THE OBLIGATION Resulting from the OATH of SUPREMACY To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power BELONGING To the KING his Heirs and Successors In the asserting of that Power various Historical Passages occurring in the Usurpation after the Year 1641. are occasionally mentioned And an Account is given at large of the Progress of the Power of Dispensing as to Acts of Parliament about Religion since the Reformation and of divers Judgments of Parliaments declaring their Approbation of the Exercise of such Power and particularly in what concerns the Punishment of Disability or Incapacity Princes are Supreme over Persons not over Things This is the Supreme Power of Princes which we teach that they be Gods Ministers in their own Dominions bearing the Sword and freely to permit and publickly to Defend that which God commandeth in Faith and good Manners c. Princes may Command the Bodies of all their Subjects in time both of War and Peace c. Out of all Question where Princes may by God's Law Command all Men must obey them c. The Prince may discharge the Servant but no Man can discharge the Subject The Word of God teacheth you to obey Princes the words of men cannot loose you BISHOP BILSON of the SUPREMACY LONDON Printed for Thomas Dring at the Harrow at Chancery-Lane End in Fleetstreet William Crook at the Green Dragon without Temple-Bar and William Rogers at the Sun over against St. Dunstan's Church in Fleet-street 1687. To the Right Honorable JOHN Earl of MELFORT Viscount of Forth Lord Drummond of Rickartone c. His Majesty's Principal Secretary of State for the Kingdom of Scotland and one of His Majesty's most Honorable Privy Council in both Kingdoms of England and Scotland c. MY LORD AS the Historian hath told us of Ireland that long ago while the Arts and Sciences were generally banish'd from the Christian World they were enthroned in Ireland and that Men were sent thither from other Parts of Christendom to be improved in Learning so I have elsewhere observ'd that in some late Conjunctures and particularly during the turbid Interval of the Exclusion men might well be sent to Scotland to learn Loyalty And I having taken occasion in the first Part of this Discourse to shew my self a just honourer of that Country and as I may say somewhat like a Benefactor to it by sending thither the notices of some pass'd great Transactions that might possibly there give more light and life to the Moral Offices of Natural Allegiance or Obedience did hold my self obliged in Common Justice to address this Part of my Work to your Lordship For as your Station here qualifies you beyond other Subjects to receive what Tribute is offer'd to your Country so your handing it thither will necessarily make it there the more acceptable And when I consider with what an incomparable Tenderness for the Monarchy and its Rights so many of the Statutes of Scotland since the Year 1660. have been adorn'd I am apt to think that any matter of Presidents or Records by me recover'd out of the Sea of time where they lay so long useless and neglected and now happening to be serviceable to those Moral Offices before-mention'd would by the so many in that Kingdom devoted to consummate Obedience and Loyalty be more valued then if I could have imported into that Realm another such Treasure as that which lay so long buried in the Ocean near the Bahama Islands and that whoever Contributed to your Loyal Country any Substantial Notions that might enrich it in the discharge of the Duties of the born and sworn Allegiance would be esteem'd there as some way sharing in the honour of Arauna in giving like a King to a King. Long may your great Master live happy in the Enjoyment of the faithful Services of so vigilant a Minister as your Lordship who by the universality of your Knowledge accompany'd with universal Charity for all Mankind have appear'd to be born as I may say for the time of his most glorious Reign the time chosen by Heaven for Mercies Triumph on Earth Nothing vulgar was to be expected from a Person of your Lordship's extraordinary intellectual and moral Endowments and in whom the Loyalty and other Virtues of your many noble Ancestors have as it were lived extraduce And the World would be unjust to you if it acknowledged not its great Expectation answer'd by your greater Performances and particularly by your having been so eminently Ministerial in the Easing both the Cares of your Prince and of all his Subjects too by the Figure you have made in promoting the Ease of his People's Consciences and in further ennobling and endearing the Name of DRUMMOND by your Lordship's Prosecuting that by the Bravery of Action which the HISTORIAN of that your Name did by Words when he transmitted to Posterity the most Christian and Statesman-like Speech of Liberty of Conscience I know extant and as spoke by a Roman-Catholick Councellor in Scotland to King Iames the Fifth I most humbly kiss your Lordship's Hands and am My Lord Your Lordships most Obedient Servant P. P. THE OBLIGATION Resulting from the Oath of Supremacy To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power Belonging to the KING his Heirs and Successors c. PART I A. IN this Kingdom of England so naturally of old addicted to Religion and vehemence in it as to give a Bishop of Rome cause to complain he had more trouble given him by Applications from England about it then from all the World beside and afterward to make Geneva wonder at the Sabbatarians here exceeding the Iewish strictness and to cause Barclay in his Euphoâ—…mio to say of the English Nec quicqúam in numinis cultu modicum possunt and that our several Sects thought unos se Coelestium rerum participes exortes coeteros omnes esse did you ever observe hear or read of the style of Tenderness of Conscience so much used as in the year 41. and sometime afterward B. I have not From the Date of King Charles the First 's Declaration to all His loving Subjects about that time wherein he speaks of his Care for Exemption of Tender Consciences till the Date of King Charles the Second's Declaration from Breda wherein the Liberty of Tender Consciences is Provided for the clause of easing Tender Consciences ran through the Messages Addresses and Answers that passed between King and Parliament almost as much as the Clause of proponentibus legatis did run through the Councel of Trent A. But were not their Consciences extremely erroneous who thought themselves bound then to advance Religion by War B. Aâ—… and by a Civil War as you might have added against a Prince of the tenderest Conscience imaginable for that Character he had from an Arch-bishop in his Speech in the Parliament of 40 who said Our Sovereign is I will not say above other Princes but above all Christian men that ever I knew
Estate of Prelacy by the Kings and Peers thereof But now further to entertain your thoughts with the great Scene of the New Heaven and the New Earth in that Kingdom and of Men there walking at liberty as the words in the Psalms are or at large as 't is in the Maâ—…gin and as in the Latin indesinenterque ambulabo in ipsa LATITUDINE quia mandata tua quaero whose measures were before staked down to the Narrow tedder of Presbytery and whose Souls were once enslaved to a blind Zeal for that Church-Government as what they then fancy'd to be the putting the Scepter into Christ's hand and the only efficacious means to keep out Popery I shall tell you that they have now put the Scepter into their Prince's hand to rule the Church with what external Government he will who were formâ—…rly so ready to enslave both Kingdoms by designing to put the Royal Scepter of Scotland into the French King's hands and to bring a Popish French Army into Scotland to enforce the setlement of Presbytery A. One would hardly think it possible that they should then design any such thing B. As the Civil Law rangeth things that wound mens Piety Reputation or good Manners among Impossibles so one would think those of the Scots then designing a thing of that Nature to be an Impossibility And any one would thus think it impossible who consider'd that the Crown of England A. 1560. sent Forces into Scotland whereby the French were driven out of that Kingdom and that thereupon in the Publick printed Prayer prefixt to the Scots Psalm-Book it is said viz. And seeing that when we by our own Power were altogether unable to have freed our selves from the tyranny of Strangers thou of thine especial goodness didst move the hearts of our Neighbors of whom we had deserv'd no such favour to take upon them the common burden with us and for our deliverance not only to spend the lives of many but also to hazard the Estate and Tranquillity of their Realm grant unto us O Lord that with such reverence we may remember thy benefits receiv'd that after this in our default we never enter into hostility against the Realm and Nation of England Suffer us never O Lord to fall to that ingratitude and detestable unthankfulness that we shall seek the Destruction and Death of those whom thou hast made Instruments to deliver us from the tyranny of merciless Strangers c. But he who shall read Kâ—…ng Charles the First 's Declaration concerning his Proceedings with his Subjects of Scotland since the Pacification in the Camp near Berwick Printed A. 1640. will find this Fact too true and the Letter there likewise Printed which was under the hands of the Leading men of the Presbyterian Faction in Scotland writ to the French King and wherein his assistance is implored A. But by that Act about the Supremacy in Scotland A. 1669. that you read to me I see that the old Leaven of Presbytery is there sufficiently purged out and that the very mass of Blood in mens Principles relating to the Regal Power is universally sweeten'd B. You have great reason to judge so and if you had read the Scotch Statutes since the year 1660 you would find the Body of that Nation having the temperamentum ad pondus for Loyalty And your having mention'd the old Leaven there purged away minds me of minding you that that Nation having so nobly discharged its moral offices in that Case ought to be absolv'd in the thoughts of all the Loyal from the Fact of its former deflection from Loyalty and that the great measures of Christian Charity ought to extend beyond that Judgment of Seneca that poenitens est fere innocens and even as far as S. Paul's generous discharge of the Corinthians on their having purged out that ferment viz. For behold what carefulness it wrought in you what clearing of your selves yea what indignation yea what fear yea what vehement desire yea what zeal c. In all things ye have approved your selves to be clear in this Matter Look on their Acts of Parliament in the time of K. Charles the Second by one of which it is declared That his Majesty his Heirs and Successors by Uirtue of the