacy that they shall receive ordination institution and induction and shall be permitted to exercise their Function and to enjoy the Profits of their Livings without the said Subscription or Oath of Canonical Obedience c. A. I see here is King Iames the First 's incapacitating Canon dispens'd with and indeed suspended B. The Declaration goeth on with taking care that None be Iudged to forfeit his Presentation or Benefice or be deprived of it upon the Statute of the 13th of Elizabeth c. 12. so he read and declare his Assent to all the Articles of Religion which only contain the Confession of the true Christian Faith and the Doctrine of the Sacraments comprised in the Book of Articles in the said Statute mentioned And this Declaration had before express'd His Majesty's mindfulness of his Declaration from Bredagh and his saying We publish'd in our Declaration from Bredagh a Liberty to tender Consciences and that no man should be disquieted or call'd in Question for Differences of Opinion in Matters of Religion which do not disturb the Peace of the Kingdom and that we shall be ready to consent to such an Act of Parliament as upon mature deliberation shall be offer'd us for the full granting that Indulgence Here was a Liberty of Conscience granted and publish'd and Heterodoxy about the very Articles of Religion tolerated and a throwing off of Penal Laws and for which Declaration I should have told you that Baker's History p. 703. mentions that the House of Lords order'd Thanks to be given to the Messenger who brought that gracious Declaration A. And yet you say the Declaration October 25. 1660 thus dispensing with disability incurr'd by the Canon and the 13th of Eliz and by Queen Elizabeth's Act of Uniformity was both approved and applauded by the former Parliament I have not heard of the like in the kind of it B. No doubt but the Author there referr'd to the Declaration of Octob. 25. A. 1660. for which the House of Commons so express'd their thanks however by the supposed carelessness of the Printer the Publication is said to be October 8th 1660. For the words by him cited as said by his Majesty viz. Our present Consideration and work is to gratify c. are in that Declaration p. 15. and 16. But if it were not for cloying you with other like Instances I could tell you of the like in the beginning of the Reign of King Iames the First A. I pray speak not of cloying My Patience may be soon surfeited with two or three such things as some call Presidents But this thing call'd Iudgment of Parliament carries with it so much weight as well as Veneration that you can no way more oblige me then by going on to entertain me with Instances of that
kind B. Why then I can tell you if you will at any time turn to your Collection of Proclamations in the time of King Iames the First you will find that in his Proclamation of March the 5th the first year of his Reign he intimates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer and for that end gave forth his Commission under the Great Seal of England according to the Form which the Laws of this Realm in like Case prescribed to be used to make the said Explanation and to cause the whole Book of Common Prayer with the same Explanation to be newly Printed which being done and establish'd anew after so serious a Deliberation c. we have thought it necessary to make known by Proclamation our authorizing of the same and to require and enjoyn all men as well Ecclesiastical as Temporal to Conform themselves to it as the only publick Form of serving God establish'd and allow'd to be in this Realm And the rather for that all the Learned Men who were there present as well of the Bishops as others promised their Conformity in the practice of it only making sute to us that some few might be born with for a time Wherefore we require all Archbishops Bishops and all other publick Ministers as well Ecclesiastical as Civil to do their Duties in causing the same to be obey'd and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer You see there that all the Bishops and the great Parade of the literati present at that famous Conference did implore the King for the exercise of his Dispensative Power for a while to some few But what is more considerable is that the King here doth make a general relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things and instead of inserting an express Clause of discharging from the Penalties of that Act all that use the Common Prayer Book with the King's Alterations or Explanations as Queen Elizabeth's Admonition did in relation to those who took the Oath of Supremacy in the sense of her Interpretation a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law he enjoyns the uniform usage of the Book of Common Prayer as by him interpreted or explain'd the title of the Proclamation being A Proclamation for the authorizing an Uniformity of the Book of Common Prayer to be used throughout the Realm under the disabling Punishments of Queen Elizabeth's Act of Uniformity the Bishops all this while being ministerial to the King in his Power of thus interpreting and explaining an Act of Parliament and the loosening of its Obligation both as to themselves and others I am to tell you that in that Proclamation of March the fifth the King refers to a Proclamation he had before Publish'd on the 24th of October then last past wherein he gave the Puritan Divines an intimation of the Conference he intended to have and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation which saith he if there be Cause to make is more in our hearts then theirs c. and afterwards saith we are not ignorant that time may have brought in some Corruptions which may deserve a review and amendment which if by the Assembly intended by us we shall find to be so indeed we will therein procéed according to the Laws and