matter which is at this day practiced in most of all the States of Christendom Otherwise Civil Government were a very feeble thing if it could not preserve its Members from the arbitrary Proceedings of Ecclesiastical Courts And indeed if the Canons and Rules made by the Popes and such Synods as were absolutely at their disposal were the measures of Heresy so that Judgments ought to pass upon them and that States might not cover themselves from them by Laws we know where this must carry us and how many Bonfires must be quickly made in England But God be thanked it is not come to that I must also add one thing That if the Judgment of Heresy had carried with it nothing but the Ecclesiastical Censures of Excommunications and Anathema's the Church might have pretended that the State ought not to meddle too much in it But since Heresy not only drew after it an Infamy in Law but likewise a Writ de Heretico Comburendo according to another Canon acknowledged to be in force by our Author then a State ought to have made such Regulations in this matter as were necessary to protect its Members from such a Butchery For since the Civil Government is bound to secure the Subjects while they continue Innocent and Obedient from the Rage of all their Enemies our Legislators had betrayed their Trust if they had not put an effectual Stop to the Tyranny of the Clergy And thus it is plain That this Declaration made by the Parliament was nothing but a securing to the Subjects their Lives and Fortunes to which they had formerly a very doubtful Tenure since they held them only at the Discretion and Mercy of the Clergy IX But because our Writers have often alledged the Laws made in former times Chiefly the Statute of Premunire made by Richard the 2d against all Bulls and Provisions from the See of Rome Our Author answers this very weightily as he thinks by shewing us That those Laws related only to some special matters that were temporal Things such as the Titles to Benefices or the Translation of Bishops out of England without the Kings consent by which both the King might be deprived of their Counsel and the Treasure of the Kingdom carried away out of it But all this is trifling For a Contest being raised concerning the extent of the Popes Power the Pope claims a degree of Authority to be committed to him by Christ and that the whole Pastoral Work belonged to him Upon this the King and Parliament set bounds to it Now the Question arises out of this Whether the same Authority that warranted them to determine against the Pretensions of that Court in that one Point did not warrant them likewise to do it in other Points To a man of a clear understanding the Matter will appear to be past dispute For if in one Point a Parliament may contradict the Popes Declarations and Canons sure it may do it in another and the only Question then to be examined will be concerning the matter of such Laws For if the matter of those Laws is good the Authority is certainly good and if the matter is not good it is confessed that an Act of Parliament cannot change the nature of things But because this matter is better understood by some Breves printed by Dr. Burnet it will be worth the while to examine it a little more fully That vigorous Act of Parliament came out indeed in the Reign of a feeble Prince but the Popedom at that time was in a more feeble State and the adherence of England to the Pope who sat at Rome was in that time of Schism so valuable a support that those at Rome it seems thought it fit to take no notice of it But the Council of Constance had no sooner heal'd that Wound then the Popes were resolved to have that Law repealed and England falling again under a new Feebleness in Henry 6th Minority and Factions at Home and Losses in France having sunk the Reputation of the Government extreamly the Pope laid hold of that Conjuncture and in his Letters both to the Arch-Bishops and Clergy and to the King and Parliament he Annuls the Statute and requires the Clergy to give it no Obedience declaring all Persons that obey it to be ipso facto Excommunicated and they should not be relaxed by any but himself unless it were at the point of Death and he ordered the Clergy to Preach this Doctrine to all the People He required the Parliament under pain of Damnation to repeal it and he founds his right in the Commission that Christ gave to St. Peter to feed the Flock Here sure if ever the Pope speaks Ex Cathedra yet for all this the Parliament would neither repeal nor explain the former Statute By all which it is plain that our Parliament did not think themselves bound to be born down by big Words and high Pretensions In this Dispute then between the Spiritual and Temporal Power we see the Parliament judged the matter and by the same right that they judged one Point they may judg other Points and if the matter of their Judgment was good their Judgment was as valid under Henry the Eighth as under Richard the Second or Henry the Sixth