Royal Power which they hold from God Almighty over this Kingdom shall have the sole Choice and Appointment of Officers of State and Councellors and Iudges and by another That the Estates of Parliament considering that the Kings of this Realm deriving their Power from God Almighty do succeed Lineally thereunto And I can direct you to another that contains in it so strange a Resignation to the King's measures as may make you again wonder at the possibility of such a temper and not to be equall'd by any thing I have read of but that pang of Zeal wherewith so many once at Cambridge were affected for Edward the Senior when they swore to will what he willed I mean that Act of Parliament in Scotland An. 1661. Concerning the League and Covenant and discharging the renewing thereof without his Majesties Warrant and Approbation The Act concludes with an Inhibition That none presume to renew that Covenant or any other League or Covenant without his Majesties special Warrant so to do Thus then that Covenant tho by them so much nauseated they shew'd themselves ready again to swallow if his Majesty for any such reasons of State as they could not foresee should enjoyn them so to do A. You do indeed make me wonder at this great example of the tenderness and extent of loyal Obedience in Scotland B. I can tell you of another Act of Parliament viz. the 5th Act of the second Session of the second Parliament of K. Charles the 2d Edenburgh 13. August The Act against Conventicles where their very Zeal against them is a Wall of Fire to guard the Dispensative Power The Act runns thus Forasmuch as the Assembling and Convocating his Majesties Subjects without his Majesties Warrant and Authority is a most dangerous and unlawful Practice prohibited and discharged by several Laws and Acts of Parliament under high and great Pains c. for the suppressing and preventing of which for the time to come his Majesty with Advice and Consent of his Estates of Parliament hath thought sit to Statute and Enact c. That no outed Ministers who are not LICENSED by the Councel Persons not Authorized or TOLERATED by the Bishop of the Diocess presume to Preach expound Scripture or pray in any Meeting c. and that none be present at any Meeting without the Family to which they belong where any not licensed authorized nor tolerated as said is shall Preach expound Scripture or Pray c. A. The Act for Uniformity here 16 Car. 2. doth justice to the Prerogative of the Crown in dispensing by taking care that the Penalties in it shall not extend to the Foreigners or Aliens of the forriegn Reform'd Churches allow'd or to be allow'd by the King's
o Eliz. beforemention'd B. I can easily direct you to such a Writer of our Church who hath done the thing to the universal Satisfaction of the Inquisitive as to this Point and that is the Lord Primate Bramhal in his Book of Schism Guarded He saith there in p. 330 and 331. As our Grievances so our Reformation was only of the abuses of the Roman Court. Their bestowing of Prelacies and Dignities in England to the Prejudice of the right Patrons Their Convocating Synods in England without the King's leave Their Prohibiting English Prelates to make their old feudal Oaths to the King and obliging them to take new Oaths of Fidelity to the Pope Their imposing and receiving Tenths and first Fruits and other Arbitrary Pensions upon the English Clergy and lastly their Usurping a Legislative Iudiciary and Dispensative Power in the exterior Court by Political Coaction these are all the branches of Papal Power which we have rejected This Reformation is all the Separation that we have made in point of Discipline And for Doctrine we have no difference with them about the old Essentials of Christian Religion and their new Essentials which they have patch'd to the Creed are but their erroneous or at the best probable Opinions no Articles of Faith. Thus then according to these measures you see how much the hinge of the Reformation turns on the Usurpation of the Papacy in Dispensing for in all these particulars enumerated the Pope dispens'd with the King's Laws And he had before in p. 26. said This Primacy neither the Ancients nor we deny to St. Peter of Order of Place of Preheminence If this first movership would serve his turn the Controversie were at an end for our parts But this Primacy is over-lean the Court of Rome have no gusto to it They thirst after a visible Monarchy on Earth an absolute Ecclesiastical Soveraignty a Power to make Canons to abolish Canons to dispense with Canons to impose Pensions to dispose of Dignities to decide Controversies by a single Authority This was that which made the breach not the Innocent Primacy of St. Peter And afterward in p. 149. he saith But I must contract my Discourse to those Dispensations that are intended in the Laws of Henry the 8th that is the Power to dispense with English Laws in the exterior Court Let him bind or loose inwardly whom he will whether his Key erre or not we are not concern'd Secondly As he is a Prince in his own Territories he that hath Power to bind hath Power to loose He that hath Power to make Laws hath Power to dispense with his own Laws Laws are made of Common Events Those benign Circumstances that happen rarely are left to the Dispensative Grace of the Prince Thirdly As he is a Bishop whatever Dispensative Power the ancient Ecclesiastical Canons or Edicts of Christian Emperors give to the Bishop of Rome within those Territories that were subject to his Iurisdiction by Humane right we do not envy him so he suffer us to enjoy our ancient Privileges and Immunities freed from his Encroachments and Usurpations The Chief ground of the ancient Ecclesiastical Canon was let the old Customs prevail A possession or Prescription of Eleven hundred years is a good ward both in Law and Conscience against an Human Right and much more against a New pretence of Divine Right For Eleven hundred years our Kings and Bishops enjoy'd the sole Dispensative Power with all English Laws Civil and Ecclesiastical In all which time he is not able to give one instance of a Papal Dispensation in England nor any shadow of it when the Church was formed Where the Bishops of Rome had no Legislative Power no Iudiciary Power in the exteriour Court by necessary Consequence they could have no Dispensative Power He then in p. 169. mentions the said Statute of 25. H. 8th and having referr'd to the Proviso there to shew that its intent was not to vary from the Church of Christ in any other things declared by the Holy Scripture and the Word of God necessary to Salvation he saith then followeth the scope of our Reformation only to make an Ordinance by Policies necessary and convenient to repress Vice and for good Conservation of the Realm in Peace Unity and Tranquillity from ravine and spoil ensuing much the ancient Customs of this Realm in that behalf not minding to seek for any relief succours or remedies for any worldly things and Humane Laws in any cause of necessity but within this Realm at the hands of your Highness your Heirs and Successors Kings of this Realm which have and ought to have an Imperial Power and Authority in the same and not obliged in worldly Causes to any other Superior Thus then you see this Prelates sense of how much the taking away the Pope's Dispensative Power here and restoring that Power to the Crown was the Soul of the Reformation and tota in toto of it And this Act you see revived by the First of Elizabeth without garbling it in the least and the Dispensative Power thereby restored to her her Heirs and Successors and a Declaration that no Subjects of the Realm need for any worldly things and Humane Laws in any Cause of Necessity seek for any relief but within this Realm at the hands of our Soveraign as aforesaid And I shall tell you that the Bishop in the next Page refers to the Statute of the First of Eliz. and saith on his view of both Statutes Whatsoever Power our Laws did devest the Pope of they invested the King with it And of this the Power of Rehabilitating any of his Lay or Clerical Subjects is a part as was beforesaid A. You have cited somewhat out of this Great Champion for the King's Supremacy and for the Church of England and reputed to be the most clear Vindicator of it from Schism our Church hath had which hath created more anxiety in my mind about the Assertory part of the Oath then any thing hath done For the words in the Oath are I do utterly testify and declare c that no Foreign Prelate or Person hath or ought to have any Iurisdiction Power Ecclesiastical or Spiritual within this Realm and you have brought in the Primate granting that the Pope hath Power here to bind or loose inwardly and asserting that he hath here a Spiritual Power B. You judge right of the Bishop's Opinion and which is indeed express'd throughout his whole Book He tells us in p. 25. That St. Cyprian made all the Bishopricks in the World to be but one Masse whereof every Bishop had an entire part And he saith in p. 60 and 61. That neither King Harry the 8th nor any of our Legislators did ever endeavour to deprive the Bishop of Rome of the Power of the Keys or any part thereof either the Key of Order or the Key of Iurisdiction I mean Iurisdiction purely Spiritual which hath place only in the inner Court of Conscience and over such Persons as
