Harvey who open'd such great Springs of real Learning as refresh'd that noble thirst so it seems before the Date of His late Majesty's Declaration of Indulgence in the 24th year of his Reign and of the Act about the Test in the 25th year of it and both which were likely to produce among the Learned so many Inquiries into the Legality of the Dispensative Power inherent in the Crown and even among the unlearned an Epidemical Disease of talking about the same it came to pass in the course of Providence that by as Learned Iudges as ever sate on the English Bench and as Learned Councel as ever appear'd at its Bar the Learning about the Dispensative Power was ventilated and discuss'd in a Series of several years in the Case of Thomas and Sorrell For the Cause began in the King's Bench 18. Car. 2. and was there argued by some of the Great Councel of the Kingdom and there again argued on both sides by other Councel in Michaelmas-Term in the 19th year of his Reign And in Hilary-Term in 25. and 26. Car. 2. this Cause for the weight and difficulty of it was adjourn'd out of the King's-Bench into the Exchequer Chamber and there argued by others of the Greatest Councel of the Kingdom and many Law-Books quoted And the Case was afterward argued by all the Iudges of England at six several Days in Easter Trinity Michaelmas and Hilary Terms viz. by two Iudges each day and the Iudges differ'd in several Points and even about the definition or meaning of Dispensation For so that learned Chief Iustice tells you and saith That some of his Brothers defined it to be liberatio à poenâ and others to be Provida relaxatio Juris which saith he is defining an ignotum per ignotius and liberare à poenâ is the effect of a Pardon not of a Dispensation c. Thus as I may say there was a Circumvallation by the Learning which concern'd Dispensing that encompass'd some time preceding that Declaration of Indulgence in the 24th year of his Reign and some time following both it and the Act of the Test. I shall some other time perhaps entertain you with the Learned Manuscript Report of the whole Case but shall now tell you that during that Series of years there was no angry motion in the Sea of the Populace occasion'd by any thing said in any of the Arguments that propp'd up the Dispensative Power no not by that mention'd in Keeble's Reports about Thomas and Sorrell's Case to have been said in the Exchequer Chamber by Ellis the King's Serjeant and whose Opinion was as Currant for Sterling-Law as any Man 's of the long Robe Viz. That the King may SUSPEND an Act of Parliament till next Session And now since it hath thus appear'd out of that Chief Iustice his Report that at least a sixth part of the Sworn Iudges of the Realm as he thought were unacquainted with the meaning of Dispensing I think it may pass for a Miracle if any great number of the mobile did understand it But without their troubling their heads with Law-Books if they would but mind their English Bibles and there consult the 12th of S. Mathew they would soon forbear calling the lawful Dispensing with the Laws establish'd a Contradiction Our learned Ames on the Priests in the Temple Prophaning the Sabbath and being blameless observes very well in his Cases of Conscience 1. 3. c. 17. That Praecepta Deiex suâ naturâ nunquam ita Concurrent at necesse sit alterum eorum propriè violare per peccatum Quum enim praeceptum aliquod minus negligendum est ut majus observetur minus illud cessat pro illo tempore obligare that is to say is dispens'd with ita ut qui ex tali occasione illud negligunt sint planè inculpabiles id est non peccent Matth. 12. 5 7. And as to that in the Chapter of David's entring into the House of God and eating the Shew-bread which was not lawful for him to eat c. the Lord Bishop of London in his Second Letter to his Clergy Printed A. 1680. in the Paragraph about The half Communion occasionally thus observes with great Judgment That a positive Command of God cannot be disobey'd without guilt unless on some one or more of these grounds either 1. That God dispenses with it as he did with Circumcision in the Wilderness Or 2. That some Evil greater then the Consequence of the Non-Performance of it will certainly follow as when David ate the Shew-bread and they that were with him which depends on that rule of our Saviour which tho apply'd to the Sabbath yet extends to all other positive Commands that man was not made for them but they for man Or lastly in case of incapacity as the Children of Israels not going up to Ierusalem in the time of Captivity And there are other words in a foregoing Chapter of S. Matthew that are still applicable to the Pharisaical ignorance of such as reproach DISPENSING as unlawful Go and learn what that means I will have mercy and not sacrifice But according to the Example of our Blessed Lord in Having Compassion on the multitude I think you have taken a just occasion for the pitying so many of your Countrymen who in the present Conjuncture presume to exercise themselves in great Matters or in things too high for them relating to Law and State and who without enquiring about the modus of Dispensing with the Laws establish'd wherein Lawyers differ cry down the thing it self wholly and absolutely as a Contradiction to the lex terrae and in which not being so all Lawyers agree My Lord Primate Bramhal in his Book of A fair Warning to take heed of the Scottish Discipline shewing in Chap. 6. that I have before referred to That it robs the King of his Dispensative Power doth wish any one averse to that Power no greater Censure then that the Penal Laws might be duly executed on him till he recant his error And how Penal a thing by the Laws of Nations it is to alienate the hearts of People from the Prince's Government all the great Writers of those Laws and of the Iura Majestatis have enough shewn Moreover how Criminal a thing of that Nature is in the Court of Conscience our two great Writers of it Ames and Sanderson have enough taught us The Moral offices of Subjects toward their Princes are well set forth in Ames his Cases of Conscience 1. 5. c. 25. and where he saith Debent ex singulari reverentiâ cavere ne temerarium judicium ferant de ipsorum administrationes Exod. 21. 28. Eccles. 10. 20. 2 Pet. 2. 10. Jud. 8. Fundamentum hujus cautionis est 1. Candor ille qui cum erga omnes debet adhiberi tum singulariter erga Superiores 2. Difficultas explorandi fontes causas negotiorum Publicorum 3. Moderatio illa quâ leves infirmitates offensiones tolerare debemus communi tranquillitati
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
