ever was who setting his feet on two of Gods Kingdoms the one upon the Sea the other upon the Earth lifting up his hand to Heaven as you are to do this day and so Swearing Rev. 10. c. and consider how he there makes this Oath to be the most effectual means for the ruining Popery and Prelacy and leaves it to be consider'd whether seeing the preservation of Popery hath been by Leagues and Covenants God may not make a League and Covenant to be its Destruction after he had before-mention'd the Associations of the Religious Orders and Fraternities and the Combination by the la Sainte Ligue for the muniting of Popery as incentives to this League and how he doth again go to the Magazine of the Apocalypse for some Weapons for this Covenant and hath other artillery for it from the Iewish State citing the words of the Prophet Let us joyn our selves to the Lord in a perpetual Covenant that shall not be forgotten how according to the ratio nominis of Superstition viz. of mens over-importunate Prayers that their Children might out-live them he concludes with a devout Prayer that this Covenant may out-live their Childrens Children and let any one behold in Mr. Henderson's Speech the like flame of Enthusiastick Zeal or of the Superstition quam vulgo bonam intentionem vocant against Superstition and Idolatry in Worship c. and concluding it with his belief that the weight of that Covenant would cast the balance in our English Wars I say let any one consider all this and tell me if ever he saw a more pompous Scene of Superstition and more magnificent Procession bestow'd on it and contrived as Bishop Sanderson's words are in his Lecture De bonâ intentione and having his eye on that Covenant viz. Obtentu gloriae Dei reformandae Religionis propagandi Evangelii extirpandae superstitionis exaltandi regni Domini nostri Iesu Christi and if ever he saw what the Bishop in that Lecture calls The Iesuites Theology viz. Omnia metiri ex Commodo Sanctae matris Ecclesiae more strongly asserted then in the Contexture and Imposition of that Covenant But those two Divines lived to recover their Allegiance and a due sense of their Oaths for it and to see that foetus of their Brain that at its solemn Christning they wish'd immortality to renounced publickly as a spurious Birth and to the Scandal of that Age a race of other Oaths in England as infamously born intercept its inheritance Nay let me tell you that in the Nation of Scotland Loyalty hath been a growing Plant of Renown since the year 1660. and the Idol of their former Covenanted Presbytery been by the Loyal Nobility and Gentry and Populace there generally abhorr'd And tho Sir George Wharton in his Gesta Britannorum relates it as a strange thing that on the 21st of August A. 1663. the Parliament of Scotland Passâ—…d an Act for a National Synod the first that ever was in that Kingdom under the Government of Bishops yet I can tell you of an Act of Parliament that pass'd there afterward that declared the right of the Crown to dispense in the external Government of the Church I shall entertain you with it out of the Scotch Statutes viz. In the first Session of the Second Parliament of King Charles the Second there pass'd an Act asserting His Majesty s Supremacy over all Persons and in all Causes Ecclesiastical Edenburgh November 16 th 1669. THe Estates of Parliament having seriously considered how necessary it is for the Good and Peace of the Church and State That His Majesty's Power and Authority in relation to Matters and Persons Ecclesiastical be more clearly asserted by an Act of Parliament Have therefore thought fit it be Enacted Asserted and Declared Like as his Majesty with Advice and Consent of his Estates of Parliament doth hereby Enact Assert and Declare That his Majesty hath the Supreme Authority and Supremacy over all Persons and in all Causes Ecclesiastical within this his Kingdom and that by virtue thereof the Ordering and Disposal of the External Government and Policy of the Church doth properly belong to his Majesty and his Successors as an inherent Right to the Crown And that his Majesty and his Successors may Setle Enact and Emit such Constitutions Acts and Orders concerning the Administration of the External Government of the Church and the Persons employed in the same and concerning all Ecclesiastical Meetings and Matters to be proposed and determined therein as they in their Royal Wisdom shall think fit Which Acts Orders and Constitutions being recorded in the Books of Councel and duly published are to be observed and obeyed by all his Majesty's Subjects any Law Act or Custom to the contrary notwithstanding Like as his Majesty with Advice and Consent aforesaid doth Rescind and Annul all Laws Acts and Clauses thereof and all Customs and Constitutions Civil or Ecclesiastick which are contrary to or inconsistent with his Majesty's Supremacy as it is hereby asserted and declares the same void and null in all time coming A. You told me before how the King dispens'd with the five Articles of Perth setled by Act of Parliament but this Act yields so great a territory to the Dispensative Power that my thoughts cannot suddenly travel through it It acknowledgeth in the Crown a more sublime Power then of dispensing with Presbyterians or Independents or of suspending the Penal Laws against them namely of abolishing Episcopacy and of making Presbytery or Independency the National Church-Government Car tel est notre plaisir now for the external Form of Church-Government is allow'd to make the Pattern in the Mount. And 〈◊〉 accordingly as Mr. Baxter in his Book call'd a Search for the Schismaticks represents Archbishop Bramhal's new way of asserting the Church of England in his Book against him 1. To abhor Popery 2. That we all come under a foreign spiritual Iurisdiction obeying the Pope as the Western Patriarch and also as the Principium Unitatis to the Universal Church governing by the Canons c. may not the King by this Act make the external Government of the Church of Scotland Patriarchal and the Pope Patriarch B. The Act needs no Comment and if you will tell me that the Scots shew'd themselves Erastians or Latitudinarians when they made it I shall acquaint you that that Archbishop in his Schism guarded p. 319. asserts That a Sovereign Prince hath Power within his own Dominions for the Publick good to change any thing in the external Regiment of the Church which is not of divâ—…ne Institution and that he had in p. 4. of that Book allow'd the Pope his Principium unitatis and his Preheminence among Patriarchs as S. Peter had among the Apostles and that in p. 78. of his Iust Vindication of the Church of England he takes notice that by the Statute of Carlisle made in the days of Edward the First it was declared That the Holy Church of England was founded in the
Fra. Walsingham And what sense the House of Commons had in the beginning of the Reign of King Iames the First of the Disabling of several of the Nonconformist Divines being a Gravamen to the Realm appears by the Petition of that House to the King Anno 1610. as I find it in Mr. Nye's Beams of former Light p. 103. viz. Whereas divers painful and learned Pastors that have long time travell'd in the work of the Ministry with good Fruit and Blessing of their Labour have been removed from Ecclesiastical livings being their free-hold and from all means of maintenance to the great grief of sundry your Majesty's well-affected Subjects we therefore humbly beseech your Majesty would be graciously pleas'd that such deprived and silenced Ministers living quietly and peaceably may be restored c. But in short if you consider that the great Cause that excited the Loyal Zeal express'd in the Statute of the First of Queen Elizabeth and whereby so many Statutes of Harry the 8th against the Papal â—…pations were revived was that the King and Kingdom might not be disabled by Clergy-mens not being Subjects to the Crown through Papal Exemptions and that the Crown might Cum effectu be restored to its Government over them i. e. of the whole Realm and that our Monarchs should by means of such Exemption be no more disabled from being Governors only IN their Realm and not OF it and as when the Right of two Persons claiming to be Princes of Tuscany was before the Pope's Arbitrage he determin'd that one of them should be A Prince IN Tuscany and the other Oâ—… it you will find that this Supreme Power over all Persons as inherent in the King is the very Lapis Angularis on which your Abjuration of foreign Iurisdiction and on which the whole Promissory part of your Oath are built For when you have first declared in your Oath that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal and then what followeth upon that viz. That no foreign Prince Person Prelate State or Potentate hath or ought to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm you say And THEREFORE I do â—…tterly renounce and forsake aâ—…l foreign Iurisdictions c. And do promise that from henceforth I shall bear Faith and true Allegiance to the King's Highness c. and to my Power shall assist and defend all Iurisdictions c. granted or belonging to the King's Highness c. or united and annex'd to the Imperial Crown of this Realm Thus then the Reason why you abjure foreign Jurisdiction for you ABIURE when you swear to quit and forsake as Mr. Nye in his Observations on that Oath tells us and why you promise to assist and defend all Iurisdictions granted or belonging to the King whose Subject you are is resolved into the Kings being the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal I am here further to tell you that when by your Oath you have renounced the Pope's Dispensative Power you have asserted and have obliged your self to defend the Jurisdiction of the King 's Dispensative Power in the room of it and the defence of which was the great design and drift of the entire Statute of 1 o. Eliz. and of your Oath therein and no collateral thing A. I have been and am pleas'd with that Prospect you have given me into the Region of the Dispensative Power used by the Crown in the Interpretation of my Oath a Region that was before to me like the terra Australis Borealis incognita but to deal frankly with you I am yet to seek out the meaning of this notion last â—…rted by you that the drift and design of the Statute of 1 o. Elizabethae and the Oath was to prop up the King 's Dispensative Power I doubt not but you are perfectly sensible that he who speaks to that tender thing call'd Conscience and about an Oath ought to be tender of any point he urgeth to it and not to wyre-draw any thing by forced Consequences that is to be offered to it as Obligatory B. I assure you I go by those very measures in giving you my Judgment of the design and drift of that Statute as I have done and that he must put the Statute on the wrack that will make it speak any other meaning Consider what the Prefatory part as the key of it mentions viz. That divers good Laws and Statutes that were made in Henry the Eighth's time as well for the utter extinguishment and putting away of all Usurped and Foreign Power c. as also for the restoring and uniting to the Imperial Crown of this Realm the ancient Iurisdictions c. to the same of Right belonging by reason whereof we your most humble and obedient Subjects from the 25th year of the Reign of your said dear Father were continually kept in good order and were disburden'd of divers great and intolerable Charges and Exactions before that time unlawfully taken and exacted by such Foreign Power and Authority as before that was usurped until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second years of the Reigns of the late King Philip and Queen Mary c. were repeai'â—… by reason whereof they then further mention how they were then brought under an Usurped Foreign Authority to their intolerable Charges and they thereupon desire the Repealing of that Act. Here we are given to see by their dating the aera of their being well govern'd and disburthen'd of divers great intolerable Charges and Exactions taken and exacted by Foreign Power from the 25th of Henry the 8th and had their eye on the Statute of the 25th of Henry the 8th c. 21. entituled No Imposition shall be paid to the Bishop of Rome which sets forth how the Subjects of this Realm were impoverish'd by intolerable Exactions of great Sums of Money taken out of this Realm by the Bishop of Rome as well in Pensions Censes Suits for Provisions and Expeditions of Bulls c. and also for Dispensations Licences Faculties Grants Relaxations Writs call'd Perinde valere Rehabilitations Abolitions and other infinite sorts of Bulls Breves and Instruments of sundry Natures c. wherein the Bishop of Rome hath been not only to be blamed for his Usurpation in the Premisses but also for his abusing and beguiling your Subjects pretending and persuading them that he hath Power to Dispense with all Humane Laws Uses and Customs of all Realms in all Causes which be call'd Spiritual which matter hath been usurped and practised by him and his Predecessors by many years in great deâ—…gation of your Imperial Crown and Authority Royal contrary to Right and Conscience For where this your Graces Realm recognizing no Superior under God but only your Grace hath been and