way of Painting to have come But as I have now represented Iustice and Mercy to you to be the same thing so at some other meeting I shall shew you that Dispensation and Mercy are the same And in the mean while I shall tell you that there was a time namely throughout the Reign of Queen Elizabeth and in part of the Reign of King Iames the First when the Learning about Dispensations was not in England Dark learning but generally understood and that not only by the Writers of the Church of England but by the Puritan Writers and I shall shew you when this learning went to sleep and which I account not to have been again awaken'd till in the Conjuncture of Thomas and Sorrel's Case But when I come to entertain you with the learned Notions about it out of some of our Church of England Writers I believe you will not in the least startle at the thoughts of your Prince's dispensing with disability One of those Writers writ of the Subject before Suarez and whose Book I suppose that our Excellent Bishop Taylor happen'd not to have read because I met with no references to it in his Ductor dubitantium and where probably there had been many had the Bishop read it The Book speaks the Author to have been profoundly knowing in the Civil and Canon Law and not unacquainted with the Lex terrae and one who I think made a great figure in the Administration of the Discipline of the Church of England and whose great talents might probably cause our great Church-men then to engage him for their Champion against some of the Puritan Writers who look'd with an evil eye on the Regal dispensing with disability or incapacity in many of our Clergy-men And as when of old some of the English-understandings were employ'd in the writing of School-Divinity they penetrated as far into the Subtleties of it as those of any Nation so I may tell you that in my poor opinion that Author hath writ of the Learning of Dispensations both with all the subtlety and solidity requisite and more substantially then Suarez I shall lay the Book before you at our next meeting but shall now tell you that as to some Points we have been discoursing he observes that There is a Dispensation call'd of Iustice as it were an Interpretation or Declaration of the true meaning of the Law juxta aequum bonum and he cites the Canon Law to prove that Dispensation is a due for that the Precept of Mercy is common to all And I may tell you here that if you will look on your Durand's Speculum in his first Volume where he writes so copiously of Dispensing his style is Dispensatio sive misericordia A. You have taken care enough to make my entertainment in this meeting end with an appetite for another and the rather for that nothing is more pleasant to me then to find an Historical account of the Progress of any Controverted Point of any learning that hath made a ferment in Church or State. And tho as the course of Providence hath made the knowledge of this learning to be the opus diei and so the Ignorance of some and Malice of others hath made it look'd on as angry work and as frightful as a Comet and as odious as if it were to bring us under a torrid Zone yet I think your having surrounded the Nature of Dispensation with such mild and gentle Rays as to represent it to be of the nature of the Sol justitiae with healing in its wings must needs engage the knowing to bid it welcom with a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and make all their animosities and ferments about it to be soon over B. Truly I do not suppose that any knowing man can have an aversion against it and that this Learning non habet inimicum nisi ignorantem And that you may continue in your judgment of any ferment about the Dispensative Power being soon over I can refer you to another Iudgment of Parliament wherein a great tenderness for this branch of Prerogative is shewn namely in the Statute of Octavo Elizabethae c. 6. and to which that Excellent and Learned Person and great Ornament of the Law Sir Robert Atkins as you will find it in Keble Vol. 3. referring in his Argument in Chomas and Sortell's Case saith 8. Eliz. cap. 6. takes notice of Licence to dispense with such Laws as were pro bono publico yet doth not forbid it but rather compounds the matter It hath been the luck of Dispensation to meet with an ill name from some of our famous Writers who tell us that there were no such things as Dispensation or Non-obstante heard of till they came from Rome here in the year of our Lord 1240. and that afterward Kings learn'd from Popes to dispense with their Laws whereas before they caus'd their Laws to be observ'd like those of the Medes and Persians as the Irish Reports tell you in the Case of Commendams and whereupon Mr. Prynne on the Fourth Part of the Institutes c. 22. treating largely of Non-obstantes calls them Papal Engines And our old Monkish Writers have been quoted for bestowing the terms of legum vulnera infames nuncii and repagalum c. on Dispensations and Non-obstantes But I shall at our meeting again shew you that the practice of Dispensing may easily be traced to the Imperial Laws and this you may soon find if you will look on Dr. Donne's Pseudo-Martyr that you have by you and where you may guess at the age of Dispensations by his referring you in p. 40. to the Divinae Indulgentiae in the Digests and his telling you out of the Code that Theodosius and Valentinian making a Law with a Non-obstante did praeclude all Dispensations which the Emperors themselves might grant in these words Si coeleste proferatur oraculum aut divina pragmatica Sanctio And if you will look on Gothofred's Notes on the L. Iubemus C. De Sacrosanctis Ecclefiis de rebus Privilegiis earum cited by the Doctor there you will thus find it in those Notes Caeleste oraculum quid est Principis dispensatio There is another thing I have not had time now to Discourse with you about and that is of the Nature of Laws in terrorem as I intended and which suitably to the Wisdom of a Father in menacing a Child with cutting off his Head if he doth this or that thing are by the Pater Patriae and the Estates of the Realm sometimes lawfully made to intimidate men grown childish and vain by Sanctions of Punishments not intended to be executed according to the general tenour of such Laws But as what may make for my purpose of shewing you how worthy it is of the Majesty of Princes to incorporate Mercy with Iustice in dispensing with many particular Persons and even to the freeing them from the terror of those Laws in some angry Conjunctures when others were to be affrighted with them
publickly or privately 〈◊〉 he should be lawfully restored and releas'd of his said Suspension But shortly after the beginning of the Reign of the Royal Martyr he was again restored and was afterward again silenced and so continued till August 2. A. 1631. and then he was again restored And Mr. Dod's Life represents his Case as parallel with this before-mention'd He was in King Iames his time suspended and restored and again by the King 's particular Command disabled from Preaching and was by King Charles the First re-ennabled or restored Thus as fortis fortem amat one tender Conscienced man too loves another such and the Executive Power of the Law in re-ennabling after temporary Disability was tenderly administred by these our Princes to these Conscientious Men with respect to their real Capacity of Favour to be shew'd them A. You have here given me a taste en passant of part of the Dispensative Power as exercised in the three Realms during some Conjunctures in the Reign of King Charles the First and for which I thank you and particularly for what you told me of the Act of Parliament dispens'd with in Scotland of which I never heard before and am apt to suppose a thing of that Nature was never done before in that Realm B. I can assure you to those who know the Publick Transactions of that Kingdom the thing will not in the least seem new I can tell you that on the 26th of November A. 1593. King Iames the 6th of Scotland made an Act of State in favour of three Roman-Catholick Earls Huntly Arroll and Angus by which Act he allow'd them several Priviledges contrary to Acts of Parliament made against Roman-Catholicks And His Majesty in his Act of State expresly dispenseth with those Acts of Parliament and which Dispensation tho Queen Elizabeth importuned him to revoke and for that purpose sent the Lord Zouch as her Embassador to him he still adhered to the Act of State he had made and continued his Dispensation A. Have you this Matter of Fact out of any of the Records in England or Scotland B. I have it out of the Original Papers under the hand of Queen Elizabeth and her great Minister Burghly and the Original Instructions of the Lord Zouch when sent by her to expostulate with the King about it that were lately in my Custody and by me sent to our gracious Sovereign and I shall some other time give you a more particular account of that Dispensation A. But I beseech you did not the Protestant Divines of the Church of Scotland then cry out of the unlawfulness or inexpedience of that Dispensation B. I have read it in a learned Book of Dr. Maxwell a Scotch-man Printed A. 1644. and who was then Bishop of Killally in Ireland and had formerly been Bishop of Rosse that Mr. Robert Bruce one of the Ministers of Edenburgh and who had a great sway in the Church of Scotland was pleas'd with the King 's extending his Favour to Angus and Arroll but out of a factious Complyance with the Earl of Arguile was displeas'd at its being shewn to Huntly But that Loyal Bishop there acquiesceth in the reason of State that inclined the King to Pardon the three Earls and his thereby hindering the growth of Faction in Scotland and providing for his more easie and secure access to the Throne of England on the Death of Queen Elizabeth And so you may easily guess what sort of men in Scotland look'd with an evil eye on that Act of the Royal goodness and who did not The Bishop there had applauded the great depth of the King's Wisdom and his transcendent Goodness in the Pardoning the three Earls and mention'd that there was nothing of Religion in the Case of Bruce's Aversion against the Pardon of Huntly for that Angus and Arroll were as bigot Papists if not more then Huntly I can likewise direct you to my Lord Primate Bramhal's celebrated Book call'd A Fair warning to take heed of the Scotish Discipline where in Chap. 6. thus entituled viz. That it robs the Magistrate of his Dispensative Power he saith by way of instance When the Popish Earls of Angus Huntly and Arroll were excommunicated by the Church and forfeited for Treasonable Practices against the King it is admirable to read with what Wisdom Charity and Sweetness his Majesty did seek from time to time to reclaim them from their Errors c. and on the other side to see with what bitterness and radicated Malice they were prosecuted by the Presbyteries and their Commissioners c. sometimes threatning that they were resolv'd to pursue them to the uttermost tho it should be with the loss of all their Lives in one day c. sometimes pressing to have their Estates confiscated c. He refers there in his Margin to Ass. Edinb 1594. But any one who shall consult D'Ossat's Letters and there in the Second Book carefully read over the 37th Letter that was writ to Villeroy in the year 1596 and three years after the Date of King Iames his Act of State and observe what that great Sagacious Cardinal there refers to concerning the Circumstances of those three Earls and how all the Prudence that could be shewn by man was but little enough for the Conduct of that King in that Conjuncture in order to his removing what Impediments either from Rome or Spain or his Native Country might obstruct his Succession to the Crown of England will not wonder at his having dispens'd and continued his Dispensation as aforesaid A. I have not yet ask'd you whether the Divines of the Church of England did not lift up their voices like a Trumpet against the Dispensative Power thus exercised by their Prince as you have mention'd B. They discharged their Duties in Preaching occasionally against all growing Errors but they wanted none to mind them of the Saying Impium esse qui Regi dixerit Inique agis The Pious and Learned Author of Certain Considerations tending to Peace c. mentions how the Bishop of St. Davids in King Iames's Reign A. 1604. did in a set Speech in Convocation shew that Ministers were not in the late Archbishop's time disabled from their Ministry on the Account of Non-conformity to the Ceremonies by Law enjoyn'd and concluded his Speech with the motion of Petitioning the King That if the removal of some of the Ceremonies enjoyn'd could not be obtain'd nor yet a Coleration for them of more stay'd and temperate Carriage yet at least there might be procured a mitigation of the Penalty c. And as the Suspension or Disabling of Hildersham and Dod from their Ministerial Functions so the Restoring of them to the same without all such things done by them as the strictness of the Lawes required was in both those Princes Reigns executed by the Bishops Nor do I remember to have read of any Divine of the Church of England to have in the least look'd with an evil eye on the goodness of the
