THE KING 's Right of Indulgence IN SPIRITUAL MATTERS WITH The EQUITY thereof Asserted BY A Person of Honour and Eminent Minister of State lately Deceased LONDON Printed and Sold by Randall Taylor near Stationers-Hall MDCLXXXVIII TO THE READER IT was the Opinion of the Great Lord Verulam That Books such as in earnest deserve that Title need no other Patrons than Truth and Reason Let the Abortives of the Press Court your favour This Treatise securely Appeals to your severest provided it be but unprejudiced Judgment It was Composed divers years ago by the Dictates of a NOBLE PERSON of whom when I have said That he was an Eminent Minister of State a known Protestant and one of the most Studious Gentlemen of our Age equally diligent and happy in Reading both Books and Men I shall have express'd but part of His Character The rest of which when you have perused this Elaborate Discourse you will better be enabled to supply by those Idaea's of Veneration which it cannot but raise in minds that have any respect to Truth Piety or Learning As the Dead can neither Cajole nor be Flatter'd so ought they not to be Envied you have here the free and well-poiz'd Thoughts of a late Peer of England on this Important matter long before His present Majesty came to the Crown All that I can pretend to is the Honour of being a little Instrumental to hand That forth to publick Light which I thought was too valuable to be doom'd to the Obscurity of a private Closet as being unwilling the Inquisitive World should be deprived of one of the most accurate Pieces that have been or perhaps can be Written on this Subject If any thing therein occur less suitable to present times you are desired to remember how long ago it was Compiled And withal to Pardon any Errors of the Press that may have escaped Correction Which is all I thought necessary you should be Advertis'd of by Black-Fryars Octob. 26 1687. Your Humble Servant HEN. CARE THE CONTENTS CHAP. I. The meaning of the Title SECT 1 OF Right 2 Of the Kings Right 3 Of the King's Grant. 4 Of Indulgence 5 Of Spiritual Matters 6 What is not meant by such Indulgence 7 What is meant by Spiritual Matters CHAP. II. That from Grounds of Policy Indulgence in Spiritual matters is fit to be granted The several grounds thereof in Policy are 1 THE preservation of the Publick Peace 2 From the Examples of our Neighbours 3 From Examples of Elder Times 4 From the Present State of our Affairs 5 From the Advancement of Trade 6 From the Increase of People 7 From the Dependance upon the Prince 8 From the satisfaction of Mens Minds CHAP. III. That from grounds of Piety it is fit to grant Indulgence in Spiritual Matters 1 FRom the Rule of doing as we would be done by 2 From the Note of being tender and kind-hearted 3 From the ground of Leaving to God his own Works 4 From the Subject Matter being Spiritual 5 From the Practice of the Church in best times 6 From the ground of sparing Christian Blood. 7 From the difficulty to search out Truth 8 From the aptness of good men to err 9 From the Introduction of Christianity CHAP. IV. Of Supreme Spiritual Jurisdiction and consequently a Right of Indulgence in Kings 1 OF Supream Spiritual Jurisdiction 2 Of the Matter of Fact and consequence thereof 3 That this Jurisdiction was in Fathers of Families 4 That it was in the Hebrew Princes 5 That it was in the Heathen Princes 6 That it was in the Emperors 7 That it was in the Kings of France 8 That it was in the Kings of Spain 9 That it was in the Kings of Sweden 10 That it was in several other Christian Princes CHAP. V. The Supream Spiritual Jurisdiction in England is in Kings 1 THat it was in our British Kings 2 That it was in our Saxon and Danish Kings 3 That it was in William 1. William Rufus and Henry 1. 4 That it was in King Stephen Henry 2. and Richard 1. 5 That it was in King John and Henry 3. 6 That it was in Edward 1. and Edward 2. 7 That it was in Edward 3. and Richard 2. 8 That it was in Henry 4. Hen. 5. H. 6. E. 4. R. 3. and H. 7. 9 That it was in King Henry 8. 10 That it was in the succeeding Princes CHAP. VI. That the Right of Granting Indulgence in Spiritual Matters is in our King. 1 AS he is a Mixt Person 2 As he is a Spiritual person 3 As he is Head of the Church of England 4 From the Grounds of Reason 5 From the Common-Law 6 From the Precedents before W. 1. 7 From Precedents of W. 1. till our time 8 From Precedents in our time 9 From several Acts of Parliament 10 From the Statute of 25 Henry 8. CHAP. VII The Answers to Objections against this Right of the King. 1 That it would incourage Schisms 2 That it would hinder Vniformity 3 That it would cause Discontent 4 That it would countenance Disobedience 5 That the King might then Repeal Statutes 6 That the late Act of Vniformity bars this Right CHAP. VIII Observations upon Examples of Persecution 1 OF Cain 's persecution 2 Of Pharaoh 's persecution 3 Of Haman 's persecution 4 Of Nebuchadnezzar 's persecution 5 Of Darius his persecution 6 Of the Persecutors of our Saviour 7 Of Christ's Disciples persecuted 8 Further Observations upon the Examples 9 The Comfort of Persecution CHAP. IX Observations upon Examples of Indulgence in Spiritual Matters 1 OF Indulgence to Noah 2 Of Indulgence to the Patriarchs 3 Of Indulgence by the Egyptians 4 Of Indulgence by Moses 5 Of Indulgence by Joshua 6 Of Indulgence by the Judges and Kings 7 Of Indulgence by our Saviour 8 Of Indulgence by the Disciples of Christ 9 The Sum and Conclusion of the Treatise THE King 's Right OF INDULGENCE In Spiritual Matters ASSERTED CHAP. I. The Meaning of the Title 1. TO explain the meaning of the Title of this Work Lib. feud 2. tit 2. ss 2. tit 3. ss 1. Idem quod justum id est quod recto jure Constitutum Instit de fidei commis-haered Secundum juris civilis praescripta regulos Bracton l. 5. de exceptionibus c. 28. ss 2. fol. 434. Jus possessionis Jus proprietatis Cook on Littleton f. 345. It may be inquired first what is meant by the word Right The Civilians say that Right is the same with Just that which is constituted by right Law and by just and lawful means that is Right Justinian called the Law Right Rectum so the French say Droict That which the Civil Lawyers term what is according to the Praescripts and Rules of the Civil Law. The same signification it bears in our Law and our antient Authors call it Jus as Right of Possession and Right of Property And if a Tenant in Fee make a Lease for Years and afterwards release all his Right his