that can or may in any wise be objected against the same c. it follows That all Acts and things heretofore had made or done by any Person about any Consecration Confirmation or Investing of any Person elected to the Office or Dignity of any Archbishop or Bishop c. by Uirtue of the Queens Majesty's Letters Patents or Commission c. be and shall be by Authority of this present Parliament declared judged and deemed at and from every of the several times of the doing thereof good and perfect to all respects and purposes any matter or thing that can or may be objected to the contrary thereof in any wise notwithstanding Sir E. Cook in the 4th part of his Iustitutes c. 74. viz. Of Ecclesiastical Courts takes notice how our adversaries had made objections against our Archbishops and Bishops consecrated about the beginning of the reign of Queen Eliz. and consequently against the Bishops ever since That they were never consecrated according to law because they had not three Bishops at least at their Consecration and never a Bishop at all as was pretended because they being Bishops in the reign of Edward the 6th were deprived in the reign of Queen Mary and were not as was pretended restored before their presence at the Consecration These pretences being but Cavils are answer'd by the Statute of 8 o Eliz. c. 1. and provision made by authority of that Parliament for the establishing of Archbishops and Bishops both in proesenti and in futuro in their Bishopricks But Mason in his 3d Book c. 7th De ministerio Anglicano in his answering the objection hath recourse to the Queens Patents referr'd to by the Statute of 8 o Eliz. and having mention'd the Queen's dispensing by her supreme authority cum quavis causâ aut suspicione câ—…jusvis DEFECTUS aut INABILITATIS quoe quovis modo contra eorum consecrationem obtendi poterat he saith verba in diplomate Regio sic se habent supplentes nihilominus suprema authoritate nostra Regia ex mero motu certa scientia nostris si quid in hiis quae juxta mandatum nostrum per vos fient aut in vobis aut vestrum aliquo conditione statu aut facultate vestris ad praemissa perficienda desit aut deerit eorum quae per statuta hujus Regni aut per leges ecclesiasticas in hac parte requiruntur aut necessaria sunt temporis ratione aut rerum necessitate sic postulante and then adds unde serenissima Regina ut omnem calumniandi ansam proecidere ipsique invidioeos obstruere posset c. DISPENSARE dignata est siquid forte Lynceis oculis invidia alicujus statuti vel canonis violati proetextu possit obtendere And then having brought in his Popish opponents objection Hem quid audio Vos Pâ—…ntificis maximi Dispensationes dente canino soletis arrodere jam nihil pudet in Actis Parliamentariis laicali magistratui Reginoe foeminoe dispensandi facultatem transcribere Dispensandi inquam cum quavis causâ aut suspicione ullius defectus aut INABILITATIS quoe incidere poterant idque in sacris ordinibus he makes this reply viz. Papa aliquando dispensat nimium papaliter sed non perinde Elizabetha Suas tantum leges RELAXAVIT Cum transgressionibus contra leges suas DISPENSAVIT Quod Deus fixit nunquam refigere aut rescindere est molita And there afterward to the objection si dicatur Reginam sufficientem dispensandi cum illis potestatem habuisse proferatur aliquod illius potestatis fundamentum â—…i non ex scripturâ sacrâ saltem ex Conciliis aut patribus aut uno aliquo approbato exemplo in toto mille quingentorum annorum curricuâ—…o the reply is Nonne Principis est legum suarum râ—…gorem res ubi postulat emollire Non magno opinor opus est mâ—…limine ad hoc probandum and as to what was objected against a Prince's dispensing with an ecclesiastical Canon he saith Canonum quatenus sunt leges Principis ecclesiasticoe summum jus rigorem duritiem moderari spectat ad officium principis And then he judiciously confutes Sanders his reproaching our Bishops in his book of Schism with the term of Parliamentarii episcopi and he referrs to the words in the Statute of 8 o Eliz. that I have mention'd to you and saith of them Omnino liquido ostendunt Comitia Parliamentaria non consecrasse ordinasse vel constituisse episcopos aut ministros sed jam secundum leges ecclesioe LEGITIME Consecraâ—…os ritè ordinatos ac Constitutos pro talibus habendos esse DECLARASSE c. And so I doubt not but you mind the words in that Act relating to the Queen's Letters Patents viz. shall be by authority of the Parliament not made good for they were so before but declared judged and deem'd good A. I apprehend you B. But to return to the Consideration of what you are on the whole matter obliged to by virtue of the Oath of Supremacy in the Case now before you and herein I find that by Virtue of the Queens interpretation of that Oath and the Parliaments Approbation thereof that when in the Assertory part of the Oath you do utterly testify and declare in your Conscience that the King's Highness is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal you have as in the Presence of God solemnly given your cordial Assent to and made your most Religious acknowledgment that the SOLE Supreme Government or Soveraignty and Rule under God over all manner of Persons born within these Realms is in the King and you are obliged to judge that tho the Oath speaks of all Spiritual or Ecclesiastical THINGS or Causes and the interpretation of all manner of Persons of what Estate either Ecclesiastical or Temporal soever they be yet there is no inconsistence between the Oath and the Interpretation for that as a Learned man in his Comment on that Oath hath well observ'd there is no Opposition between these two Persons and Causes the Principal object of a Law is a Person and a Person with respect to his Actions a Person morally Consider'd and he there quotes Suarez de Legibus l. 1. c. 8. saying Ad leges per se requiritur potestas in personam secundario in Res alias and for that the Assertory clause in the Oath declaring the King the only Supreme Governor of this Realm doth necessarily imply his being the only Supreme Governor of all Persons in it A. But perhaps you did not take notice that probably one reason why Queen Elizabeth was willing that her Interpretation that related to the Assertory part of the Oath I mean as to her Power over all the Persons of her Subjects and which was Publish'd in the Admonition after her Injunctions should in the aforesaid Act in the 5th year of her Reign be approved in Parliament might be to satisfie the scrupulousness of some mens Tender
Consciences and who might thereby think that according to the Rule of ejus est interpretari cujus est condere that the Oath of Supremacy enjoyn'd by Parliament 1 o Elizabethoe could not receive an Interpretation but from the Queen in Parliament and that that Consideration might therefore be supposed to be the cause of the Queens interpreting being approved or declared good by the Parliament in the Fifth year of her Reign B. I shall tell you that as to the sufficiency of the Queen's Power to interpret the Oath by her sole Authority it appears not that the Proviso in the Statute of 5 Eliz. did in the least arise from any such scruple and so De non apparentibus c. And here without troubling you with the Notions of the Royal assent creating the Soul of the Law and by the words of le Roy le veult after the Body of it hath been prepared by the three Estates and that the three Estates have nothing to do to interpret a Law that is once made and accordingly as Sir C. Hatton formerly Lord Chancellor of England in his Treatise of Acts of Parliament and their Exposition tells us That the Assembly of Parliament being ended functi sunt officio and speaking particularly of those of the Lower House saith their Authority is return'd to the Electors so clearly that if they were all together assembled again for interpretation by a voluntary meeting eorum non esset interpretari c. I shall once for all observe to you that our Monarchs when in the exercise of the Prerogative inherent in them and inseparable from them relating to Matters of Peace and War the Coining of Money or the Dispensing in Matters Civil or Ecclesiastical they condescend to have the same in particular â—…ases approved or strengthâ—…n'd by Parliament are no more deprived of their Sole Supremacy therein then the Body of the Sun is devested of its Heat and Light by diffusing the same through the Air. But I have before observ'd to you that the apparent Cause in the Proviso of 5 o Elizabethoe whereby the Queens Interpretation is Enacted is the better to transmit the obligatoriness of the Interpretation in point of Conscience beyond her Life and to the Reigns of her Heirs and Successors and to bind us who live now to acknowledge such Power due to our present King over the Persons of all his Subjects as was in her interpretation challenged to be due to Harry the Eighth and Edward the Sixth I shall not trouble you with my Judgment about Moot-points of Law relating to the Regal Power of interpreting Acts of Parliament and particularly such wherein Oaths are founded My Lord Coke Inst. 3. c. 74. tells us That an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common-Law or by Act of Parliament be alter'd but by Act of Parliament and saith in the Margin So resolv'd An. 26. El. in the Case of the Under-Sheriff And then saith the Oath of the King 's Privy Councel the Iustices the Sheriffs c. was thought fit to be alter'd and enlarged but that was done by Authority of Parliament For further proof whereof see the Statutes here quoted i. e. those referr'd to in his Margin and it shall evidently appear that no old Oath can be alter'd or new Oath rais'd without an Act of Parliament I have only here referr'd you to Matters of Fact in the Reign of Queen Elizabeth a Reign that the Royal Martyr in p. 3. of his Declaration to all his Loving Subjects of Aug. 12. 1642. refers to with so much honour by saying We declared our Resolution c. and desired that whatsoever mistaking had grown in the Government either of Church or State might be removed and all things reduced to the order of the time the memory whereof is justly precious to this Nation of Queen Elizabeth c. and do leave it to you to consider how Great the Power of Interpretation of Laws is in it self a Power almost infinitely greater then the discharging either the Obligations of some Penal Laws or their Penalties Pro hic nu c and as to some particular Persons as any one will grant who hath seen the extent of the Power of interpreting in the Canon Law where the Glossa ad Cap. Statuimus 4. Distinct. 4. gives us this Interpretation of Statuimus STATUIMUS i. e. ABROGAMUS And I can for this purpose tâ—…ll you that Bartolâ—…s in his Tractatus testimoniorum speaking of the Imperial Power concedendi veniam oetatis saith Carolus quarâ—…us sanctissimus nebilissimus Imperator inter 〈◊〉 multâ—… concessit ut ego meique descendentes quos legibús dâ—…los esse contigerit per un versum imperium oetatis venâ—…am concedere valeâ—…mus servataÌ„ formaÌ„ quoe legibus reperitur insâ—…rta and whereby you see that a Power of dispensing with incapaciâ—…y was by the Prince given as an inheritance But none can imagine that the Power of interpreting Laws can be so conferr'd So that therefore according to the Rule of Law Non debet cui plus licet quoÌ„d minus est non licere you neâ—…d not wâ—…nder at the Prince's dispensing with incapacity in particular cases whom you have seen interpreting Laws And you may consider that if the Queen did contrary to the measures of Law referr'd to in my Lord Coke by her sole Supream Ecclesiastical Authority seem to alter the interpretation of a Stature Oath for the better what she did found afterward its approbation in Parliament and in fine I leave it to you to consider how much the Power of dispensing with any Law may be thought Coincident with interpreting since as I shall some other time shew you at large that the dispensing with Laws is in effect the equitable interpreting that in such and such cases and circumstances they were not intended and ought not to bind but ought to be relax'd And now I must take the occasion offer'd me to give you a prospect of the Queens Dispensative Power both of the Interpretation of this Oath and of the acquittal from Disabilities that is not bounded by the Statutes of 5 o or 8 o Elizabethoe beforemention'd and wherein she again stood on the single basis of her own Supreme Authority Ecclesiastical without having recourse then to a Parliaments approbation Mr. Ney in his learned Observations on the Oath of Sâ—…premacy having spoke of the Queens Interpretation of the Oath in her Admonition and of the Parliamentary Proviso 5 o Eliz. doth thus go on There is something of Explication further meaning of the Oath in the Artiâ—…les of Religion concluded in the year 1562 and then recites the 37th Article as followeth viz. The Queens Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of 〈◊〉 Estates of this Realm whether they be Ecclesiastical or Civil in all Causes