Rights and Privileges united and annexâ—…d to the Imperial Crown of this Realm you are to defend that great Royal Power of Pardoning and which our Ancestors in Harry the 8th's time thought so essential to Publick Justice And therefore you will still do well to remember that your sworn defence and assistance of all the Privileges and Preheminences of the Crown doth more particularly bind you in the Case of these fundamental ones to put no hardship on our Princes nor yet to use any softness of Allurements to tempt them to renounce them The Countryman who being by his Physician prescribed some Grains of Laudanum and desiring a greater quantity of the Apothecary and saying Shall I have no more for my Money and whereby he would have been Poyson'd was not less Sagacious then such Senators who by Subsidies would engage any Prince to part with so much of his Prerogative as would destroy the Body politick Alas as for several uncontroverted Rights of the Crown of an inferiour Nature as our Princes have been ready enough in all Ages to part with them for the good of their People and their own promoted thereby and have had grateful returns from their Parliaments by Subsidies on such an account so none need fear but that in all future times succeeding Monarchs will that way be as indulgent as the former ones were and that as Solomon saith the King himself is served by the Field and the Plough having here variously supported the Throne and particularly by the robust Infantry it hath yielded to serve the Crown in Arms the keeping up of the Spirits of our Yeomen and likewise of those who Plough'd the Sea by the Liberty our Laws allow'd them and the Crowns being no gravamen to the Body of the People and only to the Royal Heads that wore it was and will be always necessary in order to the keeping up the being of the Nation There is therefore scope and encouragement enough in England for a man who is a Candidate for a Patriot's place to carry it by being a Consessor of unmercenary Loyalty and arriving at honour or the consentiens laus bonorum by being a Loyal Patriot and there is as good popular air for any one to feed on who will assert the just Liberties and Privileges of the English Subjects as any Greece or Rome afforded and there was no need for any one to move for a Statue for the Hero who promoted that old act against old Concealments in King Iames the First 's time or the late one for the Habeas Corpus for such an one must find his Monument in the Hearts of all the Subjects of England Nor was there ever Prince more Cordially and Passionately concern'd for the Liberties of the People of England then the Royal Martyr and who fell reverâ as their Martyr according to his words on the Scaffold and where he said If I would have given way to an Arbitrary Power to have all Laws changed according to the Power of the Sword I needed not to have come here His style could not there recede from that of his Printed Declarations and in one of which for Example that in 41. he thus mentions his hopes viz. That God will yet make us a great and a glorious King over a free and a happy People A. If you had not thus coupled the LOYAL Man and the PATRIOT together in your Discourse I should have ask'd you whether you would have Men throw up the many good Laws that the Parliament of 40 obtain'd for the ease of the People by partly importuning the King B. I assure you I shall never give you or any one else cause to think that I have not a high value for some of those Laws and do now shew you my value of them by telling you that I do not look on them as the off-spring of any factious importunity but as the just and natural issue of the goodness of our Prince and you will find they were so if you consult the Declaration I last cited and where his never to be forgotten words are viz. That as We have not refused to pass any Bill presented to Us by Our Parliament for redress of those Grievances mentioned in the Remonstrance so We have not had a greater Motive for the passing those Laws then Our own resolution grounded upon our Observation and understanding the State of Our Kingdom to have freed Our Subjects for the future from those Pressures which were grievous to them if those Laws had not been propounded which therefore We shall as inviolably maintain as We look to have Our own Rights preserved c. And in his Declaration of August 12. 1642. he saith Would men enjoy the Laws they were born to the Liberty and Property which makes the Subjection of this Nation famous and honourable with all Neighbouring Kingdoms We have done Our part to make a Wall of Brass for the perpetual defence of them while these ill Men usurp a Power to undermine that Wall and to shake Foundations which cannot be pulled down but to the Confusion of Law Liberty Property and the very life and being of Our Subjects A. You have named then two fundamental Privileges or Rights of the Crown which by the Oath of Supremacy we are bound always to assist and defend And I am to tell you frankly and without going to hide my Transgression as did Adam that though I have often and in several Capacities took that Oath yet on the very day I last took it and while the very echo of those words so help me God was audible in the air of my mind and before the Ink was quite dry that recorded my Oath I without considering that as 't is the Privilege of our Prince that his Heirs by the Right of the Crown should succeed him so it is the great Privilege of those Heirs to succeed I was yet so far from assisting and defending that Privilege that I immediately endeavoured to subvert the same and tho my Prince's Mind was notify'd to me for my not so doing Nay further to make you my Confessor I was so far gone in a Lethargick carelessness of my Oath that when I saw the excluding the title of the Lawful Successor was not likely to pass into a Law I was tempted to endeavour by Expedients as if I had took an Oath and no Oath to make him a King and no King. And God having given me space to repent of my past incogitancy in relation to that Oath it being now brought before me in the Course of Providence to assist and defend another of the Preheminences which my Prince tells me is granted and belonging to the Crown and which you have mention'd as his Prerogative above the ordinary Course of the Law in the Right of his Crown and that he first made use of an emergent Necessity I will through the Divine assistance use all the means I can both of serious sedate and unprejudicate Consideration and of the
doth appertain and is not nor ought to be subject to any foreign Iurisdiction Where we attribute to her Majesty the Chief Government by which Title we understand the minds of some slanderous Folks to be offended we give not to our Princes the ministring either of Gods Word or of the Sacraments the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify but that only Prerogative which we see to have been given always to all Godly Princes in holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers The Bishop of Rome hath no jurisdiction in the Realm of England The Laws of the Realm may punish Christian Men with death for hâ—…inous and grievous Offences It is lawful for Christian Men at the Commandment of the Magistrate to wear Weapons and serve in the Wars Now after the Oath of Supremacy had been enjoyn'd in the first year of her Reign and the Admonition annexed to her Injunctions was then likewise publish'd viz. A. D. 1559. and after the Parliament had by proviso 〈◊〉 the interpretation of the Oath which Parliament began the 12th of Ianuary in the 5th year of her reign and from which day all things dâ—…ne in that Session are to bear date the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation holden at London in the 5th year of her reign and A. D. 1562. were by the Archbishops and Bishops of both Provinces subscribed the 29th of Ianuary in that year and by the Clergy of the lower House of Convocation on the 5th of February following and to all which the Queen gave her Royal Assent And in the Articles there was by the Queens Royal Prerogative an additional Interpretation probably at the instance of the Clergy given to the interpretation in the Admonition and in the Parliaments Proviso and the which additional interpretation had in it no respect to nor mention of what being in several places of the former one might amuse the Clergy with some Fears and Iealousies namely the Duty Allegiance and Bond that were acknowledged due to Harry the 8th and Edward the 6th and the Authority that was challenged and lately used by those Princes however yet that latter Clause is qualify'd in the Admonition But for the 37th Article before-mentioned allowing the measures of the Royal Supremacy from the Prerogatives given by God in Scripture to holy Princes whereby our Clergy might seem to have brought the Prerogative into its own proper Element and theirs too the knowledge of the Scriptures being their profession our Clergy no doubt were always thankful to the Crowns Dispensative power and so exercised out of Parliament and whereby they were secured from penal disabilities either by suspension or deprivation for not taking the Oath in the sense of the Admonition Thus as things in their proper place are at rest the Queens Dispensative power and the Consciences of the Clergy by this interpretation of the Oath were so much at rest that about eight or nine years afterward the same 39 Articles that had been by the Archbishops and Bishops and Clergy of both Provinces agreed on in the year 1562. were by the said Archbishops Bishops and Clergy again agreed upon and again ratify'd by the Queen in the year 1571. the 13th year of her reign and when care was taken by the Government that that interpretation being incorporated in the body of the 39 Articles should be deem'd good in Parliament by the Statute of 13 o Eliz. c. 12. as the other interpretation in the Admonition had been by the proviso in the Act of