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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25519	An Answer to a late pamphlet intituled, The judgement and doctrine of the clergy of the Church of England concerning one special branch of the King's prerogative, viz, in dispensing with the penal-laws shewing that this is not affected by the Most Reverend Fathers in God, the Lords Arch-Bishops, Bancroft, Laud and Usher ... the Lord Bishop Sanderson ... the Reverend Doctors, Dr. Hevlin, Dr. Barrow, Dr. Sherlock ... Dr. Hicks, Dr. Nalson, Dr. Puller, so far as appears from their words cited in this pamphlet : in a letter to a friend.		1687 (1687)	Wing A3309; ESTC R15256	30,429	41

inclinable to follow such Guides as these and therefore I should have thought it more advisable to have taught people more to rely on the Opinions of Judges than of Divines in matters of Prerogative and Law because I fear that the honest Prerogative Divines will be greatly out-numbred by the Popish and Phanatick Common-wealths-men and whether this will prove for the service of the King should have been considered 2. My second Reason why I dislike this way is That I fear instead of doing service it will do great disservice to the King by weakning the Authority of those many excellent discourses which have been written about Non-resistance and which did great service not only to former Kings but even to our present Soveraign in the late evil and critical times It will not easily be forgot how many hard Censures those honest Divines underwent who durst both from the Pulpit and the Press oppose that factious humour which was then so rampant and presaged those wicked Conspiracies which were afterwards by the Divine Providence so happily discovered and disappointed The Doctrine of Non-resistance would very hardly go down and the great objection against it was That it made the Prince absolute and set him above all Laws which were Laws no longer than he pleased to have them so and thus our Lives and Properties and Liberties and Religion were at the Will of the Prince and if this were really the natural consequence of the Doctrine of Non-resistance I suspect it would to this day put a great many English Subjects out of conceit with it and yet this is in great measure the design of this Letter to apply those Sayings or Arguments which were urged for the Doctrine of Non-resistance to prove a Dispensing Power inherent and inseparable from the Crown Now far be it from me to dispute this Point Whether there be such an inherent Right in the Crown or no especially as far as the Judges have determined that there is but this I say That it is not a necessary Consequence of the Doctrine of Non-resistance that because we must not resist our Prince whatever he does therefore he may de jure dispense with what Laws he pleases and I think it is for the Interest of the Crown that these two should be kept distinct that the Prerogatives of the Crown should be asserted and maintained upon their own bottom and that the Doctrine of Non-resistance which must defend all other Prerogatives and is a better and cheaper security than Forts and Castles may not be entangled with other Disputes which will weaken its Authority though it be Divine when it is clogged as some men will think with such uneasie and fatal consequences This I confess gives me a just indignation against those half-witted Scriblers who to serve as they think a present turn have endeavoured to lessen the Reputation and to weaken the Arguments of those Divines who have appeared so zealous for the Doctrine of Non-resistance and Passive Obedience by affixing a great many consequences to them which are neither consequences nor theirs and by wresting their words to other purposes than they intended and for this reason I judg it a very good piece of Service to the Crown to undertake the Vindication of the men and of their Doctrines For Divines to determine points of Law especially such as require deep skill and insight into the nature of the Constitution as I observed before is out of their Sphere but obedience to Soveraign Princes both Active and Passive is not merely a point of Law but a Gospel command and this they not only may but ought to explain and press upon the Consciences of their hearers This the Church of England her self has done in the Homily of Obedience and this the Ministers of the Church have taken all occasions to do and with that success that there are not more Loyal Subjects in the World than the true Sons of the Church of England but farther than this they have not gone or if a few dablers in Politicks have let them answer for themselves The Scripture teaches Obedience but the Prerogatives of Princes and the Liberties of Subjects are the matter of human Laws and Constitutions which properly belong to another Gown And thus I come to consider what Testimonies this Writer has produced to prove That it is the Doctrine and Judgment of the Reverend Clergy of the Church of England that the Power of Dispensing with any Laws is an inherent and inseparable Right of the Crown where I will not meddle with the main point Whether the King have any such right for I will not dispute that but whether these Divines whose Authority is alledged in the cause ever taught any such Doctrine He begins with the Reverend Dr. Hicks Dean of Worcester and endeavours to render one of the best Books that ever was wrote for Passive Obedience wholly useless