Case or to the quite contrary in More 542. Armiger's Case I shall most consult the ease of your thoughts by directing them to what interpretation my Lord Coke in Cawdrys Case gives as to the words of the Statute of 1 o Eliz. and where he saith that that Act doth not annex any Iurisdiction to the Crown but what was of right or ought to be by the Ancient Laws of this Realm parcel of the King's Iurisdiction c. and which lawfully had been or might be exercised within the Realm The end of which Iurisdiction and of all the Proceedings thereupon that all things might be done in Causes Ecclesiastical to the Pleasure of Almighty God encrease of Vertue and the Conservation of the Peace and Unity of the Realm as by divers places of the Act appears And therefore by this Act no pretended Iurisdiction exercised within this Realm being ungodly or repugnant to the ancient Law of the Crown was or could be restored to the Crown according to the ancient Right and Law of the same And here I may tell you that as the Pope did often dispense with incapacity incurr'd by his Positive Laws and that even in the use of the Power of the Keys as by his delegating the Power of Excommunication to Lay-men and to Abbesses as aforesaid so our Kings d d anciently by their Letters Patents and Charters grant Power to those who were no Bishops Ordinaries or Ecclesiastical Iudges or Officers to inflict Ecclesiastical Censures of the greater Excommunication on Offenders and that for Causes not merely Spiritual or Ecclesiastical with Power to Certify them into Chancery and thereupon to obtain Writs de Excommunicato Capiendo as Mr. Prynne tells us in his Animadversions on the Fourth part of the Institutes and there cites the President of Edward the Third thus empow'ring the Chancellor of the University of Oxford tho a Lay-man so to do and so to Punish Breakers of the Peace Offenders against the Statutes Privileges and Customs of the University and all Forestallers and Regraters and Sellers of corrupt Meat and Wine and to Excommunicate such who refused to cleanse the Streets from filth and to Pave them before their Doors and this he saith was confirm'd by sundry succeeding Statutes of our Princes In what particulars it is by this Statute of the 25. of H. the 8th warranted that the King his Heirs and Successors may dispense with Persons and in Causes that the Papacy was never accustomed to dispense in I shall not trouble you or my self to enquire but shall tell you that Mr. Nye in his Book call'd Two Acts of Parliament and wherein are contain'd his Observations on the Oath of Supremacy doth in p. 164. cite this Statute of 25. H. 8. c. 21. and thereupon say the King's Majesty may dispense with any of those Canons or Ecclesiastical Laws meaning the King 's Ecclesiastical Laws indulge the Omission of what is enjoyn'd by them make void the Crime and remove the Penalty incurred by breach of them yea and give faculty to do and practice otherwise any Synodal Establishment or long usage to the Contrary notwithstanding in what offends not the Holy Scripture and Laws of GOD. And therefore when our Soveraign in the course of his Ecclesiastical Supremacy doth only dispense with incapacity we are sure he goes not to the height of the Dispensative Power justify'd in him by that Statute nothing having been more customary to the Papacy then rehabilitation It was upon the Revival of this Statute of Harry the 8th by that first of Queen Eliz. c. 1. that she according to the Papal custom of dispensing with the Commutation of Penance did in her Articles in the Synod began at London A. D. 1548. establish one De moderandâ solennis Poenitentioe Commutatione whereby she orders that such Commutation shall be but seldom and for weighty Causes and when it shall appear to the Bishop that that way is the safer to reform the guilty Person and that the Commutation-Money be employ'd to Pious uses And then follows the Title De Moderandis quibusdam Indulgentus pro Celebratione Matrimonii absque trinundinâ denunciatione quam bannos vocant Matrimoniales where you will find she makes Faculties and Indulgences all one And as I have shew'd you how she thought it necessary for the safety of her Subjects Consciences to exercise her Dispensative Power of interpreting and of relaxing disabilities occasion'd by the very first Statute of her Reign and how soon she put the Dispensative Power of those kinds in practice which by that Statute were restored and united to her Imperial Crown so I may observe to you that shortly after the making of the Second Statute in her Reign viz. That for Uniformity of Prayer and Administration of Sacraments which punisheth with Premunire Sequestration and Deprivation and Excommunication which while it is depending is so variously inclusive of disability the not using the Book of Common-Prayer as Publish'd in English she by her Letters Patents dated the 6th of April in the Second year of her Reign and A. 1560. alloweth the use of Latine Prayers to the Colleges of both Universities and to Eaton and Winchester Colleges with a particular Non-obstante to that Statute a Copy of which Letters Patents may be seen in Bishop Sparrow's Collection of Articles c. And I have before acquainted you in general how in her Letters Patents for the Consecrating new Bishops she expresly dispens'd with incapacity But what may perhaps seem to you as a new Indication of her being the better able to dispense with it is an Instance I shall give you of her making incapacity by her Supreme Ecclesiastical Power The instance of her thus making incapacity is a thing that Mr. Nye in his Beams of former Light reflects on as strange for he there in p. 201. referring to Queen Elizabeth's Injunctions A. 1559. Injunct 29. viz. It is thought very necessary that no manner of Priest or Deacon shall hereafter take to his Wife any manner of Woman without the Advice and Allowance first had by the Bishop of the Diocese and two Iustices of the Peace next to the place of her abode c. and if any shall do otherwise they shall not be permitted to Preach the Word or give Sacraments nor be Capable of any Ecclesiastical Benefice saith then Doth this seem strange now It seem'd very necessary in the judgment of our Governors then A. I must acknowledge that you have spoke that which is very much for my Satisfaction concerning the Dispensative Power and the Oath thus supporting one another But I wonder that I have not in any of our celebrated Writers of the Church of England read that the Contents of the Assertory and Promissory parts of this Oath and our abjuring foreign Iurisdictions Powers Superiorities and Authorities in the Oath i. e. those of the Papacy were intended in order to the statuminating our Prince's Dispensative Power pursuant to the Statutes of 25. H. 8th and 1
Godly Iealousie and tenderness to support one another and that Tender-Conscienced Prince who confirm'd this Canon did in it variously dispensare in lege as I may properly say with Allusion to Suarez de Legibus where in stead of using the Common Expression of dispensing WITH Laws he so frequently mentions that of dispensing IN them and thereby doth seem to take off somewhat of the harshness of Questions about Popes or Princes dispensing WITH Laws For when Sovereigns do dispensare in lege they really distribute their Sovereign Power throughout the Body of their respective Laws for their Preservation and as the heart doth dispense or distribute Blood in and throughout the Body-natural and the Brain Animal Spirits throughout the genus nervosum all the Body over And here the King having a tender regard to the firm and infirm Consciences of his People respectively and to their various Capacities of understanding and he being as Zealous for all their keeping their Oaths of Supremacy and Allegiance as any Prince could be for their taking them doth in the beginning of the Canon let such as you know who have been brought up to Study and who have a tenacious Memory and could remember more interpretations of the Oath then I have recounted to you if they had been given by our Princes that whereas sundry Laws Ordinances and Constitutions have been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King 's most Excellent Majesty over the State Ecclesiastical and Civil c he doth enjoyn them all to be carefully observ'd by all such Persons whom they concern upon the Penalties in the said Laws express Here then the Acts of Parliament before-mention'd and the Oaths and Articles and Canons and Authentick interpretations appear to look you in the face and the Articles particularly do so to the Clergy as having subscribed them But that Pious Prince as their Sovereign Pastor being desirous that his Clergy should gently allure the Layety with Line upon Line and Precept upon Precept to keep their Faith to God and Loyalty to himself rather then by Interpretation upon Interpretation of their Oaths would not in this Canon have them frighted with the sight of the Oaths themselves and which are there not named and all Archbishops Bishops and inferior Priests are moreover by the Canon required to Preach Teach and Exhort their people to obey honour and serve their King and that they presume not to speak of his Majesty's Power any other way then in this Canon is exoress'd but which Canon gives them a very fair licence to speak to their People of and for the King's Power of disabling and of rehabilitating his Subjects For it disables the publick Abâ—…ttors of any Position contrary to the Explications of the Regal Power therein by Excommunicating them till they repent and for the first Offence suspends them two years from the Profits of their Benefices and for the second deprives them of all their spiritual Promotions and it was in the Canon before said That if any Parson Uicar Curate or Preacher shall neglect his Duty in Publishing the said Explications c. he shall be suspended by his Ordinary till such time as upon his Penitence he shall give sufficient assurance or Evidence of his amendment and in case he be of any EXEMPT Iurisdiction he shall be censureable by His Majesty's Commissioners for Causes Ecclesiastical And the Canon makes any Offenders against it in the Universities as being exempt Jurisdictions there censureable or before His Majesty's Commissioners for Ecclesiastical Causes and so you have the Canon likewise by securing the Rights of exempt Jurisdictions asserting the Dispensative Power But if you will take Mr. Bagshaw's word in his first Argument in Parliament concerning the Canons he there tells you that that very Canon of the Convocation containing the Explanation of the Regal Power did necessarily imply their declared sense of the Laws being dispens'd with For saith he in making Determinations concerning Royal Power they have done against Law and have medled with things of which they have no Conusance for the Exposition of them belongs to the Iudges of the Land and they have no more right to expound them then the Iudges have to expound Texts of Scripture And we know that our Laws have been so careful of preserving the Judges right of interpreting them that they allow not the Bishops and their Officials Power to interpret any Acts of Parliament tho made about Matters of their Jurisdiction and Matters merely Spiritual as appears out of Hobart 84. Spenloe's Case and Coke 3. Inst. where he saith that an Act of Parliament made about things merely Spiritual shall be construed by the Common Law 〈◊〉 Judges But how far the disabling by the Power of His Majesty's Commissioners for Ecclesiastical Causes such who explain'd not the Regal Power according to that Canon might appear as an Instance of the Prerogative of Disabling and of occasional re-ennabling Mr. Bagshaw's second Argument in effect exposeth it to Consideration by mentioning that the last Letters Patents of the High Commission were Mich. 9. Car. in which are contain'd all things wherein the Commissioners were to meddle and that therefore the Punishing of any there on the account of this new Canon made not a year ago could not be pursuant to those Letters Patents His first Argument likewise wherein he gives his Iudgment that by Law that Convocation was dissolv'd by the Dissolution of the Parliament may let us see how far they in making any Canon depended on the Dispensative Power of Prerogative But any one who hates Faction will find that that Author did needlesly inflame the minds of that Parliament of Forty against those Canons and particularly with the foremention'd Exception against the first on the Account of the Explanation of the Regal Power having not been made by the Iudges and where the Exception doth through the sides of the Convocation strike at the honour of that King by whom those Canons were Confirm'd His Majesty in his memorable Speech at the Prorogation of the Parliament on the 20th of October 1628. occasionally said I Command and all you that are here to take notice of what I granted you in your Petition i. e. the Petition of Right but especially you my Lords the Iudges for to you only under me belongs the interpretation of the Laws for none of the Houses of Parliament joynt or separate have any Power either to make or declare a Law without my Consent Nor will any one wonder at the tenderness of any Crown'd heads in preserving their Right as to the interpretation of their Laws who hath consider'd that the usage of the ancient Romans in making their Civil Law to be among the things Sacred and Ceremonies of their Gods preserv'd in the Collegium Pontificum and appropriating the interpretation of it to their Pontifices did induce Augustus to be inaugurated Pontifex Maximus and
the other c. that the Wisdom of that House in acting as it hath done in many Conjunctures hath put an end to many ferments accidentally occasion'd by others mistakes about Prerogative and whereby that august Assembly did sometimes Cunctando restituere rem and by its forbearing out of tenderâ—…ess for Prerogative to give judgment about it hath often to the Satisfaction both of the Prince and People left the Regal Rights in their ancient quiet Estate I shall for this purpose observe to you that I once reading to the late Earl of Anglesy when he was Lord Privy Seal what I had in a Manuscript of mine set down as the Fact of what had passed between the late King and the House of Commons concerning his Declaration of Indulgence on March the 15th 1671. and the Penal Laws being thereby suspended and the suspension of which the Commons then urged could not be but by Act of Parliament and whereupon they apply'd to the King for the Vacating that Declaration his Lordship did dictate to me in order to my Compleating the state of that Fact and which I writ from his Mouth as followeth viz. But it is to be observ'd upon this whole Transaction between the King and the House of Commons that the Lords had no hand in the Address to the King about this great Point altho it be uncontroverted that the Lords are the only Iudicatory that can determine any controverted Point without an Act of Parliament and either the King or the Commons might in a particular Case have had this Point brought by Appeal to the Lords if they had pleas'd and consequently might have effected the judicial decision of the same A. In your State of that part of the Fact that concern'd the Commons did they Address against the Dispensing with Acts of Parliament B. No but only against the Suspending them which are things of a different Nature The same House of Commons by having Iuly the 10th 1663. resolved That His Majesty be humbly desired to issue forth his Proclamation for the punctual and effectual Execution and Observance of the Act of Navigation without any Dispensation whatsoever whereby the Act may be in the least violated and to recal such Dispensations as are already granted c. did virtually shew a Deference to His Majesty's right of Dispensing Nay let me tell you that the very many Acts of Parliaments which expresly provide against the Crown 's dispensing by Non-obstante in some particular Cases may all be cited as Presidents or Iudgments of Parliaments for the propping up the Dispensative Power and of Parliaments