the 5th of that Queen and probably for the same reason and as her dispensing with disability expresly in the 8th year of her reign was In the Act of the 13th of Eliz. reference was made to those Articles as agreed on by the Archbishops and Clergy and set forth by the Queens authority Anno 1562. and the Act is entituled Reformation of Disorders in the Ministers of the Church and in which it was enacted That all such as were to be ordained or permitted to preach or to be instituted into any Benefice with cure of Souls should publickly subscribe to the said Articles which shews if you mind it that tho the Parliament did well allow and approve of the said Articles yet the said Book oweth neither Confâ—…rmation nor Authority to the Act of Parliament And that Act concerning only Clergy-men tho the interpretation in the 37th Article is left to oblige the Clergy yet that in the Admonition might concern you to stick to if nothing had since happen'd whereby the dispensative power inherent in the Crown may have given your Conscience the benefit of the interpretation thus afforded to the Clergy But therefore I shall here tell you that the Canons of King Iames the â—…st Anno 1603 being confirmed for him and his Heirs and Successors are binding now however it hath been objected as the unhappiness of Queen Elizabeths Canonâ—… viz. A. 1571. A. 1584. A. 1597. wanting those formal words of Heirs and Successors to expire with her And as those words are in King Iames's Canons so are the words of enjoyning their being observ'd fuâ—…fill'd and kept not only by the Clergy but by all other Persons within this Realm as far as lawfully being Members of the Church it may concern them and tho in the first Canon there entituled The King's Supremacy over the Church of England in Causes Ecclesiastical to be maintain'd 't is order'd That all Ecclesiastical Persons shall keep and observe and as much as in them lyeth all and singular Laws and Statutes made for the restoring to the Crown of this Kingdom its ancient Iurisdiction over the state Ecclâ—…siastical yet in the next Canon entitled Impugners of the King's Supremacy censurâ—…d the measures of the King 's ecclesiastical Authority being taken from the Godly Kings among the Iews according to the 37th of the 39 Articles was an extending to the Layety the ben fit of the Interpretation obtain'd by the Clergy the which was in effect a judgment of the Convocations that the pursuance of that Interpretation of the King 's Ecclesiastical Power and the avoiding of the punishment of Disability by the use of that Power was not agaâ—…st the Law of the Land but the 5th Canon viz. Impugners of the Artiâ—…les of Religion establish'd in the Church of England censured and in which the establishment of the 39 Articles is solely referr'd to them as agreed on in Convocation in the year 1562. without any notice of the Parliament of the 13th of Eliz. having done any thing about them doth more clearly secure to you the benefit of the Interpretation the Clergy had A. You have mention'd so many things to me relating to the interpretation
of the Oath of Supremacy which I never knew before that may seem to perplex the Conscience of any one who would take it and to expose it to such a kind of Ordeale-Purgation per ferrum candens that may make the passage through it dangerous to Ones Conscience B. Look you to that who have taken the Oath and do you consider how far you are by the Interpretations that I have referr'd you to obliged to take your measures in the Matter that lies now before you as to your assisting and defending the Prerogative of the Dispensative Power and I likewise recommend it to you to observe how much to the satisfaction and ease of the minds of the generality His Majesty's Lay-Subjects he by Connivence hath dispens'd with their not troubling themselves to study the Duty Bond or Allegianâ—…e that was acknowledged to be due to Henry the 8th or Edward the 6th or the Prerogative given by God to Godly Princes in the Scripture or the Christian Emperors in the Primitive times for however our Divines are by the 39 Articles and the Canons of King Iames and King Charles the First particularly obliged to study these Points and that the knowledge of the same may oblige Men of learning and leisure among the Layety to Conduct their Consciences thereby in their observance of this Oath yet His Majesty 's not reviving among all his Subjects by any Proclamation or Ecclesiastical Injunction or otherwise the notices of these forgotten things cannot but be acceptable to the generality of them as a Dispensation by Connivence And therefore in Complaisance with and gratitude to him they are by the Law of Nature bound to give him what is plainly his Due according to the plain Oath tender'd to and taken by them and to take care that they do not exercise an Illegal Power of dispensing by way of Interpretation of that Oath to the Subversion of the sense of the Assertory and Promissory parts of it both which are the Supporters of the Royal Dispensative Power But reserving for some other time my thoughts relating to the Dispensative Power exercised by the Godly Princes in Holy Scripture and by the Christian Emperors I shall desire you now to look on your Oath in the plain natural sense of it and as much as if no authoritative one had ever been given of it Consider that when you declare the King is the only Supreme Governor of this Realm or Governor of all Persons in it no Humane Laws can bind our Consciences by any disability Penal incurr'd from serving him When Kings say there is a Necessity for our Service St. Paul hath said we must needs be subject to them and which as Grotius hath well observ'd implies Obedience to their Commands as well as Submission to their Coercion As Dr. Donne in his Pseudo-Martyr observ'd well concerning the Oath of Allegiance All the Substance of the Oath is virtually contain'd in the first Proposition That King James IS lawful King of all these Dominions the rest are but Declarations and Branches naturally and necessarily proceeding from that root the same as to the Point we are upon may be verify'd of the Oath of Supremacy The King's Highness IS the only Supream Governor of this Realm not shall be by virtue of this Act IS SO notwithstanding any thing that hath been done or is a doing and whereby any former Princes supposed de facto consenting to tye up his hands from Governing all his Subjects and ranging them in their Stations in his Service is out of the Case of your Oath who have sworn thus that King Iames the Second IS the only Supreme Governor c. Since therefore you have in your Oath acknowledged that the King is the only Supream Governor and that according to the 37th Article of the Church of England He HATH the rule of all Estates and Degrees committed to his charge BY GOD whether they be Ecclesiastical or Civil I will ask you if any Humane Law can disable any Persons from being govern'd by him more then it can Children from honouring their Parents According to those words in Malachi If then I be a Father where is my honour and if I be a Master where is my fear c. may it not be said to every Subject while the King IS your King while he is your only Supreme Governor and while he is your Political Father will you not be Govern'd by him Or in effect will you Govern him by thinking to oblige him not to employ this or the other Subject and in effect endeavour both to dishonour and disable him who is the Head of the Community as it were by loss of Member Will you dishonour him who bears the Sword by imposing on him your belief that such a Member of the Body Politick is a gangrened one and necessary to be cut off from serving the State when he tells you he knoweth the contrary Or will you dishonour his Religion by saying that Papists are disabled by their Religion from being sound Members of the State when he knoweth they are not so disabled by it and accordingly as Sir William Temple hath in his Excellent Observations on the Low Countries made it appear that the Papists there are a sound part of the State Remember that the words only Supreme as apply'd to your King in the Assertory part of your Oath are not Otiosa Epitheta You will find that our great Casuist Bishop Sanderson in his Seventh Lecture of the Obligation of Conscience lays so much stress on those words in your Oath Only Supreme Governour as to judge him PERIUR'D who having taken the Oath shall assert the Figment as he calls it of Co-ordinate Power Quid enim PERIURIUM dici mereatur si hoc non sit manifestissimum PERIURIUM quem solum esse Supremum in suo regno Moderatorem Conceptis verbis juraveris ei parem etiam in suo regno potestatem constituere agnoscere If you did but often enough consider your Prince as asserted in your Oath to be Governor of the Realm you would find in your thoughts no difficulty of allowing him the Power of Commanding all Persons in it without exception to serve him Bishop Bilson in his Book of Supremacy p. 238. saith Though Bishops may be call'd Governors in respect of the Soul yet only Princes are Governors of Realms Pastors have Flocks and Bishops have Diocesses Realms and Dominions none have but Princes c. and so the style of Governor of this Realm belongs only to the Prince and not to the Priest and imports a Publick and Princely regiment And here I shall take occasion to tell you that as the Common Law subjecting the Inhabitants of this Realm to the Government of Bishops hath not kept our Princes from exempting particular Persons and Bodies Corporate from their Iurisdiction but could not exempt them from being subject to their Prince and from obeying him that much less could any Statute Law do it It is upon the weight of