Customs of this Realm by Advice of our Councel or in our High Court of Parliament or by Convocation of our Clergy as we shall find reason to lead us not doubting but that in such an orderly proceeding we shall have the Prelates others of our Clergy no less willing and far more able to afford us their Duty and Service then any other whose zeal doth go so fast before their discretion And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm and how loyally his Bishops and Clergy acquiesced therein A. I remember I have read both these Proclamations and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the People tho none in the Orthodox Clergy But I should be glad to know whether it made any fermentation in the Body of the People Representative and what was the Result of it Did the Parliament acquiesce in what the King had done as aforesaid For if so they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supremacy did in discharging the disabling Penalties in her first Act of Parliament and in relaxing by her interpretation the vinculum for its observance in that sense that many had before put on it B. King Iames his Parliament did in effect the very self-same thing And I shall give you the account of it out of his Proclamation of the 16th of Iuly A. 1604. in the Second year of his Reign for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it and his hoping that when the same should be made known all reasonable Men would have rested satisfy'd with that which had been done and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made His Majesty's following words are Notwithstanding at the late Assembly of our Parliament there wanted not many who renew'd with no little earnestness the Questions before determin'd and many more as well about the Book of Common Prayer as other Matters of Church Government and importuned us for our assent to many Alterations therein but yet with such Success as when they heard both our own Speeches made to them at sundry times shewing the Reasons of our former Proceedings in those Matters and likewise had had Conference with some Bishops and other Lords of the Upper House about the same they desisted from further Prosecution thereof finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same we had before with the Advice of our Councel had such Consideration as the present state of things would bear and taken order how the same should be prosecuted by such means as might be used without any publick disturbance or innovation And in how vigorous a State the Dispensative Power as to the Nonconformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Commons for the exercise of the same to the Non-conformists in the 10th year of his Reign Moreover how by Tacit Dispensation he dispens'd with the Disabilities that
Peace and Quietness of the People might be disturb'd by the Annual Calling of Parliaments according to the tenour of those Laws our Princes as Supreme Governors of the Realm did often dispense with their observance The Author of the Book call'd The Long Parliament Dissolv'd Printed in the year 1676. refers to the Laws of 4 o E. 3. c. 10. and 36. E. 3. c. 14. 5. E. 3. N o. 141. 5. E. 2. N o. 1. R. 2. N o. 95. as positively appointing the Meeting of a Parliament once within a year And the People saith he have silently waited and born the Omission of our Princes in not so Calling Parliaments And he further mentions how Queen Elizabeth Prorogued a Parliament for three days more then a year and he presumes to complain of His late Majesty's Proroguing his long Parliament to above a years time as illegal and he argues for that Parliaments being disabled from Sitting and acting afterward as a Parliament by reason of such Prorogation as contrary to the aforesaid Laws and which he saith were declared to be in force when the triennial Act was made in 16. Caroli 1 mi. and so likewise in the Statute for repealing that triennial Act in 16. Car. 2 o. in these words And because by the Ancient Laws and Statutes of this Realm made in the Reign of King Edward the Third Parliaments are to be held very often c. And how the Iudgment of the House of Lords was assertive of the legality of that Parliaments not being disabled from sitting after such His late Majesty's Prorogation is fresh in memory But to return from whence I digress'd I may here take notice to you how our Princes as Supreme Governors of the Realm and as having the Rule of all Persons committed to them by God and to whom they stand accountable for the same have held themselves obliged further to dispense with disability incurr'd by Acts of Parliament upon a Religionary account and which they have done to the general satisfaction of their Subjects of all Religions A What do you here intend to refer to B. I do here intend to refer to the Statute of 3 o Iacobi c. 5. by one Clause in which Act Convict Recusants are DISABLED from practising Physick or bearing any Office or Charge Military and by which Clause every Person offending is to forfeit for every such Offence 100 l. and the one Moyety thereof to be to the King and the other Moyety to him that will sue for the same c. But notwithstanding the Zeal of that Prince against Popery he out of a tender regard to the Bodies and Healths of his People and the ennabling many learned Roman-Catholick Physicians to preserve them did by Connivence sufficientâ—…y dispense with that Law insomuch that it may be said that that severe disabling Law came on the Stage but as Cato into the Theatre only to go off again And I have elsewhere mention'd it that a Book afterward Printed in his Reign call'd The Foot out of the Snare sets down the Names of about Twenty five famous Roman-Catholick Physicians then Practising in London and the places of their abodes and whom yet I believe no Informer ever molested And notwithstanding