having admitted that Power in our Kings the exercise of which they provide against and desire to take away in such particular Cases But by referring to the Fact of the entercourse between the late King and the House of Commons about the suspending the Penal Laws I have took occasion to point out to you the Wisdom of the Government in then passing that affair over without a judicial decision And I can give you an instance of the Prudential measures formerly observ'd by Persons who made a great figure in the Administration of the Ecclesiastical Government of the Church of England and who at the Consecration of Bishop Manwaring when on the usual Process at Consecrations to call all Persons to appear to shew cause why the Elect should not be Confirm'd some then appear'd objected against him that upon his being Impeached 3 o Car. 1. by the Commons the Lords had given Iudgment against him to disable him from all Preferment in the Church forbore to consider the merits of the Exception and throwing them off by a Pretence of their being defective in some Formalities of Law went on in the Confirmation And which is more I can tell you that long afterward viz. A. 1640. the Lords highly resenting both the Pardon and Bishoprick he had obtain'd and calling to mind the Sentence they had pronounced against him did on the 18th of April that year refer the Consideration thereof to their Grand Committee for Privileges it being also moved that what can be alledged on the Lord Bishop of St. David ' s part either by Pardon Licence or otherwise may be produced and seen at the Sitting of the Lords Committees for their full and clear understanding and better expedition in the business and on the 21st of April that year order'd that on the following Monday the Records be brought into the House that the House might determine the Cause and on the 27th of April following order'd the Cause to be heard the next day and upon which day some such fatal Sentence being expected against the Bishop as And his Bishoprick let another man take by reason of his having been judicially disabled His Majesty commanded that Bishop not to Sit in Parliament nor send any Proxy thither and the serment of the debate went off without any Iudgment given by the Lords that might touch Prerogative in the Point And if in the year 1640. when the air of mens fancies was so much infected with the Pestilence of Faction so much tenderness was shewn to Prerogative and that too in the Case of a Criminal whom the Commons had for so many years made the great object of their anger as one whom they look'd on as a Proditor or Betrayer of his Country and Betrayer of their Properties the Loyal may well say quid non speremus as to any future ferment that can rise in Parliament being allay'd without Prejudice to the Crown The Iournals of Parliament in the Beginning of the Reign of King Charles the First do tell us of the great ferment about the Pardon of Bishop Montague whom the Commons had impeach'd before the Lords and who after the Parliament was Prorogued to the 4th year of the reign of that Prince had obtain'd his Pardon in the time of the Prorogation and that such Pardon was by the Commons question'd and that such questioning soon evaporated But according to that Great Saying of Sir Harry Martin in his Speech at a Conference between both Houses as you will find it in Râ—…shworth after he had mention'd the inconvenience of nice debates about the Original Latitude and Bounds of Sovereign Power viz. I have ever been of opinion that it is then best with Sovereign Power when it is had in tacit veneration and not when it is prophaned by Publick Hearings and Examinations you will find that it hath been the usual Practice of our great Loyal Patriots in many Critical Conjunctures of time to prevent the popular Criticising on Controverted Points of Prerogative and to provide for the ease both of Prince and People by giving no other rule in the Cause then the putting it off in longissimum diem A. I suppose that excellent Political remark of Sir Harry Martin's was so made by him in the Conjuncture of the Petition of Right I have read of the great ferment the Petition of Right made in the beginning of the Reign
Vice-gerent for ecclesiastical Causes and however incapacitated by some positive humane Laws to make that figure he did but uti Iure suo And I shall tell you as to the subject of the weight of one Man or the consequences of disabling one Man that we were upon if you consider how much the excesses of the Papal Usurpations and the over-ballance of the Monastic Revenue in the Nation were removed by the parts and endowments of Cromwel the Vice-gerent in Matters Ecclesiastical you may easily imagine that if the measures of the Canon-Law and Canonists and the long receiv'd customs or any humane Law had then prevail'd for the disabling of Cromwel cum effectu from bearing Office or intermedling in Ecclesiastical Jurisdiction as the Kings Vice-gerent what a Church of England we should have at this time enjoy'd You may well imagine how much the Disabling of Lay-men from intermedling in ecclesiastical Iurisdiction had passed for a general Custom here when Bishop Downham in the Defence of his Consecration Sermon p. 185. saith that as for lay-Chancellors or Commissaries the Bishops in the times of S. Austin and S. Ambrose had none and that not so much as the Steward of a Church might be a Lay-man and when the Puritan Writers did still upbraid our Discipline on the account of the incapacity of Lay-men to be Bishops Chancellors as adjudged by the ancient Canons and with the Canon of indecorum est laicum esse vicarium episcopi c. and by which Canon the Bishop who made a Lay-man his Vicar was declared to be contemptor Canonum But it was the Regal Power of Dispensing with the Canons and Customs that disabled Lay-men from intermedling in ecclesiastical Jurisdiction that laid the foundation of the Reformation in Harry the 8th's time as it was the same Power of dispensing with the Canons and Customs that disabled Clergy-men from intermedling in saecular Employments that perfected the superstructure of it in the reign of Edward the 6th that young Iosias as was before mention'd Fuller tells us in his Church-history that Harry the 8th's making a Lay-man his Vicar-general was the greatest instance of his ecclesiastical Power that ever was given And my Lord Herbert in his Harry the 8th doth seem to reflect on Cromwel's not being thought capable of that Office for his words on his being made the King's Vicegerent are It was thought strange by the People because there was no Example of any Kings of Israel the lawfully in their own Persons enjoying the mixt Power of the Temporal and Spiritual or of the Pope's having deputed Ecclesiastical Power to a Lay-man But as to his saying that there was no Example of the Pope's deputing Ecclesiastical Power to Lay-men I shall observe that his Lordship had not consider'd that according to the Glosse in C. bene quidem Distin. 96. Laicus potest excommunicare ex Papae delegatione and that tho a Bishop cannot by the Canon-Law delegate his Power to a Lay-man for that a Bishop is not above the Ius Commune Positivum of the Pope yet the Canonists hold that the Pope by the Plenitude of his Power may dispense with his own Laws and by so doing delegate the Power of Excommunicating to Abbesses altho jure Communi as not having the Power of the Keys they are disabled from so doing and that Pope Urban the Second constituted a Lay-man Roger Earl of Sicily and his Heirs his Legates a latere in that Kingdom by way of Inheritance for ever and that our Henry the Second writing to the Pope to recall Beâ—…ket's Legatine Power and to confer it on the Archbishop of York the Pope refused so to do but offer'd the Legatine Power to the King himself and sent Letters to the King for that purpose but which the King in scorn threw away The Legatine Powers are de jure Communi as the Canonists tell us very great and allow the Legates to visit or cause to be visited by such as they shall think fit all Churches Monasteries Colleges Universities Hospitals and do authorize them to make new Statutes and Orders and not only to receive Appeals from ordinary Judges and Delegates but to judge and decide all Ecclesiastical Civil and Criminal Causes and that summarily and sine formâ figurâ Iudicii to make Prisoners of Bishops and send them in Custody to the Pope to bestow Benefices that were vacant to unite Churches to interpret the Mandates of the Pope and if the Pope hath entrusted any thing to be done by them yet to entrust the doing thereof to others to execute all their Jurisdiction in Places exempt as well as not exempt and to dispense in all Cases wherein they are not Prohibited and to exercise the Iurisdiction of granting Indulgences and to dispense with pluralists and with the incapacity of Sons immediately succeeding their Fathers in Church-Livings and to give Absolution to the Excommunicate in many Cases reserv'd to the Apostolick See and likewise in many Causes inflictive of Excommunication ipso jure and in many Cases to restore such as are deposed and degraded and to rehabilitate them even by restoring them to Fame All these Branches of Authority with many others not named here were it seems offer'd by the Pope to our King but which he holding as Vicegerent to the King of Kings and by his Word might well refuse their tenure from the servus servorum and by his Bulls All our Roman-Catholick Princes having made an inroad on the Papal incapacitating Canons by way of Dispensation when they made their Lay-Judges Super-Intendents over their Bishops and who were by Lay-men required to Absolve such who were disabled by Excommunication and to receive their bounds and measures in Ecclesiastical Proceedings by Writs of Prohibition and Consultation and Attachment issued out by Lay-men the exercise of the Regal Power in Ecclesiasticks distributed and dispers'd among so many Lay hands did not seem so powerful nor invidious as when the united Beams of Ecclesiastical Vice-gerence met in the Ministry of one Lay Person and dazled the Eyes of the whole Kingdom and when according to the Power that was 37 o. H. 8. declared by the Parliament to be given to the King by Holy Scripture he made Cromwel his Vice-gerent for the Ecclesiastical Jurisdiction But as that Statute intimating that the Councils and Constitutions Provincial that ordain'd that no Lay-man should exercise or occupy any Iurisdiction Ecclesiastical did stand and remain in their effect not abolish'd by his Grace's Laws and did sound to appear to make greatly for the usurped Power of the Bishop of Rome and to he directly repugnant to his Majesty as Supreme Head of the Church and Pretogative Royal his Grace being a Lay-man altho such Decrees Ordinances and Constitutions were by the Statute made in the 25th year of his Reign intended to be utterly abolish'd frustrate c. but yet that the contrary thereunto being not used by Archbishops Bishops c. i. e. that they had not all that
o Eliz. beforemention'd B. I can easily direct you to such a Writer of our Church who hath done the thing to the universal Satisfaction of the Inquisitive as to this Point and that is the Lord Primate Bramhal in his Book of Schism Guarded He saith there in p. 330 and 331. As our Grievances so our Reformation was only of the abuses of the Roman Court. Their bestowing of Prelacies and Dignities in England to the Prejudice of the right Patrons Their Convocating Synods in England without the King's leave Their Prohibiting English Prelates to make their old feudal Oaths to the King and obliging them to take new Oaths of Fidelity to the Pope Their imposing and receiving Tenths and first Fruits and other Arbitrary Pensions upon the English Clergy and lastly their Usurping a Legislative Iudiciary and Dispensative Power in the exterior Court by Political Coaction these are all the branches of Papal Power which we have rejected This Reformation is all the Separation that we have made in point of Discipline And for Doctrine we have no difference with them about the old Essentials of Christian Religion and their new Essentials which they have patch'd to the Creed are but their erroneous or at the best probable Opinions no Articles of Faith. Thus then according to these measures you see how much the hinge of the Reformation turns on the Usurpation of the Papacy in Dispensing for in all these particulars enumerated the Pope dispens'd with the King's Laws And he had before in p. 26. said This Primacy neither the Ancients nor we deny to St. Peter of Order of Place of Preheminence If this first movership would serve his turn the Controversie were at an end for our parts But this Primacy is over-lean the Court of Rome have no gusto to it They thirst after a visible Monarchy on Earth an absolute Ecclesiastical Soveraignty a Power to make Canons to abolish Canons to dispense with Canons to impose Pensions to dispose of Dignities to decide Controversies by a single Authority This was that which made the breach not the Innocent Primacy of St. Peter And afterward in p. 149. he saith But I must contract my Discourse to those Dispensations that are intended in the Laws of Henry the 8th that is the Power to dispense with English Laws in the exterior Court Let him bind or loose inwardly whom he will whether his Key erre or not we are not concern'd Secondly As he is a Prince in his own Territories he that hath Power to bind hath Power to loose He that hath Power to make Laws hath Power to dispense with his own Laws Laws are made of Common Events Those benign Circumstances that happen rarely are left to the Dispensative Grace of the Prince Thirdly As he is a Bishop whatever Dispensative Power the ancient Ecclesiastical Canons or Edicts of Christian Emperors give to the Bishop of Rome within those Territories that were subject to his Iurisdiction by Humane right we do not envy him so he suffer us to enjoy our ancient Privileges and Immunities freed from his Encroachments and Usurpations The Chief ground of the ancient Ecclesiastical Canon was let the old Customs prevail A possession or