reason that lyes in this Assertory part of the Oath that so many Writers of the Common Law have founded their Assertion of the King's Power oâ—… Commanding the Service of all his Subjects as essential to the keeping up the Monarchy or the Rule of all Estates committed to him by God that I lately spoke of and inseparable from it noâ—… alienable by any Humane Laws It is the Supreme Power of our Princes as Governors of the Realm that hath always entitled them to Press men for the Service of the Crown by Land or Sea and to recall both Soldiers and Mariners from the Service of Foreign Princes upon emergent Occasions to serve their natural Liege Lord. And the Book writ by a Learned Common Lawyer against the Exclusion call'd A Letter from a Gentleman of Quality in the Country c. and Printed A. 1679. and so deservedly extoll'd by the Iudicious loyal tells you in p. 7. and 8. that If it should be enacted by Parliament that No man should honour the King or love his Parents or Children c. such an Act would be ipso facto void because contrary to the express Divine Command c. The Statute of 23 H. 6. c. 8. and several other Statutes Enact that no Man shall be Sheriff of any County above one year and that any Patent of the King to any Person for a longer term tho with an express Clause of Non-obstante shall be void and of none Effect and the Patentee perpetually disabled to bear the Office. And yet notwithstanding it is Resolv'd by all the Iudges of England that these Acts of Parliament are void and that the King may by Non-obstante Constitute a Sheriff for Years Life or Inheritance And what is the Reason which the Iudges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of his Subject which the immutable Law of Nature doth give to him For Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. We know that by the Statute of 4 o. H. 4. c. 5. 't is ordain'd That every Sheriff of England shall abide in proper Person within his Bailywick for the time that he shall be such Officer But this Act hath never been construed to hinder the King as Supreme Governor and Ruler of all Persons in the Realm from Commanding any Sheriffs to serve him elsewhere during their Shrievalties nor on such case to oblige the Sheriffs in Conscience to observe the Statute by such Personal residence Baker in the reign of King Charles the first tells us of an Information A. 1629. in the Star-chamber against Mr. Long for that he being high Sheriff of the County of Wilts had the Charge and Custody thereof committed to him and had taken his Oath according to the Law to abide within his Bailys-wick all the time of his Sheriff-wick and his Trust and Employment requiring his personal attendance therein did contrary thereto suffer himself to be chosen a Citizen for the City of Bath to serve in the last Parliament and did attend at Westminster in Parliament WITHOUT HIS MAIESTIES LICENCE he being Sheriff at that time and that for the foremention'd Offences and Breach of his Oath and neglect of his Trust and Contempt of his Majesty the Decree was That he should be Committed to the Tower during his Majesties Pleasure and pay a Fine of 2000 Marks to the King. Hereby you see that his Majesties LICENCE or Dispensing with that Statute had indemnify'd him from it in the Court of Law and that the potestas Superioris being necessarily imply'd in a promissory Oath the King as supreme Governour of all Persons in his Realms commanding or allowing such Officers service to the publick elsewhere had secured him in either forum The known Custom of the Speaker of the House of Commons DISABLING himself when presented to the King but of entring on his Charge on the King's approbation and pleasure signify'd according to that saying of Cuâ—… me posse negem quod tu posse putes may pass for some representation to our thoughts of Disability to serve the publick then evaporating when the King as Governor of the Realm doth give the Subject a Call so to do You may find this practice of the Speaker's disabling himself set down in Coke 4. Inst. c. 1. And I shall here by the way take notice that he there likewise mentions it that one of the Principal ends of Calling of Parliaments is for the redress of the Mischiefs and Grievances that dayly happen And he had there before said Now forasmuch as divers Laws and Statutes have been enacted and provided for these ends aforesaid and that divers Mischiefs in particular and divers Grievances in general concerning the Honour and Safety of the King the State and Defence of the Kingdom and of the Church of England might be prevented an excellent Law was made Anno 36. E. 3. which being applied to the said Writs of Parliament doth in few and effectual words set down the true subject of a Parliament in these words For the maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every year as another time was Ordain'd by a Statute Before the Conquest Parliaments were to be holden twice every year c. But accordingly as my Lord Coke there takes notice of the style of the Statute of 36. E. 3. viz. to the Honour of God and of holy Church and quietness of the People and according to the style of the Statute of 10. E. 3. Because our Sovereign Lord the King Edw. 3. which Soverainly desireth the maintenance of the Peace and Safeguard of his People c. hath Ordain'd c. for the Quietness and Peace of his People c. and suitably to the style of the Statute of 14 o E. 3. 1. To the honour of God c. The King for Peace and Quietness of his People as well great as small doth Grant and Establish the things under-written c. and to that of 20. E. 3. and for this Cause desiring as much for the Pleasure of God and Ease and Quietness of our Subjects and according to that style in the Register Nos oppressiones duritias damna excessus praedicta gravamina volentes relinquere impunita volentesque salvationi QUIETI populi nostri in hac parte prospicere ut tenemut c. and according to the Trust committed to Princes by God to endeavour that their Subjects may under them lead QUIET and Peaceable lives in all Godliness and Honesty and which is the great Fundamental reason of the Moral Obligation of Princes to relax the Summum jus of their Laws by sometimes DISPENSING therein since we may easily imagine by our thinking of a late Conjuncture how possible it was that the
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
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
to perform the Conditions and that the King his Father should do the like Secondly That the Promises of Marriage should be presently made c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experimentâ—…lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd c. As to the first the Prince of Wales took an Oath to His Majesty to observe the foresaid Conditions and sign'd them with his Hand and he likewise swore and sign'd this by way of Over-plus to permit at all times that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment and that he would never directly nor indirectly permit any to speak to the Infanta against the same But I shall here en passant observe to you out of the general Articles namely that in the 16th Article notwithstanding my Lord Coke's Opinion before-mention'd that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta and care taken that no Clause or word therein shall contradict the Roman Religion or Consciences of the Roman-Catholicks and that by the 24th Article for the Security that every thing that was agreed to should be fulfill'd the King and Prince were to be bound by Oath that all the Privy Councellors should sign the Agreement And I need not tell you that their being sworn to the private Articles was a new Oath A. Was nothing of the King's mind about the Suspending ALL the Penal Laws both the disabling ones and others against the Papists notify'd to his Privy Councel before the year 1623 B. Mr. Prynne there in p. 30. saith that for the hastening the Pope's Dispensation for the Match King James as the French Mercure Tom. 9. records it and as he had CREDIBLY been inform'd of from others assembling his Privy Councel together Febr. 25. 