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A54581 The obligation resulting from the Oath of Supremacy to assist and defend the pre-eminence or prerogative of the dispensative power belonging to the King, his heirs and successors. In the asserting of that power various historical passages occurring in the usurpation after the year 1641. are occasionally mentioned; and an account is given at large of the progress of the power of dispensing as to acts of Parliament about religion since the reformation; and of divers judgments of Parliaments declaring their approbation of the exercise of such power, and particularly in what concerns the punishment of disability, or incapacity. Pett, Peter, Sir, 1630-1699. 1687 (1687) Wing P1884; ESTC R218916 193,183 151

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Roman Catholick Physicians and Lawyers had incurr'd by his Acts of Parliament I have told you But what if I should now tell you how afterwards he did take care as it were unâ liturâ to delete the Execution of ●…ll the Penal Laws disabling ones and others against the Roman Catholicks and that as to what he did therein the most zealous Protestants among his Bishops and the Lords Temporal and others of his Privy Council did concur with him in so doing A. I think you would tell me of that which was very strange B. As in the Happy future State of England it was with an intent to detect the Degeneracy and Vanity of the Politick and Protestant-would-be's of the Age who pretended to Advance Religion by Excluding the next Heir in p. 219. shewn that one of the general and publick Articles sent by King James the First to his Embassador in Spain in Order to the Match with the Infanta was that the Children of this Marriage shall no way be compell'd or constrain'd in point of Conscience or Religion wherefore there is no doubt that their title shall be prejudiced in case it should please God that they turn'd Catholicks and that it was afterward sent as an additional Article offer'd from England that the King of Great Britain and Prince of Wales should bind themselves by Oath for the Observance of the Articles and that the Privy Council should sign the same under their Hands and that accordingly the Articles were sign'd by Archbishop Abbot John Bishop of Lincoln Keeper of the Great Seal Lionel Earl of Middlesex Lord high Treasurer of England Henry Viscount Mandevile Lord President of the Council Edward Earl of Worcester Lord Privy Seal Lewis Duke of Richmond and Lennox Lord high Steward of the Houshold James Marquess of Hamilton James Earl of Carlisle Lancelot Bishop of Winchester Oliver Viscount Grandison Arthur Baron Chichester of Belfast Lord Treasurer of Ireland Sir Thomas Edmonds Knight Treasurer of the Houshold Sir John Suckling Comptroller of the Houshold Sir George Calvert and Sir Edward Conway Principal Secretaries of State Sir Richard Weston Chancellor of the Exchequer Sir Julius Caesar Mr. of the Rolls and for the truth of which Facts reference is there made to Mr. Prynne's Introduction to the Archbishop of Canterbury's Trial p. 43 so you may there read it in p. 44. that some private Articles were agreed on and probably were Sworn to by the same Persons that the other general ones were and of which private ones the first was in short That none of the Penal Laws against Roman Catholicks should at any time hereafter be put in Execution But you may thus see it at large viz. That particular Laws made against Roman Catholicks under which other Subjects of our Realms are not comprehended and to whose Observation all generally are not obliged as likewise general Laws under which all are equally Comprised if so be they are such as are repugnant to the Romish Religion shall not at any time hereafter by any means or chance whatsoever directly or indirectly be commanded to be put in Execution against the said Roman-Catholicks And we will cause that our Councel shall take the same Oath as far as it pertains to them and belongs to the Execution which by the hands of them and their Ministers is to be exercised The 2d was That no other Laws shall hereafter be made anew against the said Roman Catholicks but that there shall be a perpetual Toleration of the Roman Catholick Religion within Private Houses throughout all our Realms and Dominions which we will have to be understood as well of our Kingdom of Scotland and Ireland as in England c. And the 4th was That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks c. And the Conclusion there is viz. That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks to whose observance also the rest of our Subjects and Vassals are not obliged as likewise the general Laws under which all are equally comprehended to wit ●…s to the Roman-Catholicks if they be such as is aforesaid which are repugnant to the Roman-Catholick Religion and that hereafter we will not consent that the said Parliament should ever at any time Enact or Write any other new Laws against Roman-Catholicks We accounting all and singular the preceding Articles ratified and accepted out of certain Knowledge as far as they concern us our Heirs or Successors approve ratifie applaud and promise bon●… fide and in the word of a King by these Presents inviolably firmly well and faithfully to keep observe and fulfill the same and to cause them to be kept observed and fulfilled without any Exception or Contradiction and do confirm the same by Oath upon the holy Evangelists notwithstanding any Opinions Sentences or Laws whatsoever to the contrary In the presence of the most Illustrious Don John de Mendoza Marquess of Inojosa and Don Charles Coloma Extraordinary Ambassadors of the Catholick King of George Calvert Knight one of our Chief Secretaries of Edward Conway Knight another of our Chief Secretaries of Francis Cottington Baronet of the Privy Councel to our Son the Prince of Francis de Corondelet Apostolical or the Pope's Prothonotary and Arch-Deacon of Cambray Dated at our Palace at Westminster the 20 day of July 1623. in the English style Jacobus Rex A Compared and true Copy George Calvert Chief Secretary The Form of the Oath which the Lords of the Councel took to the former Articles is this which followeth found among the Lord Cottington's Papers Formula Juramenti à Consiliariis Praestandi Ego N. Iuro me debitè plenéque observaturum quantum ad me spectat omnes singulos Articulos qui in tractatu Matrimonii inter Serenissimum Carolum Walliae Principem Serenissimam Dominam Do●…nam Mariam Hispaniarum I●…fantem continentur IURO ETIAM Quod neque per me nec per Ministrum aliquem inferiorem mihi inservientem legem ullam contra quemcunque Catholicum Romanum conscriptum executioni mandabo aut mandari faciam Poenamve ullam ab earum aliqua irrogatam exigam Sed in omnibus quae ad me pertinent Ordines à Majestate sua ex ea parte constitutos fideliter observabo Thus far Mr. Prynne who verifies the Facts above-mention'd not only from my Lord Cottington's Papers but from the Mercure Francois Tom. 9. A.
THE OBLIGATION Resulting from the OATH of SUPREMACY To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power BELONGING To the KING his Heirs and Successors In the asserting of that Power various Historical Passages occurring in the Usurpation after the Year 1641. are occasionally mentioned And an Account is given at large of the Progress of the Power of Dispensing as to Acts of Parliament about Religion since the Reformation and of divers Judgments of Parliaments declaring their Approbation of the Exercise of such Power and particularly in what concerns the Punishment of Disability or Incapacity Princes are Supreme over Persons not over Things This is the Supreme Power of Princes which we teach that they be Gods Ministers in their own Dominions bearing the Sword and freely to permit and publickly to Defend that which God commandeth in Faith and good Manners c. Princes may Command the Bodies of all their Subjects in time both of War and Peace c. Out of all Question where Princes may by God's Law Command all Men must obey them c. The Prince may discharge the Servant but no Man can discharge the Subject The Word of God teacheth you to obey Princes the words of men cannot loose you BISHOP BILSON of the SUPREMACY LONDON Printed for Thomas Dring at the Harrow at Chancery-Lane End in Fleetstreet William Crook at the Green Dragon without Temple-Bar and William Rogers at the Sun over against St. Dunstan's Church in Fleet-street 1687. To the Right Honorable JOHN Earl of MELFORT Viscount of Forth Lord Drummond of Rickartone c. His Majesty's Principal Secretary of State for the Kingdom of Scotland and one of His Majesty's most Honorable Privy Council in both Kingdoms of England and Scotland c. MY LORD AS the Historian hath told us of Ireland that long ago while the Arts and Sciences were generally banish'd from the Christian World they were enthroned in Ireland and that Men were sent thither from other Parts of Christendom to be improved in Learning so I have elsewhere observ'd that in some late Conjunctures and particularly during the turbid Interval of the Exclusion men might well be sent to Scotland to learn Loyalty And I having taken occasion in the first Part of this Discourse to shew my self a just honourer of that Country and as I may say somewhat like a Benefactor to it by sending thither the notices of some pass'd great Transactions that might possibly there give more light and life to the Moral Offices of Natural Allegiance or Obedience did hold my self obliged in Common Justice to address this Part of my Work to your Lordship For as your Station here qualifies you beyond other Subjects to receive what Tribute is offer'd to your Country so your handing it thither will necessarily make it there the more acceptable And when I consider with what an incomparable Tenderness for the Monarchy and its Rights so many of the Statutes of Scotland since the Year 1660. have been adorn'd I am apt to think that any matter of Presidents or Records by me recover'd out of the Sea of time where they lay so long useless and neglected and now happening to be serviceable to those Moral Offices before-mention'd would by the so many in that Kingdom devoted to consummate Obedience and Loyalty be more valued then if I could have imported into that Realm another such Treasure as that which lay so long buried in the Ocean near the Bahama Islands and that whoever Contributed to your Loyal Country any Substantial Notions that might enrich it in the discharge of the Duties of the born and sworn Allegiance would be esteem'd there as some way sharing in the honour of Arauna in giving like a King to a King. Long