or odious to those men who are not fond of the dispensing Power But what does the Dean teach That the English Realm is a perfect Soveraignty or Empire and that the King of England by the Imperial Laws of it is a Compleat Imperial Independent Soveraign that it is a contradiction to call this an Imperial Crown unless he have all those Rights which are involved in the very Notion of his Imperial Soveraignty Well! to make short work with it does the Dean say That this Dispensing Power is one of those Rights which are involved in the notion of Imperial Soveraignty No he says no such thing but this Writer says so for him that this Power of dispensing with Penal Laws must be or nothing one of those Prerogatives which he proves from Sir Robert Pointz his Vindication of Monarchy and what then suppose it be does the Dean say so for that is the only point in question What his Judgment is No but he says That the Imperial Crown has all the Rights which are involved in the Notion of Imperial Soveraignty and our Author can prove that the dispensing Power is such a Right and therefore the Dean must grant that this dispensing Power is a Right inherent in the Crown Very well A Popish Priest will allow that an Imperial Crown has all the Rights that are involved in the Notion of Imperial Soveraignty now say I a Supremacy in all Causes over all Persons as well Ecclesiastical as Civil is an inherent Authority of the Imperial Crown therefore Popish Priests renounce the Supremacy of the Bishop of R●me and own the Supremacy of the Kings of England If he think this is not a good proof let him consider this matter over again which will be worth the while if it be only to teach him to Reason a little When there is any Dispute about the rights of Soveraignty it is a ridiculous inference to say That he who owns all the Rights of Soveraignty owns whatever any man says is a Right of Soveraignty for still he owns no more than what he himself believes to be so

AN ANSWER to a late PAMPHLET INTITULED The Iudgment and Doctrine of the Clergy OF THE CHURCH of ENGLAND Concerning one Special Branch of the KING's PREROGATIVE VIZ. In dispensing with the Penal-Laws SHEWING That this is not asserted by The Most Reverend Fathers in God the Lords Arch-Bishops Bancroft Laud and Vsher The Right Reverend Father in God the Lord Bishop Sanderson The Reverend Doctors Dr. Heylin Dr. Barrow Dr. Sherlock Master of the Temple Dr. Hicks Dr. Nalson Dr. Puller So far as appears from their words cited in THIS PAMPHLET In a LETTER to a Friend LONDON Printed for Ric. Chiswell at the Rose and Crown in St. Paul's Church-yard MDCLXXXVII Imprimatur May 13. 1687. GVIL. NEEDHAM An Answer to a late Pamphlet c. SIR I Have received the Book you sent me Intituled The Judgment and Doctrine of the Clergy of the Church of England concerning one special branch of the King's Prerogative viz. Dispensing with the Penal Laws Had I not now learnt to wonder at nothing it would a little have surprized me but now I shall only tell you that I have read it and do not like it And reserving one little reason for by and by viz. That it is not true I shall at present give you some other reasons of my dislike to prevent mistakes And first negatively Not because it is for the King 's dispensing Power For I never envy my King any Prerogative that belongs to his Crown And tho it may be this Branch of the Prerogative was not so well understood in former days yet it is certainly now the right of the Crown as much as the Opinion of the Judges can make it so and I never dispute against such an Authority And I think it is a disparagement to the judgment of the Reverend Judges to call in Clergy-men to help them out when he himself tells us p. 34. Vnto the Judges the people are bound lastly and finally to submit themselves for matter of Law Why then does he make any further dispute about the matter As if he distrusted the Judgment of the Judges or thought that people would rather believe Divines than Judges in matter of Law which would be a great scandal to that Reverend and Learned Bench. And therefore I confess I am very much offended with that priority he gives to the Judgment of Churchmen in this point before the Judgment of the Judges He says We could not resolve our selves in this great point of the Supreme Power inherent in and inseparably annexed to the Crown to dispense with Penal Laws but by these two ways 1. To see how far the Judgment of our Church-men appearing in their Doctrines which are for our edification doth warrant this Prerogative to be in the King 2. To see how far the Judges Resolutions in declaring their sence of the Law of the Land in this doubtful question do agree in such their Judgments and Doctrines Fie for shame First make the Clergy Judges of Law and Preach edifyingly about the Prerogative and then set them before the Judges themselves as a Rule and Pattern for them to follow and then as it naturally follows judg over the Judges judgment by its agreement with the judgment of Divines about Law and Prerogative If the Writer of this Letter was a Divine it argues a good Opinion of his own Profession but if he were a Lawyer or but a Justice of Peace I know what he deserves Secondly This brings me to the positive Reasons of my dislike of this way and they are comprehended in two 1. That I do not think fit to lay such stress upon the Judgment of Church-men in matters of Law and such sure this unlimited dispensing Power is a meer