the disability incurr'd by that Act of Parliament I account that an eminent Roman-Catholick Physician not long since dead was not by any among our various Sects of Protestants in the Plot-times envy'd the liberty of being in our Metropolis the greatest Practicioner of that noble Science By the same Clause Roman-Catholick Lawyers are likewise disabled from Practice and under the same Penalty but who likewise enjoy'd the same Dispensation by Connivence with those of the other Profession accordingly as Mr. Nye in his Book call'd Beams of former Light observes p. 146. viz. The Law Physick Merchandize c. may be practised by a Turk or Iew or Papist here among us c. How severe the Laws in being are against Roman-Catholicks of the other great Profession namely of Theology and of the Clerical orâ—…er officiating here you know But you likewise know my opinion I discours'd to you of in the Conjuncture of the Plot and Panick fears namely that by virtue of the Contents of the Assertory part of the Oath we are upon even our Protestant Kings as Supreme Governors of the Realm both in Matters Ecclesiastical and Civil and as having the Rule of all Persons committed to them by God were morally bound to see our Roman-Catholick Countreymen while living among us here provided with a Competent Priesthood as Physicians for their Souls and to administer the Sacraments to them A. Yes I remember you Discourse of that matter then and how you mention'd it that if any Turks or Iews or any Heterodox Religionaries desired to live here without a Priesthood the Prince as Guardian of both Tables was obliged by his Coercive Power to make them put their own Principles in practice by their having a Competent Priesthood and which all the Sects of the Mahumetan Pagaâ—… Iewish and Christian Religion own it as their Principle to have and that as Religion was necessary to the State to make men good Subjects and ready to serve their Prince and just Dealers a Priesthood was necessary to Religion B. You are not therefore to wonder at the Dispensation by Connivence so many Roman-Catholick Priests enjoy'd here in the Reigâ—…s of former Princes And I shall some other time tell you how our Laws that DISABLE Papists from bearing Arms were in the time of the Rebellion after A. 1640. necessarily dispens'd with by the Royal Martyr as Supreme Governor of the Realm and that none of the Church of England did look with an evil eye in the least on such disability being then dispens'd with by Prerogative A. I suppose you may have heard it objected that by the Statute of 25. C. 2. which has lately employ'd your thoughts the Prerogative of the King is not touch'd for that the King may grant the Offices to any of his Subjects and that the Act is only a Direction to the Subject to qualifie himself accordingly for the King's Service and that if he be uncapable to serve the King 't is through his own default and he is punishable for the same as happen'd in the Case of one who was made Sheriff and neglected to take the Oaths and that there was an Opinion given in the Case that no Subject could put himself out of a Capacity to serve the King but for so doing he is punishable B. But the more you think of this Matter you will find the unreasonableness of the Objection recurring upon your thoughts with greater force For it is not in mens Power to qualifie themselves to serve the King by believing what doctrinal Propositions they will and tho you have heard of a Faith that will remove Mountains yet you may consider that 't is as easie to remove them as your Faith it self about Matters of reveal'd truth and that considering the Circumstances
request them to consider that a Private Interpretation of a Publick Act can give no satisfaction unless it be either expresly or virtually allow'd by the highest Authority that doth impose it and then it is made Publick c. But the Authority of Interpretation of any doubt in such a Publick Act belongs properly not to private but publick Persons c. For private Men tho Learn'd if they take upon them the Interpretation of publick Dictates may be more like to light on mutual Contradictions of each other then on the true and proper Construction of the Text they interpret So did Vega and Soto Soto and Catherinus who wrote against each other contrary Comments on the Council of Trent In which respect it was a wise advice given to the Pope by the Bishop of Bestice viz. to appoint a Congregation for the expounding of the Councel and well follow'd by him when he forbade all sorts of Persons Clerks or Laicks being private Men to make any Commentaries Glosses Annotations or any Interpretation whatsoever on the Decrees of that Councel Dr. Burgesse indeed made an Interpretation of his own Subscription but there had been no validity in it as we conceive unless it had been allow'd by the Superior Powers And so it was for as he saith It was accepted by King James and the Archbishop of Canterbury affirm'd it to be the true sense and meaning of the Church of England He refers there to Dr. Burgesse in his Answer to a much applauded Pamphlet Praefat. p. 26. A. Your mentioning that of Dr. Burgesse his Interpretation of his Subscription minds me of what I have read at the end of his Book call'd No Sacrilege nor Sin to alienate or purchase Cathedral Lands viz. in his Postscript to Dr. Pearson and his No Necessity of Reformation of the Publick Doctrine of the Church of England Printed A. 1660. where he saith As touching the Regal Supremacy we own and will assert it as far as you do or dare Only we had reason to take notice of the improper Expression in the 37th Article that the Queen's Majesty hath the Supreme Power For if the Declaration father'd on the late King and prefix'd to the Articles had so much Power with his Printer that he durst not alter the word Queen into King even in the