may your great Master live happy in the Enjoyment of the faithful Services of so vigilant a Minister as your Lordship who by the universality of your Knowledge accompany'd with universal Charity for all Mankind have appear'd to be born as I may say for the time of his most glorious Reign the time chosen by Heaven for Mercies Triumph on Earth Nothing vulgar was to be expected from a Person of your Lordship's extraordinary intellectual and moral Endowments and in whom the Loyalty and other Virtues of your many noble Ancestors have as it were lived extraduce And the World would be unjust to you if it acknowledged not its great Expectation answer'd by your greater Performances and particularly by your having been so eminently Ministerial in the Easing both the Cares of your Prince and of all his Subjects too by the Figure you have made in promoting the Ease of his People's Consciences and in further ennobling and endearing the Name of DRUMMOND by your Lordship's Prosecuting that by the Bravery of Action which the HISTORIAN of that your Name did by Words when he transmitted to Posterity the most Christian and Statesman-like Speech of Liberty of Conscience I know extant and as spoke by a Roman-Catholick Councellor in Scotland to King Iames the Fifth I most humbly kiss your Lordship's Hands and am My Lord Your Lordships most Obedient Servant P. P. THE OBLIGATION Resulting from the Oath of Supremacy To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power Belonging to the KING his Heirs and Successors c. PART I A. IN this Kingdom of England so naturally of old addicted to Religion and vehemence in it as to give a Bishop of Rome cause to complain he had more trouble given him by Applications from England about it then from all the World beside and afterward to make Geneva wonder at the Sabbatarians here exceeding the Iewish strictness and to cause Barclay in his Eupho●…mio to say of the English Nec quicqúam in numinis cultu modicum possunt and that our several Sects thought unos se Coelestium rerum participes exortes coeteros omnes esse did you ever observe hear or read of the style of Tenderness of Conscience so much used as in the year 41. and sometime afterward B. I have not From the Date of King Charles the First 's Declaration to all His loving Subjects about that time wherein he speaks of his Care for Exemption of Tender Consciences till the Date of King Charles the Second's Declaration from Breda wherein the Liberty of Tender Consciences is Provided for the clause of easing Tender Consciences ran through the Messages Addresses and Answers that passed between King and Parliament almost as much as the Clause of proponentibus legatis did run through the Councel of Trent A. But were not their Consciences extremely erroneous who thought themselves bound then to advance Religion by War B. A●… and by a Civil War as you might have added against a Prince of the tenderest Conscience imaginable for that Character he had from an Arch-bishop in his Speech in the Parliament of 40 who said Our Sovereign is I will not say above other Princes but above all Christian men that ever I knew
thing of that nature but in such a fair and legal way as should satisfie all his loving Subjects The Duplys of the Divines of Aberdene p. 54. and p. 130 131. Whereupon Mr. Ley thus goes on viz. Wherein Wise men who judge of Consultations and Acts by their probable Effects and not unexpected Events cannot but highly commend His Majesty's Mildness and Clemency which we doubt not would condescend to your Requests for a removal of this great aggrievance if you would please to interpose your Mediations to so acceptable a purpose and upon our humble sute which in all submissive manner we tender to your Lordship and by you to the rest of your Reverend Order we hope you will do so since we have it upon his word His Royal Majesty's word which neither in Duty nor Discretion we may distrust that the Prelates were their greatest Friends i. e. of his Scottish Subjects their Councels were always Councels of Peace and their Solicitations vehement and earnest for granting those unexpected Favours which we were pleas'd to bestow upon our People The King 's large Declaration p. 420 Thus then the Royal Dispensation with the five Articles of Perth was at the Intercession of the Bishops tho' they knew the same Establish'd by Act of Parliament graciously afforded to his Scotish Subjects Those Articles of Perth related to various Religionary Matters viz The introducing of Private Baptism Communicating of the Sick Episcopal Confirmation Kneeling at the Communion and the observing such ancient Festivals as belong'd immediately to Christ and of which Doctor Heylin in his History of the Presbyterians having spoken saith That the King 's indulging the Scots in Dispensing with the Penal Laws about them was an Invitation to the Irish Papists to endeavour by armed force to Compass the King's Dispensation But how tenderly the Consciences of the Roman Catholics in Ireland were in the Reign of the Royal Martyr THEN Protected under the Wing of the Dispensative Power contrary to what the Dr. observ'd any one may see who will Consult my Lord Primate Bramhal's Replication to the Bishop of Chalcedon where he saith That the Earl of Strafford Lord Lieutenant of Ireland did commit much to my hands the Political Regiment of that Church for the space of Eight years In all that time let him name but one Roman Catholic that suffer'd either Death or Imprisonment or so much as a pecuniary Mulct of Twelve Pence for his Religion upon any Penal Statute if he can as I am sure he cannot c. And such was the acquiescence of the Populace and of the three Estates in the Penal Lawes there against the Roman Catholics being thus dead or asleep that in the Printed Articles of Impeachment against the then Lord Chancellor of Ireland and that Lord Primate th●…n Bishop of Derry and others of His Majesty's Publick Ministers of State exhibited by the Commons to the Lords in the year 1640. there is not a syllable of Complaint against those Lawes being so dispens'd with by Connivence Nor yet in the Printed Schedule of Grievances of that Kingdom voted in the House of Lords there to be transmitted to the Committee of the same House then attending in England to pursue Redresses for the same is there any representation of such Indulgence being any Gravamen nor yet of the great Figure the Irish Papists then made in the Government the Majority of the Parliament and of the Iudges and Lawyers then being such And pursuant to that Prince's Indulgence offer'd to the tender Consciences of his Subjects in the year 41. he was graciously pleas'd in the Treaty at Uxbridg●… to order his Commissioners who were such renown'd Confessors of the Church of England to make the first Royal offer there that freedom be left to all Persons of what Opinion soever in Matters of Ceremony and that all the Penalties of LAWS and Customs be SUSPENDED And the truth is since the Christian Religion did in its first settlement so rationally provide for its Propagation in the World and its bespeaking the favour of Princes by its enjoyning Subjection and Obedience to their Lawes not only for Wrath but Conscience sake and since that Principle of humane Lawes binding the Conscience which was so often and so publickly avow'd by that Prince and Arch-bishop Laud and Bishop Sanderson and the Divines of the Church of England in General is the surest guard to Princes Thrones and their Tribunals and that therefore 't is the Interest of the Prince and People to be more watchful in preserving that Principle then all the Iewels of the Crown or Walls of the Kingdom that Prince did therefore necessarily take Care to preserve and to perpetuate in some of his tender-Conscienced Subjects a continued Tenderness for his Lawes by his lawful Dispensative Power as particularly in the Case of his Scottish Subjects in taking off the Obligation of Obedience and of Conforming themselves to the Establish'd Lawes for such Dispensation intrinsecally notes the taking off such Obligation from the Persons dispens'd with And it is indeed a Solecism for any one to ask Indulgence from a Prince who owns the Law of the Land binding him in Conscience if he doth not think such Prince perswaded that his Power of granting it is a part of that LAW He was not ignorant of his Father's Aversion against the Penal Lawes in general and on which Account my Lord Bacon celebrating him saith As for Penal Lawes which lie as snares upon the Subjects and which were as a Nemo scit to King Henry 7. it yields a Revenue which will scarce pay for the Parchment of the King's Records at Westminster And religionary Penal Lawes requiring the greatest tenderness as he found when he came to the Government that the two most famous Puritan Divines Mr. Hildersham and Mr. Dod Men of great Probity and Learning had often been in his Father's time Pursuant to the Act for Uniformity disabled from Preaching and been re-inabled to it by particular Indulgence and as likewise Fuller tells us in his Church History that Bishop Williams when he was Lord Keeper of the Great Seal of England procured a Licence from King Iames under the Great Seal for Mr. Cotton the famous Independent to Preach notwithstanding his Non-Conformity so he in the same manner that his Royal Father did held the Reins of the Law loose in his hands as to those two other Non-Conformists beforemention'd The History of Mr. Hildersham's Life mentions that he was silenced in Iune A 1590 and restored again in Ianuary A. 1591. Again he was deprived and silenced April 24 A. 1605. for refusal of Subscription and Conformity and after some time again restored and was again Silenced in November A. 1611. by the King 's particular Command and on April 23. A. 1613. he was judicially admonished by the High Commission that saving the Catechizing of his own Family only he should not afterward Preach Catechize or use any of the Offices or Function of a Minister
