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
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
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
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
fit as the Prince to give this Indulgence And it is not only lawfull to Tolerate disagreeing Perswasions but the Authority of God only is competent to take notice of it and infallible to determine it and fit to judge And therefore no humane Authority is sufficient to do all these things which can justifie the inflicting of temporal Punishments upon such as do not Conform in their Perswasions to a Rule or Authority which is not only fallible but supposed by the disagreeing Persons to be actually deceived But I consider saith the Bishop that in the Toleration of a different Opinion Religion is not properly and immediately concerned so as in any degree to be indangered It is also a part of Christian Religion Tertullian ad Scapul Humani juris naturalis potestatis unicuique quod putaverit colere sed nec Religionis est cogere religionem quae sucipi sponte debet non vi Heretici qui pace data scinduntur persecutione uniuntur Contra Remp. Dextra praecipue capit Indulgentia mentes Asperitas odium saevaque Bella parit that the Liberty of mens Consciences should be preserved in all things where God hath not set a limit and made a restraint that the Soul of man should be free and acknowledge no Master but Christ Jesus that matters Spiritual should not be restrained by Punishments Corporal Thuanus wisely observes That if you Persecute Hereticks or Discrepants they Vnite themselves as to a common defence if you Permit and Indulge them they divide themselves upon private Interest and the rather if this Interest was an ingredient of the Opinion the reason therefore is much the stronger for this Indulgence In Cases where there is no sin nor disturbance of the publique Peace it is not only lawful to permit but necessary that Princes and all in Authority should not Persecute discrepant Opinions 5. That this right of granting Indulgence is in the King seems also to be warranted from the Common Law of England The Statute before cited recites that by authentique Histories and Chronicles it appears that this Realm is an Empire and both Spiritualty and Temporalty subject to it and that the King is Supream Head thereof 24 H. 8. This being so by the Common Law He as supream Head may grant any Indulgence or Dispensation where the Law doth not forbid the same And I know no Law which forbids the Kings granting of Indulgence in this Case In the time of K. 4 H. 3. 7 H. 3. prohibit 13 15 H. 3. prohibit 15.22 Cokâ— 5. Rep. Eccles Case fol. 1. Hen. 3. and since Prohibitions were frequent and granted as the Kings right by the Common Law. 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 If in these Spiritual matters the King by the Common Law might indulge as to absolve a person Excommunicate and the like he may upon as strong Reason of the Law give Indulgence in the matters now desired We find also in the Annals of our Law Resolutions that the King may exempt any Ecclesiastical person from the Jurisdiction of the Ordinary 17 E. 3.24 and may grant to him Episcopal Jurisdiction and Exemption this was nothing else but an Indulgence granted by the King and that from the grounds of the Common Law. By the Common Law the King may dispense with Ecclesiastical Law 11 H. 7. f. 12. for Pluralities and for a Bastard to be made a Priest by the same ground of Law he may grant the Dispensation and Indulgence which is now desired A Dispensation or a Non Obstante is nothing else but an Indulgence in that particular case according to the Canon Law. And it was the Resolution of all the Judges of England Coke 7 Rep. Case de penal Laws f. 16.37 in the 2d year of King James That the King upon any Cause moving him in respect of time place person c. may grant a Non Obstante to dispense with any particular person that he shall not incurre the penalty of a Statute and this agreeth with Books of Law. Another Resolution was by divers of the Judges 10 Apr. 9 Car. 1. at the Sessions at Newgate That the King may pardon an Indictment upon the Statute of 5 Eliz. and that he may by the Common Law give a License to one to exercise a Trade for all his Life-time although he had not been an Apprentice to it because it is not malum in se but malum prohibitum Upon the same Reason and ground of Law Coke 11 Rep. f. 88. Dispensatio mali prohibiti st de jure domino Regi concessa propter impossibilitatem praevidendi de omâ—i us particularibus Dispensatio est provida relaxatio mali prohibiti utilitate seu necessitate pensata Brittan f. 280. 