1622. made a long Oration to them which he recites at large the sum whereof was this That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods Bodies Consciences during Queen Elizabeth's Reign of which they hoped to be relieved in his c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects and was resolv'd to relieve them and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection permitting them the Liberty and entire Exercise of their Religion c. without any Inquisition Process or Molestation from that day forward and likewise will and ordain that they shall be restored to all their Estates Lands Fees and Seignories and re-establish'd in them Commanding all his Magistrates Iustices and other Officers whatsoever in this behalf to hold their hands and for what Cause soever it be not to attempt hereafter to grieve or molest the said Catholicks neither in publick nor private in the liberty of the exercise of their Religion upon pain of being reputed Guilty of High Treason and Disturbers of the Kingdoms peace and repose this being his will and definitive Sentence A. But still I cannot forbear wondring about what Considerations made our Divines and our Great Champions of the Church of England-Protestancy in the State as well as Church afterward thus inclinable to act their Parts about Toleration as Mr. Prynne hath mention'd B. They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy and that by reason of the various growth of the Potency of foreign Princes and States and of intestine Factions the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage and that where such Alliance was to be with the Familiâ—…s of Roman-Catholick Princes there could be no expectation of the Pope's relaxing his Laws by dispensing without our Princes doing something of that kind as to theirs I might here observe to you that we are told in The Regal Apology that the Oxford Antiquities mention'd to have been writ by Dr. Bate that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou and if it were true that an Universal Toleration was agreed on by King James it was intuitu majoris boni The Palatinate was to be restored again and the Protestants of Germany to be re-enstated in their Possessions on that Condition But to punish being a kind of Punishment and it being irreligious to punish Men for Religion and the highest tide of Anger being naturally succeeded by the lowest ebbe of it and the thoughts of rigorous Severity in Princes toward their Subjects being like such in the Head toward the Members of the same Body and King Iames having found that the general abhorrence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath and finding as appears by his long Proclamation of four sheets of Paper declaring his Pleasure concerning the Dissolving of the Parliament A. 16â—…1 that they were not the Papists who made his later breath so uneasie to him and he being of opinion that the reason of the severe Laws was much abated it may abate of our wonder that in that Conjuncture he put a Period to their Execution Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the Iâ—…dges in the year following to acquaint them that His Majesty having resolv'd out of deep Reasons of State and in expectation of like Correspondence from foreign Princes to the Professors of our Religion to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom had Commanded him to pass some Writs under the Broad Seal for that purpose and that he had accordingly done so and tells them that 't is His Majesty's Pleasure that they shall make no niceness or difficulty to extend that his Princely favour to all Papists imprison'd for any Church Recusancy whatsoever or refusing the Oath of Supremacy or hearing of Mass or any other point of Recusancy which doth touch or concern Religion only and not matters of State which shall appear to you to be totally Civil and Political A. You lately mentâ—…on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature as was in the Spanish Wâ—…at account doth Mr. Prynne give of that B. He tells you there p. 69. that the French Maâ—…ch was soon Concluded in the life of King James the Articles concerning
or heard of a man of most upright dainty and scrupulous Conscience and afraid to look upon some Actions which other Princes abroad do usually swallow and he might have added a Prince the real Tenderness of whoâ—…e Conscience had so often favour'd the nominal tenderness of others who instead of being Tender-hearted Christians were Stiff-necked Iews and who might justly apprehend that it was only duritia cordis instead of Tenderness of Conscience he dispens'd with and as when God dispens'd with the Iews in Polygamy For since Tenderness of Conscience doth necessarily render a man abstemious from things lawful and to be of a gentle submissive temper not only to his Equals but Inferiors and to be merciful even to brute Creatures and not only averse from suing any one about Penal Lawes but ready to remit somewhat of his Right rather then to go to Law with a Stranger and much less with ones Father the Pater Patrioe seeing any men outraging the Lawes and the quiet of the whole Realm by that wilde brutish thing call'd War for ferinum quiddam bellum est might well judge them utterly devoid of all Tenderness of Conscience I shall therefore frankly tell you that no doubt but their Consciences were extremely erroneous or rather seaâ—…ed Our great Writer of Conscience Bishop Sanderson in his Sermon on Rom. 14. 13. discussing the Causes from which mens doubtfulness of mind may spring and saying that sometimes it proceeds from Tenderness of Conscience which yet is indeed a very blessed and a gracious thing doth very well add but yet as tender things may sooner miscarry very obnoxious through Satan's diligence and subtlety to be wrought upon to dangerous inconveniences And if we Consider that a Civil War cannot be lawful on both Sides however a foreign one may we may well account that any deluded melancholy People who were tempted to raise a Civil War out of a blind Zeal for Religion and to assault the Thirteenth of the Romans out of the Apocalypse had hard Spleens instead of tender Consciences and that they have soft Heads instead of tender Hearts who try to make Religion a gainer by War. But indeed the Project of planting Religion and Propagating the Church by War that is described to be Status humanoe Societatis dissolutoe and that so presently opens to all mens view the horrid Scene of Contempta Religio Rapta profana Sacra profanata is so vain that the old Proverbial Impiety of such who did castra sequi how victorious soever hath naturally help'd to make Conquering Nations embrace the very Religion of the Conquered a thing exemplify'd in the Conquests of the Danes and Saâ—…ns in England of the Gothes in Italy and France and Spain and of the Moors in Spain and in the Turks having overcome the Saracens embracing the Saracens Religion And the Vanity of Reforming the World by War that Profound and Conscientious Statesman Cardinal D'Ossat in his Third Book 86th Letter and to Villeroy A. 1597. hath well taught us and where he mentions how he urged to the Pope the reasonableness of Harry the 4th's so religiously observing the great Edict of Pacification and that the many Wars made again and again by Hereticks serv'd for nothing but in many