publickly or privately 〈◊〉 he should be lawfully restored and releas'd of his said Suspension But shortly after the beginning of the Reign of the Royal Martyr he was again restored and was afterward again silenced and so continued till August 2. A. 1631. and then he was again restored And Mr. Dod's Life represents his Case as parallel with this before-mention'd He was in King Iames his time suspended and restored and again by the King 's particular Command disabled from Preaching and was by King Charles the First re-ennabled or restored Thus as fortis fortem amat one tender Conscienced man too loves another such and the Executive Power of the Law in re-ennabling after temporary Disability was tenderly administred by these our Princes to these Conscientious Men with respect to their real Capacity of Favour to be shew'd them A. You have here given me a taste en passant of part of the Dispensative Power as exercised in the three Realms during some Conjunctures in the Reign of King Charles the First and for which I thank you and particularly for what you told me of the Act of Parliament dispens'd with in Scotland of which I never heard before and am apt to suppose a thing of that Nature was never done before in that Realm B. I can assure you to those who know the Publick Transactions of that Kingdom the thing will not in the least seem new I can tell you that on the 26th of November A. 1593. King Iames the 6th of Scotland made an Act of State in favour of three Roman-Catholick Earls Huntly Arroll and Angus by which Act he allow'd them several Priviledges contrary to Acts of Parliament made against Roman-Catholicks And His Majesty in his Act of State expresly dispenseth with those Acts of Parliament and which Dispensation tho Queen Elizabeth importuned him to revoke and for that purpose sent the Lord Zouch as her Embassador to him he still adhered to the Act of State he had made and continued his Dispensation A. Have you this Matter of Fact out of any of the Records in England or Scotland B. I have it out of the Original Papers under the hand of Queen Elizabeth and her great Minister Burghly and the Original Instructions of the Lord Zouch when sent by her to expostulate with the King about it that were lately in my Custody and by me sent to our gracious Sovereign and I shall some other time give you a more particular account of that Dispensation A. But I beseech you did not the Protestant Divines of the Church of Scotland then cry out of the unlawfulness or inexpedience of that Dispensation B. I have read it in a learned Book of Dr. Maxwell a Scotch-man Printed A. 1644. and who was then Bishop of Killally in Ireland and had formerly been Bishop of Rosse that Mr. Robert Bruce one of the Ministers of Edenburgh and who had a great sway in the Church of Scotland was pleas'd with the King 's extending his Favour to Angus and Arroll but out of a factious Complyance with the Earl of Arguile was displeas'd at its being shewn to Huntly But that Loyal Bishop there acquiesceth in the reason of State that inclined the King to Pardon the three Earls and his thereby hindering the growth of Faction in Scotland and providing for his more easie and secure access to the Throne of England on the Death of Queen Elizabeth And so you may easily guess what sort of men in Scotland look'd with an evil eye on that Act of the Royal goodness and who did not The Bishop there had applauded the great depth of the King's Wisdom and his transcendent Goodness in the Pardoning the three Earls and mention'd that there was nothing of Religion in the Case of Bruce's Aversion against the Pardon of Huntly for that Angus and Arroll were as bigot Papists if not more then Huntly I can likewise direct you to my Lord Primate Bramhal's celebrated Book call'd A Fair warning to take heed of the Scotish Discipline where in Chap. 6. thus entituled viz. That it robs the Magistrate of his Dispensative Power he saith by way of instance When the Popish Earls of Angus Huntly and Arroll were excommunicated by the Church and forfeited for Treasonable Practices against the King it is admirable to read with what Wisdom Charity and Sweetness his Majesty did seek from time to time to reclaim them from their Errors c. and on the other side to see with what bitterness and radicated Malice they were prosecuted by the Presbyteries and their Commissioners c. sometimes threatning that they were resolv'd to pursue them to the uttermost tho it should be with the loss of all their Lives in one day c. sometimes pressing to have their Estates confiscated c. He refers there in his Margin to Ass. Edinb 1594. But any one who shall consult D'Ossat's Letters and there in the Second Book carefully read over the 37th Letter that was writ to Villeroy in the year 1596 and three years after the Date of King Iames his Act of State and observe what that great Sagacious Cardinal there refers to concerning the Circumstances of those three Earls and how all the Prudence that could be shewn by man was but little enough for the Conduct of that King in that Conjuncture in order to his removing what Impediments either from Rome or Spain or his Native Country might obstruct his Succession to the Crown of England will not wonder at his having dispens'd and continued his Dispensation as aforesaid A. I have not yet ask'd you whether the Divines of the Church of England did not lift up their voices like a Trumpet against the Dispensative Power thus exercised by their Prince as you have mention'd B. They discharged their Duties in Preaching occasionally against all growing Errors but they wanted none to mind them of the Saying Impium esse qui Regi dixerit Inique agis The Pious and Learned Author of Certain Considerations tending to Peace c. mentions how the Bishop of St. Davids in King Iames's Reign A. 1604. did in a set Speech in Convocation shew that Ministers were not in the late Archbishop's time disabled from their Ministry on the Account of Non-conformity to the Ceremonies by Law enjoyn'd and concluded his Speech with the motion of Petitioning the King That if the removal of some of the Ceremonies enjoyn'd could not be obtain'd nor yet a Coleration for them of more stay'd and temperate Carriage yet at least there might be procured a mitigation of the Penalty c. And as the Suspension or Disabling of Hildersham and Dod from their Ministerial Functions so the Restoring of them to the same without all such things done by them as the strictness of the Lawes required was in both those Princes Reigns executed by the Bishops Nor do I remember to have read of any Divine of the Church of England to have in the least look'd with an evil eye on the goodness of the
metaphysical universale however they may ●…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 h●…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 d●…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 Conf●…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 ●…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 Canon●… 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 fu●…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 Eccl●…siastical yet in the next Canon entitled Impugners of the King's Supremacy censur●…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 aga●…st the Law of the Land but the 5th Canon viz. Impugners of the Arti●…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
Disability of a whole third estate as to bearing secular Offices did not stand in the way of Prerogative I have read it in Fuller's Church-History that in the year 1350. the Lords and Commons in Parliament did find themselves aggrieved that the Clergy-men engrossed all secular Offices and thereupon presented the ensuing Petition to the King according to this effect insisting only in the substance thereof viz. And because that in this present Parliament it was declared to our Lord the King by all the Earls Barons and Commons of England that the Government of the Kingd●…m hath been performed a long time by the Men of Holy Church which are not justifyable in all Cases whereby great mischiefs and damages have happen'd in times past and more may happen in time to come in disheriting of the Crown and great prejudice of the Kingdom c. that it will please our said Lord the King that the Lay-men of the said Kingdom which are sufficient and able of Estates may be chosen for these and that no other Person be hereafter made Chancellor Treasurer Clark of the Privy-Seal Barons of the Exchequer Chamberlain of the Exchequer Comptroller and all other great Officers and Governors of the said Kingdom and that these things be now in such manner establish'd in form aforesaid that by no way it may be defeated or any thing done to the contrary in any time to come saving to our Lord the King the Election and removing of such Officers but that always they be Lay-men such as is abovesaid To this Petition the King return'd that he would ordain upon this point as it should best seem to him by the advice of his good Council In fine you see that tho the Clergy-men were thus disabled by the general Customs and Usage of the Realm and by lawful Canons and provincial Constitutions accounted by that Iudge beforemention'd to be tanta-mount to Acts of Parliament yet you ●…ee our Kings did frequently dispense with these Customs lawful Canons and Constitutions And tho the Office of Bishops renders them guardians of the Canons yet you see how tender they have been of the Regal power of Dispensing therein And as that saying of Wicliffe however censured in the Council of Constance may perhaps with a little help be reduced to Orthodoxy viz. That ●…ne should be Excommunicated by any Prelate unless he know him Excommunicated by God so with parity of reason it may be said that none should be totally disabled by any Prince from serving him unless he knew him really disabled by God and especially when he knew the contrary and that the Services of the great men of the Clergy had so often been successfully employ'd at the Helm of State and when for the honour of Clergy-mens Councel some of the most profound pieces of State-Policy our English Story hath in it are to be attributed to Clergy-mens officiating in their Princes Councels and as for Example when by the figure that Bishop Morton made at the Helm he did make up the dismal breach and united the two Houses of York and Lancaster in the Happy Marriage between Henry the 7th and the Lady Elizabeth a●… when Bishop Fox who was Lord Privy Seal did by his Advice lay the Foundation of a more happy Union between the Kingdoms of England and Scotland by the eldest Daughter of Hen●…y marrying Iames of Scotland and the younger matching into France that so on their ever coming to inherit Scotland might be annex'd to the Imperial Crown of England and England not be annex'd as a Province to France and for the Consequences of which Advice both Englishmen and English and French Protestants have so much cause to say We Praise thee O God c. And I am here minded of what Fuller tells us on A. 14. H. 4. viz. It was moved in Parliament that no Weishman Bishop or other shall be Iustice Chamberlain Chancellor Treasurer Sheriff Constable of a a Castle or Keeper of Records or Lieutenant in the said Office in any part of Wales or of Councel to any English Lord notwithstanding