reason that lyes in this Assertory part of the Oath that so many Writers of the Common Law have founded their Assertion of the King's Power oâ—… Commanding the Service of all his Subjects as essential to the keeping up the Monarchy or the Rule of all Estates committed to him by God that I lately spoke of and inseparable from it noâ—… alienable by any Humane Laws It is the Supreme Power of our Princes as Governors of the Realm that hath always entitled them to Press men for the Service of the Crown by Land or Sea and to recall both Soldiers and Mariners from the Service of Foreign Princes upon emergent Occasions to serve their natural Liege Lord. And the Book writ by a Learned Common Lawyer against the Exclusion call'd A Letter from a Gentleman of Quality in the Country c. and Printed A. 1679. and so deservedly extoll'd by the Iudicious loyal tells you in p. 7. and 8. that If it should be enacted by Parliament that No man should honour the King or love his Parents or Children c. such an Act would be ipso facto void because contrary to the express Divine Command c. The Statute of 23 H. 6. c. 8. and several other Statutes Enact that no Man shall be Sheriff of any County above one year and that any Patent of the King to any Person for a longer term tho with an express Clause of Non-obstante shall be void and of none Effect and the Patentee perpetually disabled to bear the Office. And yet notwithstanding it is Resolv'd by all the Iudges of England that these Acts of Parliament are void and that the King may by Non-obstante Constitute a Sheriff for Years Life or Inheritance And what is the Reason which the Iudges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of his Subject which the immutable Law of Nature doth give to him For Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. We know that by the Statute of 4 o. H. 4. c. 5. 't is ordain'd That every Sheriff of England shall abide in proper Person within his Bailywick for the time that he shall be such Officer But this Act hath never been construed to hinder the King as Supreme Governor and Ruler of all Persons in the Realm from Commanding any Sheriffs to serve him elsewhere during their Shrievalties nor on such case to oblige the Sheriffs in Conscience to observe the Statute by such Personal residence Baker in the reign of King Charles the first tells us of an Information A. 1629. in the Star-chamber against Mr. Long for that he being high Sheriff of the County of Wilts had the Charge and Custody thereof committed to him and had taken his Oath according to the Law to abide within his Bailys-wick all the time of his Sheriff-wick and his Trust and Employment requiring his personal attendance therein did contrary thereto suffer himself to be chosen a Citizen for the City of Bath to serve in the last Parliament and did attend at Westminster in Parliament WITHOUT HIS MAIESTIES LICENCE he being Sheriff at that time and that for the foremention'd Offences and Breach of his Oath and neglect of his Trust and Contempt of his Majesty the Decree was That he should be Committed to the Tower during his Majesties Pleasure and pay a Fine of 2000 Marks to the King. Hereby you see that his Majesties LICENCE or Dispensing with that Statute had indemnify'd him from it in the Court of Law and that the potestas Superioris being necessarily imply'd in a promissory Oath the King as supreme Governour of all Persons in his Realms commanding or allowing such Officers service to the publick elsewhere had secured him in either forum The known Custom of the Speaker of the House of Commons DISABLING himself when presented to the King but of entring on his Charge on the King's approbation and pleasure signify'd according to that saying of Cuâ—… me posse negem quod tu posse putes may pass for some representation to our thoughts of Disability to serve the publick then evaporating when the King as Governor of the Realm doth give the Subject a Call so to do You may find this practice of the Speaker's disabling himself set down in Coke 4. Inst. c. 1. And I shall here by the way take notice that he there likewise mentions it that one of the Principal ends of Calling of Parliaments is for the redress of the Mischiefs and Grievances that dayly happen And he had there before said Now forasmuch as divers Laws and Statutes have been enacted and provided for these ends aforesaid and that divers Mischiefs in particular and divers Grievances in general concerning the Honour and Safety of the King the State and Defence of the Kingdom and of the Church of England might be prevented an excellent Law was made Anno 36. E. 3. which being applied to the said Writs of Parliament doth in few and effectual words set down the true subject of a Parliament in these words For the maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every year as another time was Ordain'd by a Statute Before the Conquest Parliaments were to be holden twice every year c. But accordingly as my Lord Coke there takes notice of the style of the Statute of 36. E. 3. viz. to the Honour of God and of holy Church and quietness of the People and according to the style of the Statute of 10. E. 3. Because our Sovereign Lord the King Edw. 3. which Soverainly desireth the maintenance of the Peace and Safeguard of his People c. hath Ordain'd c. for the Quietness and Peace of his People c. and suitably to the style of the Statute of 14 o E. 3. 1. To the honour of God c. The King for Peace and Quietness of his People as well great as small doth Grant and Establish the things under-written c. and to that of 20. E. 3. and for this Cause desiring as much for the Pleasure of God and Ease and Quietness of our Subjects and according to that style in the Register Nos oppressiones duritias damna excessus praedicta gravamina volentes relinquere impunita volentesque salvationi QUIETI populi nostri in hac parte prospicere ut tenemut c. and according to the Trust committed to Princes by God to endeavour that their Subjects may under them lead QUIET and Peaceable lives in all Godliness and Honesty and which is the great Fundamental reason of the Moral Obligation of Princes to relax the Summum jus of their Laws by sometimes DISPENSING therein since we may easily imagine by our thinking of a late Conjuncture how possible it was that the
some mens Minds are involv'd in they can no more alter their beliefs about Transubstantiation then they can transubstantiate themselves into other Creatures and are under a Moral incapacity of preventing another incurred by Law. And therefore as it would be Injustice in a Judge to Punish a man for the Errors of the mind that he knoweth not to be voluntary and for a man 's not putting himself into a Capacity to serve the King by the Professing of the truth in Problematical Points when the King of Kings hath by the not sufficient promulgating of such truth to his understanding render'd him innocent in his disbelief thereof and so long morally uncapable to profess it so by one man's after another appearing thus unable to qualifie himself to serve the King he may be totally unserved I have often heard you complain of the narrow Idea's of the King's Supremacy in some of the Non-Conformists but if you will read the Protestation of the King's Supremacy made by the Nâ—…n-conforming Ministers and Printed A D. 1605. you will find that they have there given in sufficient caution for tâ—…eir Principles not allowing any of the King's Subjects being disabled from serving him For they having said in § 1. We hold and maintain the same Authority and Supremâ—…cy in all Causes and over all Persons Civil and Ecclesiastical granted by Statute to Queen Elizabeth and expressed and declared in the Book of Advertisements and Injunctions and in Mr. Bilson against the Iesuites to be due in full and ample manner without any limitation or qualification to the King and his Heirs and Successors for ever they add in § 2. We are so far from judging the said Supâ—…emacy to be unlawful that we are persâ—… aded that the King should sin highly against God if he should not assume the same to himself and that the Churches within his Dominions should sin damnably if they should deny to yield the same to him yea tho the STATUTES of the Kingdom should deâ—…y it to him And they tell you in Sect. 6. that the height of the King 's Royal Dignity consists in his Supremacy It is thus likewise a kind of familiar or Vulgar Error among Protestants to think that in the â—…ncient times this Fundamental Assertory part of your Oath tâ—…at the King is the only Supreme Governor of this Râ—…alm was not allow'd Long before the Rescript of the University of Oxford to Henry the 8th A. 1534. mention'd that he was next under God their happy and Supreme Moderator and Governor and on which being brought into the Parliament House an Act passed whereby the King was declared Supreme Head and Governor of the Church and long before it was declared by the Parliament 16. R. 2. c. 5. that the Crown â—…t England hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regality of the same Crown and to none other and long before Bracton's writing in the Reign of H. 3. Omnis quidem sub Rege ipse sub nullo sed tantum sub Deo and ipse autem Rex non debet esse sub homine sed sub Deo. c. you will find if you look into Coke's 4th Instit. c. 74. that in the Law before the Conquest the style runs Rex autem quia Uicarius summâ—… Regis est ad hoc est constitutus ut Regnum terâ—…enum populum Domini super omnia sanctam veneretuâ—… Ecclesiam ejus regat c. and where he tells you of the style of King Edwin in his Charters viz. of Angâ—…orum Rex totius Britannicae telâ—…uris Gubeâ—…nator Rector And he there refers likewise to several Grants made by Abâ—…ots and Priors to King E. 4. wherein they style him by these very words Supremus Dominus noster But that he might perimere litem as to the point of the ancientness of the King's Supremacy he there referreth to the judgment of Parliament declared in the Statute of 24 o. H. 8. c. 12. viz. That by divers authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governâ—…d by one Supreme Head and King c. unto whom a Body-Politick compact of all sorts and degrees of People divided in terms and by names of Spiritualty and Temporalty been bounden and owen to beat next unto God a natural and humble Obedience c. And here I am led to tell you that as it is on this Foundation of the King 's being the Supreme Governor and Ruler of all sorts and degrees of men thus anciently acknowledged by our Roman Catholick forefathers that the Regal Power of Dispensing with the Laws that were Penal by Incapacity and particularly in order to the Crown 's being enabled to command the Obedience and Service of all Estates and Degrees of men was built so it is on the same that the Usurpations of the Papal Dispensative Power of that kind were opposed I shall before we part give you instances hereof A. I thank you but shall here tell you that the Expression you used just now about the King being disabled by his Subjects being so hath overcast my thoughts with some kind of horror B. I cannot help it but if you will have me speak with the frankness of a Philosopher concerning the Nature of things the disabling of the Subjects must have that effect in Nature and of the disabling of their Country too And I think too you gave me a hint for some such thought at our last meeting If you do but consider the Services done to Monarchs by that abject Nation of the Iews and who by Tacitus were call'd the Vilissima pars servientium and how in our Saviour's time they were serviceable to the Roman Empire in the Collection of the Customs and how much they have been since and still are useful to the Grand Signior and to many Christian Princes by gathering in their Imposts you will easily imagine the loss that would redound to Princes by Religionary Heterodoxy disabling any to serve them It is but natural to men of the most inquisitive and penetrating thoughts to differ from many Points of Theology receiv'd by Princes and their People and since such heterodoxy doth difficult their access to Preferment it is but Natural to them by their working Thoughts and Industry to arrive at the excelling the duller Orthodox in whatever course of life they take and by that means to try to push on their way into their Prince's favour and consequently to have very sharp regrets against any Methods that would incapacitate them for it And as if this Civil Death were to Men of great Thoughts the terrible of terribles and what as hindring them from serving their Prince and Country were like Burying them alive I shall shew you how a Man of great Abilities and who had made a great Figure in the Church