Prescription of Eleven hundred years is a good ward both in Law and Conscience against an Human Right and much more against a New pretence of Divine Right For Eleven hundred years our Kings and Bishops enjoy'd the sole Dispensative Power with all English Laws Civil and Ecclesiastical In all which time he is not able to give one instance of a Papal Dispensation in England nor any shadow of it when the Church was formed Where the Bishops of Rome had no Legislative Power no Iudiciary Power in the exteriour Court by necessary Consequence they could have no Dispensative Power He then in p. 169. mentions the said Statute of 25. H. 8th and having referr'd to the Proviso there to shew that its intent was not to vary from the Church of Christ in any other things declared by the Holy Scripture and the Word of God necessary to Salvation he saith then followeth the scope of our Reformation only to make an Ordinance by Policies necessary and convenient to repress Vice and for good Conservation of the Realm in Peace Unity and Tranquillity from ravine and spoil ensuing much the ancient Customs of this Realm in that behalf not minding to seek for any relief succours or remedies for any worldly things and Humane Laws in any cause of necessity but within this Realm at the hands of your Highness your Heirs and Successors Kings of this Realm which have and ought to have an Imperial Power and Authority in the same and not obliged in worldly Causes to any other Superior Thus then you see this Prelates sense of how much the taking away the Pope's Dispensative Power here and restoring that Power to the Crown was the Soul of the Reformation and tota in toto of it And this Act you see revived by the First of Elizabeth without garbling it in the least and the Dispensative Power thereby restored to her her Heirs and Successors and a Declaration that no Subjects of the Realm need for any worldly things and Humane Laws in any Cause of Necessity seek for any relief but within this Realm at the hands of our Soveraign as aforesaid And I shall tell you that the Bishop in the next Page refers to the Statute of the First of Eliz. and saith on his view of both Statutes Whatsoever Power our Laws did devest the Pope of they invested the King with it And of this the Power of Rehabilitating any of his Lay or Clerical Subjects is a part as was beforesaid A. You have cited somewhat out of this Great Champion for the King's Supremacy and for the Church of England and reputed to be the most clear Vindicator of it from Schism our Church hath had which hath created more anxiety in my mind about the Assertory part of the Oath then any thing hath done For the words in the Oath are I do utterly testify and declare c that no Foreign Prelate or Person hath or ought to have any Iurisdiction Power Ecclesiastical or Spiritual within this Realm and you have brought in the Primate granting that the Pope hath Power here to bind or loose inwardly and asserting that he hath here a Spiritual Power B. You judge right of the Bishop's Opinion and which is indeed express'd throughout his whole Book He tells us in p. 25. That St. Cyprian made all the Bishopricks in the World to be but one Masse whereof every Bishop had an entire part And he saith in p. 60 and 61. That neither King Harry the 8th nor any of our Legislators did ever endeavour to deprive the Bishop of Rome of the Power of the Keys or any part thereof either the Key of Order or the Key of Iurisdiction I mean Iurisdiction purely Spiritual which hath place only in the inner Court of Conscience and over such Persons as
clear'd of those doubtful Expressions in them which cause their scruples c. whereby they may to the entire Satisfaction of His Majesty and the Nation fully testifie the Allegiance and Fidelity of faithful Subjects and true Patriots and no longer remain as they generally now do distrusted c. But there was another Book that year Publish'd by a Roman Catholick of which the title was A seasonable Discourse shewing how that the Oaths of Allegiance and Supremacy as our Laws interpret them contain nothing which any good Christian ought to boggle at and where the Saying of Tertullian is quoted Bonae res neminem scandalizant niâ—… malam mentem c. and where having taken notice of the Queen's Admonition and the Proviso of the Statute of 5 o Eliz. and the 37th Article and the Iudgments of the Bishops Bramhal and Carleton as Sir Iohn Winter had done and for the same purpose giveth his Judgment that the taking of those Oaths gives no Scandal and he in p. 38. averrs that Sir John Winter told him many years ago that he had the Iudgment of Sorbouists Secular Priests and Iesuites that he might take the Oath of Supremacy declaring the sense which the Law allows And I shall here by the way take notice that as to the Oath of Allegiance F. Cressy saith in his Epistle Apologetical p. 111. that few Roman Catholicks if any at all would refuse that Oath if that unlucky word heretical were blotted out c. or if they might change heretical into contrary to the Word of God which he saith he verily believes was the sense intended by King James But now after all this said I shall tell you that according to what is observ'd by the generality of Writers oâ—… Princes easing their Subjects by their Dispensative Power of interpreting their Laws viz. That they take occasion then to intermix with such interpretation somewhat else that may advance their Power there were Fears and Iealousies that some of these foremention'd interpretations tho lessening the spiritual Power of the Crown might enlarge its temporal and particularly such as in the Queen's Admonition mention'd the Duty Allegiance and Bond acknowledg'd to be due to Harry the Eighth and Edward the Sixth and as I partly before hinted such as in the Proviso in the Act of the 5th of the Queen that ratifying the Admonition hath in it the additional words of acknowledging in her Majesty her Heirs and Successors the Authority that was challenged and lately used by Harry the Eighth and Edward the Sixth and such as in the 37th Article explain'd the Queen's Power by that given by God himself to all GODLY Princes in Scripture and where notwithstanding the Word Godly being put in there to gild the Pill of the Absolute Power of the Iewish Kings and to make it be the more easily swallow'd the real meaning was the Power given to all the Iewish Kings for the right of their Power depended not on their Godliness and such as in the Canons of King Iames ipso facto Excommunicate all that do not give the King the same Authority in Causes Ecclesiastical not only that the Godly Kings had among the Iews but what the Christian Emperors had in the Primitive Church And there too notwithstanding the word Christian might be for the like reason put in as that of Godly was and to cause the owning of that absolute Imperial Power which pursuant to the Lex Regia was used by the Christian Emperors as well as their Heathen Predecessors in punishing Heterodoxy ad libitum the meaning of the Canon was not to devest Heathen Emperors of their right of judging about Matters of Religion and as to which Grotius in his Letter to the States Embassador having said neither would Paul have appeal'd to Nero had he judged that no right of Iudging in a Case of Religion belong'd to him addeth Wherefore as Trajan Civilly honest Nero wicked are equal in the Right of Government so Pious Constantine and Impious Nero are equal in the right of judging in aptitude and skill unequal The Canons therefore of Forty enjoyning the Explanation or Interpretation of the Regal Power there inserted to be one Sunday in every Quarter of the Year read by the Clergy to their Flocks did well provide for the cautioning them as against the setting up any independent Coactive Power either Papal or Popular so against Fears and Iealousies relating to their Properties in their Goods and Estates and by that Explanation they shew that Christ came not to Undermine or Disturb but to Confirm the Civil Government of Pagan Princes and that in the first times of Christ's Church Christians were ready to submit their very Lives to the very Laws and Commands of those Princes A. But doth that Explanation of the Regal Power assert any thing in Defence of the Dispensative part of it B. You see how without wyre-drawing any Consequences the very first Paragraph of the Explanation doth both strengthen the foundation of the assertory part of your Oath we have been so long discussing and strike out new lights in the Fabrick of the Oath You see it tells you downright that A Supreme Power is given to the Order of Kings by God himself in the Scriptures which is that Kings should rule and Command in their several Dominions all Persons of what rank or estate soever c. And the Explanation doth effectually enough provide by the second Paragraph that Kings should take care that none in their Dominions but the stubborn and evil doers may be restrain'd with the Temporal Sword for it saith The Care of God's Church is so committed to Kings in the Scripture that they are commended when the Church keeps the right way and taxed when it runs amiss and therefore her Government belongs in chief to Kings For otherwise one man would be Commended for another's Care and taxed but for another's Negligence which is not God's way And this is an Argument taken ab absurdo and the strongest that can be used in Law and not to be set aside but by the alledging something as more absurd against it and amounts to this that it is absurd that Kings who are commended when those who are not stubborn nor evil doers are not under any restraint by the Temporal Sword for the Church runs not the right way when that Sword is a terror to any but evil doers and tax'd on the contrary being done should not be judged to be authorized to exempt those from all restraint thereby And when the People are not liable to blame for Kings erring in their Judgment about the Persons to be so exempted from restraint nor to be commended or rewarded for their not erring therein can any thing be more absurd then for the independent Coactive Power of Kings it self to be restrain'd to the Punishing such as they shall judge Innocent But the two tenderest things in the World are Sovereign Power and Conscience and both of them were made with a
likewise all the Roman Emperors from Augustus to Gratian to assume that title and that the Christian Emperors tho as one saith à fucris Romanorum hoc Pontificis nomine abhorrebant in suis tamen Elogiis nummis passim se Pontifices maximos dici passi sunt quod ad hodiernum diem râ—…dera Romana inspicientibus satis constaâ—… Nor yet will any one find Cause to reflect on the memory of that our Prince for want of consulting his Iudges in the interpretation of his Laws in general nor even of this his Ecclesiastical Law in particular about the Explanation of the Regal Power For Heylin in his History of Archbishop Laud saith that so tender was His Majesty that before he gave his Consent that the Canons of 1640. should be tender'd to the Clergy to be subscribed â—…e caus'd them to be publickly read in Councel and before the Iudges there and by all whom they were approved c. And if Mr. Bagshaw had consider'd what himself had said of the Iudges having no Right to Expound texts of Scripture and how the Convocation in that Canon did introduce the Supreme Power given to Kings by God himself in the Scripture and explain'd by Regal Power Kings ruling and commanding in their several Dominions all Persons of what rank or estate soever and that they should restrain and punish with the Temporal Sword all stubborn and evil doers and likewise what was before mention'd in the Second Paragraph of the Explanation viz. of the Care of God's Church committed to Kings in the Scripture he would have found the Interpretation of the Regal Supremacy as built on the Scriptures by that Caâ—… and approved too by the Judges of the Land to have not been exorbitant The words in the 13th of the Romans of the Higher Powers being the Ordinance of God and of bearing not the Sword in vain and of being the Minister of God and a revenger to execute wrath on him that doth Evil and of rendring therefore to all their dues fear to whom fear honour to whom honour and the words in S. Peter of submitting our selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or unto Governors as unto them that are sent by him for the Punishment of evil doers and for the Praise of them that do well and other passages in Scripture and particularly in the Old Testament were in the eye of the Convocation in their so explaining the Regal Power and you may if you please have them now in your eye while you are considering the Case before you and see how far you are bound to submit to all Governors who shall be employ'd by the King in the executive Power of his Laws against evil doers and for the praise of them that do well and how you are not to disparage such Governors who are so sent for such praise But it is not to be wonder'd at that the Iudges approved of the Contents of that Explanation of the Regal Supremacy and particularly of the Power of punishing evil doers as inherent in the Crown since the same hath been declared so by so many Acts of Parliament and of which I shall name one to you that I have not yet referr'd to viz. that of 1 o Mariae c. 1. Sess. 2. of the Second Parliament of which the title is The Regal Power is in the Queens Majesty as fully as it hath been in any her Progenitors and where 't is said that For as much as the Imperial Crown of this Realm with all Dignities Honours Prerogatives Iurisdictions and Preheminences thereunto annex'd united and belonging by the Divine Providence of Almighty God is most lawfully and rightfully descended and come to the Queen's Highness that now is c. and invested in her Royal Person according to the Laws of this Realm and by force and virtue of the same all Regal Power Dignity Honour Authority Preheminence doth appertain and of right ought to appertain and belong unto her Highness as to the Sovereign Supreme Governor and Queen of this Realm and the Dominions thereof in as full large and