places to abolish the Catholick Religion and in a manner all Ecclesiastical Discipline Iustice and Order and to introduce Atheism with the Sequel of all sorts of Sacrileges Parricides Rapes Treasons and Cruelties and other sorts of wickedness c. and afterward that on the making War all the Malecontents all People indebted and neâ—…ssitous all Debauchees and Vagabonds all Thieves and other Criminals whose Lives were become forfeited to the Law of what Religion or Opinion soever they were were wont to joyn with the Hugonots and did more harm to the Church and Religion and good manners in one day of War then they could in a hundred days of Peace Thus â—…e who â—…its in the Heavens had them here in derision while they in effect thus presumed to transprose Scripture and to say Glory to God in the highest and on Earth War and ill will towards men and while according to that Saying in Arch-bishop Lâ—…d's famous Star-Chamber-Speech viz. No Nation hath ever appear'd more jealous of Religion then the People of England have ever been they were under such Transports of misguided Zeal as to adore that their jealousie and to offer Sacrifices to it with as much Contempt of Heaven and Cruelty to Mankind as ever were offer'd to the image of Iealousie referr'd to by Ezekiel and to which the tenderest of their Relations were not thought too costly Victims and to which their truly Tender-Conscienced King who like Moses with Tenderness carried them in his Bosome as a Nursing-Father beareth the sucking Child and who sometimes out of Tenderness to several of his Complaining Children Sacrificed the rigour of his Penal Lawes and to whom they should have been subject for that Tender thing Conscience sake was himself at last Sacrificed How did that Pious Prince sometimes in relation to his Heterodox Protestant Subjects imitate the Father of the Prodigal who when his Son was yet afar off ran to meet him fell on his neck and kiss'd him a thing acknowledg'd by an Eminent learned Divine Mr. Iohn Ley in his Book call'd Defensive Doubts Hopes and Reasons Printed in the year 1641. and where in p. 123. urging the Bishops to procure the Revocation of a late Canon of the Church and having said wherein if they appear and prevail they need not fear any disparagement to their Prudence by withdrawing that they have decreed since the wisest Statesmen and greatest Governors have used many times to comply so far with popular Dispositions as to vary their own Acts with relation to their liking as the Pilot doth his Soils to comply with the wind he addeth And you cannot have a more authentic Example both to induce you to this and to defend you in it from all Imputations then that of our Sacred Sovereign who rather then he would give any Colour of Complaint for aggrievances to his People was pleas'd to DISPENSE with the five Articles of PERTH's Assembly and to discharge all Persons from urging the Practice thereof upon any either Laick or Ecclesiastical Person whatsoever and to free all his Subjects from all Censures and Pains whether Ecclesiastical or Secular for not urging practising and obeying any of them tho they were esâ—…ablish'd both by a General Assembly and by Act of Parliament King Charles his large Declaration of the â—…umults in Scotland p 370. p. 389. And for his OWN Acts for these Articles of Perth were propounded and ratify'd in the Reign of his Royal Father he imposed the Service Book the Book of Canons and high Commission upon his Subjects in Scotland and upon their humble Supplication was content graciously to grant a Discharge from them passing his Princely Promise that he would neither then nor afterwards press the Practice of them nor any
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
metaphysical universale however they may â—…ansie it to be a real being but what I know cannot exist a part from the particular Rights and Privileges belonging to the Crown being assisted and defended and from a serious endeavour to understand the truth about their belonging to it And my solicitousness to find out which in the shortest way possible and particularly as to the Privilege of discharging incapacity or disability incurr'd by Act of Parliament as I told you at our last meeting engaged me to divert you out of the course of your method and whereupon you told me you would refer my thoughts to the Assertory part of the Oath B. Well what ever damps I may see on English Mens loyalty or degeneracy from its nature by the arts of faction a while perverting them not to assist and defend this or that Privilege of the Crown I shall never despair of their coming again to themselves and that tho as in a vessel of Water and Oyl while any one is shaking it the Water may over-top the Oyl so likewise in their minds while shaken and stirred by Demagogues the Oyl of the Lord 's anointed is not there uppermost yet that through its own nature and through the English good nature and their natural addiction to Religion it will in time naturally appear to be so And now to go on without further prefacing on either side what if I should tell you that it imports you to consider that in in the Assertory part of the Oath of Supremacy you have declared and asserted that authority as due to the King that was challenged and used by king Henry the 8th and Edward the 6th that is that the King under God hath the Soveraignty and Rule over all manner of Persons born within these his Realms of what Estate either Ecclesiastical or Temporal so ever so as no other foreign Power shall or ought to have any superiority over them A. I would then tell you that you have mentioned some things to be in this Oath that I remember not to be there B. I grant that I mention'd to you somethings that are not express'd in the Oath and in the form of it as it is administred and was enacted 1 Eliz. c. 1. and by which Act the refusers of such Oath are punish'd with DISABILITY to bear Office. But in the same year in which that Act pass'd Queen Elizabeth in an ADMONITION annext to her Injunctions thought fit to exercise her Royal authority of the Interpretation or Declaration of the sense of that Oath enjoyn'd by Act of Parliament and in that Admonition you will find those words that you remember not in the Oath you took as likewise her ACQUITTAL of all Persons from all manner of Penalties and consequently of disability who took the Oath according to the sense of it publish'd in her Interpretation And if you consult the Act you will see that the disabilities inflicted in the Act on the refusers of the Oath are various And thus then you see that as soon as you have done taking the Oath you are immediately call'd on by your Conscience to defend the Privilege and preeminence of your Prince viz. of interpreting his Laws and of discharging the disabilities thereby inflicted A. I now remember that I have read that Admonition of the Queens but I account Proclamations Injunctions and Admonitions of Princes to be but temporary Laws and that therefore this Interpretation of the Queen's and her discharging of Disabilities expired with her Reign B. To obviate such thought I shall tell you that in the Act of the 5th of Queen Elizabeth c. 1. and by which the Refusal of the Oath of Supremacy is punish'd more severely then by the before-mention'd disability viz. by Proemunire for the first Refusal and by making it