little reason to except against the one as the other or to impose Conformity in Opinion as in Complexion But these who are no kin to Moses fancy Impossibilities when they fancy an Extirpation by these means did the Massacre in France Extirpate those of the Religion It did indeed those who were Murthered but it made the Dissent to grow They are like Camomile the more they are bruised and trod upon the more they flourish as the stories of the Church do manifest In the last and best place it will be found that the granting of Indulgence is the surest and most probable way of preserving the Publique Peace But hereof there will be occasion to Treat more at large in a following Section 5. Another ground of Polity for the allowing of this Indulgence is for the Advancement of the TRADE of the Kingdom The Dissenters are generally Sober Industrious Trading men not Debauched Drones Born only to consume Corn and Wine but such as can do more Service for their Prince than meerly to Drink his Health Every Trader Merchant or Artificer bringeth Wealth to the Publique and adds to the Kings Revenue they are considerable Members of a State and add much to common Riches and Safety Merchants are honourable and Artificers had the title of Fathers and both deserve encouragement But without this Indulgence there will need no Law to banish multitudes of these men they will banish themselves if they cannot enjoy their dearest interest the Liberty of their Conscience If this be denyed them in their native Country they will seek it in the remotest Regions rather than not enjoy it And they will be welcome wheresoever they go Even Pagans will allow them this liberty if their fellow Protestants will not But I suppose and hope that no sober English man will think of any such way as extirpation by banishment or death of those who differ in Opinion from them If these Dissenters be encouraged by Indulgence it will highly tend to the advancement of the Trade of the Kingdom If they be forced out of it the Nobility and Gentry will find it in the decay of their Rents the King will find it in the emptiness of his Coffers and the People as well as their Prince will be sensible of the mischief upon any contest with Forreigners 6. Another ground of Polity for the granting of this Indulgence is That thereby the People of the Kingdom will be increased they will be kept from going out of it and live comfortably and increase within it But by denyal of this Indulgence the great numbers of People and their Children and Childrens Children which will leave the Kingdom and be born and inhabit other Countries will dispeople and weaken England The strength and wealth of a Prince and People consists in their multitude happy is that Prince who hath his Quiver full of People He shall not be ashamed when he speaks with his Enemy but the loss of every single Industrious Man is a loss both to King and Kingdom It was the blessing to Abraham Gen. 17.5 that his Seed should be as the Stars of Heaven for multitude and therefore God would have his Name called Abraham for a Father of many Nations have I made thee And the Word Abraham signifies a high Father of a multitude Every Prince is a Father of his Country Pater exce'sus multitudinis and the more Subjects he hath the more Children he hath and the more happy and strong he is and the loss of any one is the loss of a Child to him It was the answer of Queen Elizabeth to her Parliaments advice for her to marry that she might have Children to succeed her That every English man was her Child Now the granting of this Indulgence will keep the Children at home with their politique Father whose Riches and Honour and Strength will be increased by their increase But by driving them away the Prince will lose his Children impare his Revenue and weaken his Kingdom incourage a Forreign Invasion and Domestick troubles 7. Another ground of Polity for this Indulgence is because thereby the Persons to whom it is granted will be brought to an intire dependence on their Prince who grants it No interest in the world is so dear to these Dissenters as the liberty of their Conscience and where they have this the interest of it obligeth them to be faithful to that Power which gives it else they are not faithful to their own interest Nothing binds more firmly than Interest and no interest is more strong to bind more beloved or more desired than this Freedom and therefore bindeth those to faithfulness where they have it Subjection is due in regard of Protection and where these Men have the liberty of their Consciences from a Prince the interest of preserving that Liberty obligeth them to be faithful to and to preserve his Power by which this great interest of theirs is preserved If the Prince fall who grants this Liberty the Liberty falls with him they that will maintain the Gift know that they must support the Giver also It is safe for a Prince by such ways to oblige his Subjects especially such as these who are for the most part of constant stout and industrious Spirits to a dependance on him whose service will be the more available to him And it is their Tenet that this Indulgence cannot be enjoyed with so much certainty and stability under any other as under their native Legal Government Religion hath its name from binding and there can be no firmer bond of Subjects to their Soveraign than when they enjoy the freedom of their Religion from their Princes favour and the continuance of this highest comfort and interest depends upon the safety and good of him that grants it 8. The last ground of Polity which I shall now mention for the granting of this Indulgence is because thereby Mens minds will be satisfied Whilst Dissenters are in doubts and fears least they may be punished and persecuted for their Dissent whilst they see and feel Laws rigorously executed upon them or others in the same condition this perplexeth their thoughts disturbs them in their business causeth them to transport their Stocks or part of them into other Countries and sometimes their Persons and Trades with them which hath been no small detriment to England heretofore and may it be so no more But by such Indulgence Mens minds will be quieted they will chearfully and undisturbed follow their Vocations whereby Trade will be promoted and the Wealth Strength and Peace of the King and his Kingdom will be advanced CHAP. III. That from Grounds of PIETY it is fit to grant Indulgence in Spiritual Matters 1. Matt. 2.12 I Shall consider the ground of Piety To do as we would be done unto which is part of our Saviour's Sermon Whatsoever ye would that men should do to you do ye even so to them and he is pleased to give a Reason of it For this