year 1642 and those Articles must be read Verbatim without Alteration or Explanation then we say again there is a Necessity of Reforming that Article in the expression of it and not to talk at random what was indeed the meaning unless we may have leave when we read it Regiâ declaratione non-obstante to declare the sense which the Declaration alloweth us not to do But the truth is that exception of the Doctor to the Articles may well pass for a Scruple or rather a Cavil and at this rate we should be put to it to say O King interpret for ever B. You say right Dr. Pierson in that Judicious Book of his call'd No Necessity of Reforming the Doctrine of the Church of England well observes that the 37th Article hath express reference to the Queen's Injunctions set forth in the year 1559. and those Injunctions take particular care that no other Duty Allegiance or Bond should be required to the Queen then was acknowledged to be due to the most noble Kings of famous Memory King Henry the 8th her Majesty's Father or King Edward the 6th her Majesty's Brother The words of the Article declare that the Doctrine contained in it concerneth all the Kings as Kings The title in General is of the Civil Magistrates and the words run thus where we attribute to the Queen's Majesty the chief Government we give not to our Princes c. shewing that what they gave to her they gave to all the Kings of England Which will appear more plainly out of the first Latine Copy Printed in the time of Queen Eliz. in the year 1563. read and approved by the Queen the words whereâ—…f are these Cum Regiae Majestati summam gubernationem tribuimus quibus titulis intelligimus animos quorundam Calumniatorum offendi non damus Regibus nostris aut verbi Dei aut Sacramentorum administrationem c. Being therefore the Article expresly mentioneth and concerneth the Kings of England as they are the Kings of England the mention of the Queen's Majesty in the Article can make the Doctrine no more doubtful then it doth our Allegiance in that Oath which was made 1 o Eliz. where the Heirs and Successors of the Queen are to appoint who shall accept the Oath the words of which are that the Queen's Highness is the only Supreme Governor of this Realm But I hope the Heirs and Successors of Queen Elizabeth did never appoint that Oath to be taken in the Name of the Queen's Highness but in their own It may be supposed that some such like Cavilling or Scrupling humour possess'd the fancies of some in the beginning of the Reign of King Iames the First and that some occasion was thereby given to that Prince in those his Canons expresly therein maintaining the 39 Articles and the Subscription thereunto and particularly in the 36th Canon there to enjoyn a Subscription to three Articles in such manner and sort as is there appointed and of which the first is That the King's Majesty under God is the only Supreme Governor of this Realm and of all other his Highness Dominions c. and that no foreign Prince Person Prelate HAUE or OUGHT to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual c. and in which the words have or OUGHT to have might possibly be inserted out of a Royal Complaisance with the Desires of some Scruplers in whose behalf the Famous Dr. Rainolds moved the King at the Hampton-Court Conference that to the Position in the 37th Article viz. The Bishop of Rome hath no Iurisdiction in this Realm of England might be added nor OUGHT to have but which motion the King then rejected as a thing superfluous and saying Habemus quod jure habemus You may find an Account of this twoâ—…old Subscription in Coke 4. Inst. c. 74. and where he saith Subscription required by the Clergy is twofold One by force both of an Act of Parliament CONFIRMING and Establishing the 39 Articles of Religion agreed upon at a Convocation of the Church of England and ratify'd by Queen Eliz. 13. Eliz. c. 12. Another by Canens made at a Convocation of the Church of England and ratify'd by King James A. I had thought you told me that the 39 Articles owed no Confirmation nor Authority to that Act of the 13th of Eliz. B. I did tell you so and do think that when my Lord Coke used the word Confirming he spake cum vulgo or as the word is taken minus propriè and as it is taken in declarative Acts of Parliament sometime to mean declared and as I and others may in Discourse sometimes use the word But speaking properly to
confirm being firmum facere i. e. what was not so before you are not to think that the Parliament in 13 o Eliz. did so They Enacted what was by the Queen before authorized and as the words there are about the Articles viz. Put forth by the Queen's Authority And you may too for this purpose Consult the style of the Act 23 o Eliz. c. 1. Entituled An Act for retaining the Queen's Subjects in their due Obedience and where 't is made Treason for any to withdraw any Subjects from their Natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highness Authority establishâ—…d within her Dominions Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign pursuant to the Act of 1 o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction the Act of Parliament 35 o Eliz. c. 8. entituled Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good and Archbishops Bishops and Deans made by the Queen shall be adjudged lawful begins with acknowledging that the former were justly deprived and it is therefore Declared and Enacted by Authority of this Parliament that all and every Deprivation c. and all and every Sentence of Deprivation c. had pronounced and given c. shall be adjudged deem'd and taken good and sufficient in Law c. and as to the latter viz. That all such Archbishops Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty c. shall be taken and adjudged to be lawful c. Thâ—…y confirmed not what the Queen did in disabling the former and