Treason for some Persons to refuse it a second time but Penalties that none ever doubted but the Crown might by its Pardon discharge there is a Proviso that the Oath viz. of Supremacy expressed in the said Act made in the said first year shall be takeu and expounded in such form as is set forth in an Admonition annexd to the Queens Majesties Injunctions Publish'd in the first year of her Reign that is to say to confess and acknowledge in her Majesty her Heirs and Successors none other Authority then was challenged and lately used by the Noble King Henry the Eighth and King Edward the Sixth as in the said Admonition may more plainly appear And this too lets you see that the Parliament by thus referring to the Queen's Admonition did approve of her Power therein exercised and of her having acquitted her Subjects from the Punishment of disability A. I must then I see fairly grant you that by that Parliament's having thus perpetuated the interpretation of the Oath of Supremacy contain'd in Queen Elizabeth ' s Admonition I am bound in Conscience to take it in that sense and am perjured if I do not so keep that Oath and must likewise grant that you have shewn how auspicious that Oath by the Queens interpreting the same and the Parliament about five years after approving that Interpretation was to the Assertion of such her Power and that if any taker of the Oath should gain-say such Power you have prepared such a Confutation in the case as was used to the old Philosopher who disputed against Motion and whom his Adversary confuted by removing him from his place But as you are a fair arguer I am to take leave to tell you That that Parliament tho they approved the Queen's Admonition in general did not particularly shew their Approbation of the Queen's Power of dispensing with the Penalties that she exercised in that Admonition B. They did sufficiently shew their Approbation of the whole and therefore you need not question their approving of its parts But because you seem to lay some stress on that Parliament's not expresly approving in terminis the Queen 's Power of discharging the Penalties and one of which by the Act of 1 o Elizabethoe was disability I shall tell you that whereas Queen Elizabeth had thought it expedient for the Supporting of the Consecration of the Bishops of the Church of England to dispense with whatever might cause Disability according to her Supream Authority by her Letters Patents the very same Parliament at their next Session did 8 o Elizabethoe c. 1. in terminis terminantibus declare their Approbations of the Queens dispensing with disability by those Letters Patents for it having been in that Statute mention'd that for the avoiding of all Ambiguities and Questions that might be objected against the lawful Confirmations investings and Consecrations of the said Archbishops and Bishops her Highness in her Letters Patents under the Great Seal of England c. hath used and put in her said Letters Patents divers other general words and Sentences whereby her Highness by her Supreme Power and Authority hath DISPENS'D with all Causes or doubts of any Imperfection or DISABILITY
doth appertain and is not nor ought to be subject to any foreign Iurisdiction Where we attribute to her Majesty the Chief Government by which Title we understand the minds of some slanderous Folks to be offended we give not to our Princes the ministring either of Gods Word or of the Sacraments the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify but that only Prerogative which we see to have been given always to all Godly Princes in holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers The Bishop of Rome hath no jurisdiction in the Realm of England The Laws of the Realm may punish Christian Men with death for hâ—…inous and grievous Offences It is lawful for Christian Men at the Commandment of the Magistrate to wear Weapons and serve in the Wars Now after the Oath of Supremacy had been enjoyn'd in the first year of her Reign and the Admonition annexed to her Injunctions was then likewise publish'd viz. A. D. 1559. and after the Parliament had by proviso 〈◊〉 the interpretation of the Oath which Parliament began the 12th of Ianuary in the 5th year of her reign and from which day all things dâ—…ne in that Session are to bear date the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation holden at London in the 5th year of her reign and A. D. 1562. were by the Archbishops and Bishops of both Provinces subscribed the 29th of Ianuary in that year and by the Clergy of the lower House of Convocation on the 5th of February following and to all which the Queen gave her Royal Assent And in the Articles there was by the Queens Royal Prerogative an additional Interpretation probably at the instance of the Clergy given to the interpretation in the Admonition and in the Parliaments Proviso and the which additional interpretation had in it no respect to nor mention of what being in several places of the former one might amuse the Clergy with some Fears and Iealousies namely the Duty Allegiance and Bond that were acknowledged due to Harry the 8th and Edward the 6th and the Authority that was challenged and lately used by those Princes however yet that latter Clause is qualify'd in the Admonition But for the 37th Article before-mentioned allowing the measures of the Royal Supremacy from the Prerogatives given by God in Scripture to holy Princes whereby our Clergy might seem to have brought the Prerogative into its own proper Element and theirs too the knowledge of the Scriptures being their profession our Clergy no doubt were always thankful to the Crowns Dispensative power and so exercised out of Parliament and whereby they were secured from penal disabilities either by suspension or deprivation for not taking the Oath in the sense of the Admonition Thus as things in their proper place are at rest the Queens Dispensative power and the Consciences of the Clergy by this interpretation of the Oath were so much at rest that about eight or nine years afterward the same 39 Articles that had been by the Archbishops and Bishops and Clergy of both Provinces agreed on in the year 1562. were by the said Archbishops Bishops and Clergy again agreed upon and again ratify'd by the Queen in the year 1571. the 13th year of her reign and when care was taken by the Government that that interpretation being incorporated in the body of the 39 Articles should be deem'd good in Parliament by the Statute of 13 o Eliz. c. 12. as the other interpretation in the Admonition had been by the proviso in the Act of the 5th of that Queen and probably for the same reason and as her dispensing with disability expresly in the 8th year of her reign was In the Act of the 13th of Eliz. reference was made to those Articles as agreed on by the Archbishops and Clergy and set forth by the Queens authority Anno 1562. and the Act is entituled Reformation of Disorders in the Ministers of the Church and in which it was enacted That all such as were to be ordained or permitted to preach or to be instituted into any Benefice with cure of Souls should publickly subscribe to the said Articles which shews if you mind it that tho the Parliament did well allow and approve of the said Articles yet the said Book oweth neither Confâ—…rmation nor Authority to the Act of Parliament And