282 283. Fleta l. 6. c. 8. Coke Comment on Littleton f. 131. the King may grant a License of Indulgence in spiritual matters as well as in those Cases of temporal matters especially when the Indulgence is not desired for any thing that is malum in se but only perhaps Bonum prohibitum It is agreed for Law in another Case in our Books That the Law hath given power to the King that of right he may dispense with a prohibited evil because of the impossibility of foreseeing all particulars which may fall out And that a Dispensation is a provident relaxation or Indulgence of a prohibited evil upon consideration of profit or necessity The right to do this being by our Law in the King comprehends within the same right of the King his granting of Indulgence in matters spiritual By the old Law no Lord or Knight could go beyond Sea because thereby the Realm might be disfurnished of valiant men Yet in that Case the King might by the Common Law grant Licence or Indulgence to any Lord or Knight or other to go beyond Sea and dispense with that Law. But I am not arguing at the Bar a point of Law to cite all Authorities I can meet with for it I only mention a few to the end that by them the reason of the Law and the Application to our present purpose may be the better apprehended I shall therefore forbear to cite more and conclude with this one general ground of our Common Law the wisdom whereof hath thought fit that Acts of Grace and Favour should be in the Right of the King to be dispensed by him for the more obliging of his Subjects and the gaining their affections to him Hence it is that the granting of Exemptions Licences Faculties Dispensations Non-obstante's and the like Acts of Grace are left unto the King and are in his right to grant or deny them as he shall judge fit So it is if a man be convicted of Felony or Treason and hath judgment of Death past upon him by the Law he is to suffer Death yet the Law gives the Power and
Right to the King that he may indulge this condemned person and give him a pardon for his life which is every dayes experience And many in our time have tasted the fruits of his Majesties Grace and Clemency herein And if the Common Law gives this Right of Indulgence for Life to the King it were hard to deny it him in Spiritual matters for not coming to Church or the like 6. That this right was in the King by the Common Law and practice of it may appear from many both ancient and later Precedents some whereof and first before the time of W. 1. will be remembred in their order It is observed â—â—n â—Rep â—praeâ— f. that as under the Temoral Monarchy of Rome Britain was one of the last Provinces that was won and one of the first that was lost again so under the spiritual Monarchy of the Pope England was one of the last Countreys of Christendom that received this Yoak and one of the first that did reject and cast it off again That the Sea of Rome before W. 1. s time had no Jurisdiction in England neither in the time of the Brittans nor of the Saxons as appears by the passages of Pelagins and Colman an Irish Saint and divers others in our story but that the Kings then exercised Supream Spiritual Jurisdiction appears in part by what hath been before noted out of our stories It will not be supposed an easie thing â—ev â—esbur â—de â—ccles at so great a distance of time and after so many Revolutions and injuries of accidents to find particular apt precedents for that which is our present argument yet there seemeth to have been some even in those times not impertinent to our purpose In the Reign of the British King Arviragus â—Parkâ— â—34 in the 63 year after the birth of our Saviour it is related that Joseph of Arimathea and eleven more of Philips Disciples arrived in Brittan and preached the name of Christ unto the Brittans who were then Pagans This new Doctrine and Religion wholly contrary to Paganisme and tending to the subversion of that whereof the Brittans were so blindly zealous yet tho they could hardly be perswaded to change the Traditions of their Fathers nevertheless they were so far from persecuting of these Non-conformists to the old Religion that they freely permitted them to preach and to instruct the people in this new Doctrine and Worship though wholly different from their own Profession And the King did so far grant Indulgence to them and to all that would hear them that every one had the liberty of his own Conscience indulged to them And because these Preachers came from far and that their lives were full of Modesty and Meekness and that they instructed the people in pious things the King for their maintinance granted to them the Isle of Glassenbury each one of these Non-conformists having an hide of Land given to him and they twelve in number they are called the twelve Hides of Glassenbury to this day You see the Pagans were so far from persecuting them or taking any thing from them as they gave them a livelyhood This Indulgence and grant was confirmed by many of the Saxon Kings their Successors When Paganus and Damianus preached the Gospel of Christ to the Brittans King Lucius not only gave them Indulgence though their Doctrine and Religion was so contrary to Heathenisme then professed here but both the King and his People became Non-conformists to their old Pagan Worship and embraced the true Faith of Christ How much longer might that blessed Truth have been hid from our eyes and that glorious Light of the Sun of Righteousness have been obscured from our eyes had it not been for granting Indulgence to the preaching of it sure we ought to have the better opinion of Indulgence since Christianity was introduced by it So it was when Augustin the Monk preached to the Saxons had he not been indulged to preach and the people to hear our Saxon Ancestors had not been converted to the knowledge of Christ Jesus The Christian Saxon King Kenulphe Stamford 3. c. 38. f. 111. 