any Patent made to the contrary Cum clausulâ non obstante licet Wallicus natus and that it was answered that the King willeth it except the Bishops and for them and others which he hath found good loyal Lieges toward him out said Lord the King will be advised by the Advice of his Councel Ex Rot. Parliamentariis in turri Lond. in hoc Anno which Citation Fuller professeth to be taken out of the Authentick Records in the Tower. There passed an Act of Parliament in the 4th year of Henry the 4th by which it is Enacted That no Welshman shall be Iustice Chamberlain Sheriff Coroner nor other Officer in any part of Wales notwithstanding any Patent to the contrary with the Clause of Non-obstante and yet without Question saith my Lord Coke 12th Rep. the King might dispense with this Statute but you see how on the Parliaments resenting the Dispensations the Act had met with and particularly in Bishops having contrary to the tenor of the Act served the Crown in Secular Employments the King particularly adhered to the exercise of his Dispensative Power in their Case It was upon the ground of this Assertion viz. Of the Crown 's being entitled to Command the Services of all Subjects that some Papists were employ'd by Queen Elizabeth in Affairs of the State notwithstanding any disability incurr'd by not taking the Oath of Supremacy And Viscount Montacute tho a Roman Catholick was as Cambden tells you sent by her as her Embassadour to the King of Spain and employ'd too about the Business of the Scots and to do right to the Protestant Religion Sir Edward Carne likewise a Roman Catholick was sent by her as her Embassador to the Pope And as to the sense of many of that Queen's most renowned Ministers of State about the Deprivation of the Nonconformist Divines disabled eo Nomine from their Ministry being Penal to the People the Author of certain Considerations tending to promote peace and good will among Protestants hath mention'd it that Eight of that Queens Privy Councellors writ a Letter in their favour to the Bishops of Canterbury and London in the close whereof 't is said viz. Now therefore we for the Discharge of our Duties being by our Vocation under her Majesty bound to be careful that the Universal Realm may be well govern'd according to the Honor and Glory of God and to the discharge of her Majesty being the Principal GOVERNOR of ALL her SUBIECTS under Almighty God do most earnestly desire your Lordships to take some charitable Considerations of these Causes that the PEOPLE of THIS Realm may not be DEPRIVED of their Pastors being Diligent Learned and Zealous tho in some Points Ceremonial they may seem doubtful only of Conscience and not of wilfulness c. Tour Lordships loving Friends William Burghly George Shrewsbury A. ●…rwick R. Leic●…ster C. Howard J. Crofts Chr. Hatton
o Eliz. beforemention'd B. I can easily direct you to such a Writer of our Church who hath done the thing to the universal Satisfaction of the Inquisitive as to this Point and that is the Lord Primate Bramhal in his Book of Schism Guarded He saith there in p. 330 and 331. As our Grievances so our Reformation was only of the abuses of the Roman Court. Their bestowing of Prelacies and Dignities in England to the Prejudice of the right Patrons Their Convocating Synods in England without the King's leave Their Prohibiting English Prelates to make their old feudal Oaths to the King and obliging them to take new Oaths of Fidelity to the Pope Their imposing and receiving Tenths and first Fruits and other Arbitrary Pensions upon the English Clergy and lastly their Usurping a Legislative Iudiciary and Dispensative Power in the exterior Court by Political Coaction these are all the branches of Papal Power which we have rejected This Reformation is all the Separation that we have made in point of Discipline And for Doctrine we have no difference with them about the old Essentials of Christian Religion and their new Essentials which they have patch'd to the Creed are but their erroneous or at the best probable Opinions no Articles of Faith. Thus then according to these measures you see how much the hinge of the Reformation turns on the Usurpation of the Papacy in Dispensing for in all these particulars enumerated the Pope dispens'd with the King's Laws And he had before in p. 26. said This Primacy neither the Ancients nor we deny to St. Peter of Order of Place of Preheminence If this first movership would serve his turn the Controversie were at an end for our parts But this Primacy is over-lean the Court of Rome have no gusto to it They thirst after a visible Monarchy on Earth an absolute Ecclesiastical Soveraignty a Power to make Canons to abolish Canons to dispense with Canons to impose Pensions to dispose of Dignities to decide Controversies by a single Authority This was that which made the breach not the Innocent Primacy of St. Peter And afterward in p. 149. he saith But I must contract my Discourse to those Dispensations that are intended in the Laws of Henry the 8th that is the Power to dispense with English Laws in the exterior Court Let him bind or loose inwardly whom he will whether his Key erre or not we are not concern'd Secondly As he is a Prince in his own Territories he that hath Power to bind hath Power to loose He that hath Power to make Laws hath Power to dispense with his own Laws Laws are made of Common Events Those benign Circumstances that happen rarely are left to the Dispensative Grace of the Prince Thirdly As he is a Bishop whatever Dispensative Power the ancient Ecclesiastical Canons or Edicts of Christian Emperors give to the Bishop of Rome within those Territories that were subject to his Iurisdiction by Humane right we do not envy him so he suffer us to enjoy our ancient Privileges and Immunities freed from his Encroachments and Usurpations The Chief ground of the ancient Ecclesiastical Canon was let the old Customs prevail A possession or Prescription of Eleven hundred years is a good ward both in Law and Conscience against an Human Right and much more against a New pretence of Divine Right For Eleven hundred years our Kings and Bishops enjoy'd the sole Dispensative Power with all English Laws Civil and Ecclesiastical In all which time he is not able to give one instance of a Papal Dispensation in England nor any shadow of it when the Church was formed Where the Bishops of Rome had no Legislative Power no Iudiciary Power in the exteriour Court by necessary Consequence they could have no Dispensative Power He then in p. 169. mentions the said Statute of 25. H. 8th and having referr'd to the Proviso there to shew that its intent was not to vary from the Church of Christ in any other things declared by the Holy Scripture and the Word of God necessary to Salvation he saith then followeth the scope of our Reformation only to make an Ordinance by Policies necessary and convenient to repress Vice and for good Conservation of the Realm in Peace Unity and Tranquillity from ravine and spoil ensuing much the ancient Customs of this Realm in that behalf not minding to seek for any relief succours or remedies for any worldly things and Humane Laws in any cause of necessity but within this Realm at the hands of your Highness your Heirs and Successors Kings of this Realm which have and ought to have an Imperial Power and Authority in the same and not obliged in worldly Causes to any other Superior Thus then you see this Prelates sense of how much the taking away the Pope's Dispensative Power here and restoring that Power to the Crown was the Soul of the Reformation and tota in toto of it And this Act you see revived by the First of Elizabeth without garbling it in the least and the Dispensative Power thereby restored to her her Heirs and Successors and a Declaration that no Subjects of the Realm need for any worldly things and Humane Laws in any Cause of Necessity seek for any relief but within this Realm at the hands of our Soveraign as aforesaid And I shall tell you that the Bishop in the next Page refers to the Statute of the First of Eliz. and saith on his view of both Statutes Whatsoever Power our Laws did devest the Pope of they invested the King with it And of this the Power of Rehabilitating any of his Lay or Clerical Subjects is a part as was beforesaid A. You have cited somewhat out of this Great Champion for the King's Supremacy and for the Church of England and reputed to be the most clear Vindicator of it from Schism our Church hath had which hath created more anxiety in my mind about the Assertory part of the Oath then any thing hath done For the words in the Oath are I do utterly testify and declare c that no Foreign Prelate or Person hath or ought to have any Iurisdiction Power Ecclesiastical or Spiritual within this Realm and you have brought in the Primate granting that the Pope hath Power here to bind or loose inwardly and asserting that he hath here a Spiritual Power B. You judge right of the Bishop's Opinion and which is indeed express'd throughout his whole Book He tells us in p. 25. That St. Cyprian made all the Bishopricks in the World to be but one Masse whereof every Bishop had an entire part And he saith in p. 60 and 61. That neither King Harry the 8th nor any of our Legislators did ever endeavour to deprive the Bishop of Rome of the Power of the Keys or any part thereof either the Key of Order or the Key of Iurisdiction I mean Iurisdiction purely Spiritual which hath place only in the inner Court of Conscience and over such Persons as