in usu non erant donee H. Winton Episcop malo suo dum Legatus esset crudeliter intrusit whereof a Monk writes that Appeals to Rome were not in use until Henry Bishop of Winchester by his mischief while he was Legate did cruelly intrude them before this they were made to the King as having supream spiritual Jurisdiction H. 2. was a strong opposer of the Sea of Rome as appears by the Story of Thomas of Becket and by the Laws made at Clarendon abridging the Popes authority forbidding Appeals and payment of Peter pence Guliel Nubrigens Cro. Anglor 1.2 c. 16. Mat. Paris Anno 1164. Roger Hovenden f. 496. and commanding that none should bring Decrees from Rome to be executed here on pain of Imprisonment and confiscation nor Bulls of interdicting the Realm on pain of high Treason Generally this King asserted and maintained his supream spiritual Jurisdiction but he began a little to relent when the Pope armed his sons and Neighbours against him he constantly made all the resistance he was able against the incroachment of the Clergie and for the vindication of his own Right as his Laws also testifie in matters spiritual King Richard 1. Coke Epist 6 Rep. gave the Bishopricks by the investiture of the Ring and Staffe which was a great testimony of this Jurisdiction acknowledged to be in him He went further in a Droll which brought him in Money to make a Bishop an Earle Mat. Paris p. 144. 50. Juvenem feci Comitem de Episcopo veterano saying That of an old Bishop he had made a young Earle He granted great priviledges and exemptions to some of his Clergy and Subjects of Normandy as well as those in England 5. The next are the Reigns of King John and Henry the 3. who exercised the like Jurisdiction Mat. Paris anno 1203. 1216. yet it must be acknowledged that in King Johns time the power of the Bishop of Rome did swell to a great height in this Kingdom the Pope neglecting no means for the increase thereof For which end he scrupled not to absolve the people of England from their Oaths and Allegiance to their Soveraign And then turning the Tables interdicting the Kingdom for opposing his will and pleasure By which means he brought the King to surrender the Crown to the Popes Legate and to take it again as his Farmer But the Barons were so sensible of the Right and Supremacy of the Crown of England that they told the Legate That the Kingdom of England never was nor should be St. Peters Patrimony and spoke homely of the Clergy Polydore Virgil. in Joh. l. 15. who assisted the Popes proceedings crying out upon these shrivled Ribbaulds Neither this King nor any that succeeded him observed any part of this Submission And notwithstanding all this Not. in Eadmar p. 143. donationem baculi pastoralis Abbathiae de Nutlega the same King held it not only his Right himself to give the Pastoral Staff but granted this Right to others As to William Marshal and his Heirs he granted the Donation of the Pastoral Staffe of the Abbey of Nutlege which was a meer spiritual Right and exercise of Supream Jurisdiction in those matters In the time of his son H. 4 H. 3 7 H. 3. prohibition 15. H. 3. prohibit 15. 22. to 5. respectes Cas. 11. f. 3. prohibitions were very frequent which is a strong vindication of this Jurisdiction in the King. So was the writing in the Kings name to the Bishop to absolve a Person Excommunicate and to certifie Loyalty of Marriage Bastardy and the like which were often done in this Kings Reign Also in this Kings time 45 H. 3. rot stans in 14. dorso there are some Records yet extant by which it is forbidden that any man be drawn in Plea out of the Realm there being sufficient Jurisdiction in the King to do his Subjects Justice in all matters whatsoever 6. We may now look into the Reigns of Edw. 1. and Edw. 2. and find the same Jurisdiction exercised by them E. 1 E. 1. rot stans in 5. dors 1. A stout and wise Prince did much recover this right to his Crown He would not suffer those of the Clergy to go to Rome without his Licence In his time the Statute of Mortmaine was made 7 E. 1. stat of Mortmain which much â—mpaired the growth of the Clergy and increased the Kings Juâ—isdiction He forbad the Popes Provisions without his knowledge and leave 11 E. 1. rot fin M. 5. 11 E. 1. c. 32. â—nd shortly after this was the Statute of Carlisle made which reâ—ites the Usurpations of the Pope in giving Ecclesiastical Benefiâ—es to Aliens and Enacts that those oppressions should be no more suffered This King denyed William of Nottingham to prosecute his Appeal to Rome because it would infringe the Kings Jurisdiction 18 E. 1. Petitiones coram Rege f. 1. 3. but bad him to enter it here if he would He set a penalty upon the Provisions of Appropriation 18 E. 1. Pleas in Parliament 28 E. 1. in Scaccario and being cited by the Pope to appear before him The great Council were highly offended at it and wrote to the Pope that it was notorious That the King of England was not to appear before â—he Pope or any other and although he would yet he could not do it being himself Supream in those as well as other matters This King denyed the Popes Bulls and Peter pence 33 E. 1. lib. â—pud Turrim f. 1. 114. 35 E. 1. 16 f. 150. 35 E. 1. rot Pat. M. 25. Sr Jo. Davis Rep. f. 95. and other Exactions of Rome and would not Licence his Bishops to repair to the General Council till they had taken an Oath not to receive the Popes Blessing He regarded not the Popes prohibition of his Wars against Scotland He forbad the payment of First fruits to the Pope and seized the Temporalties of the Clergy for refusing to pay him a tenth though the Pope forbad them In his time 50 E. 3. lib. Assis pl. 19. Brook praemunire 10. Coke 5 Rep. Eccles Case f. 12. 9 E. 1. quare admisit 7. 39 E. 3. it was adjudged Treason for one Subject to bring in a Bull of Excommunication against another and a high contempt against the Crown to bring in Bulls of Provision or Briefs of Citation And the Arch-bishop of York had all his Lands seized into the Kings hands and lost during his life for a contempt in refusing to admit the Kings Clerk to a Benefice against the Popes Provision and all this was held to be according to the Common Law of England and an high Testimony of the Kings Supremacy In E. 2. time Stat. 9 E. 2. the Clergy put up again for a share of this Supremacy and got the Statute of Articuli Cleri to be made but in them the Right of the Crown is reserved and manifested This King by his