ample manner as it hath done heretofore to any other her most noble Progenitors Kings of this Realm the ample manner of Harry the 8th's Power is not therein excepted Nevertheless the most ancient Statutes of this Realm being made by Kings then reigning do not only attribute and refer all Prerogative Preheminence Power and Iurisdiction Royal unto the name of King but also do give assign and appoint the Correction and Punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King c. And considering that a Popish Parliament of Queen Mary's did give this their august Declarative sense of the executive Power of punishing all Offenders against the Regality and Dignity of the Crown which is the great Offence taken at Popery and the Laws of the Realm as belonging to or inherent in our Kings by virtue of their being Supreme Governors of the Realm and that this Supreme Power was Committed to her and her Progenitors by the Divine Providence of Almighty God shall your acknowledgments of such Supreme Power of your Prince be narrower then any of Papists You know how wary and careful our English Princes have always been that their Subjects might see them hold the reins of the Executive Power of the Law in their hands and that none but the stubborn and evil doers need fear the being over-run by it And while I happen to think of the memorable Expression of a Loyal Lord in a Speech in a late Parliament of the unreasonableness of any ones suffering merely by the word Proditoriè being put into the charge of a thing that was not in its self Evil and as if it were said that such an one did traiterously pass over the Thames in a Boat I likewise think of the reasonableness of our Laws in providing for the common Safety by the Prince being allow'd to hold the Sail of the Executive Power in his own hands and which otherwise if ty'd fast about the Boat might cause it upon any sudden gust of wind to be overset You know therefore how King Iames the First in his Apology for the Oath of Allegiance in Answer to the Pope's first Breve thought himself obliged in justice for the maintenance of that Executive Power of the Crown to say as to the Pope's expressing his sorrow for that Persecution which the Catholicks sustain for the Faiths sake wherein beside the main untruth whereby I am so injuriously used as if he had thought it a personal injury to himself that any one in his Realm should be persecuted for Religion I must ever avow and maintain as the truth is according to mine own knowledge that the late QUEEN of famous Memory never PUNISH'D any Papist for Religion He doth not say her Laws and Ministers but SHE never punish'd c. He well
of the Advocate for Conscience Liberty discoursing of the Oath of Supremacy in p. 181. seq saith That Luther Calvin Knox Gilby disliked it and mentions that a Iurisdiction purely spiritual was communicated to H. the 8th by his Supremacy and assumed by him and that he wanted his Spiritual By-title of Supremacy to justifie his Divorce aâ—…d his taking the Church Revenue into his hands and that the Protectorship in E the 6th's time by virtue of the Oath of Supremacy continued to make new Church-Laws Institutions c. and that Queen Elizabeth reassumed this Iurisdiction having a greater necessity for it then her Brother because her Marriage was declared null by the Pope So then the state of Protestancy abroad and at home call'd on the Queen to distribute or dispense her Supreme Power in her Law by her Interpretation making a change not of it but in the body of it and which had it been changed by a repeal in Parliament for another would have seem'd to blemish her figure of semper Eadem and have reflected on the Understandings and Consciences of those who had before took the Oath There was then in that Conjuncture an universal outcry of Conscience that Sin lies at the door a thing worse then Hannibal ad Portas a burthen that hath caus'd all the Groans of the Creation that ever happen'd And where there is Periculum animae there is always Periculum in morâ and which the Queen 's authentick Interpretation did remove and which was approved by the next Parliament and no noise made or complaining heard in our streets about any seeming Alteration made in the Law or Oath it self by the Prerogative of interpretation or acquittal from the disabling Punishments then exercised And it is but congruous to humane Nature and common Policy in men when they see any thing not ill in it self done that hath eminently conduced to make the World easie not to embarass such thing with litigious scruples about the fieri non debuit nor to adventure to trouble the World again when it is inclined to and resolv'd upon its rest Some thoughts of this Nature probably inclined my Lord Coke to shew the Complaisance he did not only to King Iames his incapacitating Canon about the double Subscription but as to the Oath against Simony that of Canonical obedience and which inclined Judge Croke to be pleas'd with the Canons of 1640. tho containing the Oath with an Et caetera and which made the Iudges so apt to over-rule some of Sir E. Coke's Exceptions to the Sheriffs Oath as I have mention'd You may indeed find that some among the Puritans in some Conjunctures in Queen Elizabeth's time did presume to reproach the Government of the Church with her having dispens'd with the disability of some Persons incurr'd by Act of Parliament The Author of the famous Book publish'd in her Reign call'd An Abstract of certain Acts of Parliament hath in the Conclusion these two factious Queries viz. Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Chancellor and so may Excommunicate Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Register contrary to an Act of Parliament The Author intendeth there to referr to the Statute of 37 o. H. 8. c. 17. and as he had before expresly done in p. 196. Seq and of which Statute we have so much discours'd and he in p. 201. instanceth in many Lay-men who were not Doctors of the Civil Law and yet then exercised Ecclesiastical Iurisdiction He had too in p. 196. took notice that as that Statute establish'd and confirm'd to the King and his Successors and so unto our most Gracious Soveraign the Queen's Majesty that now is lawful Preheminence Power Superiority and Lordship over all Persons within her Dominions of what state or Condition soever touching Punishments for any Heresies Errors Vices Schisms Abuses Idolatries Hypocrisies and Superstitions springing or growing by means of any her disobedient and disloyal Subjects so hath her Majesty by her Injunctions publish'd that her Highness did never pretend any Title or challenge any Authority to punish any of her Subjects for any of the said Offences by Censure Ecclesiastical in right belonging to her Royal Person but that her Highness meaning and intent is and always hath been to commit the execution thereof always to the Ecclesiastical State of her time and he then sets down her Interpretation in the Admonition But had that Author consider'd how it was declared by that Statute that by Holy Scripture all Authority and Power is given to His Majesty and all such Persons as His Majesty shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever and that this Statute was revived by the 1st of Eliz. he would not have wonder'd at the Queen's allowing that Statute to be dispens'd with as it was Nor would any one therefore wonder at the Royal Martyr in the 12th and 13th Canons of A. 1640. Condescending to humour the Complaints of the Puritans by an equal Interpretation of that Statute of 37 o H. 8. and by dispensing with it as he did and that so far as to the disabling Lay-Chancellors to proceed in such Censures as they were enabled by that Statute to do Mr. Bagshaw in his first Argument in Parliament concerning the Canons thus reflects on the Clergy for those two Canons viz. Concerning the 12th and 13th Canons touching the freeing and discharging of Chancellors and Officials from executing any Excommunication in their own Person or any Censure against the Clergy because they are Lay-men I say that in doing and enacting this they have done quite contrary to an Act of Parliament still in force in taking from them this Power of exercising the Censures of the Church which that Statute gives them which I did look when some Civilians now in the House should have maintain'd And altho it were to be wish'd that only Clergymen should have this Power of Excommunication and other Censures of the Church yet seeing an Act of Parliament hath given this Power to Lay-men it is high Presumption to make Canons against it But he well knew that after the stamp of the Royal Authority put on these Canons as well as before Lay-men in the Court of Delegates did Excommunicate and as they did in the high Commission And you may observe it that in the Commission granted Primo Elizabethae to her Commissioners pursuant to the Statute of that year there were but two Clergy-men and those Bishops and 17 Lay-men My Lord Coke Inst. 4. c. 74. writing of the High Commission in Causes Ecclesiastical saith There is no question but the Commissioners for such Causes as are committed to them by force of this Act may if the Commissioners be Competent proceed to deprivation of the Popish Clergy which was the main object of the Act or to punish them by Ecclesiastical Censures c. And without question if
the Commissioners be COMPETENT that is if they be spiritual men they may proceed to Sentence of Excommunication which may right well be Certify'd as well as Excommunication before Commissioners Delegates both of these Authorities being under the Great Seal c. And Excommunication certify'd ly Commissioners Del gates hath been allowed as it appeareth in 23. Eliz. Dyer 371. And in many Cases Acts of Parliament have adjudged men Excommunicate ipso facto But if they be meer Lay-men the fault is not in the Statute or in the Law but in the Nomination and upon Certificate made of the Excommunication according to Law a Significavit or Cap. Excom shall be awarded out of the Chancery for the taking and imprisoning the Bodies of such Excommunicate Persons But had his Lordship as I said in the Case of the other Author consider'd how by the Statute of 37. H. 8. it was declared that by Holy Scripture all Authority and Power is given to His Majesty and to all such Persons as he shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever he would not I believe have thought Lay-men incompetent or incapable Persons so to have acted in the high Commission or Delegacy or have said there was any fault in the Nomination of Lay-men And yet you see my Lord Coke shews you how the Government then acquiesced in such Nomination and assisted the execution of the Sentences given by such as he thought incompetent Nor are we therefore to wonder at what Mr. Bagshaw mentions of the Civilians in the House of Commons not objecting that the King had done contrary to an Act of Parliament in taking from Bishops Chancellors and Officials the Power of exercising Church Censures given them by the Act and which by the Power declared in that Act to be given him by Holy Scriptures he might have either continued to them or abridged or taken away the exercise thereof from them if he had pleas'd And considering that the Lex Scandali doth equally oblige Kings as well as Subjects in Point of Conscience it is not to be wonder'd that that Tender-conscienced King did in that Conjuncture think himself obliged so equitably to make his Interpretation of that Statute as in complaisance with some of his Subjects who had took offence at Lay-Chancellors Power of Excommunicating to disable them to it I told you before how that Pious Prince did in complaisance with the Fathers of our Church think himself obliged to exercise his Regal Power of interpreting or declaring and when in A. 1637. he issued out his Proclamation Declaring that the Bishops holding their Courts and issuing Process in their own Names were not against the Laws of the Realm and that the Iudges resolutions were notify'd therein to that purpose and that the ferment about that Point was setled and the Bishops issuing out their Processes was setled too the which Proclamation too you will find Mr. Bagshaw mentions in his second Argument where p. 40. he tells you of the Bishop's having procured a Proclamation A. 1637. declaring the Opinions of the Iudges that the Statute of 1 o Edw. 6. c. 2. is repeal'd and of no force at this day and that Bishops may keep Courts in their own Names And I shall now tell you that as in the year 1637. the Bishops were in so full and peaceable possession of their Privilege of issuing out of their Processes in their own names by means of what His Majesty had declared pursuant to the Resolutions unanimously given by all the Iudges and the Barons of the Exchequer and of which Sir E. Coke saith Inst. 2. that they are for Matters of Law of highest Authority next to the Court of Parliament so by Iudgment of Parliament the settlement of that Controversie by virtue of His Majesty's Declarative Power so exercised was afterward approved A. That is a thing I would gladly hear of for one would think that the exercise of the Regal Power of Declaring or Interpreting what relates to an Act of Parliament might occasionally heighten a ferment in stead of abating it B. You will find little or no cause if you consult our ancient English Story and there see how the mutual Confidence between King and People hath in several Ages supported the Government to fancy that Declaratory Proclamations relating to Acts of Parliament did make any ferment The Interpretation of the Statutes hath in all Causes between Party and Party and wherein meum and tuum and Property are concern'd been by ancient usage under our Kings still left to the Iudges and the Proclamations of our Princes on great emergent occasions in the State declaring or interpreting their Laws pursuant to the Supreme Power committed to them by God for the good of their People hath still been observ'd to tend both to the good of the People and the Laws too If you will look on all the Declaratory Proclamations in the Reigns of Queen Elizabeth and King Iames of which you have a Collection you will I believe find none but what were acceptable among all their Loyal Subjects But as to this Declaratory Proclamation of King Charles the First before-mention'd you will find it as I told you approved in Parliament And if you will please to consult in your Statute-Book the Act of 13 o Car. 2. c. 12. of which the title is Explanation of a Clause contain'd in an Act of Parliament made in the 17th year of the late King Charles Entituled an Act for repeal of a branch of a Statute 1 o Elizabethae Concerning Commissioners for Causes Ecclesiastical you will there find that this Act of the late King 's loyal long Parliament viz. 13 o Car. 2. hath in it three Proviso's The first is concerning the High Commission-Court the second Proviso is concerning the taking away the Oath ex officio And the third Proviso is to limit and confine the Power of Ecclesiastical Judges in all their Proceedings to what WAS and by Law might be used before the year 1639 which plainly includes allows and approves King Charles the First 's Proclamation in the year 1637. In the time of a former disloyal long Parliament the Regal Power of Interpreting or declaring was by them represented as a Gravamen and while yet they usurp'd that Power themselves If you will look on the Declaration of the Lords and Commons in Husband's Collections p. 686. you will there find they say It is high time for the whole Kingdom now to understand that His Majesty's Authority is more in his Courts without his Person then in his Person without his Courts when the Power of DECLARING Law shall be deny'd to the whole Court of Parliament in particular Causes before them for we have claim'd it we have exercised it no otherwise to be obligatory as a judicial Declaration of the Law and shall be attributed to His Majesty to do it in general by his Proclamation without relation to a particular Case and