enabling the latter but only declared and enacted the validity of what the Queen had done And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling And here too by the way I am to tell you that you have another judgment of Parliament suitable to that in 8 o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty c. any ambiguity or question in that behalf heretofore made to the contrary notwithstanding and which QUESTION before made in the Case I have before shew'd to be disability A. But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of represented as a Gravamen by some B. I have so and the last Book I read that so represents it is the Answer to Dr. Stillingfleet ' s Sermon by some Non-Conformists c. Printed A. 1680. and where in p. 29. they thus express their desires viz. That all New devised Oaths Subscriptions and Declarations together with the Canonical Oath and the Subscription in the Canons be suspended for the time to come If that be too much we shall consent our selves with a modester motion that whatsoever these Declarations be that are required to be made subscribed or sworn they may be imposed only as to the matter and end leaving the takers but free to the use of their own Expressions And this expedient we gather from the Lord Coke who hath providently as it were against such a Season laid in this Observation The form of the Subscription set down in the Canons ratify'd by King Iames was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then in reference to the particulars therein contain'd what binders why they might not have the same restored in reference also to others It was the second Article enjoyn'd by that Canon to be subscribed viz. That the Book of Common-Prayer c. containeth in it nothing contrary to the Word of God and that it may lawfully be used c. at which they took so much offence and to which the Act of Parliament required not their Subscription A. I perceive then my Lord Coke doth not reflect on the form of Subscription as enjoyn'd by the 36th Canon of King Iames and by his Regal Authority out of Parliament as illegal notwithstanding what had been enacted in the 13th of Queen Elizabeth B. He doth not And he there further faith By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be proceeded withall by the Censures of the Church And I heard Wray Chief Iustice in the King's Bench Pasch. 23. El. report That where one Smith subscribed to the said 39 Articles of Religion with this addition so far forth as the same were agreeable to the Word oâ—… God that it was resolv'd by him and aâ—…l the Iudges of England that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice he is sworn to Canonical Obedience to his Diâ—…cesan But as to his saying that the Delinquent against this Canon is to be proceeded withall by the Censures of the Church I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain Admit or License any one except he first have subscribed in manner and form there appointed and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament and did likewise out of Parliament make incapacity to be the Punishment of refusing such new Subscription And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but as I may say virtually and tacitly by all our Kings and Parliaments ever since who have acquiesced in the same But what if I should tell you that the Authority of the King in thus making that Canon about Subscription hath been since expresly approved in Parliament A. I should be most ready to hear it B. You may therefore please to consult the Act for Uniformity 16 o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops c. set forth in the time of Edward the 6th as
containing all things necessary to such Consecration and Ordering c. It is Enacted c. that all Subscriptions hereafter to be had or made to the said Articles by any Deacon Priest c. or other person whatsoever who by this Act or any OTHER LAW now in force is required to subscribe unto the said Articles shall be construed and taken to extend and shall be applyed for and touching the said 36th Article to the Book containing the form and manner of making ordaining and consecrating of Bishops Priests c. in this Act mentioned in such sort and manner as the same did heretofore extend to the Book set forth in the time of King Edward the 6th mention'd in the said 36th Article any thing in the said Article or in any Statute Act or Canon heretofore had or made to the Contrary hereof in any wise notwithstanding It is clear that the Parliament had then their Eye on the Act of 13. Eliz. and on that Canon of King Iames and which you may take as referr'd to by the words or any other Law now in force for so they then knew it to be and as it still is tho with the interpretation extended by the Act to it and afterward by the word Canon But one may guess that by the Authority of some of the Lords the Bishops there was before the making of this Canon of King Iames and after the Act of 13. Eliz. in her Reign some Subscription under disabling Penalties required of Ministers beyond what that Statute required by what the Author of Certain Considerations tending to promote Peace mentions in p. 4. viz. That in the 30th year of the Reign of Queen Elizabeth the House of Commons presented to the Lords Spiritual and Temporal a Petition containing divers particulars for the redress whereof they desire that no Oath or Subscription might be tender'd to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of the Realm except the Oath against Corrupt entring that they may not be troubled for the omission of some Rites or Portions prescribed in the Book of Common Prayer that such as had been suspended for no other Offence but only for not subscribing might be restored A. It seems those Bishops then did as your Expression was Dispensare in lege and were as I may say