point of Law and that such an abstruse point too as not all Lawyers nay not all Judges have formerly been agreed about Now what does a Churchman's Judgment signify in matters of Law No man's Opinion is of any value but in such things wherein he is skilled now a Churchman does not signifie one who is skilled in Law but in Divinity And tho a Church-man should be a good Lawyer if he gives his Opinion in any point of Law his Opinion is not valuable as the Opinion of a Church-man but of a Lawyer for suppose a Church-man were skilled in Physick too would you value his Judgment in Physick ever the more because he is a Church-man Or think your self more safe in his hands than in a professed Physicians There are Interlopers indeed in all Professions but that any man's Judgment should be valued because being of one Profession himself he gives judgment in another is a Mystery to me And therefore this Writer should first have proved all those great Divines Arch-bishops Bishops Deans Doctors with whose names he hath so pompously filled his Title Page and to whose judgment he appeals about the King's Prerogative to haxe been great Lawyers as well as great Divines or else the Cause is Coram non judice and yet he makes no offer at this unless by the Title he gives Dr. Sherlock of Master of the Temple he would intimate his great skill in Law too but this will not do for his Book of Non-resistance was written before he liv'd within the infection of the Law-air So that it seems a very great injury to the Cause to appeal to such Judges as have no skill in the matter For what credit can the Opinion of Divines do it when it is not a point of Divinity but of Law that is in question For it is generally seen that those are very apt to mistake who guess at things out of their Ken and people are apt to suspect that such contemplative men who keep their Studies and seldom look abroad into the World may form fine Romantick Idea's of Government which will not suit the publick Constitutions of Kingdoms and Nations Secondly I think it is a very dangerous thing to put the Question upon such an issue as this The design of it I suppose is to recommend it to the Layety of the Church of England by such venerable Names but he should have considered that the Layety of the Church of England are not so Priest-ridden as they are at Rome and Geneva they have not an implicite Faith in their spiritual Guides and their Guides do not desire they should and therefore it is not their Names but their Arguments must prevail but if people are taught to rely on the opinion of their Ministers in such Prerogative Disputes the Popish Priests and Phanatick Ministers are great Politicians too but if they may be Judges Sovereign Princes will get nothing by it The Church of England indeed has always been addicted to the Service of the Crown but there are other Maxims of Government among other men Bellarmin and Suarez and Mr. Baxter's Common-wealth and the Dissenters Sayings not to take notice now of Julian the Apostate are not very favourable to the Prerogatives of Princes and I fear people are more

themselves when he found it conducing to the Weal-Publick Now I do not see one Word in this but what is the undoubted Right of the Supream executive Power For it is impossible any Nation should be well and happily governed where this Power is not And that for this Reason which the Arch-Bishop gives Because Human Laws are imperfect and therefore there must be a living Authority to supply their Defects and to temper their Severities and to pity and relieve Subjects when the case is truly pitiable But then there are some natural Limitations of the exercise of this Power in the most absolute and despotick Princes and there may be Political Limitations of it by the consent of Soveraign Princes themselves according to the Laws and Constitutions of several Kingdoms For tho the Imperial Crown can be divested of no part of Soveraign Power yet the exercise of it may be directed and limited by publick Laws as we heard before from Bishop Sanderson This last the Arch-Bishop takes no notice of it not being his design as you heard before to adjust the Rights of Princes by Political Laws but only to consider in general what are the essential Rights of Soveraign Power without examining how the exercise of it is diversly limited in different Countries And therefore let us only consider what those natural Bounds and Limits are which he has set to this dispensing and suspending Power And they are included in the reason of this Power because all Human Laws are imperfect and therefore there wants a Soveraign Power which is so far Superior to all Laws that it can correct their Faults and supply their Defects and temper them to such particular Emergencies and Cases as could not be foreseen when the Laws were made For if human Laws could be so exactly framed as to fit all possible cases if the Law were for the good of the Common-wealth the dispensing with or suspending the execution of such Laws would be a publick mischief And a Power which could serve no good end could be no Prerogative of Soveraignty And therefore the very Dispensation must be for the publick good or else it is the abuse not the natural Right of Soveraign Power To which purpose he mentions the Opinion of John of Sarisbury P. 79. I do not take away the dispensing with the Law out of the Hands of the Powers but such Precepts or Prohibitions as have a perpetual Right are not as