I shall refer you to King Iames his Proclamation of Iune the 10th in the year 1606. and where having mentioned the Religion of the Roman-Catholicks he saith We deâ—…ïre still to make it appear in the whole Course of of our Government that we are far from accounting all those Subjects Disâ—…oyal that are that way affected and that we do DISTINGUISH of such as be carry'd only with blind zeal and such as sin out of Presumption c. and therefore as after times must give us tryal of ALL mens behaviour so must all men expect that their own deserts must be the only measure of their Fortunes at our hands either one way or other and having before spoke of the Gun-Powder Treason and the Doctrines of some Priests that might encourage it and said that thereby there is sufficient Cause to justifie the Proceedings of us and our said Parliament in the making and execution of these last and all other former Statutes tending to the same end it followeth nevertheless seeing the Soveraign Care appertains to us who have the Soveraign Power of Iustice in our hand and the Supreme Dispensation of Clemency and Moderation of the Severity of our Laws is likewise as proper to us to use whensoever we shall find it reasonable the same deserving to be no less allow'd in us being in our Dominions God's Lieutenant then it is prais'd in him among whose highest titles it is that his Mercy is above all his Works c. The King in the beginning of his Proclamation having profess'd his Zeal for the Religion of the Church of England by Law Establish'd and his constant Resolution for the maintenance and defence thereof said Of which our purpose and determination beside all other our former proceedings since our Entry into this Kingdom we have given a new and certain Demonstration by such two Acts as have been passed in this Session of our Parliament both tending to prevent the Dangers and diminish the number of those who adhering to the Profession of the Church of Rome are blindly led together with the Superstition of their Religion both into some points of Doctrine which cannot consist with the Loyalty of Subjects toward their Prince and oft-times into direct actions of Conspiracies and Conjurations against the State wherein they live as hath most notoriously appear'd by the late most horrible and almost incredible Conjuration c. The two Acts there referr'd to are those that you will find in your Statute-Book Anno tertio Jacobi Regis cap. 4. An Act for the Discovering and repressing Popish Recusants and in which the Oath of Allegiance is contain'd and Cap. 5. An Act to prevent and avoid dangers by Popish Recusants and whereby Popish Recusants Convict are disabled from bearing Office. But here you see how that wise Prince so soon after so horrid a real Plot did by distinguishing in his Proclamation between the Principles of some Roman-Catholicks and others as to Loyalty and alluring the Loyal by the avow'd Dispensative Power of his Mercy and hiding them under the wings of his Mercy from the terror of his Laws and affording to all his Subjects who should afterward behave themselves well a Tabula post naufragium as to the expectance of making up their fortunes think himself obliged then to cause his Moderation to be known to all men And you may hence take occasion when you think of the many Acts in terrorem in the Statute-Book and where there is no Proportion between the Crime and the Punishment and in some that seem inflictive of Punishments in the Case where men cannot be to any but the Searcher of hearts known to be Criminal at all as for example in their owning some Problematick Points of the Christian Religion to consider that most probably the Wisdom of the Government would not have pass'd them but on the Suppoâ—…ition of the Regal Power of dispensing therein expresly or tacitly You see how the Laws commonly call'd Sangâ—…inary have been tacitly suspended and I may tell you that tho I desire to live no longer then I shall be a maintainet of the internal Communion due from all Christians to all Christians as a part of that Holiness without which no man shall see God yet I should soon withdraw from the external Communion of the Church of England if it own'd the justness of such Laws otherwise then as in terroremâ—… and if it owned the lawfulness of putting men to Death for the Profession of any Religionary Principles their liberty to prosess which was purchased for them by the Blood of their Redeemer But I need not say more now about cautioning you or any one against the taking offence at any of our Laws Laws through want of considering which of them were designedly made for terror I might here likewise as to many Acts about Trade that swell the Statute-Book apply the Consideration of the Regal Power of dispensing therein having encouraged our Ancestors to perpetuate them as Laws A. The truth is you now put me in mind how I having long ago spent much time in considering the Trade and Traffick of our Country and of other Parts of Christendom and finding that shortly after His late Majesty's Restoration one of his Ministers had in a Publick Speech intimated it to the Parliament that His Majesty had setled a Councel of Trade consisting of some of the Lords of his Privy Councel and of some Gentlemen of Quality and Experience and of some Principal Merchants of the Principal Companies I had the curiosity to look over their Iournals and their Advices and Reports to the King and there I found somewhat of the same notion with yours in one of their Reports to His Majesty For there in one of their Papers of Advice addressed to the King taking notice that what they conceived fit to be done for the advancement of the Trade of the Realm was Prohibited by divers ancient Statutes they make them imply that the thing might be done by the King's licence or dispensing and whereupon they thus go on And therefore finding this Dispensation to be your Majesty's Prerogative preserv'd entire to the Crown through so many of your Royal Progenitors we have not thought fit to touch further upon this Matter as being humbly confident that your Majesty's Subjects shall upon all occasions be indulged the like if not more ready relief and accommodation for their Trade from your Majesty's Royal Grace and Bounty only because the Observation was obvious that perhaps all former Parliaments purposely left this door open to the People by the Grace of the King to be reliev'd with those dispensations as foreseeing how difficult if not impossible or how inconvenient at least it might be altogether to restrain what those Statutes prohibited we could not omit the same in this place c. B. And you have put me in mind how a very Loyal and judicious Gentleman of that Councel of Trade and whom I look on to be as deeply study'd in the
Numb 35. 33. A. But by the way do you think then that Sovereign Princes offend the Law of God in Pardoning Murther B. I do observe that many presume to censure Kings for so doing and are superstitiously misguided by thinking that those two places of Scripture referr'd to by my Lord Coke do necessarily make it a sin in Princes to Pardon Murther But I shall when we meet again shew you the mistake of such therein and shall shew you that David at that time when the Law of God and the lex terrae was the same thing and who had Sworn and would perform it that he would keep God's righteous Iudgments was not to be censured to have sinned either in the reprieve of Ioab who had murthered Amasa and Abner and in delaying the Execution of the Law and leaving it to Solomon his Son or in the Pardon of Absolon who had slain his Brother Ammon and that when the Law faith in Numb 35. The Murtherer shall surely be put to death our best Commentators and out of the Rabbins say that this is spoken to the Iudges before whom such Causes regularly came and under the Supreme Power and by authority thereof judged those Causes and that tho the Iudges who were subordinate to the Supreme Power were to take no Satisfaction for the life of a Murtherer but were by that Law to Condemn him yet that it followeth not that the Supreme Power who made them Iudges might not in some Cases Reprieve and Pardon some whom they had Condemned A. I shall be glad to hear you discourse of this and the rather for that 't is so Customary to many when they find the Prince exercising this Prerogative of Pardoning to be apt too much to busy their heads with those two places in the Old Testament to their neglect of others there viz. Exod. 22. 28. Prov. 24. 21. Eccles. 10. 20. and of Acts 23. 5. in the New and likewise there of Rom. 13. 2. 5. 1. St. Peter 2. 17. and from whence they might Collect their moral offices of not doing or speaking or thinking dishonourably of the Lord 's annointed and of paying honour and obedience to his Sovereign Power and that for Conscience sake But in the mean time give me leave à propos to ask you if ever you heard of any one of the Iudges of the Realm in the Reign of our former Princes that gave his judgment for the allowance of the King's Pardon of disability Shew me but that and I shall not be affrighted with my Lord Ch. Justice Vaughan's Simoniacal Dead man. B. I shall tell you of a Case that was well enough known to him and which you may find in Croke 3d p. 55. Sir Iohn Bennet v. Dr. Easedale where you may see that Sir Iohn Bennet being fined 20000 l. for Bribery by the Star-Chamber and Censured to be Imprison'd and made uncapable of any Office of Iudicature and that he having a Pardon from the King reciting the Bribery and Offences mention'd in the Decree and all Penalties and Punishments by reason thereof and all Disabilities and Incapacities and all things concerning the said Sentence except the Fine of 20000 l. and the Court of Star-Chamber having the advice of all the Iudges relating to the Decree and Pardon it was resolv'd by them all that this Pardon hath taken away all force of the Sentence in the Star-Chamber except for the Fine of 20000 l. and all Disabilities are discharged thereby That Lord Chief Iustice knew that as it was set down in that Chapter of Pardons Inst. 3. the King's Pardon extends to all Suits in the Star-Chamber and he knew of what was mention'd Inst. 4. Chap. 1. Of the High Court of Parliament viz. Of a Pardon to the Lord Latimer of a Iudgment in Parliament and he knew that by his own and other Iustices of Assize going into their own Countrys in the Execution of their Offices by vertue of the King 's Non-obstante to the Statutes of 8. R. 2. c. 2. 3. H. 8. c. 24. himself and as many as went Iudges of Assize so into their own Countrys gave Judgment by so doing for the Prerogative of dispensing with such Acts of Parliament and he likewise knew that as it is well express'd in Theâ—… Answer of King Charles the First to the Declaration of both Houses of Parliament concerning the Commission of array A. 1642. An Act of Parliament in any Matter tho mistaken being assented to by the King and his two Houses is equally binding as having equal Authority with an Act introductive of a new Law and that therefore Acts of Parliament having so particularly declared the justness of the Prerogative's dispensing with disability no magna nomina of any particular Sages of the Law in otherwise opining can expect any deference And if you will consider what my Lord Coke in that Chapter of Pardons hath mention'd of the operation of Prerogative over the dead in Law and consider the President he refers to viz. Pasch. 22. E. 3. tit Cor. 239. Coram Rege Quidam indictatus de Felonia inde Culp dicit quod Rex eum Conduxit inde producit Chartam quod Rex eum Conduxit in Vasc. in exercitu dicta Charta allocata fuit per Curiam and there see his opinion grounded on it that if a man be Indicted of Felony and found Guilty and being in Prison the King may under the Great Seal reciting the Offence c. retain him to serve in his Wars on this side or beyond the Seas this Charter he may Plead and the Court ought to allow it I believe you will be of Opinion that any one who will desire any more Presidents for the Commanding the services of dead men ought to be sent for one to the REHEARSAL viz. that of Arise you dead Men and get ye about your business A. Well Sir As for this objected Dead-man requiescat in Pace I have done with him and since from some things you have said I gather that the dispensing with disability by Roman Emperors and Popes of Rome did never by any ferment disturb their Governments and moreover since no men of sense here have ever troubled themselves or the Government with any vexatious Question about the King's Power in discharging a man from a Praemunire but not from a Penal disability incurr'd whereas by a Praemunire as my Lord Coke shews us Inst. 3. c. 54. men are put out of the Protection of the King and DISABLED to have any Action or Remedy by the King's Law or the Kings Writs and exposed to many other dreadful Punishments I do now begin to wonder whence it is that the mistake in some mens Minds hath come about a Penal disability being so unremoveable And thus I think too one might wonder how such as will allow the King's Pardon to discharge one from an Excommunicatio minor or major do look on disability as such an anathematizing thing as is not to be touch'd or that cannot be