Non-conformists to it by going beyond it For they were obliged sapere ad Regulam and all Conformity is respectu regulae and he who doth over-shoot or who over-does what is enjoyn'd is a Non-conformist B. You here put me in mind how some of our Bishops and Clergy have been thus Non-conformists in over-shooting their mark at the same time that they have with undistinguishing severity executed the rigour of the Laws against all who did shoot short The Royal Martyr in his Declaration to all his Loving Subjects Publish'd with the Advice of his Privy Councel A. 1641. refers to some Ceremonies in our Church which have been used without any legal Warrant or Injunction and which already are or speedily may be abolish'd A. But I a little wonder that a House of Commons should Petition for the Dispensing with some legal Rites and required both by Injunctions and Canons and by Acts of Parliament B. I do not wonder at it at all For Conjunctures having happen'd when some Non-conformists having been tender of the Peace of the Government you need not wonder at any tenderness in it for them For as in the Conjuncture of the Resteration of King Charles the Second very many of the Presbyterians and of other Sects then shewing their Loyalty the Author I lately cited taking notice thus of the Declaration A. 1660. viz. in which his Majesty saith Our present Consideration and work is to gratifie the private Cosciences of those who are grieved with some Ceremonies by indulging to and dispensing with the omitting of those Ceremonies A Member of the House of Commons in an Epistle to His Majesty useth these words viz. which Indulgent Declaration so ravished the hearts of all your Loving Subjects that your whole House of Commons their Representatives then assembled in Parliament immediately after the Publication October 8th 1660 repair'd in a Body to White-hall and there by their Speaker's Oration in the Banquetting-House express'd their extraordinary great Ioy and presented their general Thanks to your Majesty for this your Majesty's most gracious Declaration and Dispensation with their Consciences in Matters not being of the substance or essence of Religion which gave abundant satisfaction to all peaceable sob rminded Men and such as are truly Religious in which return of their Thanks they were all unanimous Nemine Contradicente then Ordering a Bill in Pursuance of your Majesty's Declaration Note that this was that House of Commons which together with the House of Lords brought His Majesty to the Throne so long before namely in the first year of King Charles the First and A. 1625. both Houses presented a Petition to the King wherein they desire that His Majesty would please to advise the Bishops by fatherly entreaty and tender usâ—…ge to reduce to the peaceable and orderly Service of the Church such able Ministers as have been formerly SILENCED c. and which is in effect all one such able Ministers as have been formerly disabled A. I am highly pleas'd with your further bringing any thing to me like Iudgment of Parliament that may strengthen the Regal Power of interpreting or of dispensing with disability We have discours'd of the Subject a pretty while together at this Meeting and I must acknowledge you have entertain'd me with an account of many Statutes that have propp'd up the Regal Power of dispensing with disability and that too tho you observ'd it not to me not only in their Preambles but in their enacting parts the which I account more momentous Nor can I forbear observing it to you that in the late Printed Books of some who asserted this dispensative Power nothing like Iudgment of Parliament hath been cited in the case for it but that out of Rot. Parl. 1. H. 5. 11. 22. out of Rolle Tit. Prerogative le Roy fol. 180. viz. The Commons prayed that the Statutes for voiding of Aliens out of the Kingdom might be executed to which the Kiâ—…g agreed saving his Prerogative that he might dispense with such as he pleas'd And upon this the Commons answer'd that their intention was no other nor ever should be by the help of God. But this was only the judgment of a House of Commons and that is short of the Authority of a House of Lords concurring with them tho but in a Petitionary manner that the Regal Dispensative Power might be exerted and which latter is far short of the Authority of an Act of Parliament And among the many Parliamentary Recognitions of the Dispensative Power you have mentionâ—…d to me that which you told me at our first meeting of the Act of Uniformity 16 o Car. 2.
Superstition in the World then the Quakers so much restraining to their epitomes of speech in Commerce the interpretation of those words in S. Matthew But let your Communication be Yea yea Nay nay c. which were pursuant to the Proverbial Saying among the Jews Iustorum etiam est etiam non est non And as King Athelstan's Charter to his Tenants the Inhabitants of Rippon I have elsewhere mention'd viz. Quod homines sui Riponienses sint credendi per suum Ya per suâ—…m Nay in omnibus quâ—…lis curiis c. hath been by none that I have heard of look'd on with an evil eye so neither by me should the like Dispensation granted by our Prince to any others he repined at A. Your having as it were diverted me by the thought of that Superstition of the Quakers brings to my mind the pleasant Entertainment you once gave me by lending me a Book writ long ago call'd A brief Treatise of Oaths exacted by Ordinaries and Ecclesiastical Iudges to answer generally to all such Articles or Interrogarories as pleaseth them to propound and of their forced and Constrained Oaths ex officio wherein is proved that the same are unlawful And I remember much of the matter in that Author being dull I came to somewhat at last recited by him that had in it some Sales or what I may call some drops of Spirit of Vitriol and which