Treason to withdraw any from our Religion to the Romish 23 El. c. 1. 27 El. c. 1. Jesuits and Priests are to depart the Realm and not return on pain of Treason Next was a severe Law made against Seditious Sectaries 35 El. c. 1. frequenting Conventicles on pretence of any exercise of Religion contrary to the Queens Laws and so it must be and whether this Act be continued or not was questioned King James proceeded in the wayes of Queen Eliz. as to spiritual matters 1 Jac. c. 4. That her Acts against Romish Priests be put in Execution but with favour upon Conformity Sundry Acts were made in his time touching fasting days 1 Jac. c. 2â— 29. 3 Jac. c. 1. 3 Jac. c. 4. Prayer for delivery from the Gun-powder Treason for repressing and discovering of Popish Recusants and against absolving to the Church of Rome and penalties for not coming to Church In none of which the Kings power of Indulgence is impeached or named There is also an Act of King Charles 1. for reforming abuses on the Lords day and to restrain sending any beyond Sea to be popishly brought up and others of like nature In all these Princes Reigns the writing to the Bishops to absolve Persons Excommunicate to certifie Loyalty of Marriage Bastardy c. and Prohibitions to the Ecclesiastical Courts were very frequent and testimonies of together with a quiet enjoyment of their Supream Spiritual Jurisdiction which consequently carries the Right of granting Induigence in Spiritual matters along with it CHAP. VI. 10 H. 7. Rex est persona mixta unita cum Sacerdotibus Ab Gloss in c. de decimis Rex non praeesse debet in spiritualibus ut in temporalibus A. B. C. de sacro sanct unctionibus Quod Rex mere Laicus non Ecclesiasticus aut mixtus quanquam unctus nec spiritualibus aut temporalibus quoad ecclesiam se immiscere posse In ordine ad spiritualia That the right of granting Indulgences in Spiritual matters is in our King. 1. THis right is in the King of England as he is a mixt Person capable of Spiritual Jurisdiction This was affirmed by Judge Bryan in H. 7. time and that the King is a mixt person and united to the Priests of holy Church But the Canonists say that the King is not Supream in Spirituals as he is in Temporals and they labour much for their own and their Masters interest to make it good Some Doctors affirm that a King is a mere lay person and not an Ecclesiastical or mixt Person although he be annointed and that he cannot intermeddle with matters Spiritual or with matters Temporal which do concern the Church It is much for them to abridge a Kings Power in matters Temporal but it is not the first time they have made use of the Words in order to Spirituals to the prejudice of the Power of Princes Nor doth their opinion determine the Laws of England by which our King hath this Jurisdiction The stories of other Kingdoms as well as of this do manifest the exercise of Supream Spiritual Jurisdiction by Princes and the Non Obstante of the Doctor though the King be anointed is no small objection in their way carrying Testimony that Kings are mixt persons Especially as it relates to our King Caâ—ibut Downings discourse of the States Ecclesiastical p. 57. whose Anointing is only ancient among the Princes of Christendom The old Rhime of Robert of Gloucester is mistaken which saith of Alured And he was King of England of all that there come That verst thus yeled was of the Pope of Rome Oyled or anointed For Gildas mentions the anointing of the ancient British Kings although in a bad sence Galfred Muneth l. 9. c. 3. and the Monk of Malmesbury the anointing of Egbert before Alured Jothams speech to the Israelites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isa 45.1 That the Trees went to anoint them a King and that which is rendered they went to make Abimelech King is in some Greek Copyes they went and anointed Abimelech to be their King. This was about 200 years before the beginning of their Kingdom in Saul who with his Successors were anointed So also was the King of Syria Hazael and Cyrus King of Persia in the holy Prophecy is called the Lords anointed a frequent expression of Kings in Scripture I meddle not with the Miracle Ceder Roda senim tract Kerisos Lyr ad Ri. 3. that the Holy Oyl which was consecrated in Moses time and used in this Vnction continued without diminution until the Captivity But from those Examples in the Holy Story the Kings of Christendom took their custom of being anointed Our Soveraign is anointed by the Arch-bishop of Canterbury The Emperors when they were Kings of France were anointed by the Arch-bishop of Rhemes and as Emperors by the Arch-bishop of Mentz Colen and Triers But the Kings of France of the first line were not anointed Du. Haillan l. 1. de la premiere lignee oinct ny Sacrèe as their Historian testifies and in a second place saith plainly and peremptorily There is no mention in our Antiquities of the anointing of the Kings of the first line Though the Kings of Spain are anointed by the Arch-bishop of Toledo Nâ—est faicte aucune mention de sacrèe ny de onctionee Reys de la premiere lignèe The Kings of Denmark he means of Sweden by the Arch-bishop of Vpsal The King of Poland by the Arch-bishop of Guesne The Kings of Hungary by the Arch-bishop of Strigon The Kings of Navarre by the Bishop of Dampetune yet none of them were anciently anointed but now are and this real Relation doth more peculiar and appropiate the State Spiritual to our King. And by it Downing f. 96. he is more than a lay man he is a mixt person having Supream Ecclesiastical as well as civil Government 2. Nay the King of England is not only a mixt Person but in some sence he may be termed a Spiritual Person whereof the former Note of his being Anointed and by Spiritual Persons is some Argument The use of Oyle or Unction amongst the Gentiles and Jews Causabon ad Baron Annal. exercit 14. An. 32. Numb 26. whereby they would have even inanimate things Sacred by pouring Oyl on them may be omitted All hold the Anointing of Kings to difference them from Lay persons and that it put a kind of Sacredness upon them as making them Spiritual persons Hence the French word for it is sacree as it were a consecration or dedication of the King above all others to the Service of God in Spiritual matters That Kings anointed with holy Oyle Reges sancto Oleo uncti sunt Spiritualis Jurisdictionis capaces 33 E. 3. tit Ayd du Roy. Guimer tit 12. §. 9. Quod Reges inuncti non sunt mere Laici Psal 105.15 2 Cor. 1. are capable of spiritual Jurisdiction was a sentence applyed to our King in the time