For put the Case that the Clergy make Canons to which I never assented and I break these Canons whereupon I am Excommunicated and upon a Significavit by the Bishop my Body is taken and imprison'd by a Writ de excommunicato Capiendo now shall I lie in Prison all the days of my life and shall never be deliver'd by a Cautione admittenda unless I will come in and parere mandatis Ecclesiae which are point blank against my Conscience And he had before said A Comparatis by an Argument à minori ad majus if Property of Goods cannot be taken from me without my assent in Parliament which is the fundamental Law of the Land and so declared in the Petition of Right why then Property and Liberty of Conscience which is much greater as much as bona animi are above bona fortunae cannot be taken from me without my assent This it seems pass'd as Currant Coin for Iudgment of Parliament in behalf of Liberty of Conscience in the Conjuncture of 41 the year in which his Book was Printed and if it were so then allowable you may well think that a Prince's owning the Religion that flourish'd here in the time of Magna charta and which inspired the Virtue that produced Magna Charta and indulging some others of the same Religion to profess it without Punishment is not likely to occasion any durable ferment And what I have here referr'd to concerning the Petition of Right minds me of the great effort of Pious zeal in our famous Bishop Hall and his laudably making use of the Popularity he had among the Protestants in sending a Letter to the House of Commons April the 28th 1628. during the great ferment about that Petition and in which he gives so much fatherly and Prudent advice to the great Agonists for Property that they should consider when they were at the end of their race and then to sit down and rest He hath in it these tender Expressions Gentlemen For God's sake be wise in your well-meant zeal and our Liberties and Proprieties are sufficiently declared to be sure and legal c. let us not in suspicion of Evils that may be cast our selves into present confusion If you love your selves and your Country remit something of your own terms And since the Substance is yielded by your noble Patriots stand not too rigorously upon Points of Circumstance Pear not to trust a good King who after the strict Laws made must be trusted with the Execution c. relent or farewel welfare You may hence easily imagine how passionately that good Bishop would have been concerned if he had then seen among the Patriots any unquenchable heats about the not trusting the King with the Executive Power of Penal Laws and Laws in terrorem and such Laws as Mr. Glanvil in the ' Month after the Date of the Bishop's Letter said in a full Committee of both Houses That the Commons must and ever will acknowledge that it is in His Majesty's ABSOLUTE and undoubted Power to grant Dispensations in as I told you In God's Name often think of that great Patriotly saying of Tully so often with just Applause cited by Sir E. Coke Major haereditas venit unicuique nostrum à jure legibus quam à parentibus and you may account him a Prophane Person who despiseth his Birth-right given him by the Law. And pity any one who speaking of his Property doth not know this to be the meaning of it namely that it is the highest Right he hath or can have to any thing and which is no way depending upon another man's Courtâ—…e And consider that as you have a Property in your Chattels and Hereditaments so you have in your Religion Think often with honour of our Ancestors who by so many Acts of Parliament and lawful Canons and Constitutions since the Refoâ—…mation provided for the securing your Property in your Religion and remember how binding the very declarative Laws about it are Cast your Eye with Pleasure about the Realm and see if you can find any one who fears that any one will ever move in Parliament for leave to bring in any Bill to take away the least part of your Property in your Religion But then consider how Savage a thing it is in any to take excessive delight in the Execution of Penal Laws Ferus est qui fruitur paenâ and remember too that your Prince hath a Property in the Executive part of the Law and in distributive Justice and in shewing Mercy And when you hear any one telling you of a Snake in the grass of the Prince's dispensing with Penal Laws and that therefore there may be danger of your Prince's dispensing in Laws that are leneficial you may tell him of the notorious Non-sequitur and that you have a Property in not being punish'd and in having the benefit of the Rule as to favourable Statutes being made more so by interpretation Favores sunt â—…mpliandi and on the contrary as to Penal ones that odiosa restringi convenit And so to any such impertinent Objecter you may say that the voice or sound of his Snake and the Goose are all one But consider that since you have so much cause to depend on the glorious and consummate justice inherent in the nature of our great Monarch for his defending you in the security of all the Declaratory Acts of Parliament that maintain your very Property in your Religion both Iustice and Common Ingenuity call upon you to own his Power of Dispensing and even with disability for which I have shewn you so many clear and incontestable declarative Iudgments of Parliament and shall direct you to more when we meet again And let me tell you that you ought to have the greater tenderness for this Prerogative of our Prince for that in his Administration of it he hath in some Points shewn a greater tenderness to his Laws and People then our Princes since the Reformation have done You may remember I shew'd you how Queen Elizabeth and King Iames did by their Authority out of Parliament MAKE things Penal by Disability that were not so by any Law in being and therefore you may the less wonder when you see your Prince dispensing with it and thereby preventing the Punishment of it and sometimes and in some Cases pardoning it A. I shall carefully take notice of all these Matters wherein you have caution'd me but am here occasionally on the account of some things you said about the Interpretation and the Acquittal from Penalties in the Queen's Admonition being perpetuated by their being declared good in Parliament to ask you if you do not account that Dispensations or such Interpretations of the Prince by his own single Authority may be made to continue good in following Reigns B. I do not in the least doubt but they may and I shall hereafter evince the thing to you but shall at present out of a Manuscript Report I have of the great Case of
Thomas and Sorrell tell you that by one of the great Councel who argued in it it was asserted with great Learning That the Non-obstante in that Case remain'd good after the King's death That tho Acts the King doth in his Natural Capacity determine by his death as making of Iudges c. for those referr to his Natural Will yet things done in his Royal Capacity as King do not determine by his death as a License to alien in Mortmâ—…in in one King's time serves in anothers and the Reason is when the Subject is once exempt out of the Restraint of the Act he is ever exempt unless the Exemption be limited Coke 1. Inst. 52. 6. If the Lessor licence his Lessee that is restrain'd by Condition not to Alien tho the Lessor die the licence shall serve the Lessee to alien and is not determin'd by the Lessor's death And in this Point he cited Trin. 2. Jac. C. B. Rot. 2835. Wright versùs Radcliffe and Trin. 2. Jac. Norris v. Mason C. B. as Cases adjudged in this point And I shall then shew you how the same thing was then by others asserted but you may now for this purpose remember how the instances I have given you of Queen Elizabeth's Parliaments approving and declaring to be good what she did of this kind and the instances of what others of our Princes did by their own Authority and out of Parliament being valid and being afterward approved in Parliament have supported the extent of the Regal Authority of this kind as to point of time But because according to the Rule of Unumquodque dissolvitur eo modo quo colligatur many Indulgences and Injunctions and Dispensations being revocable by Kings themselves and by their Successors and because declaratory Acts of Parliament cannot be repeal'd but by other Acts common Prudence doth suggest it to all to endeavour the perpetuating to themselves by the Legislative Power what they account beneficial And if you will you may use the term of having it confirm'd by that Power that is if you will allow it to have been firm before you may call it confirm'd by the Prince and the three Estates afterward enacting it and making its firmness perpetual And this is the thing I aim'd at in what you might take for a Criticism when I said that the 39 Articles owed no Confirmation nor Authority to the Act of the 13th of Eliz. A. I know the reason of your cautious speaking here about a tender Point You accounting even every Declaratory Judgment of Parliament for our Religion to be a Treasure and having often said that you would allow some Roman-Catholicks to mock on in calling our Religion a Parliamentary Religion did I judge design to do honour to our Religion as well as to our Prince's in shewing that it was here orderly establish'd by God's Vicegerents before it was by the Deputies of the People or the Magnates Regni B. You guess right at my meaning in this way to salve Phaenomena And if you will look on a Book Printed in Oxford A. 1645. entituled Parliaments Power in Laws for Religion or an Answer to that old and groundless Calumny of the Papists nick-naming the Religion of the Church of England by the name of a Parliamentary Religion c. you will find the Fact in this Point clearly deduced through the course of our Laws and Constitutions in a long series temporum from the Reign of Harry the 8th downward and for the honour of our Kings and of the Church and the Reformation and the measures I have taken in our discourse have been suitable to those of the judicious and learned Author of that Book A. Well Sir we have had a great deal of frank Discourse and I will now take the freedom to put one Question more to you You have entertain'd me with the several Interpretations of our Oath and have shew'd me how the obligatoriness of them all hath been perpetuated and you have likewise salved the Phaenomena in the Iustice of the Government as to the Laws in terrorem But you know the Story of one who being Lord of a place did leave a Pit long open too near the High-way and who at Night erected Lights about it to prevent its being mischievous and he afterward hearing that sometimes poor Blind men who were Travellers fell into it and that at other times by various accidents the Lights were not helpful to other Passengers as being took away or going out too soon and he therefore at last very fairly removed both his Nuisance and Lights together And now may it hot be wish'd that the Prince and the three Estates would remove the Laws about our Oaths and the Interpretations too and so likewise all the Laws in terrorem among which I suppose you reckon the Test-Acts at which so many have taken offence B. You may easily guess that till we have both of us at another meeting discours'd of the Obligation resulting from the Promissory part of the Oath I will not engage your thoughts in any matter of Controverfie that may in the least perplex them But as soon as we have fully discours'd that I shall frankly give you my thoughts at large relating to the question about Repealing of the Test-Acts in a Parliamentary manner but do at present wholly forbear to mention what I think thereof And I have before told you my judgment of the likelihood of the continuance of our great Oath as a great luminary that may perhaps enlighten our English World in the measures of Loyalty to the end of time and as I have told you the Oath giveth no offence to the Considerate so I will hope none will be taken at it But I must here tell you that I have a greater veneration for the Oath because I look on the serious Consideration of the assertory part of it as likely to be very Instrumental in allaying the ferment we have been speaking of A. God grant it may be so B. You remember what I hinted to you about the Clause whereby you testify'd and declared that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal and from whence it follow'd by way of natural Consequence that no foreign Prince c. hath any Iurisdiction within this Realm being the Corner-stone on which the great And therefore I mean your forsaking foreign Iurisdiction was built And I assure you that the same first Declaration doth bind you to the like AND THEREFORE to renounce the belief of any Power on Earth being able to dissolve your King 's right of Commanding your Obedience and your Obligation to obey him And indeed if I had produced to you no Iudgment of Parliament for the purpose I have done but that which is contain'd in the assertory part of the Oath and which is unanimously interpreted by Divines and Lawyers as expressive of the King 's right jure naturae to Command the Obedience of