1 H. 7. fâ— 23. tit 2 Coke 5 Rep. Ecclâ— Case f. 9. Ab omni Episcopali juâ— re in sempeternum esse quietus nuâ— lius Episcoâ— aut suorum officialium jugo inde depremantur Leg. Alureâ— Reg. c. 2. Bilson differ p. 40 Bede l. 1. c. 25. by the Counfel of his Bishops and Senators did grant to the Abbey of Abingdon certain Lands with an express clause of Indulgence contained in the grant That the Abbot and his Successors should be free for ever from all Episcopal Jurisdiction and that the Tenants and Inhabitants should not be depressed by the yoak of any Bishop or his Officials but in all things should submit to the Decrees of the Abbot And although this were done by the Councel of his Bishops and Senators that doth not impeach but rather fortifie the Kings Right to do it by their Judgments that it should be done by him In the Laws of King Alured he grants Indulgences and Immunities for the Clergy themselves And when Gregory sent Augustin the Monk and his Companions to convert the Saxons they stayed in the Isle of Thanet till the Kings pleasure were known and whether he would grant them Indulgence to exercise their Religion here and instruct others therein which the King although it were sufficiently different from the Religion then professed by the Heathen Saxons did grant unto these Dissenters and encouraged them so far that at length they became of their perswasion The Application may be thus far proper That if Pagans gave so much Indulgence to Christians it would ill beseem Christians not to give the like to one another 7. Some Precedents in the time of W. 1. and after Eadmerus f. 165. 167 7 E 3. Quare Impâ— 19. 5 Rep. f. 10â— Mat. Paris Anno 1119 Coke 5 Rep. Eccleâ— Case f. 106â— Roger Hovenden f. 496. down unto our own memories may be next in order remembred W. 1. granted a full Indulgence by his Charter of Exemption unto Battel-Abbey that they should be under no Jurisdiction of the Bishop And it was an Indulgence to the Free-holders when he divided the Bishops Court from the Hundred Court which before that sate both together So was his appropriating of Churches without Cure to Ecclesiastical Persons The like exemption and Indulgence is granted by his Charter to the Abbey of Reading H. 1. granted an Indulgence by his Charter to the Abbey of Reading and saith he doth it as well in regard of Ecclesiastical as Regal Power H. 2. granted an Indulgence to his people That none of the Popes Decrees should be executed here nor any of his Bulls of Excommunication Not. in Eadâ— mer p. 14â— He did the like to his Clergy of Normandy in the Exemptions he granted to them 45 H. 3. Rot. Stanâ— in 14. dorsoâ— 1 E. 1. Rot. Stans in 5. dorsoâ— H. 11.
E. 1 Rot. fin M◠5. It was a great Indulgence which King John granted to William Marshal to have the Donation of the Pastoral Staffe of the Abbey of Nutlege H. 3. exercised this Right of Indulgence when he forbad that men should not be drawn in Plea out of the Realm E. 1. indulged whom he pleased to go to Rome and indulged his People against the Provisions of the Pope In E. 2. time as frequently before and since were Prohibitions to the spiritual Courts and Indulgences and Licenses granted by the King in cases of Pluralities and Dispensations of several Natures upon the same reason and ground of Law as the present Indulgence is desired In our Law Annals of E. 〈…〉 3. 3. is a Resolution that the King may exempt any Ecclesiastical Person from the Jurisdiction of the Ordinary and may grant him Episcopal Jurisdiction and that this King did so to the religious Houses founded by him An Act of as high exercise of the right of Indulgence in Spiritual matters as may be And indeed all Monasteries and religious Houses in England and elsewhere are testimonies of this right of Indulgence in the King for they all enjoyed such Exemption the fruits of that Right and yet the Spiritual Judges did not think themselves injured thereby The Precedents in R. 2. H. 4. and H. 5. time as to the like Exemptions and granting of Licences dispensing with the then received Law in matters Spiritual are obvious in our Records The like are in H. ◠f. 1. 6. time when it was adjudged that the Popes Excommunication was of no force and his Subjects were much Indulged against them This right of the King was also asserted by that Judgment in his time ◠f. 16. That the King only may grant a License to found a Spiritual Incorporation King E. 4. granted the like Exemptions Dispensations and Licenses in spiritual Matters as his Predecessors had done So did H. 