of E. 3. and to his Predecessors 〈◊〉 Successors And Guimer in his Comment upon the Pragmatical Sanction of France is peremptory that anointed Kings are not meerly lay Persons And he adds that from thence it is that the Kings of England do bestow Benefices The anointed King David puts Prophets and anointed Persons together Touch not mine anointed and do my Prophets no harm and Christs Ministers are frequently stiled Gods anointed If our King as undoubtedly he is be a spiritual Person it is not improper for him to grant Indulgence in matters Spiritual The Kings of Israel took themselves to be spiritual Persons and and to have spiritual Jurisdiction as the Judgment and Actions of Moses Joshua the Judges and their Kings do show The excellent and Pious Sermons and Exhortations made by Moses Joshua Samuel David Solomon Hezekiah Jehoshaphat and others do testifie their being Spiritual Persons So doth that passage of our first Christian King Lucius Antiquit. Britan p. 6. that he laboured the Propagation of the Gospel of Christ and that having transported an Army into France Dum Duces sui bellica tractarent officia ipse evangelio praedicando assiduus suit whilst his Captains were imployed about the business of the War he himself was diligent in Preaching of the Gospel Our last Saxon King Edward gained the title of Confessor And who so reads the Book of our late King Charles the first will find that he had admirable Endowments in Spiritual as well as Temporal things Though it be not a personal Duty in a Prince to Preach yet he is trusted to promote the Gospel as a principal part of his Duty and for a Prince to Preach is no strange thing nor any disparagement the great Solomon is called the Preacher and they may Preach if they please which is an argument of their being Spiritual Persons and that of their fitness to give Indulgence in Spiritual matters 3. If our King were not to be taken as a Spiritual Person he could not so properly be Head of the Church in England which by our Law he is and therefore the more capable and fit to grant Indulgence in Spiritual Matters The Passages before in part remembred of the actings of our elder and later Kings 16 R. 2. c. 5. do sufficiently evince them to have been Heads of the English Church An Act as ancient as R. 2. time declares that the Crown of England hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things H. 8. settling this Supremacy in himself and his Successors by the Act in the 24th year of his Reign 24 H. 8. c. 12. recites that by authentick Histories and Chronicles it appears that this Realm is an Empire and so hath been accepted in the World governed by 〈◊〉 supream Head and King unto whom the Spiritualty and Tempor 〈…〉 een bounden and owen to bear next under God a natural and humble Obedience In the next year an Act prayes thus 25 H. 8. c. 21. In regard your Majesty is supream Head of the Church which the Convocation hath recognised that it may be enacted c. Another Act settles it more expresly which recites That although the King rightfully is and ought to be supream Head of the Church of England and so is recognized by the Clergy in their Convocation yet for confirmation thereof and increase of Virtue and to extirpate Errors and Heresies it enacts That the King shall be taken and reputed the only Supream Head in Earth of the Church of England And shall have and enjoy annexed and united unto the Imperial Crown of this Realm as well the Title and Stile thereof as all Honours Dignities Preheminencies Jurisdictions Priviledges and Immunities to the said Dignity of Supream Head belonging In his Sons time it was enacted to be High Treason 1 E. 6. c. 12. to affirm that the King is not or ought not to be Supream Head in Earth of the Church in England immediately under God or that the Bishop of Rome or any other than the King of England is or ought to be by the Laws of God Supream Head of the same Church This Title was challenged by the Pope over all the Churches of Christendome but the several Acts of Parliament declare it to have been and to be the right of our Kings And if it ever did belong to any Spiritual Jurisdiction to grant Indulgence in Spiritual Matters it is by these Acts given to the King. The Pope when he claimed the Title did give Indulgence in greater matters therefore it may be allowed to our Kings under this Title to grant Indulgence to some of their Subjects Dissenters as to some minuter matters of Religion as Forms or Ceremonies in Church Discipline c. 4. We may examine from the ground of Reason whether it be not fit that this Right should be in the King. When a suddain Tumult and Insurrection hath broke forth into a dangerous Rebellion the King hath in that exigency granted some temporal Indulgences Manumissions and other Immunities and Pardons which at another time he would not grant yet this in reason and consequence hath been approved a violent Storm being thereby avoided and appeased and danger to the King and Kingdom prevented May it not fall out upon the like grounds of reason that the King who is the publique Sentinel forseeing any Tempest or Danger or the decay of the Trade Wealth or Strength of the Kingdom may thereupon and to prevent it grant Indulgence to his Subjects in Spiritual Matters If this Power should be denyed him it cannot in reason be expected that he should be so well furnished without it as he should be to prevent a common Mischief or Danger Bishop Taylor hath a Rational as well as Theological Discourse on this Subject It is saith he a great fault Bishop Taylor 's Book of the Liberty of Prophecying pag. 536 537. that men will call the several Sects of Christians by the name of several Religions All the Sects and all the Pretences of Christians are but several Species of Christianity if they do but serve the great End as every man for his own Sect and Interest believeth for his share he does In reason the Prince is to Order and Indulge such of them as he thinks fit the better to serve his great end To Tollerate is not to Persecute and the Question Whether the Prince may Tolerate divers Perswasions is no more than whether he may lawfully Persecute any man for not being of his Opinion If he ought not in Justice and Reason to do this it follows in reason that he have a Power to Indulge them The Prince is just to Tolerate diversity of Perswasions as he is â—o Tolerate publique Actions for no Opinion is Judicable nor â—o Person Punishable but for a sin If the Non-conformity be no Sin it is reason that it be Indulged and in reason none is so