submit willingly And in the clearing of which Point he refers to the Proviso aforesaid in the Statute of the 25th of Harry the 8th and the 37th Canon of the Church of England as rendring the Power by both given to the King to be purely Political But in p. 159. he refers by way of Objection to two Statutes of Harry the 8th the one an Act for extinguishing the Authority of the Bishop of Rome the other an Act for Establishing the Succession wherein there is an Oath that the Bishop of Rome OUGHT not to have any Iurisdiction or Authority in this Realm then faith it is declared in the 37th Article of our Church that the Bishop of Rome hath no Iurisdiction in the Kingdom of England and in the Oath ordain'd by Queen Elizabeth that no Foreign Preiate hath or ought to have any Iurisdiction or Authority Ecclesiastical or Spiritual within this Realm and he then by way of answer to which says That those two Statutes were long ago repeal'd by Queen Mary and never afterward restored c. and that altho it were supposed that our Ancestors ●…ad over-reach'd themselves and the truth in some Expressions yet that concerns not us at all so long as we keep our selves exactly to the line and level of Apostolical Tradition and saith that our Ancestors meant the very same thing that we do Our only difference is in the use of the words Spiritual Authority or Iurisdiction which we understand of Iurisdiction purely Spiritual which extends ●…o further then the Court of Conscience But by Spiritual Authority or Iurisdiction they did understand Ecclesiostical Iurisdiction in the exterior Court which in truth is partly Spiritual partly Political And he in p. 161. takes notice of the Apostles Dispensative Power 2 Cor. 2. 10. to whom I forgave any thing for your sakes forgave I in the person of Christ But all this is only in the interior Court of Conscience But the Primate having in p. 73. discours'd of the Act of 1 o Eliz. c. 1. saith here is no new Power created in the Crown but only an ancient Iurisdiction restored here is no foreign Power abolish'd but only that which is repugnant to the ancient Laws of England and the Prerogative Royal. In a word here is no Power ascribed to our Kings but merely Political and Coactive to see that all their Subjects do their Duties in their several Places Coactive Power is one of the Keys of the Kingdom of this World it is none of the Keys of the Kingdom of Heaven This might have been express'd in words less subject to Exc●…ption A. The Primate hath shewn an eminent Candour of mind in these Passages of his you have cited and if our Ancestors had but over-reach'd themselves and the truth in some Expressions and in any part of a Statute but that which forms an Oath it had not much concern'd us and as long as they had kept exactly to the line and level of plain Truth in all the words of the Oath but Oaths being stricti juris and being to be taken in truth and in righteousness and in the common sense of the words may I not here to the Assertory Clause of No foreign Prelate or Person hath or ought to have any Iurisdiction c. apply those other words of the Primate This might have been express'd in words less subject to Exception But according to what he cited out of St. Cyprian it may be said instead of no foreign Prelate hath or ought to have any Iurisdiction c. that Every foreign Prelate hath it and not only the Bishop of Rome as claiming a Succession under St. Peter but Thousands of other Bishops in Christendom who as the Primate saith there p. 162. do not at all derive their Holy Orders from S. Peter or any other Roman Bishop either mediately or immediately especially in Asia and Africa but from the other Apostles And suitably to what the Primate observ'd out of S. Cyprian by which we see that as there is but one Universal Church so there is but Episcopatus Unus in that Church and that undivided I find it observ'd in Sir Geffery Palmer's Reports in the Case of Evans Kiffin vers Ascuith Trin. 3. Car. B. R. Whitelock Evesque ad 3 Powers Le Primer est Ordinations and that comes to him by his Consecration and not before By that he can take the resignation of a Church He can give Orders and Consecrate Churches and it belongs not to him as he is a Bishop of one place or other mais il est universel sur tout le monde And therefore the Archbishop of Spalato when he was here could give Orders The Chief Iustice agreed with him herein The second is Potestas Jurisdictionis which is not Universal but tied to certain places as to take an Oath to Excommunicate and Punish offences and this Power he hath by Confirmation The third is Administratio rei Familiaris the Government of his Revenue and this is gain'd by Confirmation By this you see that the Bishop of Rome as every other foreign Bishop may have some Spiritual Power here viz. what the Reporter mention'd as the first And therefore I could wish that the 37th of our 39 Articles to which the Primate refers for the Interpretations of this Clause in the Oath had in those words there the Bishop of Rome hath no Iurisdiction in this Realm express'd such a distinction of his Iurisdiction as the Bishop hath done and otherwise that common and trite Rule of Non est distinguendum ubi lex non distinguit being here applicable you know what is to be thought of an ambiguous Oath and that as the sagacious Author of the History of the Council of Trent hath told us p. 187 as one Particular makes false the contradictory Universal so one ambiguous Particular makes the Universal to be ambiguous Moreover tho you will suppose that he might lawfully take the Oath in his sense of the Pope's Jurisdiction yet all his great Learning and Reason could not qualifie him to be an Authentical Interpreter of the Oath to me In some parts of the Oath that were obvious to doubt you have already given me satisfaction and particularly in making me by vertue of the Canons of King Iames a participant with the Clergy in his authentical Interpretation of the 37th Article And since as Suarez in his learned Book De Legibus 4. c. de Interpretatione humanarum Legum saith that there may be an interpretation of Law which hath the Authority of Law and that qui in eadem potestate succedit semper potest Praedecessotum leges interpretari I shall account King Iames his Interpretation as good as Queen Elizabeth's and that if he had there declared his mind about the Pope's spiritual Power in foro interno being not renounced by this Clause in the Oath I should then be content with it But 't is otherwise for he there Confirms it in effect as 't is in the Article
commanding Obedience to be given to the Word of God by reforming Religion according to his prescribed Will by assisting the Spiritual Power with the Temporal Sword by reforming Corruptions by procuring due Obedience to the Church by judging and cutting off all frivolous Questions and Schisms as Constantine did and finally by making decorum to be observ'd in every thing and establishing Orders to be observ'd in all indifferent things for that purpose is the ONLY intent of the Oath of Supremacy and whereby as he effectually confuted the Cardinal whose Letter charged the Oath of Supremacy as tending to this end That the Authority of the Head of the Church in England may be transferr'd from the Successor of St. Peter to the Successor of King Henry the 8th and to oppose the Primacy of the Apostolick See so at the end of his Book he shews that his design of Publishing the same was to satisfie all his good and natural Subjects and likewise Strangers about the things therein contain'd and whereby the King's Mind was publickly notify'd that in the right done to the Crown by the Oath of Suprema●…y as well as of Allegiance there was no wrong intended to St. Peter or his Successors A. I hope you have now put a Period to the History of the Dispensative Power of the Crown that was exercised in-the interpreting of any parts of the Oath of Supremacy or the 37th Article thereto relating You have named to me so many interpretations of the Oath that according to the wisdom of our State and the Lex Consuetudo Parliamenti making a Bill to be thrice read in each House of Parliament and then receiving the Royal Assent to be thought like Gold seven times purify'd may shew the interpretation of the Law to be so too But tho I will account any good Law to be more precious then Gold yet if like Gold it be too far extended by ductile interpretation it may be drawn to such a thinness as to lose all its weight and estimation and retain only a poor tincture and colour that will signifie little or nothing And as Pliny in his Panegyrick on Trajan said that by reason of the multitudes of sutes upon Penal Laws in Rome there was danger till Trajan's time ne Civitas fundata legibus legibus everteretur so a Law whose Obligatoriness is founded on interpretations may be endanger'd by the multitudes of them to be destroy'd and may like the Papal Laws of New Rome by the infinite interpretations of Casuists in the forum internum which is their Tribunal be brought to signifie nothing in either forum and to be only an Engine to make Perplexities You have given me here such a Genealogy of interpretations that according to the common Story of Arise Daughter c. one may say Arise Interpretation and go to thy Interpretation c. I shall therefore be glad now you have been so largely communicative of your thoughts to me about the assertory part of the Oath you will deal as frankly with me in acquainting me with what may in the Promissory part of the Oath be of importance for me to know in order to the better discharge of my Duty in the Case before me B. I shall therein be most ready to serve you when we meet next for the entire Consideration of what according to the Assertory part of the Oath you are obliged to do will I see be as great a load as both our patiences will at this time bear and therefore according to the Saying of Must is for the King I am to tell you that let our Kings make never so many interpretations one after another of this your Oath you must finding them all Consistent with one another consider them all with all due regar●… 〈◊〉 thank God and them when their Consciences being inclined to a tenderness for the doubting of yours they interpose their Dispensative Power of that kind And hereupon I shall tell you that in the year 1628. King Charles the First did cause the 39 Articles to be reprinted and with a Declaration before the same made by him as Supreme Governor of the Church within his Dominions that those Articles contain the true Doctrine of the Church of England and that if any Difference should arise about the external Policy concerning Injunctions Canons or other Constitutions whatsoever belonging to the Church of England the Clergy in their Convocation is to order and settle them c. he approving their said Ordinances c. that the Bishops and Clergy shall have licence under the Broad Seal to deliberate of and do all such things as being made plain by them and assented to him shall concern the setled Continuance of the Doctrine and Discipline of the Church of England c. and then having respect to the Article wherein the Arminians and Antiarminians were concern'd 't is order'd that no man hereafter shall either Print or Preach to draw the Article aside any way c. But the first Canon that was afterward viz. A. 1640. made was that concerning the Regal Power which begins with taking notice that sundry Laws Ordinances and Constitutions had been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King over the state Ecclesiastical and Civil and then enjoyns them to be ALL carefully observ'd by all persons whom they Concern upon the Penalties in the said Laws and Constitutions express'd and then decrees that the Clergy shall read the following Explanation of the Regal Power and where the words A Supreme Power is given to this most excellent Order i. e. 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 whether Ecclesiastical or Civil and that they should restrain and punish with the Temporal Sword all stubborn and wicked doers shew they had then the 37th of the 39 Articles in their eye and some other words viz. for any person or persons to set up maintain or avow respectively under any pretence whatsoever any independent Coactive Power either papal or popular c. is to undermine their great Royal Office shew they had an Eye on that 37th Article and on your Oath and where they did speak out that sense of the Clause The Bishop of Rome hath no Iurisdiction c. and of the words in the Oath that no foreign Prelate hath or ought to have any Iurisdiction c. that is that the Bishop of Rome had here no independent Coactive Iurisdiction the sense in which all considerate Persons who were Members of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's time took the old Oath of Supremacy and the Members of the Church of England in Queen Elizabeth's time and ever since took the new one As for Non-conformists who think the Government of Bishops unlawful this Clause that no foreign