〈…〉 7. 7. and in his time the Judges resolved That the King might dispence with the Ecclesiastical Law for Pluralities and for a Bastard to be made a Priest as hath been remembred King H. 8. not only exercised this right himself but abolished all pretence and practice thereof by the Bishop of Rome as hath been mentioned and procured this to be done and his own right to be acknowledged by the Parliament E. 6. and his Sister Queen Mary exercised the same right only Queen Mary advanced that which her Father and Brother had abolished Queen Elizabeth followed the Precedent of her Brother and in the beginning of her Reign when there was a scarcity of Ministers that would conform to the Reformation and it was difficult to get Preachers after that way the Queen took upon her to give License and Indulgence to Lay-men to Preach publiquely although they were not in Orders And I have been particularly and credibly informed of a Gentleman in Oxford-shire who being High Sheriff of that County about 1 Eliz. whose Grandchild at the writing hereof was the worthy High Sheriff there That the Grandfather by special License from the Queen being a Gentleman of Parts and Learning did himself Preach publiquely to the Judges at the Assizes when he was High Sheriff Nor would the like be more a crime now than it was in those dayes if there were the same necessity but Blessed be God we are more plenteously furnisht We may now look upon some Precedents of our own time such as many yet alive may remember in the times of the late K. James K. Charles 1. c. In King James his time it was Resolved by the Judges That all Proceedings in the Ecclesiastical Courts Ex Officio are for the King for which reason 2 Ja. c. B. Tr. Hall's Case Coke 5 Rep. f. 51. whatsoever the Suit there be the King may Pardon it for those Suits are only to Convict or Punish the Party for the Offence or Fault which the King may Pardon and not for the perticular Interest of the party This Precedent and Resolution seems much to testifie the Kings Right of Indulgence to any of his Subjects whose Opinions in some Ceremonies or other matters of Discipline are different from the Opinions of their Magistrates to which in tenderness of Conscience they cannot conform and for their Non-conformity are Punishable by the Spiritual Judges as they are termed and by other Officers for the Correction of that fault and this the Judges Resolved that the King might Pardon And for the King to grant an Indulgence in these matters is no other but a Pardon of the Offence in them and the particular Interest of no Man is concerned to hinder this Pardon or Indulgence And therefore by this and divers Precedents pursuant to this Resolution the Kings right of giving this Indulgence is affirmed Another Precedent in King James and King Charles 1. time seems to me to have a great resemblance if not to be the same with the Indulgence now discoursed of and therefore I shall be the more particular in the recital of it It pleased those Kings in their Clemency and Wisdom by their Letters Patents under the great Seal of England to grant to divers persons of the French and Dutch Nations Protestants then residing England this Liberty and Indulgence That they in distinct Congregations by themselves and in publique Churches or other Places might meet and exercise the Reformed Religion and Worship of God in such Order and according to such Forms and with such Ceremonies as were or should be agreed upon among themselves and after the Rites and Usages of their particular Churches and Congregations without Conforming to the Order and Ceremonies of the Church of England This Indulgence and Liberty was injoyed by them all the time of King James after the grant of it And under his Son King Charles 1. it was continued and enjoyed also by them and they were not compelled to come to any Parish Church or other place than their own particular Congregations and Assemblies Nor were they at all questioned for the breach of any Law of Conformity but this Indulgence of the King did wholly free them from Penalties of those Laws or molestation in the different Exercise of their Religion The Parliament so far declared their Judgment that this right of Indulgence was in the King that it was one of their Objections against the late Arch-Bishop Laud That he endeavoured to disturb these Dissenting Protestants in their enjoyment of this Indulgence and to have it taken away from them The Arch-Bishop answered That the reason of his so doing was because the first Indulgence being granted to Forreigners and Strangers who fled hither from Persecution and as to a Sanctuary to preserve the Liberty of their Consciences in the Reformed Religion and therefore it was fit and charitable to afford them such Protection and Indulgence But that those who enjoyed it at present were not such persecuted People who fled hither for their Religion