which is not so easily sheathed again Princes well advised have never put some of their Subjects to death to make others believe that they have not wasted their Provinces by War but to instruct the Consciences of their Subjects by the Sword knowing that Religion is an act of Union Concord and Instruction War nothing else but Misery and Destruction And they who have moved Heaven and Earth that is have made use of every Engine to force the Consciences of their Subjects into the same Religion have been constrained at last to desist rejecting the Counsels of bad Physicians who have nothing but Stibium and letting of blood for all sorts of Diseases Where Liberty of Conscience cannot be enjoyed the Canker of Civil Discord frets and eats till it can break forth into open Sedition But by granting an Indulgence both their Minds and Persons become peaceable 2. That this is so appears from the Examples of some of our Neighbours who had many troubles and much disturbances of their Peace before Indulgence was granted to Dissenters among them and much Peace and Security after it This was the case of the Netherlanders whom their Governours could not retain in Peaceful Obedience till they had granted this Indulgence which with them is very large yet is esteemed a chief cause of their Peace and Civil Unity nor do any flourish more in Trade and all Security That wise and gallant Prince H. IV. of France saw so great Mischiefs in his State and such a floud of Civil Dissention for want of this Indulgence that he thought fit to grant it and told his Parliament That Necessity and Utility moved him to do it by the Advice of all his Council who found it good and necessary for the State of his Affairs and the good of his Service to confirm the Indulgence and to dissipate those unhappinesses that Discord had produced and it would be found equally prudent peaceful and happy for every Prince to follow this Example 3. That by such Indulgence the Peace will be the better preserved appears further by Examples of elder times Christians have been so strangely hated and persecuted in the Birth of the Church that some gave them no other Names but of Impostors others accused them of the injury of the Air of the sterility of the Seasons of the overflowing of Rivers and of Earth-quakes But the Emperour Adrian would not that they should be curiously searched into as to the matter of Religion and Antoninus his Successor commanded that he that accused them should be burnt alive After the whole Empire had found the publique Prosecutions of Dioclesian and Maximinius to be vain and fruitless and that for one Christian they caused to be Burnt an hundred sprang up out of their Ashes their Successors found it true Curtius L. 7. nemo Rex perinde animis imperare Potest That Kings have not the same command over Hearts as over Bodies That Religion could not be forced that Truth could not be joyned with Violence nor Justice with Cruelty and that there is nothing so free as Religion nothing so voluntary that the Permission and Indulgence of that freedom tends most to the preservation of Publique Peace a main ground of all Polity Pagan Princes have found it so Pagans have Indulged Christians by Indulging the Christians And it was Objected against Decius that his want of Moderation towards the Christians robbed him of the Title of a Great and Righteous Prince Christian Princes also have Indulged Pagans Christians have Indulged Pagans and would not have Paganism among them to be Punished The Emperours Honorius and Theodosius though burning with the Zeal of advancing their Religion yet would not that the Heathens should be forced to be Christians and required of all Judges and Presidents of Provinces not to trouble them so long as they did live without Disturbance or Sedition It were hard for Christians to deny the like favour and Indulgence to one another The Jews Jews have been Indulged by Pagans although irreconcilable Enemies to the Ethnicks and to the multitude of their Gods yet have they dwelt with the greatest security among the Grecians Parthians Medes Elamites and Mesopotamians none ever chaced them out of the Roman Empire they have had there in all times their Synagogues especially under Nerva and Antoninus Pius They have lived peaceably and been Indulged in England And by Christians France Spain and other Countries and wheresoever they were driven out of any Kingdom it was not for their Religion but for their Vsuries and great Cruelties and it would be hard to see these in quiet who deny Christ and Protestants hurried to Prison for disliking Surplices or some little things Doubtless A violent way of force will never be found a way to preserve Peace where a mild way of Indulgence is open and having been taken it appears by Examples both of elder and latter times that it hath been found by Princes the best way to preserve their Tranquility 4. Upon the grounds of Polity from the consideration of the the present state of our Affairs in England it seems sit that this Indulgence be granted and that thereby our Peace will the better be preserved The Baltique and other deep Seas being once moved by Tempests do swell and rowl high for many hours after and a small new Storm raises them yet much higher After hideous Storms of Civil Discord in England the Affairs thereof through the miraculous goodness of God in his Majesties Restoration are come into a calm state yet the more apt to rage because so lately moved and therefore surely all Tempestuous courses are to be avoided and Provocations laid aside There are three ways of stopping Commotion from raging again by Force by Extirpation or by Indulgence If Force be used to keep Dissenters quiet and to compel Conformity this Force cannot be maintained without a vast Charge this Charge will increase Discontent in them and others that must cause increase of Force that again increase of Charge and that of Discontent and so it will run round in a course of unhappiness and unsetledness It were Impiety in a Prince to be angry with his own Countrey he ought rather to imitate good Physitians who having used sharp Remedies without profit do apply sweet ones Those who are for an Extirpation of the Nonconformists would un-people their Native Countrey disarm their Prince of so may thousands of Strong and Valiant Subjects abate their own Revenue and the publique Wealth and Trade to enrich Foreign Countries Some merciless Fancies would force a Conformity on Pain of Death a sure way of Extirpation Such Tyrannous men are like their Predecessor infamous in History who would have all conform to his Stature those who were not so tall as he to be racked out to his length those who were taller then he to be cut stort to the length of his Bed. Certainly there is as much difference in Judgments as in Statures and as