that Act concerning only Clergy-men tho the interpretation in the 37th Article is left to oblige the Clergy yet that in the Admonition might concern you to stick to if nothing had since happen'd whereby the dispensative power inherent in the Crown may have given your Conscience the benefit of the interpretation thus afforded to the Clergy But therefore I shall here tell you that the Canons of King Iames the â—…st Anno 1603 being confirmed for him and his Heirs and Successors are binding now however it hath been objected as the unhappiness of Queen Elizabeths Canonâ—… viz. A. 1571. A. 1584. A. 1597. wanting those formal words of Heirs and Successors to expire with her And as those words are in King Iames's Canons so are the words of enjoyning their being observ'd fuâ—…fill'd and kept not only by the Clergy but by all other Persons within this Realm as far as lawfully being Members of the Church it may concern them and tho in the first Canon there entituled The King's Supremacy over the Church of England in Causes Ecclesiastical to be maintain'd 't is order'd That all Ecclesiastical Persons shall keep and observe and as much as in them lyeth all and singular Laws and Statutes made for the restoring to the Crown of this Kingdom its ancient Iurisdiction over the state Ecclâ—…siastical yet in the next Canon entitled Impugners of the King's Supremacy censurâ—…d the measures of the King 's ecclesiastical Authority being taken from the Godly Kings among the Iews according to the 37th of the 39 Articles was an extending to the Layety the ben fit of the Interpretation obtain'd by the Clergy the which was in effect a judgment of the Convocations that the pursuance of that Interpretation of the King 's Ecclesiastical Power and the avoiding of the punishment of Disability by the use of that Power was not agaâ—…st the Law of the Land but the 5th Canon viz. Impugners of the Artiâ—…les of Religion establish'd in the Church of England censured and in which the establishment of the 39 Articles is solely referr'd to them as agreed on in Convocation in the year 1562. without any notice of the Parliament of the 13th of Eliz. having done any thing about them doth more clearly secure to you the benefit of the Interpretation the Clergy had A. You have mention'd so many things to me relating to the interpretation
and State resented it in the Conjuncture of A. 1640. I mean Archbishop Williams who in his famous Speech in Parliament that year against the Bill that afterward passed into a Law to Disable Persons in Holy Orders from exercising any Temporal Jurisdiction doth thereupon represent it that under a CAIN ' s mark an eternal kind of disability or incapacity is laid on them from enjoying hereafter any of those Rights Favours or Charters of former Princes and which is the heaviest Point of all without killing of Abel or any Crime laid to their charge more then that in the beginning of the Bill 't is said roundly and in the style of Lacedaemon that they ought not to intermeddle c. And what his thoughts were of the Injustice of such incapacity put on the Clergy and of the odiousness of that Punishment of incapacity appears by what he afterward saith viz. I come to the 4th part of this Bill which is the manner of the inhibition every way heavy in the Penalty heavier a great deal in the incapacity In the weighing the Penalty will you consider the small wyers that is poor Causes that are to induce the same and then the heavy load that hangs upon these wyers It is thus If a Natural Subject of England interessed in the Magna Charta and Petition of Right as well as any other yet being a Person in Holy Orders shall happen unfortunately to Vote in Parliament to obey his Prince by way of Councel or by way of a Commissioner be required thereunto then is he presently to lose and forfeit for his first offence all his Means and Livelyhood c. This Peradventure may move others most but it doth not me It is not the Penalty but the Incapacity aâ—…d as the Philosophers would call it the Natural impotency imposed by this Bill on men in holy Orders to SERVE the KING or the STATE in this kind be they otherwise never so able or never so willing or never so vertuous which makes me draw a kind of Timanthe ' s veil over this Point and leave it without any amplification at all to your Lordships wise and inward Thoughts and Considerations But if with so much thunder of Passion as well as lightning of reason that learned Speech from the Bishops Bench did so much resent the punishing the Clergy with disability to execute secular Offices and to have the honour of serving their Prince and Country therein and for the imposing of which disability that known place of Scripture 2 Tim. 2. 4. No man that wars entangles himself with the Affairs of this life was alledged in the House as thus disabling them by the Law Divine and as to which the Bishop in his Speech gives a learned Answer we may well imagine how Lay-men of good Births and Educations and whose Diligence employ'd in Courts and Cities and Camps abroad may have qualify'd them here to stand before Kings must necessarily aggravate in their thoughts the dishonour of incapacity to serve their Prince in secular Employments A. Was that Speech of the Archbishop ever printed B. You will find it in the Apology for the Bishops to sit and Vote in Parliament printed in London A. 1661. And he hath in that Speech some other Expressions which corroborate that obvious natural notion of the King and Kingdom being disabled by disabling of Clergy-men from secular Employments For having reflected on the Bill for disabling them from sitting in the Star-chamber and at the Council-table sitting in Commissions of the Peace and other Commâ—…ssions of secular Affairs he afterward saith But my noble Lords this is the Case Our King hath by the Statute restored to him the Headship of the Church of England And by the word of God he is custos utriusque tabulae And will your Lordships allow this ecclesiastical Head no ecclesiastical Senses No Ecclesiastical Persons to be censulted with at all No not in any Circumstances of time and place If Cramner had been thus dealt with in the Minority of our young Jâ—…sias King Edward the 6th what had become of that great work of our Reformation in this flourishing Church of England A. The truth is it being a kind of a Rule that all Men of Parts who have been liberally educated and even those excelling in mechanical professions do naturally desire to serve the King and standing before Kings having been annext in Scripture as a reward to diligence in ones calling a Mark of disability put on Lay-men to serve their Prince cannot but tempt them to passion on that account more then it ought to have troubled the Bishop when he call'd it a Caiâ—…'s Mark in regard you have mention'd it that Clergy-men to some did seem by the Law-Divine disabled from secular Employments B. According to the Opinion of Iudge Vaughan in his Reports who in Hill and Good 's Case there makes a lawful Canon to be the Law of the Kingdom as well as an Act of Parliament and whatever is the Law is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus they were by the Canon Law disabled from intermedling in secular Affairs And according to his description of malum prohibitum in Thomas Sorreâ—…'s case p. 358. you may say they were by the