I think to be subjected to their Will and Pleasure In those things only that are mutable the Dispensation with the Letter of the Law is to be admitted yet so as by the compensation of Honesty or Vtility the Intention of the Law may be intirely preserved So that according to this Rule the natural Instances of this dispensing Power seem to be these When a Law is made and is for the Publick Good but happens to fall very severely upon some particular Persons without their own fault only because such particular Cases were not and could not be considered in making the Law here the Equity of the Prince ought to releive such Sufferers according to his long Quotation out of AEneas Sylvius P. 91. which this Author has transcribed at large and we readily own When the Penalty annexed to the Law may in some particular cases be remitted without the publick Injury and may be thought very just and convenient with respect to the pittiable Circumstances or former Merits of the Person offending as the Archbishop observes and this Author from him P. 79. While the Laws do stand in force it is fit that sometimes the King's Clemency should be mingled with the Severity of them especially when by that means the Subjects may be freed from much detriment and damage Which belongs to the Regal not to the Ministerial Power the condition of the Magistrates whose Sentence is held corrupt if it be milder than the Laws being one thing the Power of Princes whom it becometh to qualify the sharpness of them a far different matter If any thing happens after the making of a Law which was not foreseen when it was made and which is besides or contrary to the original intention of the Law-makers and renders the execution of that Law manifestly and notoriously oppressive to the Publick the Prince may certainly suspend the Execution of such Laws till they be alter'd or repealed by the Power which made them or in the same regular Exercise of the Legislative Power as they were first made This dispensing and pardoning suspending Power is so necessary to the Publick Good that for my part I would not willingly live under any Government which wanted the Exercise of this Power And if this be all this Writer intended to prove by his long Quotations out of the Archbishop I am perfectly of his mind that the Archbishop was of his Opinion and so I believe is every Man who considers any thing For the Exercise of such a Power as this is no Injury to the Laws nor to the Legislative Authority For in this way the Prime and original Intention of the Law is always secure and can never be dispensed with the general Force and Vigor of the Law is maintained though it be remitted in some particular cases all Mens Rights and Properties are secure which are secured by the Law for the Laws can be dispensed with not for the hurt and damage but only for the Benefit of the Subject and therefore no legal Rights can be taken away by a Dispensation and more than that some Men may find Refuge and Sanctuary in the Clemency and Soveraign Power of the Prince from the Severities of the Law as far as is consistent with the Publick Good and Safety But any other dispensing Power than this the Archbishop says nothing of And this I think is answer enough to what he alledges out of Archbishop Vsher After these 3 Archbishops the next who follows is the humble patient and learned Dr. Robert Sanderson late Lord Bishop of Lincoln and were he living this Writer would exercise all the Humility and Patience he had without offering him any occasion to shew his Learning At the end of his 9 th Lecture concerning the final Cause of humane Laws Sect. 16. he comes to explain that Aphorism Salus Populi Suprema Lex The Safety of the People is the Supream Law which was expounded in those days to set up the Interest and Safety as they pretended of the People in opposition to the King which he does with so great Learning and Judgment as not only to confute but to shame all such Protences From the 18 th Sect. this Writer among others which are nothing to his purpose transcribes these Words which I suppose he thought were Non ita se voluisse Legum vinculis astringi A King that gives Laws and Statutes to his People will not or did not intend to be bound up by the Laws that it should not be lawful to him the Safety of the Common-Wealth

the severities of the penal Laws whereby he may m●…st his clemency and goodness as well as his greatness and justice of graciously pardoning the ●maller Breaches of his Laws and the more capital offences which he might most justly punish For whoever denied this The King without doubt may not only pardon some smaller Fault but the greatest of Crimes but how this is to his purpose I still want to be inform'd And so I do as to what he quotes out of Doctor Puller's Book concerning The Moderation of the Church of England I● that Equity which consists in remitting of the rig●… of the Laws when they press too hard upon particular Persons or in supplying the defects of the said Laws where they provide not sufficiently for particular ●ases which is all Doctor Puller contends for be all that this Writer wou'd have what need he to have writ a book about it and confirm'd it with so many great Authorities when I don't know that in this he has an Adversary in the World if he have it is fit such a man if ever he stood in need of Clemency and Mercy shou'd never have it Who thinks the Court of Chancery an illegal Court and yet that is properly a