Supreme in his Kingdom But Philip the Fair before that clapt the Popes Legat by the heels and Sequestred himself and his whole Realm from his Obedience and at length caught the Popes own Person and kept him in Prison till he dyed Here was exercise of Supreme Power to he highest And when Francis I. Concordat Gall. Budovus de Astr in his Interview with Leo X. did remit the Force of the Pragmatical Sanction his Secretary said That the Garland of France was betrayed So much they valued the King's Supreme Spiritual Jurisdiction whereof many more Instances are in the Story of that Nation 8. The like Supreme Jurisdiction was exercised by the Kings of Spain In Castile they have some limitted Ecclesiastical Power by a late Priviledge of Adrian VI. granted to Charles V. But when they see their time they are pleased to take so much as shall serve their turn As Philip II. seized upon the Temporalties of the Archbishop of Toledo then when the Bishop of Gorusa was apprehended at Rome for New Heresie And when Sixtus V. sent to him That if he would undertake the War against England Thuanus Hist l. 71. Prudentissimus princeps respondit se nil de suo Pontifici largiri Thesaur Polit. Apol. Epist 49. Nullis personis Ecclesiastici vel Sacres Locis ullam rem immobilem absque Principis licentia acceptare vel habere Hug. tui Jul. de Repub. Portugal Botar Net. orais quaest l. 3. Guicchard Hist l. 4. Boron Annal. 1209. he would remit to him the Revenues of that Bishoprick This wise Prince answered That he would receive nothing from the bounty of his own Bishop And though at home his Power is but what he pleaseth to take yet in other his Territories it is lawfully and in Spiritual matters as large a Jurisdiction as that of any other Prince As in Burgundy and Flanders he had the same Right that the King of France once had As Charles V. made a Statute of Mortmain That it should not be lawful for any Ecclesiastical Persons or Sacred Places to take or have any Immovable Things without the Licence of the Prince and his Indulgence in that behalf Philip II. his Son in publishing the Council of Trent in the Netherlands did not let it pass in all points with the strength of an Ecclesiastical Law but restrained it with an express Clause That it should not prejudice any priviledge of the King touching Possessory Judgments or Ecclesiastical Livings or Nominations thereunto In Portugal they had the Right of Presentation to all Bishopricks and Abbeys which is no small Testimony of Supreme Spiritual Jurisdiction Sicily hath been held of the See of Rome as a Spiritual See yet there the Kings of Spain do not only claim Supremacy of Over-seeing but likewise Superindency in doing of Ecclesiastical or Spiritual Affairs and there in all his Dominions the King of Spain doth exercise Supreme Spiritual Jurisdiction to which the Right of Indulgence is incident 9. The like Supreme Jurisdiction was also exercised and still is by the Kings of Sweden in Spiritual matters They bestow the Bishopricks and Superintendencies upon such Persons as they judge fittest for them which Donation is no slender Proof of this Supreme Jurisdiction and the Bishops and Superintendents there who are the same in Office and Authority though not in Name with the Bishops These chief Rulers I say of the Clergy and the Clergy themselves are in perfect Obedience and Submission to the King as their Supreme in matters Spiritual All Appeals from the Proceedings of their Spiritual or Ecclesiastical Courts as they likewise term them are made to the King in his Chancery who thereupon Ordains under the Great Seal of Sweden certain Commissioners or Delegates who hear and determine those matters by the King's authority And in some Cases of extraordinary weight or difficulty the King himself with the advice of his Senate or Council of State as in the last Resort resolves them The Bishops Superintendents and the rest of the Clergy are excluded from any Office or intermedling with Secular Publick Affairs which some of them relate to be occasioned by the height and busie interposing in such matters by some of their Archbishops and Bishops But of that I can say nothing only I know the present Archbishop and some of their Bishops to be learned grave and pious Men and very observant to their King whose Supreme Spiritual Jurisdiction is acknowledged by them and all other his Subjects and surely comprehends therein his clear Right of Indulgence which he exercises in many places 10. Thesaur Pol. Apol. 50. Herbert Hist Pol. l. 2. c. 7. Thesaur Hist l. 56. Dicunt suoque arbitrio eligunt Garnier Comment Pragmat Sancta de Sanat Patriam a Daniaes simul Pontificis servitute asseruit Sir Jer. Davis rep f. 88. 10 H. 7. C. 5. 33 H 6. C. 9. 22 H. 6. C. 3. 40 E. 3. C. 13. 7 E. 4. C. 10. 16 E. 4. C. 4. This Jurisdiction was likewise in several other if not in all the rest of the Princes of Christendom Poland and Hungary were by Benedict VII Converted from Paganism and thereupon wholly at the dispose of the Pope in matters Spiritual yet they appoint and choose at their pleasure Archbishops Bishops and Abbots The Kings of Hungary use the same Power as the Kings of England do whereof a Canonist saith Tho of Right they cannot yet the Kings of England and Hungary bestow Benefices by allowance from the Pope Thus he is pleased to declare his opinion tho grossly mistaken as to the Allowance whereas they claim and exercise this Right only by Virtue of their own Supreme Spiritual Jurisdiction according to Law. In which point besides the Presidents as to England an English Lawyer may hope for as much Credit as a Canonist The Princes of Germany Sweden Denmark and of the Netherlands have exercised the like Spiritual Jurisdiction especially when they Introduced the Reformation of Religion and abolished the Power of the See of Rome Whereupon it is said that Gustave I. of Sweden asserted his Country from the Danish and Popish Servitude Scotland hath likewise vindicated the Jurisdiction of her Prince in these Spiritual matters And of Ireland it is affirmed That they have there made as many Laws against Provisions Citations Bulls and Briefs of Rome as are to be found in all the Parliament Rolls of England Besides Poynings Law Enacts there the Statutes of Provision and all other Laws against the See of Rome Also in the Parliament of Kilkenny and in another Parliament in that Kingdom it is declared That the publishing of Bulls of Provision from Rome is High Treason But I may incur the Censure of tediousness to bestow more time on this Argument which can receive little opposition but it must be acknowledged that generally the Princes of Christendom and other Princes before and out of Christanity and the first Princes and Fathers of Families have exercised Supreme Jurisdiction