For the Point being once yeilded that the Civil Authority may examine the Decisions of the Church then this may be certainly carried to other particulars or applied to a greater extent of matter as further discoveries of Truth and new Provocations may arise X. The Affinity of the matter leads me here to make a leap over several Particulars which I will afterwards review and to examine that which our Author hath thought fit to say concerning the burning of Hereticks only by the way I must take notice of the unfaithful Recital that he makes of the two Statutes made against Hereticks under Henry 4th and Henry 5th which he represents as if they had merely left the Judgment of Hereticks to the Ordinary or Diocesan without any thing else by which the Repeal of them must appear to be the taking away that Judgment from the Spiritual Courts but there were other and more important Clauses in those Acts which gave the Parliament just Reason to repeal them In the former the Civil Magistrates are required to be personally present at the giving of Sentence against Hereticks and after the Sentence was passed they were to receive them and there before the People in a high place to be brent Here was the poysonous Sting in that Act which our Author was not faithful enough to mention and in that past by Henry 5th all Magistrates were required to take an Oath when they entred upon their employments That they should use their whole Power and Diligence to destroy all Heresies and Errors called Lollards and to assist the Ordinaries and the Commissaries in their Proceedings against them and all convict of Lollardy were to forfeit all the Lands that they held in Fee-simple as
to have troubled him much The Explanation made by Q. Eliz. is so express that even our Author cannot find any advantage against the Words themselves but acknowledges that they are such general Terms that the Article it self may be subscribed by all sides Since then the declared Sense of those general and extended expressions that are in some Acts of Parliament is such that there lies no just Exception against it and since this Sense was not only given by Q Eliz. who allowed such as took the Oath to declare that they took it in that sense but it was afterwards enacted both in Convocation and in Parliament and put into the Body of our Confession of Faith. This Explanation must be considered as the true measure of the Kings Supremacy and the wide expressions in the former Laws must be understood to be restrained by this since posterior Laws derogate from those that were at first made So that according to all this the Kings Supremacy doth not give to our Princes the ministring either of Gods Word or of the Sacraments But that only Prerogative which we see to have been given always to all Godly Princes in Holy Scriptures by God himself that is That they should rule all Estates and Degrees committed to their Charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and the evil-doers This is all that Supremacy which we are bound in conscience to own and if the Letter of the Law or the stretches of that in the Administration of it have carried this further we are not at all concerned in it But in case any such thing were made out it could amount to no more than this That the Civil Power had made some Encroachments on Ecclesiastical Authority but the submitting to an Oppression and the bearing it till some better times may deliver us from it is no Argument against our Church on the contrary it is a proof of our Temper and Patience and of that Respect we pay to that Civil Authority which God hath set over us even when we think that it passeth its bounds But all that we are bound to acknowledg in the Kings Supremacy is so well limited that our Author hath nothing to object to it Our men of the Mission have always made a great noise of the Kings Supremacy as if it were the most absurd thing that can be imagined without considering that as the Supremacy is explained by the Article of our Church it is practiced by almost all the States and Princes of Europe It hath been clearly made out by many of our Writers that the Kings of England before the Reformation were in possession of his Supremacy and that they really exercised it even before they pretended so formally to it I will not enter into this Enquiry which is so well laid open by Sir Roger Twisden that a man must have a great stock of Confidence to deny it after he hath read him In France all Ecclesiastical Causes are carried before the Courts of Parliament by Appeals from the Ecclesiastical Courts and are finally judged there Now the Supremacy is always where the last Appeal lies and we may see both in Godeau and many other modern Writers how much they complain of this as a servitude under which their Church is brought and as an infraction of all the Ancient Canons The Court of Parliament at Paris examines all the Bulls that come from Rome and condemns and tears them as oft as they see