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
request them to consider that a Private Interpretation of a Publick Act can give no satisfaction unless it be either expresly or virtually allow'd by the highest Authority that doth impose it and then it is made Publick c. But the Authority of Interpretation of any doubt in such a Publick Act belongs properly not to private but publick Persons c. For private Men tho Learn'd if they take upon them the Interpretation of publick Dictates may be more like to light on mutual Contradictions of each other then on the true and proper Construction of the Text they interpret So did Vega and Soto Soto and Catherinus who wrote against each other contrary Comments on the Council of Trent In which respect it was a wise advice given to the Pope by the Bishop of Bestice viz. to appoint a Congregation for the expounding of the Councel and well follow'd by him when he forbade all sorts of Persons Clerks or Laicks being private Men to make any Commentaries Glosses Annotations or any Interpretation whatsoever on the Decrees of that Councel Dr. Burgesse indeed made an Interpretation of his own Subscription but there had been no validity in it as we conceive unless it had been allow'd by the Superior Powers And so it was for as he saith It was accepted by King James and the Archbishop of Canterbury affirm'd it to be the true sense and meaning of the Church of England He refers there to Dr. Burgesse in his Answer to a much applauded Pamphlet Praefat. p. 26. A. Your mentioning that of Dr. Burgesse his Interpretation of his Subscription minds me of what I have read at the end of his Book call'd No Sacrilege nor Sin to alienate or purchase Cathedral Lands viz. in his Postscript to Dr. Pearson and his No Necessity of Reformation of the Publick Doctrine of the Church of England Printed A. 1660. where he saith As touching the Regal Supremacy we own and will assert it as far as you do or dare Only we had reason to take notice of the improper Expression in the 37th Article that the Queen's Majesty hath the Supreme Power For if the Declaration father'd on the late King and prefix'd to the Articles had so much Power with his Printer that he durst not alter the word Queen into King even in the year 1642 and those Articles must be read Verbatim without Alteration or Explanation then we say again there is a Necessity of Reforming that Article in the expression of it and not to talk at random what was indeed the meaning unless we may have leave when we read it Regiâ declaratione non-obstante to declare the sense which the Declaration alloweth us not to do But the truth is that exception of the Doctor to the Articles may well pass for a Scruple or rather a Cavil and at this rate we should be put to it to say O King interpret for ever B. You say right Dr. Pierson in that Judicious Book of his call'd No Necessity of Reforming the Doctrine of the Church of England well observes that the 37th Article hath express reference to the Queen's Injunctions set forth in the year 1559. and those Injunctions take particular care that no other Duty Allegiance or Bond should be required to the Queen then was acknowledged to be due to the most noble Kings of famous Memory King Henry the 8th her Majesty's Father or King Edward the 6th her Majesty's Brother The words of the Article declare that the Doctrine contained in it concerneth all the Kings as Kings The title in General is of the Civil Magistrates and the words run thus where we attribute to the Queen's Majesty the chief Government we give not to our Princes c. shewing that what they gave to her they gave to all the Kings of England Which will appear more plainly out of the first Latine Copy Printed in the time of Queen Eliz. in the year 1563. read and approved by the Queen the words where●…f are these Cum Regiae Majestati summam gubernationem tribuimus quibus titulis intelligimus animos quorundam Calumniatorum offendi non damus Regibus nostris aut verbi Dei aut Sacramentorum administrationem c. Being therefore the Article expresly mentioneth and concerneth the Kings of England as they are the Kings of England the mention of the Queen's Majesty in the Article can make the Doctrine no more doubtful then it doth our Allegiance in that Oath which was made 1 o Eliz. where the Heirs and Successors of the Queen are to appoint who shall accept the Oath the words of which are that the Queen's Highness is the only Supreme Governor of this Realm But I hope the Heirs and Successors of Queen Elizabeth did never appoint that Oath to be taken in the Name of the Queen's Highness but in their own It may be supposed that some such like Cavilling or Scrupling humour possess'd the fancies of some in the beginning of the Reign of King Iames the First and that some occasion was thereby given to that Prince in those his Canons expresly therein maintaining the 39 Articles and the Subscription thereunto and particularly in the 36th Canon there to enjoyn a Subscription to three Articles in such manner and sort as is there appointed and of which the first is That the King's Majesty under God is the only Supreme Governor of this Realm and of all other his Highness Dominions c. and that no foreign Prince Person Prelate HAUE or OUGHT to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual c. and in which the words have or OUGHT to have might possibly be inserted out of a Royal Complaisance with the Desires of some Scruplers in whose behalf the Famous Dr. Rainolds moved the King at the Hampton-Court Conference that to the Position in the 37th Article viz. The Bishop of Rome hath no Iurisdiction in this Realm of England might be added nor OUGHT to have but which motion the King then rejected as a thing superfluous and saying Habemus quod jure habemus You may find an Account of this two●…old Subscription in Coke 4. Inst. c. 74. and where he saith Subscription required by the Clergy is twofold One by force both of an Act of Parliament CONFIRMING and Establishing the 39 Articles of Religion agreed upon at a Convocation of the Church of England and ratify'd by Queen Eliz. 13. Eliz. c. 12. Another by Canens made at a Convocation of the Church of England and ratify'd by King James A. I had thought you told me that the 39 Articles owed no Confirmation nor Authority to that Act of the 13th of Eliz. B. I did tell you so and do think that when my Lord Coke used the word Confirming he spake cum vulgo or as the word is taken minus propriè and as it is taken in declarative Acts of Parliament sometime to mean declared and as I and others may in Discourse sometimes use the word But speaking properly to
confirm being firmum facere i. e. what was not so before you are not to think that the Parliament in 13 o Eliz. did so They Enacted what was by the Queen before authorized and as the words there are about the Articles viz. Put forth by the Queen's Authority And you may too for this purpose Consult the style of the Act 23 o Eliz. c. 1. Entituled An Act for retaining the Queen's Subjects in their due Obedience and where 't is made Treason for any to withdraw any Subjects from their Natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highness Authority establish●…d within her Dominions Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign pursuant to the Act of 1 o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction the Act of Parliament 35 o Eliz. c. 8. entituled Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good and Archbishops Bishops and Deans made by the Queen shall be adjudged lawful begins with acknowledging that the former were justly deprived and it is therefore Declared and Enacted by Authority of this Parliament that all and every Deprivation c. and all and every Sentence of Deprivation c. had pronounced and given c. shall be adjudged deem'd and taken good and sufficient in Law c. and as to the latter viz. That all such Archbishops Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty c. shall be taken and adjudged to be lawful c. Th●…y confirmed not what the Queen did in disabling the former and enabling the latter but only declared and enacted the validity of what the Queen had done And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling And here too by the way I am to tell you that you have another judgment of Parliament suitable to that in 8 o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty c. any ambiguity or question in that behalf heretofore made to the contrary notwithstanding and which QUESTION before made in the Case I have before shew'd to be disability A. But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of represented as a Gravamen by some B. I have so and the last Book I read that so represents it is the Answer to Dr. Stillingfleet ' s Sermon by some Non-Conformists c. Printed A. 1680. and where in p. 29. they thus express their desires viz. That all New devised Oaths Subscriptions and Declarations together with the Canonical Oath and the Subscription in the Canons be suspended for the time to come If that be too much we shall consent our selves with a modester motion that whatsoever these Declarations be that are required to be made subscribed or sworn they may be imposed only as to the matter and end leaving the takers but free to the use of their own Expressions And this expedient we gather from the Lord Coke who hath providently as it were against such a Season laid in this Observation The form of the Subscription set down in the Canons ratify'd by King Iames was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then in reference to the particulars therein contain'd what binders why they might not have the same restored in reference also to others It was the second Article enjoyn'd by that Canon to be subscribed viz. That the Book of Common-Prayer c. containeth in it nothing contrary to the Word of God and that it may lawfully be used c. at which they took so much offence and to which the Act of Parliament required not their Subscription A. I perceive then my Lord Coke doth not reflect on the form of Subscription as enjoyn'd by the 36th Canon of King Iames and by his Regal Authority out of Parliament as illegal notwithstanding what had been enacted in the 13th of Queen Elizabeth B. He doth not And he there further faith By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be proceeded withall by the Censures of the Church And I heard Wray Chief Iustice in the King's Bench Pasch. 