and State resented it in the Conjuncture of A. 1640. I mean Archbishop Williams who in his famous Speech in Parliament that year against the Bill that afterward passed into a Law to Disable Persons in Holy Orders from exercising any Temporal Jurisdiction doth thereupon represent it that under a CAIN ' s mark an eternal kind of disability or incapacity is laid on them from enjoying hereafter any of those Rights Favours or Charters of former Princes and which is the heaviest Point of all without killing of Abel or any Crime laid to their charge more then that in the beginning of the Bill 't is said roundly and in the style of Lacedaemon that they ought not to intermeddle c. And what his thoughts were of the Injustice of such incapacity put on the Clergy and of the odiousness of that Punishment of incapacity appears by what he afterward saith viz. I come to the 4th part of this Bill which is the manner of the inhibition every way heavy in the Penalty heavier a great deal in the incapacity In the weighing the Penalty will you consider the small wyers that is poor Causes that are to induce the same and then the heavy load that hangs upon these wyers It is thus If a Natural Subject of England interessed in the Magna Charta and Petition of Right as well as any other yet being a Person in Holy Orders shall happen unfortunately to Vote in Parliament to obey his Prince by way of Councel or by way of a Commissioner be required thereunto then is he presently to lose and forfeit for his first offence all his Means and Livelyhood c. This Peradventure may move others most but it doth not me It is not the Penalty but the Incapacity aâ—…d as the Philosophers would call it the Natural impotency imposed by this Bill on men in holy Orders to SERVE the KING or the STATE in this kind be they otherwise never so able or never so willing or never so vertuous which makes me draw a kind of Timanthe ' s veil over this Point and leave it without any amplification at all to your Lordships wise and inward Thoughts and Considerations But if with so much thunder of Passion as well as lightning of reason that learned Speech from the Bishops Bench did so much resent the punishing the Clergy with disability to execute secular Offices and to have the honour of serving their Prince and Country therein and for the imposing of which disability that known place of Scripture 2 Tim. 2. 4. No man that wars entangles himself with the Affairs of this life was alledged in the House as thus disabling them by the Law Divine and as to which the Bishop in his Speech gives a learned Answer we may well imagine how Lay-men of good Births and Educations and whose Diligence employ'd in Courts and Cities and Camps abroad may have qualify'd them here to stand before Kings must necessarily aggravate in their thoughts the dishonour of incapacity to serve their Prince in secular Employments A. Was that Speech of the Archbishop ever printed B. You will find it in the Apology for the Bishops to sit and Vote in Parliament printed in London A. 1661. And he hath in that Speech some other Expressions which corroborate that obvious natural notion of the King and Kingdom being disabled by disabling of Clergy-men from secular Employments For having reflected on the Bill for disabling them from sitting in the Star-chamber and at the Council-table sitting in Commissions of the Peace and other Commâ—…ssions of secular Affairs he afterward saith But my noble Lords this is the Case Our King hath by the Statute restored to him the Headship of the Church of England And by the word of God he is custos utriusque tabulae And will your Lordships allow this ecclesiastical Head no ecclesiastical Senses No Ecclesiastical Persons to be censulted with at all No not in any Circumstances of time and place If Cramner had been thus dealt with in the Minority of our young Jâ—…sias King Edward the 6th what had become of that great work of our Reformation in this flourishing Church of England A. The truth is it being a kind of a Rule that all Men of Parts who have been liberally educated and even those excelling in mechanical professions do naturally desire to serve the King and standing before Kings having been annext in Scripture as a reward to diligence in ones calling a Mark of disability put on Lay-men to serve their Prince cannot but tempt them to passion on that account more then it ought to have troubled the Bishop when he call'd it a Caiâ—…'s Mark in regard you have mention'd it that Clergy-men to some did seem by the Law-Divine disabled from secular Employments B. According to the Opinion of Iudge Vaughan in his Reports who in Hill and Good 's Case there makes a lawful Canon to be the Law of the Kingdom as well as an Act of Parliament and whatever is the Law is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus they were by the Canon Law disabled from intermedling in secular Affairs And according to his description of malum prohibitum in Thomas Sorreâ—…'s case p. 358. you may say they were by the Statute so disabled from intermedling For he there saith malum prohibitum is that which is prohibited per le statute Per le statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case for it is said the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon-Law and by the Council of Lateran not by Act of Parliament The Lateran Council his Lordship there means is that held under Alexander the 3d A. 1180 and which Council hath it in these words viz. neque servi neque spurii sunt ordinandi And uni plura ecclesiastica beneficia non sunt committenda And therefore the Bishop in that Speech saith That this Doctrine of debarring Persons in Holy Orders from secular Employments is the Doctrine of the Popish Church and first brought into this Kingdom by the Popâ—…s of Rome and Lanfrank Anselm Stephen Langthon and Othobone and with an intent to withdraw the Clergy from tâ—…eir receiving Obligations from either King or Lords and make them wholly dependants on the Popacy But Bishop Iewel tells us in his Apology p. 122. that Veteres Canones Apostolorum illum Episcopum qui simul Civilem magistratum ecclesiasticam functionem obire velit jubent ab officio summoveri A. Yet notwithstanding their being disabled by the antient Canons and the Nemo militans c. 2 Tim. 2. as often alledged against them by the Canons and Canonists I think they were frequently employ'd by our Princes in the greatest Offices of the State. B. They were so and the
Disability of a whole third estate as to bearing secular Offices did not stand in the way of Prerogative I have read it in Fuller's Church-History that in the year 1350. the Lords and Commons in Parliament did find themselves aggrieved that the Clergy-men engrossed all secular Offices and thereupon presented the ensuing Petition to the King according to this effect insisting only in the substance thereof viz. And because that in this present Parliament it was declared to our Lord the King by all the Earls Barons and Commons of England that the Government of the Kingdâ—…m hath been performed a long time by the Men of Holy Church which are not justifyable in all Cases whereby great mischiefs and damages have happen'd in times past and more may happen in time to come in disheriting of the Crown and great prejudice of the Kingdom c. that it will please our said Lord the King that the Lay-men of the said Kingdom which are sufficient and able of Estates may be chosen for these and that no other Person be hereafter made Chancellor Treasurer Clark of the Privy-Seal Barons of the Exchequer Chamberlain of the Exchequer Comptroller and all other great Officers and Governors of the said Kingdom and that these things be now in such manner establish'd in form aforesaid that by no way it may be defeated or any thing done to the contrary in any time to come saving to our Lord the King the Election and removing of such Officers but that always they be Lay-men such as is abovesaid To this Petition the King return'd that he would ordain upon this point as it should best seem to him by the advice of his good Council In fine you see that tho the Clergy-men were thus disabled by the general Customs and Usage of the Realm and by lawful Canons and provincial Constitutions accounted by that Iudge beforemention'd to be tanta-mount to Acts of Parliament yet you â—…ee our Kings did frequently dispense with these Customs lawful Canons and Constitutions And tho the Office of Bishops renders them guardians of the Canons yet you see how tender they have been of the Regal power of Dispensing therein And as that saying of Wicliffe however censured in the Council of Constance may perhaps with a little help be reduced to Orthodoxy viz. That â—…ne should be Excommunicated by any Prelate unless he know him Excommunicated by God so with parity of reason it may be said that none should be totally disabled by any Prince from serving him unless he knew him really disabled by God and especially when he knew the contrary and that the Services of the great men of the Clergy had so often been successfully employ'd at the Helm of State and when for the honour of Clergy-mens Councel some of the most profound pieces of State-Policy our English Story hath in it are to be attributed to Clergy-mens officiating in their Princes Councels and as for Example when by the figure that Bishop Morton made at the Helm he did make up the dismal breach and united the two Houses of York and Lancaster in the Happy Marriage between Henry the 7th and the Lady Elizabeth aâ—… when Bishop Fox who was Lord Privy Seal did by his Advice lay the Foundation of a more happy Union between the Kingdoms of England and Scotland by the eldest Daughter of Henâ—…y marrying Iames of Scotland and the younger matching into France that so on their ever coming to inherit Scotland might be annex'd to the Imperial Crown of England and England not be annex'd as a Province to France and for the Consequences of which Advice both Englishmen and English and French Protestants have so much cause to say We Praise thee O God c. And I am here minded of what Fuller tells us on A. 14. H. 4. viz. It