Statute so disabled from intermedling For he there saith malum prohibitum is that which is prohibited per le statute Per le statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case for it is said the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon-Law and by the Council of Lateran not by Act of Parliament The Lateran Council his Lordship there means is that held under Alexander the 3d A. 1180 and which Council hath it in these words viz. neque servi neque spurii sunt ordinandi And uni plura ecclesiastica beneficia non sunt committenda And therefore the Bishop in that Speech saith That this Doctrine of debarring Persons in Holy Orders from secular Employments is the Doctrine of the Popish Church and first brought into this Kingdom by the Popâ—…s of Rome and Lanfrank Anselm Stephen Langthon and Othobone and with an intent to withdraw the Clergy from tâ—…eir receiving Obligations from either King or Lords and make them wholly dependants on the Popacy But Bishop Iewel tells us in his Apology p. 122. that Veteres Canones Apostolorum illum Episcopum qui simul Civilem magistratum ecclesiasticam functionem obire velit jubent ab officio summoveri A. Yet notwithstanding their being disabled by the antient Canons and the Nemo militans c. 2 Tim. 2. as often alledged against them by the Canons and Canonists I think they were frequently employ'd by our Princes in the greatest Offices of the State. B. They were so and the
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
of a Law and dispensing to be different things B. He had an excellent Metaphysical head and his Method of writing in that Chapter Of the Several ways of the changing of Humane Laws was partly after the Example of Suarez in his Book De Legibus and who was a voluminous Writer of Metaphysicks and writing of any Subject could not recedere ab arte suâ in that Learning that is so infinitely prolifick of Artificial distinctions without Natural differences I mention'd the Bishop's but PARTLY writing after the way of Suarez for he was far from crumbling the weightier Points of the Law into the Minutiae of Metaphysicks as the other did and he in his excellent Preface doth very passionately complain of Moral Theology having been made an Art of the Schools and that what God had made plain Men have intricated and for that purpose saith There is a Rule among the Lawyers which very much relates to the Conscience of those Men who are engaged in Suits and Sentences of Law in all Countrys which are ruled by the Civil Law in quolibet Actu requiritur Citatio of this Rule Porcius brings an hundred and sixteen Ampliations and an hundred and twenty four Limitations c. And thus Suarez in his 6th Book De Legibus and the Title of which Book is The Interpretation Cessation and change of Humane Laws hath there Twenty seven Chapters concerning the same and where his first Chapter is Of the way of rightly Interpreting an Humane Law his 2d Of the Extension in them by Interpretation of them and his 3d Of the Extension to a Case not Comprehended his 4th Doubts of the Extension of Laws his 5th Of the Restriction by Interpretation his 6th Of the Ceasing of the Obligation of a Law in particular Contrary to its words his 7th Of the Excusing of a Law by Equity his 8th Of the Use of Equity without recourse to the Prince his 9th Of the Ceasing of a Law upon its Cause ceasing his 10th Of Dispensation in an Humane Law his 11th Of the Effects of Dispensation his 12th Of the Material Cause of Dispensation his 13th Of the form of Dispensation and so on in the others with much Metaphysical subtlety But the Bishop in his before-mention'd Third Book and 6th Chapter viz. Of the Interpretation Diminution and Abrogation of Humane Laws brings in but seven ways of the changing of humane Laws so that the Obligation of Conscience is also changed whereof his first is by Equity His second is by Interpretation His third by a Contrary or a ceasing reason And his fourth by Dispensation c. and of which latter he saith If we use the word improperly Dispensation can signifie a Declaration made by the Superior that the Subject in certain Cases is not obliged that the Law-giver did not intend it c. but when Dispensation signifies Properly it means an Act of mere Grace and Favour proceeding from an extrinsick Cause that is not the Nature of the thing or the merit of the Cause but either the merit of the Person or some degrees of reasonableness in the thing which not being of it self enough to procure the favour of the Law is of it self enough to make a man capable of the Favour of the Prince c. But as here in this nice distinction he is enforced to make him who doth dispensare to do that which the Canonists make the ratio nominis of it namely diversa pensare and in the Scales of Equity to weigh and interpret the degrees of the reasonableness of the thing so in his handling of the Prince's Power of interpreting he makes Equity Co-incident with it and refers to the Law in the Code viz. Inter aequitatem jusque interpositam interpretationem nobis solis oportet licet inspicere and his instances of that Power of Interpretation are referr'd to the favours shew'd by it to Persons and particularly to Solomon's absolving Abiathar from the Sentence of Death because he had formerly done worthily to the Interests of his Father David And then saith Now this Power tho it may be done by Interpretation yet when it is administred by the Prince it is most commonly by way of Pardon absolute Power and Prerogative When a Law determines that under such an Age a Person shall be UNCAPABLE of being the General of an Army the Supreme Power can declare the meaning of the Law to be unless a great excellency of Courage and maturity of Iudgment supply the want of years in which very Case Scipio Africanus said wisely when he desir'd to be employ'd in the Punick War Se sat annorum habiturum si populus Romanus voluerit Thus Tiberius put Nero into the Senate at Fifteen years of Age and so did Augustus the like to Tiberius and his Brother and the People declar'd or dispens'd with the Law in Pompey ' s Case and allow'd him a triumph before he had been Consul or Praetor And he had before said When the Law-giver interprets his Law he doth not take off the Obligation of his Law i. e. meaning the Obligation of his Law in general but declares that in such a Case it was not intended to oblige Tacitus tells of a Roman Knight who having sworn to his Wife that he would never be divorced from her was by Tiberius dispens'd with when he had taken her in the unchaste Embraces of his Son-in-Law The Emperor then declared that the Knight had only obliged himself not to be divorced unless a great Cause should intervene And thus Suarez himself in his said 10th Chapter De Dispensatione in lege humanâ makes Dispensation apply'd to signifie an act quo quis ab obligatione legis eximitur and saith quia unus modus esse potest per Interpretationem ideo potuit etiam in eâ significatione usurpari tamen in hac etiam significatione sumpta non quamcunque interpretationem legis sed illam solam quae in casu dubio per potestatem superioris datur ad liberandum subditum ab obligatione legis significat quia haec tantum est Actus administrationis potestatis ADEO Commissae Et illa tantum tollit aliquo modo onus legis quod sine tali potestate auferri non posset and so saith he 't is agreed on by all that Dispensation is an Act of Iurisdiction but 't is drawn into the Law to signifie the taking away the vinculum of the Law in particular Cases and so we generally use it A. But Metaphysicks apart I shall not trouble my self about what is what but what is my Duty by virtue of my Oath And I observe that what you cited out of the Bishop viz. That when the Power that made the Law doth interpret the Interpretation is authentical c. may render him no favourer of an Interpretation not made in Parliament by the Legislative Power B. I shall sometime at our meeting again observe to you what the Bishop hath there asserted l. 3. c. 3. that Kings