23. El. report That where one Smith subscribed to the said 39 Articles of Religion with this addition so far forth as the same were agreeable to the Word o●… God that it was resolv'd by him and a●…l the Iudges of England that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice he is sworn to Canonical Obedience to his Di●…cesan But as to his saying that the Delinquent against this Canon is to be proceeded withall by the Censures of the Church I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain Admit or License any one except he first have subscribed in manner and form there appointed and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament and did likewise out of Parliament make incapacity to be the Punishment of refusing such new Subscription And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but as I may say virtually and tacitly by all our Kings and Parliaments ever since who have acquiesced in the same But what if I should tell you that the Authority of the King in thus making that Canon about Subscription hath been since expresly approved in Parliament A. I should be most ready to hear it B. You may therefore please to consult the Act for Uniformity 16 o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops c. set forth in the time of Edward the 6th as
kind B. Why then I can tell you if you will at any time turn to your Collection of Proclamations in the time of King Iames the First you will find that in his Proclamation of March the 5th the first year of his Reign he intimates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer and for that end gave forth his Commission under the Great Seal of England according to the Form which the Laws of this Realm in like Case prescribed to be used to make the said Explanation and to cause the whole Book of Common Prayer with the same Explanation to be newly Printed which being done and establish'd anew after so serious a Deliberation c. we have thought it necessary to make known by Proclamation our authorizing of the same and to require and enjoyn all men as well Ecclesiastical as Temporal to Conform themselves to it as the only publick Form of serving God establish'd and allow'd to be in this Realm And the rather for that all the Learned Men who were there present as well of the Bishops as others promised their Conformity in the practice of it only making sute to us that some few might be born with for a time Wherefore we require all Archbishops Bishops and all other publick Ministers as well Ecclesiastical as Civil to do their Duties in causing the same to be obey'd and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer You see there that all the Bishops and the great Parade of the literati present at that famous Conference did implore the King for the exercise of his Dispensative Power for a while to some few But what is more considerable is that the King here doth make a general relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things and instead of inserting an express Clause of discharging from the Penalties of that Act all that use the Common Prayer Book with the King's Alterations or Explanations as Queen Elizabeth's Admonition did in relation to those who took the Oath of Supremacy in the sense of her Interpretation a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law he enjoyns the uniform usage of the Book of Common Prayer as by him interpreted or explain'd the title of the Proclamation being A Proclamation for the authorizing an Uniformity of the Book of Common Prayer to be used throughout the Realm under the disabling Punishments of Queen Elizabeth's Act of Uniformity the Bishops all this while being ministerial to the King in his Power of thus interpreting and explaining an Act of Parliament and the loosening of its Obligation both as to themselves and others I am to tell you that in that Proclamation of March the fifth the King refers to a Proclamation he had before Publish'd on the 24th of October then last past wherein he gave the Puritan Divines an intimation of the Conference he intended to have and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation which saith he if there be Cause to make is more in our hearts then theirs c. and afterwards saith we are not ignorant that time may have brought in some Corruptions which may deserve a review and amendment which if by the Assembly intended by us we shall find to be so indeed we will therein procéed according to the Laws and Customs of this Realm by Advice of our Councel or in our High Court of Parliament or by Convocation of our Clergy as we shall find reason to lead us not doubting but that in such an orderly proceeding we shall have the Prelates others of our Clergy no less willing and far more able to afford us their Duty and Service then any other whose zeal doth go so fast before their discretion And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm and how loyally his Bishops and Clergy acquiesced therein A. I remember I have read both these Proclamations and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the People tho none in the Orthodox Clergy But I should be glad to know whether it made any fermentation in the Body of the People Representative and what was the Result of it Did the Parliament acquiesce in what the King had done as aforesaid For if so they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supremacy did in discharging the disabling Penalties in her first Act of Parliament and in relaxing by her interpretation the vinculum for its observance in that sense that many had before put on it B. King Iames his Parliament did in effect the very self-same thing And I shall give you the account of it out of his Proclamation of the 16th of Iuly A. 1604. in the Second year of his Reign for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it and his hoping that when the same should be made known all reasonable Men would have rested satisfy'd with that which had been done and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made His Majesty's following words are Notwithstanding at the late Assembly of our Parliament there wanted not many who renew'd with no little earnestness the Questions before determin'd and many more as well about the Book of Common Prayer as other Matters of Church Government and importuned us for our assent to many Alterations therein but yet with such Success as when they heard both our own Speeches made to them at sundry times shewing the Reasons of our former Proceedings in those Matters and likewise had had Conference with some Bishops and other Lords of the Upper House about the same they desisted from further Prosecution thereof finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same we had before with the Advice of our Councel had such Consideration as the present state of things would bear and taken order how the same should be prosecuted by such means as might be used without any publick disturbance or innovation And in how vigorous a State the Dispensative Power as to the Nonconformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Commons for the exercise of the same to the Non-conformists in the 10th year of his Reign Moreover how by Tacit Dispensation he dispens'd with the Disabilities that
way of Painting to have come But as I have now represented Iustice and Mercy to you to be the same thing so at some other meeting I shall shew you that Dispensation and Mercy are the same And in the mean while I shall tell you that there was a time namely throughout the Reign of Queen Elizabeth and in part of the Reign of King Iames the First when the Learning about Dispensations was not in England Dark learning but generally understood and that not only by the Writers of the Church of England but by the Puritan Writers and I shall shew you when this learning went to sleep and which I account not to have been again awaken'd till in the Conjuncture of Thomas and Sorrel's Case But when I come to entertain you with the learned Notions about it out of some of our Church of England Writers I believe you will not in the least startle at the thoughts of your Prince's dispensing with disability One of those Writers writ of the Subject before Suarez and whose Book I suppose that our Excellent Bishop Taylor happen'd not to have read because I met with no references to it in his Ductor dubitantium and where probably there had been many had the Bishop read it The Book speaks the Author to have been profoundly knowing in the Civil and Canon Law and not unacquainted with the Lex terrae and one who I think made a great figure in the Administration of the Discipline of the Church of England and whose great talents might probably cause our great Church-men then to engage him for their Champion against some of the Puritan Writers who look'd with an evil eye on the Regal dispensing with disability or incapacity in many of our Clergy-men And as when of old some of the English-understandings were employ'd in the writing of School-Divinity they penetrated as far into the Subtleties of it as those of any Nation so I may tell you that in my poor opinion that Author hath writ of the Learning of Dispensations both with all the subtlety and solidity requisite and more substantially then Suarez I shall lay the Book before you at our next meeting but shall now tell you that as to some Points we have been discoursing he observes that There is a Dispensation call'd of Iustice as it were an Interpretation or Declaration of the true meaning of the Law juxta aequum bonum and he cites the Canon Law to prove that Dispensation is a due for that the Precept of Mercy is common to