were but necessary to give a grateful acidity to his Apozeme when he toward the end of that Book of Oaths in p. 56. and 57. thus brings in a RATIONALE of the Ceremonious manner of giving an Oath and of the Manufacture of it as some men do fidem facere by it viz. For in this matter of an Oath they have devised according to their toying fantasie a certain foolish figurative Ceremony in the ministring thereof For the Deponent for sooth must lay his three middle Fingers stretch'd outright upon the Book in signification of the Holy Trinity and Catholick Faith and his Thumb and little Finger he must put downward under the Book in token of Damnation both of Body and Soul if he say not the truth The Thumb belike as the greater representing the heavy mass of the Body and the little Finger the light and incorpoâ—…eal substance of the Soul. How superstitious also they were concerning this Ceremony of the Book little regarding the true use and end of an Oath as appears by the Allegorical Exposition curiously set forth by one of their Personate and Counterfeit Prelates who saith that the Circumstances in the Act of an Oath are very great and weighty inasmuch as he that Sweareth by a Book doth three things First as tho he should say Let that which is written in the Book never do me good neither the new nor the old Law if I lye in this mine Oath Secondly he puts his Hand on the Book as tho he should say Nor the good work which I have done profit me ought before the face of Christ except I say the truth which is founded in Christ. Thirdly he kisseth the Book as tho he should say Let never the Prayers and Petitions which by my mouth I have utter'd avail me any thing to my Soul's health if I say not truly in this mine Oath Yet you must take this as meant only by this Reverend Father where Lay men or the baser sort of the Clergy take an Oath For that blessed Bonner not long since hath taught us this trick of his Law that a Bishop may Swear such is his Privilege inspectis Evangeliis non tactis bare sight of the Book without touch or kiss will well enough serve his Lordship's turn B. Well Sir throwing out of our thoughts the minutioe of all formal trifling let us not at the same time try to make men laugh and weep by imposing Oaths on them And let the Consideration of this namely that the Noble Morals enjoyn'd by the Christian Doctrine have not prevailed all this while to secure Christians against one another without the Garranty of Oaths or by the Christianus sum not being still judged oequi-ponderous with an Oath impress a solemn grief on our Minds And considering that both the Verbum Regium and the verbum Sacerdotis have been so much allow'd equal to Oaths and that all Christians ought to value themselves on being A Royal Priesthood and on their great Chief having made them Kings and Priests to God and his Father let us bemoan the present State of Christianity and Christians having as it were Decreed it that they cannot take one anothers words And let the thought likewise of the insufficiency of the Security of Oaths themselves to keep up Governments work in us such a serious Mortification and Profound sense of the degeneracy of Mankind and such an inclination to place our chief Confidence in somewhat above the words or Oaths of men as becomes us But I shall give you an instance of this at home too pregnant with horror Our thoughts have had a long melancholy walk in the Peristyllium of the many Interpretations that supported our Great Oath of Supremacy and as to which Oath it being probable that a vulgar Error having prevailed among many of the Faction for some time before the year 1640. namely that the Oath of Supremacy was intended to bind only in opposition to Popery occasion was thereby given to the Fathers of our Church to procure the last Authentick Interpretation of the Assertory part of the Oath in the Canons of 1640. and cautioning us there in the first Canon against any Independent Coactive Power whether Papal or Popular But after our view of the orderly and necessary placing of all these polish'd and strong Pillars of Interpretation erected between the time of Primo Elizabethoe and the year 1640 and after Providence so ordering it at last that the Consciences of the Loyal who were then reserv'd as Lyons to guard the Throne had then a clear Oath to guard their Loyalty and after their having then cause to say Tantoe molis erat to render the Oath both acceptable to Conscience and adequate to its first reasonable intention the Land was punish'd with a dreadful Rebellion and the sacred Obligations of the Oath and all its Interpretations could no more quench the raging Flames of the Civil War then the sprinkling of a little Holy Water could save a Town on fire You may therefore here again more particularly take it into your thoughts that there is somewhat beside or beyond Oaths necessary to incline Heaven to Preserve States and Kingdoms and Ecclesiastical Polities therein namely the trusting in God and offering to him what the 51. Psalm calls the Sacrifices of God and without which the thought of the tantoe molis and the endeavour'd piling Interpretation upon Interpretation or Oath upon Oath as high as Heaven and thereby designing to keep men together embody'd and united in the external Profession of any State-Religion will prove as