Bishop hath or ought to have any Iurisdiction in the forum internum wanted no relief in their Case from the Dispensative Power of interpretation Nor did those of the Church of England who convers'd with the Statute-Book want the Crown 's interpretation of this Clause in the Oath for the scope of the Statute of the 35th of H. the 8th that enjoyn'd the old Oath of Supremacy and from whence this Clause in the New one had its rise was not to break the Measures of St. Cyprian about the Unity of Episcopal Power but in effect to repress the Usurp'd independent Coactive Power of the Bishop of Rome and which several of the following words in that Oath sufficiently evince and which did bind the Swearer to defend and maintain all other Acts and Statutes made or to be made within this Realm for the Extirpation and Extinguishment of the ururped and pretended Authority Power and Iurisdiction of the See and Bishop of Rome c. And Queen Elizabeth finding the Oath thus at her coming to the Throne she like a wise Reformer would not make any breach in the World wider then necessity required and probably supposing that mens Allegiance having been used to the yoke of several words in that Oath that related to the renouncing and farsaking of foreign Iurisdiction would draw more quietly in the same and that according to the Rule of quod necessario subintelligitur non deest there being no solutio continui imagin'd by any to be design'd in the Unity of the Episcopal Power when the Clause of utterly testifying and declaring that neither the See nor Bishop of Rome hath nor ought to have any Iurisdiction Power or Authority within this Realm c. was inserted in the old Oath it ought to be judged that nothing derogatory to the order of Bishops could be intended in the Clause of the new Oath by her introduced And according to the Rule of Analogum perse positum c. Jurisdiction being to be taken for Coactive Jurisdiction the Clause relating to any foreign Prelates having here no Iurisdiction hath been still meant of none Coactive Mr. Rogers therefore writing on the 39 Articles hath thus fairly commented on that Clause in the 37th The Pope hath no Iurisdiction c. His Iurisdiction hath been and is justly renounced and banish'd out of England by many Kings and Parliaments as by King Edward 1st 3d and 6th by King Richard the 2d Harry the 4th 6th 8th and by Queen Elizabeth and by our most noble King James But that the Church of England intended no War against the Unity of Episcopacy by the Canons of 1640. which yet have the words of Popery's being a gross kind of Superstition and of the Mass being Idolatry and do ininflict a temporary disability namely that of Excommunication on Popish Recusants may appear by the tenderness there used to the Church of Rome in sparing to impute the Superstition of Popery to that whole Church by name And the 6th Canon having mention'd the Convocation's being desirous to declare their sincerity and constancy in the profession of the Doctrine and Discipline Establish'd in the Church of England i. e. the Doctrine of the 39 Articles and to secure all men against any suspicion of revolt to Popery or any other Superstition and enjoyn'd a new Oath against all innovation of Doctrine or Discipline to be taken by the Clergy the assertory part whereof hath in it an Approbation of the Doctrine and Discipline or Government established in the Church of England as containing all things necessary for Salvation and the Promissory part a Promise not to endeavour to bring in any Popish Doctrine contrary to that which is so establish'd c. and not to give consent ever to subject it to the Usurpations and Superstitions of the See of Rome Mr. Bagshaw in his Argument in Parliament concerning those Canons took occasion to criticise on the not subjecting out Church to the Usurpation and Superstitions of the See of Rome and to call it a Negative Pregnant that is to say as his words are you may not subject the Church of England to the See of Rome but to the Church of Rome you may Now there is as much difference between the See of Rome and the Church of Rome as betwixt Treason and Trespass and this appears plainly by the Statute of 23. Eliz. c. 1. where it is said that to be reconciled to the See of Rome is Treason but to be reconciled to the Church of Rome is not Treason for then every Papist would be a Traytor being a Member of the Church and therefore reconciled to it Now the See of Rome is nothing else but the Papacy or Supremacy of the Pope whereby by virtue of the Canon unam Sanctam made by Pope Boniface the 8th he challengeth a Superiority of Iurisdiction and Correction over all Kings and Princes upon Earth and those Persons which take the juramentum fidei contain'd in the end of the Council of Trent which acknowledgeth this Supremacy are said to be reconciled to this See. The Church of Rome is nothing else but a number of Men within the Pope's Dominions and elsewhere professing the Religion of Poperty and that the Clergy had an ill meaning in leaving this Clause in the Oath thus loose I have some reason to imagine when I find it in their late Books that they say the Church of Rome is a true Church and Salvation is to be had in it And if it were tanti after having said so much to say yet any thing more to prop up the safety of your taking the Oath of Supremacy with the Clause whose sense hath been propp'd up by so many Acts of the Dispensative Power of interpreting I could tell you that in Sir Iohn Winter's Observations on the Oath of Supremacy Printed A. 1679. he having there consider'd Queen Elizabeths interpretation in the Admonition and the Confirmation of that Admonition by her Majesty in Parliament by the Proviso in the Statute of 5 o Eliz. c. 1. and the whole drift of the Statute 1 o Eliz. by which the Oath was enacted and what Bishop Carleton and the Primate Bramhal writ of the ancient Jurisdiction restored to the Crown by that Statute and that on the whole Matter the design of the Oath was not to invest her with the exercise of the spiritual Jurisdiction left by Christ to his Apostles and their Successors but to leave that entire to them saith at the end of his Book that it is not the true meaning of the Oath explain'd in manner as abovesaid which makes many of the Roman-Catholicks refuse to take it c. and then makes the Explanations not being known to all and their intricacy and the constant tendring of the Oath for so many years without the aforesaid Explanation likely to give just Cause of Scandal and thereupon he wishes that that Oath and the other of Allegiance which are required of them under so great Penalties may be
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