all And I may tell you here that if you will look on your Durand's Speculum in his first Volume where he writes so copiously of Dispensing his style is Dispensatio sive misericordia A. You have taken care enough to make my entertainment in this meeting end with an appetite for another and the rather for that nothing is more pleasant to me then to find an Historical account of the Progress of any Controverted Point of any learning that hath made a ferment in Church or State. And tho as the course of Providence hath made the knowledge of this learning to be the opus diei and so the Ignorance of some and Malice of others hath made it look'd on as angry work and as frightful as a Comet and as odious as if it were to bring us under a torrid Zone yet I think your having surrounded the Nature of Dispensation with such mild and gentle Rays as to represent it to be of the nature of the Sol justitiae with healing in its wings must needs engage the knowing to bid it welcom with a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and make all their animosities and ferments about it to be soon over B. Truly I do not suppose that any knowing man can have an aversion against it and that this Learning non habet inimicum nisi ignorantem And that you may continue in your judgment of any ferment about the Dispensative Power being soon over I can refer you to another Iudgment of Parliament wherein a great tenderness for this branch of Prerogative is shewn namely in the Statute of Octavo Elizabethae c. 6. and to which that Excellent and Learned Person and great Ornament of the Law Sir Robert Atkins as you will find it in Keble Vol. 3. referring in his Argument in Chomas and Sortell's Case saith 8. Eliz. cap. 6. takes notice of Licence to dispense with such Laws as were pro bono publico yet doth not forbid it but rather compounds the matter It hath been the luck of Dispensation to meet with an ill name from some of our famous Writers who tell us that there were no such things as Dispensation or Non-obstante heard of till they came from Rome here in the year of our Lord 1240. and that afterward Kings learn'd from Popes to dispense with their Laws whereas before they caus'd their Laws to be observ'd like those of the Medes and Persians as the Irish Reports tell you in the Case of Commendams and whereupon Mr. Prynne on the Fourth Part of the Institutes c. 22. treating largely of Non-obstantes calls them Papal Engines And our old Monkish Writers have been quoted for bestowing the terms of legum vulnera infames nuncii and repagalum c. on Dispensations and Non-obstantes But I shall at our meeting again shew you that the practice of Dispensing may easily be traced to the Imperial Laws and this you may soon find if you will look on Dr. Donne's Pseudo-Martyr that you have by you and where you may guess at the age of Dispensations by his referring you in p. 40. to the Divinae Indulgentiae in the Digests and his telling you out of the Code that Theodosius and Valentinian making a Law with a Non-obstante did praeclude all Dispensations which the Emperors themselves might grant in these words Si coeleste proferatur oraculum aut divina pragmatica Sanctio And if you will look on Gothofred's Notes on the L. Iubemus C. De Sacrosanctis Ecclefiis de rebus Privilegiis earum cited by the Doctor there you will thus find it in those Notes Caeleste oraculum quid est Principis dispensatio There is another thing I have not had time now to Discourse with you about and that is of the Nature of Laws in terrorem as I intended and which suitably to the Wisdom of a Father in menacing a Child with cutting off his Head if he doth this or that thing are by the Pater Patriae and the Estates of the Realm sometimes lawfully made to intimidate men grown childish and vain by Sanctions of Punishments not intended to be executed according to the general tenour of such Laws But as what may make for my purpose of shewing you how worthy it is of the Majesty of Princes to incorporate Mercy with Iustice in dispensing with many particular Persons and even to the freeing them from the terror of those Laws in some angry Conjunctures when others were to be affrighted with them
quell'd by Prerogative Can you guess whence it is that men have imbibed this mistaken fancy B. I shall frankly tell you what I think hath occasion'd it It is most natural to all men in arguing to take the shortest course they can to bring their Adversaries to what is reputed by all to be an absurdity and there being some Disabilities that the Law-Books mention wherein Property is concern'd and wherein it appears as an absurd thing in any one who should say that they could be dispens'd with and as for Example what the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tells us of Disability where a man is not of whole Memory which disables him so that his Heir shall take advantage of his Disability after his death and where he passeth any Estate out of him it may be after his death disanull'd by his Heir and which cannot be disanull'd by himself during his life For it is a Maxim of Law That a man of full Age shall never be receiv'd to disable his own Person and for which he cites Sir E. Coke And he had before spoke of Disability by the Persons own Act which is if I bind my self that upon surrender of a Lease I will grant a new Estate to the Lessee and afterward I grant over my reversion in this Case tho I afterward repurchase the reversion yet I have forfeited my Obligation because I was once disabled to perform it Coke lib. 5. f. 21. Thus likewise it appearing to be against reason that men should be made Iudges who are under natural incapacities to exercise Jurisdiction and such as Vantius in his Book de Nullitatibus instancing in as Surdus mutus perpetuò furiosus impubes saith that quoniam defectus incapacitas istorum à naturâ ipsâ provenit ideo à quoquam etiam Supremo Principe suppleri non poterit quia etiam Imperatori tollere non licet quae juris naturalis sunt an asserting of the Power of Prerogative in dispensing with such incapacity would be absurd and it would shew somewhat of laesa Principia and of natural defects and incapacities in one who did rear Suppositions of a Prince's intending to employ such Uncapables and however nothing appearing to the first thought more ridiculous then a dispensing with incapacity of this kind many may be so apt to think that incapacities enacted by Penal positive Laws and by such Laws perhaps as were made in terrorem cannot be dispensed with But in fine when we meet hereafter I shall give occasion to both our thoughts for a higher flight then they had in that poor low Question Can the King dispense with Penal Disability and I shall shew you that where the King can as to any particular man relax the bond of his Law let the most penetrating Wisdom of Men or Angels be employ'd in the settlement and invention of the most terrible Penalties to guard the Law the Person so dispens'd with is ipso facto and ipso jure freed from them all He by being exempted from the Obligation of that Law is as innocent and free from any Sin by the transgression of it as the Child unborn The Dispensation hath intercepted all the Penalties hath absolv'd him à culpâ and therefore à paena and if you punish him you punish an innocent Person A. You will then make a happy riddance of the vexata quaestio of disability if you have not done it already B. But now Sir by WAT of RECOLLECTION as to what hath poss'd between us either at this Conference or the other if any thing occurs to your thoughts by me either obscurely spoken and which you would wish better illustrated or what may seem in the least to reflect on our Laws or on the Religion of the Church of England by Law establish'd I do most earnestly conjure you now to name it to me It is possible that for a Month or two's time we may not meet again and therefore I shall be glad that our parting now may be without any offence given or taken as to any of these Matters premised and in order to which that while what hath passed between us is fresh in both our Memories any misunderstanding therein may be prevented And I yet further give you the liberty in case any thing of the nature aforesaid or of what nature soever shall occur to your thoughts after we are parted which we have discoursed of and which you would wish better consider'd that you would when we meet again freely impart it to me and when if you can shew me that I in any thing have erred I shall shew you my readiness not to persevere therein and so we shall be both gainers you will gain the Vict●…ry and I the Truth A. I am sure I cannot oblige you more then by making use of the freedom you have offered me as I should find occasion so to do and for which at present I find but little I was during our Discourse of the Interpretation of the Oath of Supremacy afraid that you would have le●…t some great words in it that relate to no Foreign Prince or ●… relate having any Iurisdiction here Ecclesiastical or Spiritual c. under some clouds of doubtfulness and thereby have seem'd to derogate from the honour of the Oath till I found that you both asserted the honour of the Oath and of the Government too by shewing it from the Sentiments of my Lord Primate Bramhal and otherwise that Coactive Iurisdiction was thereby only meant B. I must caution you with a Nota bene to keep in your mind what I have both positively and argumentatively told you in obviating your scruples about the Oath and of the Regal Power of interpreting making the Coast of the Oath so clear to you and how I have supported the honour of the English Consciences of all considerate Persons of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's by shewing you that their sense of the Bishop of Rome's having here NO Iurisdiction was of no Independent Coactive Iurisdiction when they took the old Oath of Supremacy and likewise of those of the Church of England who in Queen Elizabeth's time and ever since took the new one And I need not tell you again that at the time of the making of the Statute of 37 o of H. 8. and of the Revival of it by Queen Eliz. and wherein it was declared that Archbishops Bishops c. have NO manner of Iurisdiction Ecclesiastical but by under and from His Royal Majesty both Harry the 8th and that Queen and the judicious in the Clergy of each knew that as to their Potestas Ordinis which by virtue of their Function they have to Preach and give the Sacrament and give Orders c. it was derived from Christ to the Apostles and their Successors and that so likewise was the Potestas Iurisdictionis in foro interno and that therefore none needed to suppose that either by