cause So that tho all the Bishops of France are bound by Oath to obey all the Popes Decrees and Ordinances yet this can take no effect till the Parliament hath confirmed them How easie were it to carry this matter far and to shew that by this the Popes Power either as he is St. Peter's Successor and thereby vested with a Universal Authority over the Flock of Christ or as he is the Patriarch of the West and the Center of the Catholick Unity is subjected to the Judgment of a Secular Court who will not suffer the Sheep to hear his voice till they have first examined it And what is the whole Concordat but a bargain made between the Popes and the Crown of France to divide the spoils of that Church and its Liberties between them for whereas the Pragmatick Sanction had established the Clergy in the Possession of its Ancient Rites Lewis the 11th and after him Francis the 1st saw well how much this lessened that unbounded degree to which they intended to carry their Authority and therefore they consented to give the Popes their share so they would warrant their enslaving that Church It is known what Complaints and what opposition the French Clergy have made upon this matter yet at last they bear it and submit to it so that here the last Appeal the Check upon the Papal Authority and the nomination of all the Bishops and Abbots of France are wholly in the Civil Courts and in the King. If it is said that in some particulars the Supremacy of our Kings goes further tho that were acknowledged to be true yet since the more or the less does not alter the nature of things it must be confessed that according to our Author's Principles the whole Gallican Church is in an Uncanonical State as well as we are But tho they do not stick to confess that they are in a state of oppression by reason of the Concordat and of the unbounded Authority of their Parliaments yet they do not think that this makes them irregular or uncanonical as to the Constitution of their Church I might upon this likewise shew how not only the Republick of Venice but even the Crown of Spain notwithstanding all its Bigotry exercises still so great a Supremacy in Ecclesiastical Matters that there is only some difference of degrees between that which belongs to the Crown of England by Law and that which is practiced elsewhere The Court of the Monarchy in Cicily is well known in which by virtue of a forged Bull which is made out to be a Forgery beyond all contradiction that declares the Kings of Cicily the Popes Vicars there is a Lay-man that is the Kings Vicar-General who is the Judg of that Court and to whom all Spiritual Causes are brought and who judges them all as a spiritual Person and that hath the Titles and outward Respect that is given to the Pope likewise paid to him This is the carrying an Imposture very far yet since it is done in the Virtue of a pretended Bull which the Crown of Spain will still maintain to be a true one none hath ever opposed this to such a degree as to pretend that the whole Clergy of Sicily are become irregular because they submit to this Court and appear before it So that upon the whole matter If the great and unmeasured Extent of the Papal Authority made our Princes judg it necessary to secure themselves from those Invasions by
Precontract being with the Earl of Northumberland he had by a solemn Oath and by his receiving the Sacrament upon it in the Presence of the Duke of Norfolk and some others of the Privy Council denied any such Precontract Of which Dr. Burnet assures us he saw the Original Attestation under that Earl's own hand This had so far invalidated the Queens Confesssion that it seems the Parliament would not descend into the specifying of her Confession Dr. Burnet hath also given several Evidences of her being at that time so much disordered by Vapours that this doth in a great measure weaken the Credit of her Testimony even against her self Upon this whole matter then there are three important Considerations which arises out of the Fact and any one of these seems strong enough to overthrow all the Inferences that can be drawn from that part of our Story 1. She was a Person condemned now all the Examinations of Persons condemned are by the Laws of all Nations only Presumptions but not Proofs the Terrors of Death and the Hardiships of a Prison are such just abatements that Confessions so made can never have that Credit given them as to found any Sentence upon them but in that Queens Case there are two things which give this General Consideration yet more force as to her particular The one is That it being in the King's Power to order her either to be Burnt or Beheaded the Terror of the former might carry her to say any thing that might procure her the softer Death But the other was yet stronger it was a natural-enough Temptation to her to lead her to confess a Pre-contract since by that Confession she might hope so far to extinguish the Crime for which she was condemned as to obtain her Life