Letters civilly and filially intreated the Pope and Cardinals 14 E. 2. lib. apud Turrim f. 85. not to hold plea at Rome of things done in England And though in his time the Spiritual Courts held plea Sr. John Davis Rep. f. 95. by the Statute of circumspectè agatis and by general allowance and usage yet they thought themselves not safe till the King had granted them Jurisdiction in these Cases Coke 5 Rep. Eccles Case f. 13. Stat. Articuli Cleri 9 E. 2. wherein the Parliament consented by their Act before mentioned And it was objected nevertheless against this King that he had given allowance to the Popes Bulls and Authority here 7. We meet with the same practice in the time of E. 3. and of his Grand-son R. 2. Edward the third was a wise and Powerful Prince and his time affords us a large view of this matter in the Records and Printed Statutes In his minority and in the heat of his wars in France the Pope sent many Briefs into England at which the King and his Subjects were much offended and did smartly oppose them By the Resolutions of the Judges Coke 5 Rep. Eccles Case f. 15.16 17. and of the Parliaments in his time they admitted no Jurisdiction of the Court of Rome here but punished those who did bring any Bulls from thence or obtained any Provisions of Benefices and the like He entirely resumed the right of his Crown in supream spiritual Jurisdiction The Statute of Provisors recites the Statute of Carlisle 25 E. 3. Stat. de provisor and Asserts That the Church of England was founded in the Estate of the Prelacy by the Kings and their Predecessors And this 27 E. 3. Stat. provis c. 1. and a subsequent Statute forbidding Provisions of Benefices by the Pope do testifie the authority of the King to be Supream in Spiritual matters So doth another Act forbidding those to be curst 32 E. 3. c. 1 2 3. who shall execute the former Laws In the Annals of our Law 17 E. 3.23 we also find Resolutions to the same effect for the Kings right of granting Exemptions from the Jurisdiction of the Ordinary which manifests his own Supream Spiritual Jurisdiction In his time it was resolved 28 Assis pl. 20. 38 E. 3. c. 7. Coke 5 Rep. Eccles Case f. 16. That a Priour being the Kings debtor might sue a Spiritual Person for Tithes in the Exchequer for until a Statute of this King the right of Tithes was determinable at the Kings Temporal Courts and in many Mannors of the King and of other Lords they had probate of Wills. This King translated Canons Secular into Regular and Religious 38 Assis pl. 22.49 E. 3. lib. Assis pl. 8. and made of the Priour and Covent of Westminster who were Regular Persons capable in Law to sue and to be sued All which and divers others omitted are proofs of this Jurisdiction in him In the Nonage of R. 2. the Power of Rome again budded and they attempted to incroach by sending hither Bulls Briefs and Legates Whereof the People were so impatient that they offered to live and dye with the King in withstanding this Usurpation In his time an Act makes it Death to bring any Summons 13 R. 2. c. 3. Excommunication c. against those who executed the Statute of Provisors Another Statute makes it a Praemunire to purchase or pursue in the Court of Rome or elsewhere any Translations Provisions 16 R. 2. c. 5. and Sentences of Excommunication Bulls Instruments or any other things which touched the King his Crown and Regality or his Realm And declares that the Crown of England hath been in no Earthly Subjection but free at all times and immediately Subject to God in all things which is full Supremacy and in all things includes Spirituals The King had also the ill fortune to have it objected against him in Parliament that he had allowed of some Bulls from Rome 8. We come now to the times of several Kings who found this point so well settled that there was not much need of their stirring in it yet the same Jurisdiction was exercised by them In H. 4. time were several Resolutions of the Judges Coke 5 Rep. Eccles Case f. 22 23 24. expresly disallowing the Supremacy of the Pope in this Realm and confirming the Kings A Statute makes it a Praemunire to purchase Bulls from Rome 2 H. 4. c. 3. 6 H. 4. c. 1. Another forbids the horrible Mischiefs and damnable Customes of the Court of Rome about compounding with the Popes Chamber for First-fruits Another makes it a Praemunire for any to put in execution here any Bulls for the discharge of Dismes 2 H. 4. c. 6. In his sons time an Act makes it a Praemunire for one by colour of Provisions from Rome and Licences thereupon 2 H. 5. c. 9. to molest any Incumbent In his time the Lands of Religious houses were in some danger to be taken away Martin Chron. p. 142. the King being Petitioned to suppress them as Nurseries of Idleness Gluttony Leachery and Pride and that their Revenues would bring yearly to the Kings Coffers 200000 l. and also maintain 15 Earls 1500 Knights and above 6000 men at Arms. But by the Policy and liberal offer of the Clergy to supply the Kings occasions in furtherance of his Title to France this business was diverted In the minority of H. 6. Sir Jo. Davis Rep. f. 96. when the Commons had deny'd the King a Subsidy the Prelates offered a large supply for his Warrs if the Act of Provision were repealed But Humphrey Duke of Gloucester who not long before had cast the Popes Bull into the fire caused this motion to be denyed as derogatory to the Kings Right and Supremacy In this Kings Reign it was adjudged 1 H. 6. f. 10. 8 H. 6. f. 1. that the Popes Excommunication is of no force in England by the Common Law. The succeeding Kings were not so active in these matters nor was there so much occasion for it in their time as in the Reigns of their Predecessors E. 1 H. 7.20 9 E. 4. f. 3. Fitz. N. B. f. 44. 12 E. 4.46 4. was full of trouble yet we find mention of a resolution in his time that the Pope could not grant any Sanctuary in England And that if one Spiritual Person did sue another at Rome where he might have Remedy here he should incurr a Praemunire Another Judgment was that the Popes Excommunication was of no force in England And when two Legates 1 H. 7. f. 10. one after another came into England they could not be admitted till they had taken an Oath to attempt nothing against the King and his Crown R. 2 R. 3. f. 22. 3. had a short and unhappy Reign after his wicked Usurpation and was careful to please the Clergy yet in his time it was resolved That a Judgment or Excommunication at Rome