Court of Equity It is one thing to moderate the rigour of Laws in favourable cases another to dispense universally with such Laws as if Doctor Puller's Book prove any thing are very moderate already and yet this may be the Prince's Prerogative resulting not from Moderation and Equity but a Plenitude of Power As for his Anonymous Author with whom he concludes I neither know him nor his Book and suppose the cause will not depend upon a single Authority Thus we have heard what the Reverend Prelates and Doctors of the Church of England have said of this matter in the next place he tells us what were the Reasons that induc'd the Reverend Judges in Westminster-Hall so openly and solemnly after mature deliberation to declare their Resolutions in this Point for the thing But I had much rather he had told us what their Resolution was how far they extended this dispensing Power whether to all Cases or only to some or to all or to some as the King at any time judges necessary for I have heard very different Accounts of the matter but cou'd never see any authentick Record of it To have inform'd us in this matter had been a real Kindness because 't is the Rule of our Actions of our Words and of our Writing too for when I once know what the Judges declare to be Law I will enquire no further their Opinions solemnly declar'd must silence all Disputes because they carry Power and Authority with them unless any superiour Authority think fit at any time to judge over their Opinions This makes it very necessary to know what the Judgment and Resolution of the Judges is especially in any great and concerning Points but as for their Reasons I am not so fond of knowing them because it is the Authority of the Men not of their Reasons which must determine such matters for Mankind reasoning so very differently as they do there never cou'd be any final Determination of such Cases if all men must be first satisfied in the validity of their Reasons And therefore I think this Writer has done no service to the Cause by making their Reasons the Subject of Dispute for tho' they may be very good Reasons yet it may be all men will not think so and then such men will be apt to be dissatisfied that a Judgment which as they think is not founded on sufficient Reasons shou'd have such great Authority For it is not enough to say as this Writer does That the Reasons they went upon were only such as were exactly correspondent with the avow'd Doctrines before recited and that by this Declaration of theirs the Law of the Kingdom of England concerning this Soveraign Power in the Crown is no more than what was before publickly asserted to be the Divinity of the Kindom For tho' the Divinity of the Kingdom is a great word and cannot be determin'd by a Jury of Divines who liv'd in different Ages and never spoke together about it nay indeed can never be determin'd by any single Divines tho' never so many and never so learned but only by the Authority of a Convocation or National Synod yet those who think the Reasons not good will like them never the better because some Divines have been of that mind when they can so out number as I said before the Church of England with Popish and Fanatick Divines who teach another Doctrine And besides this I doubt he puts it upon a very dangerous Issue For if after all his confidence and assurance other men shou'd not think that these Reasons do so exactly correspond with the avow'd Doctrines of the Bishops and Doctors of the Church of England that they have neither taught the same Doctrine nor us'd the same Reasons as possibly this Author by that time he has read thus far may see reason to suspect what then had he not better have let all this alone have not the Reverend Judges great reason to thank him for bringing their Judgment and Reasons to such a Test as they will not bear They need not the Authority of Divines to justifie their Determinations at Law and therefore it is at best over-officiousness and a lessening of their Authority to make such Appeals besides the folly and rashness of making such Appeals as will do no Service But suppose these were not the Judges Reasons how will he justifie himself for publishing these Reasons as theirs without their Authority which I dare boldly say he never had Nay I dare lay considerable odds that these were not their Reasons as he has worded and represented them and that for more Reasons than one Did all the Judges agree upon these Reasons and make a Record of them or has he seen them signed with all their Hands if not how does he know that these are their Reasons For a Bench of Judges may agree in their Conclusion when they differ in their Premises and Reasons And I will believe that they had other Reasons besides these here mentioned Possibly some such thing as this might be said in Court but I believe not as it is here reported and it is an Affront to Judges in such a weighty Point as this to declare their Reasons upon meer hear-say when it is so evident that of twenty men who hear the same thing searce two of them shall exactly agree in their Report so uncertain and variable a thing is Oral Tradition which how infallible soever it may be in Divinity is not so in Law But to let all this pass and to allow these Reasons to be very good for I will no more dispute any Reasons which are attributed to the Judges than I will dispute their Resolutions yet the question still remains Whether these Reasons are exactly the same with what