by that means She was condemned for Adultery now the Confession of a Pre-contract might be drawn from her as a thing that dissolved the Marriage and by consequence acquitted her of the Adultery for which she was condemned since if she was never the Kings true Wife she could not be guilty towards him So that this matter was perhaps represented to her as that which must certainly save her Life And thus this Confession being grounded on the fears of Death and carrying in it the hopes of Life can be of no force in Law. 2. The bare Confession of a Pre-contract without any other Adminiele or Evidence to confirm it cannot be supposed a just ground to dissolve a Marriage otherwise Married Persons when they grow weary of one another may dissolve their Marriage by taking a false Oath It 's true in other cases the Parties own Confession is strong enough in Law against themselves but in this case both the married Persons being equally concerned in the Tie that follows upon it the Confession of the one cannot dissolve the Right that accrued to the other upon the Marriage and since two Witnesses are necessary in all such Cases the Confession of one of the Parties is at most but the single Evidence of one Witness and therefore Ann Bullens Confession could not make the Marriage void This is further confirmed by the Denial of the Person with whom the Pre-contract was preteneded to be made if her Confession gave such a Credit to the matter as to annul her subsequent Marriage with the King it ought likewise to have annulled the Earl of Northumberland's Marriage therefore it could not be received in Law. The other circumstances of it do also concur to weaken its credit it was so secretly carried that one of the Judges of that time tells us only that it was reported that she had confessed a Pre-contract so that it was not managed with the necessary Forms of Justice and it being probable that some General Promise of Marriage had passed between her and the Earl of Northumberland it is not likely that she understood the difference between a Promise and a Contract so she might especially in such a Hurry and under so much disorder mistake the one for the other 3. But in the last place it is to be considered that here was an Innocent Child in the case whose Legitimacy and Right could not be cut off by her Mothers extorted Confession Infants are more particularly under the protection of the Law and therefore Acts passed against them in that state of Feebleness have such flaws in them that they have always a right to reverse them so a single Witness in such Circumstances as her Mothers were could not be sufficient to disgrace and disinherit her and the Confirmation of the Act of Parliament that followed afterwards might have been a forcible bar in Law to her but could be no just one for as a Bastard is still a Bastard even tho he were Legitimated by Act of Parliament so a lawful Child is still what 't is notwithstanding a Sentence of Bastardy confirmed in Parliament and this is so true and was so evidently the Practice of that time that even King Henry in his suit of Divorce with Queen Catherine was willing to have his Daughter Mary declared Legitimate because Children begat in a Marriage are begotten bona fide and so they ought not to suffer because of the secret fault of their Parents And if this was yielded in a Marriage where both Parents were according to the Kings Pretensions guilty of Incest it was much more just in this Case of Ann Bullen even supposing her Precontract true for her secret fault ought not to blemish nor ruin her innocent Child Another Instance that fell out at this time in the Royal Family is very considerable and because it is little known I fancy the Reader will not be displeased to have it particularly opened to him Henry the 8th's Sister that was Queen of Scotland did after her Husband King Iames the 4th's Death marry the Earl of Angus and by that Marriage she had a Daughter Lady Margaret Douglas Some time after her Marriage she fell to be in ill terms with her Husband and discovered a Pre-contract he had given to another and upon this she sued him in the Spiritual Court and it being proved the Marriage was annulled but her Daughter was still held to be Legitimated and was entertained by King Henry as his Niece and given by him in Marriage to the Earl of Lenox of whom descended the Lord Darnly that was King Iames the 1st of England's Father and since he was considered to be the Second Person in the Succession to the Crown of England after the Queen of Scots this shews that by the Practice of that Time a Pre-contract even legally proved yet did not illegitimate the Issue that were begotten bona Fide by one of the Parents And thus I hope enough is said to overthrow the Objection that is made to the first Constitution of our Church under Q Eliz it was strangely put and decently and weightily writ and therefore I have answered it with the like Decency of Stile so that if I treat the