own Municipal ones who hath ex Professo and argumentatively writ of the Prince's Prerogative of dispensing with a Penal disability in particular Cases and deny'd it A. I did not as to our Lex terrae account it tanti to set up the Judgment of any one particular man when you have entertain'd me with Iudgment of Parliament in the Case But I am sure you cannot but know how that great Man in that great Case we have referr'd to I mean my Lord Chief Justice Vaughan in Thomas and Sorrel's Case seems to be of opinion that the King cannot dispense in the Case of Incapacity He saith the reason why the King cannot dispense in the Cases of buying Offices and Simoniacal Presentations is because the Persons were made incapable to hold them And a Person incapable is as a dead Person and no Person at all as to that wherein he is incapable c. B. Tho that great Man hath not therein as in other Passages in his Argument discuss'd the Point argumentatively I shall yet pay so much respect to his opinion as to give decent Burial to his dead Man. But you see that after he had said The Reason why the King cannot dispense c. is because the Persons were made incapable to hold them he only gives it as a reason of their being uncapable and of the King 's not being able to dispense in their Case viz. that they are dead Men that a Person uncapable is as a dead Person and whereby he giveth us a Magisterial gratis dictum or a Petitio Principii instead of what might deserve the name of a Reason or what might prove that the King could not dispense in the Case of one Politically dead or one dead in Law. I have formerly told you of the Saying used by Magerus and other Civil Law-writers that Mors civilis naturali non aequiparatur nisi in casibus in jure expressis And there are Cases enow express'd there that shew how the Prince who is according to the style of Seneca viz. Animus Reipublicae illa Corpus suum and ille spiritus vitalis quem haec tot millia trahunt and who in the Scripture Phrase is the breath of our Nostrils can according to the Law of the Land as I told you in the Case of Sir Walter Raleigh animate a Person dead in Law. And none need question why King Iames the Second cannot thus raise the dead as Queen Elizabeth did and King Iames the First or our following Princes and I may say as well as any who went before him Infames dicuntur civiliter mortui is a common Saying but you see that Fas est cuivis Principi maculosas notas vitiatae opinionis abstergere is as common Thus too Magerus tells us that Banniti pro mortuis reputantur and we know that the Excommunicate may in some respect by reason of their temporary disability be termed so too And if you will look on the Book call'd Reformatio legum Ecclesiasticarum under the title De excommunicatione you will there in the Chapter of the Denunciation of the Excommunicate find the Minister enjoin'd to tell the People that they must all abstain from the Excommunicate Person tanquam à Putri Projecto membro c. that an Excommunicate Person is to be thrown out of the Church as a dead Carcass but you will there find in the Formula reconciliationis excommunicatorum with what tenderness it is said reum hunc charissimum fratrem membrum assumamus agnoscamus Communis in Christo nostri corporis intimus ut noster affectus in hoc corporis nostri recuperato membro testatior sit c. and that the Pastor in the Absolution of that returning Prodigal who was dead and is alive again must in the administration of the King 's Ecclesiastical Laws say tibi rursus pristinum in Ecclesiâ tuâ locum plenum jus restitue Thus too at the end of the Canons A. 1571. you will find the same style of tenderness in Vogue in Queen Elizabeth's time that was in Edward the 6th's as likewise of the powerfulness in raising the dead You see there a Form of the Sentence of Excommunication viz. Fratres quoniam quicunque profitemur nomen Christi sumus omnes membrum ejusdem corporis par est ut unum membrum alterius membri sensu dolore afficiatur c. And it being afterward mention'd that the Person having been accused of such a Crime and having been contumaciously absent it followeth the Bishop in God's Name and by his Authority hath Excommunicated such a one from the Society of Christ's Church tanquam membrum emortuum amputasse à Christi corpore c. that you may shun his Company tamen ut Christiana charitas nos monet let us pray for him to God who is a merciful God and who can lapsos etiam à morte revocare And you may take notice of what is said in Croke 2d and Coke 8th Report Trollop's Case about the King's Pardon raising the Excommunicate from this civil death and that a man need not be Absolved by the Church if the King Pardons And thus Hobart Serle's Case p. 294. shews you that after the discharge of a Clerk Convict he shall never be question'd in the Ecclesiastical Court for deprivation You may likewise see it in Coke Inst. 3. Chapter Of Pardons The King may Pardon one Convict of Heresie or of any other offence Punishable by the Ecclesiastical Law. You may too in that Chapter observe his tenderness for Prerogative where having mention'd that by the 13th of R. 2. it is provided that no Charter of Pardon for Murther c. shall be allow'd c. if they be not specify'd in the same Charter and that before that Statute by the Pardon of all Felonies Treason was Pardon'd and so was Murder and at this day by the pardon of all Felonies the death of a Man is not pardon'd he thus goeth on these are excellent Laws for direction and for the Peace of the Realm But it hath been conceiv'd which we will not question that the King may DISPENSE with these Laws by a Non-obstante be it general or special albeit we find not any such Clauses of Non-obstante but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow but he doth not make them obligatory to him My Lord Coke then saith This is to be added that the intention of the said Act 13. R. 2. was not that the King should grant a Pardon of Murther by express Name in the Charter but because the whole Parliament conceiv'd that he would never Pardon Murther by special Name for the Causes aforesaid therefore was that Provision made which was grounded on the Law of God Quicunque effuderit humanum Sanguinem fundetur Sanguis illius c. Nec aliter expiari potest nisi per ejus Sanguinem qui alterius Sanguinem effuderit His Margin there cites Genes 9. 6.