was moved in Parliament that no Weishman Bishop or other shall be Iustice Chamberlain Chancellor Treasurer Sheriff Constable of a a Castle or Keeper of Records or Lieutenant in the said Office in any part of Wales or of Councel to any English Lord notwithstanding any Patent made to the contrary Cum clausulâ non obstante licet Wallicus natus and that it was answered that the King willeth it except the Bishops and for them and others which he hath found good loyal Lieges toward him out said Lord the King will be advised by the Advice of his Councel Ex Rot. Parliamentariis in turri Lond. in hoc Anno which Citation Fuller professeth to be taken out of the Authentick Records in the Tower. There passed an Act of Parliament in the 4th year of Henry the 4th by which it is Enacted That no Welshman shall be Iustice Chamberlain Sheriff Coroner nor other Officer in any part of Wales notwithstanding any Patent to the contrary with the Clause of Non-obstante and yet without Question saith my Lord Coke 12th Rep. the King might dispense with this Statute but you see how on the Parliaments resenting the Dispensations the Act had met with and particularly in Bishops having contrary to the tenor of the Act served the Crown in Secular Employments the King particularly adhered to the exercise of his Dispensative Power in their Case It was upon the ground of this Assertion viz. Of the Crown 's being entitled to Command the Services of all Subjects that some Papists were employ'd by Queen Elizabeth in Affairs of the State notwithstanding any disability incurr'd by not taking the Oath of Supremacy And Viscount Montacute tho a Roman Catholick was as Cambden tells you sent by her as her Embassadour to the King of Spain and employ'd too about the Business of the Scots and to do right to the Protestant Religion Sir Edward Carne likewise a Roman Catholick was sent by her as her Embassador to the Pope And as to the sense of many of that Queen's most renowned Ministers of State about the Deprivation of the Nonconformist Divines disabled eo Nomine from their Ministry being Penal to the People the Author of certain Considerations tending to promote peace and good will among Protestants hath mention'd it that Eight of that Queens Privy Councellors writ a Letter in their favour to the Bishops of Canterbury and London in the close whereof 't is said viz. Now therefore we for the Discharge of our Duties being by our Vocation under her Majesty bound to be careful that the Universal Realm may be well govern'd according to the Honor and Glory of God and to the discharge of her Majesty being the Principal GOVERNOR of ALL her SUBIECTS under Almighty God do most earnestly desire your Lordships to take some charitable Considerations of these Causes that the PEOPLE of THIS Realm may not be DEPRIVED of their Pastors being Diligent Learned and Zealous tho in some Points Ceremonial they may seem doubtful only of Conscience and not of wilfulness c. Tour Lordships loving Friends William Burghly George Shrewsbury A. â—…rwick R. Leicâ—…ster C. Howard J. Crofts Chr. Hatton
Vice-gerent for ecclesiastical Causes and however incapacitated by some positive humane Laws to make that figure he did but uti Iure suo And I shall tell you as to the subject of the weight of one Man or the consequences of disabling one Man that we were upon if you consider how much the excesses of the Papal Usurpations and the over-ballance of the Monastic Revenue in the Nation were removed by the parts and endowments of Cromwel the Vice-gerent in Matters Ecclesiastical you may easily imagine that if the measures of the Canon-Law and Canonists and the long receiv'd customs or any humane Law had then prevail'd for the disabling of Cromwel cum effectu from bearing Office or intermedling in Ecclesiastical Jurisdiction as the Kings Vice-gerent what a Church of England we should have at this time enjoy'd You may well imagine how much the Disabling of Lay-men from intermedling in ecclesiastical Iurisdiction had passed for a general Custom here when Bishop Downham in the Defence of his Consecration Sermon p. 185. saith that as for lay-Chancellors or Commissaries the Bishops in the times of S. Austin and S. Ambrose had none and that not so much as the Steward of a Church might be a Lay-man and when the Puritan Writers did still upbraid our Discipline on the account of the incapacity of Lay-men to be Bishops Chancellors as adjudged by the ancient Canons and with the Canon of indecorum est laicum esse vicarium episcopi c. and by which Canon the Bishop who made a Lay-man his Vicar was declared to be contemptor Canonum But it was the Regal Power of Dispensing with the Canons and Customs that disabled Lay-men from intermedling in ecclesiastical Jurisdiction that laid the foundation of the Reformation in Harry the 8th's time as it was the same Power of dispensing with the Canons and Customs that disabled Clergy-men from intermedling in saecular Employments that perfected the superstructure of it in the reign of Edward the 6th that young Iosias as was before mention'd Fuller tells us in his Church-history that Harry the 8th's making a Lay-man his Vicar-general was the greatest instance of his ecclesiastical Power that ever was given And my Lord Herbert in his Harry the 8th doth seem to reflect on Cromwel's not being thought capable of that Office for his words on his being made the King's Vicegerent are It was thought strange by the People because there was no Example of any Kings of Israel the lawfully in their own Persons enjoying the mixt Power of the Temporal and Spiritual or of the Pope's having deputed Ecclesiastical Power to a Lay-man But as to his saying that there was no Example of the Pope's deputing Ecclesiastical Power to Lay-men I shall observe that his Lordship had not consider'd that according to the Glosse in C. bene quidem Distin. 96. Laicus potest excommunicare ex Papae delegatione and that tho a Bishop cannot by the Canon-Law delegate his Power to a Lay-man for that a Bishop is not above the Ius Commune Positivum of the Pope yet the Canonists hold that the Pope by the Plenitude of his Power may dispense with his own Laws and by so doing delegate the Power of Excommunicating to Abbesses altho jure Communi as not having the Power of the Keys they are disabled from so doing and that Pope Urban the Second constituted a Lay-man Roger Earl of Sicily and his Heirs his Legates a latere in that Kingdom by way of Inheritance for ever and that our Henry the Second writing to the Pope to recall Beâ—…ket's Legatine Power and to confer it on the Archbishop of York the Pope refused so to do but offer'd the Legatine Power to the King himself and sent Letters to the King for that purpose but which the King in scorn threw away The Legatine Powers are de jure Communi as the Canonists tell us very great and allow the Legates to visit or cause to be visited by such as they shall think fit all Churches Monasteries Colleges Universities Hospitals and do authorize them to make new Statutes and Orders and not only to receive Appeals from ordinary Judges and Delegates but to judge and decide all Ecclesiastical Civil and Criminal Causes and that summarily and sine formâ figurâ Iudicii to make Prisoners of Bishops and send them in Custody to the Pope to bestow Benefices that were vacant to unite Churches to interpret the Mandates of the Pope and if the Pope hath entrusted any thing to be done by them yet to entrust the doing thereof to others to execute all their Jurisdiction in Places exempt as well as not exempt and to dispense in all Cases wherein they are not Prohibited and to exercise the Iurisdiction of granting Indulgences and to dispense with pluralists and with the incapacity of Sons immediately succeeding their Fathers in Church-Livings and to give Absolution to the Excommunicate in many Cases reserv'd to the Apostolick See and likewise in many Causes inflictive of Excommunication ipso jure and in many Cases to restore such as are deposed and degraded and to rehabilitate them even by restoring them to Fame All these Branches of Authority with many others not named here were it seems offer'd by the Pope to our King but which he holding as Vicegerent to the King of Kings and by his Word might well refuse their tenure from the servus servorum and by his Bulls All our Roman-Catholick Princes having made an inroad on the Papal incapacitating Canons by way of Dispensation when they made their Lay-Judges Super-Intendents over their Bishops and who were by Lay-men required to Absolve such who were disabled by Excommunication and to receive their bounds and measures in Ecclesiastical Proceedings by Writs of Prohibition and Consultation and Attachment issued out by Lay-men the exercise of the Regal Power in Ecclesiasticks distributed and dispers'd among so many Lay hands did not seem so powerful nor invidious as when the united Beams of Ecclesiastical Vice-gerence met in the Ministry of one Lay Person and dazled the Eyes of the whole Kingdom and when according to the Power that was 37 o. H. 8. declared by the Parliament to be given to the King by Holy Scripture he made Cromwel his Vice-gerent for the Ecclesiastical Jurisdiction But as that Statute intimating that the Councils and Constitutions Provincial that ordain'd that no Lay-man should exercise or occupy any Iurisdiction Ecclesiastical did stand and remain in their effect not abolish'd by his Grace's Laws and did sound to appear to make greatly for the usurped Power of the Bishop of Rome and to he directly repugnant to his Majesty as Supreme Head of the Church and Pretogative Royal his Grace being a Lay-man altho such Decrees Ordinances and Constitutions were by the Statute made in the 25th year of his Reign intended to be utterly abolish'd frustrate c. but yet that the contrary thereunto being not used by Archbishops Bishops c. i. e. that they had not all that
the Statute of 37 o. H. 8. beforemention'd that speaks of Bishops Vicars-General useth only the Style of Vicegerent for Cromwel's Office. And I have observ'd in his Injunctions to the Clergy that he styles himself Lord Privy Seal Uice-gerent to King Henry the 8th for all his Iurisdiction Ecclesiastical within this Realm c. But the word Vicar being perhaps by the envy of the Monks put on him and his Office in common Discourse the word Vicar in the Proper signification of it signifying a Servant to a Servant according to that in Martial Esse sat est servum jam nolo Vicarius esse the Archbishop speaking Cum vulgo might then call him the King 's Vicar-general and so others since I should before have mention'd what he saith p. 323. speaking of Cromwel Inter hunc Cranmerum summam necessitudinem Evangelium conciliavit ut dum ille Experientiâ hic Doctrinâ câ—…nctos anteâ—…elleret tum utrique Regi intimi chari essent Ex horum Consilio impiis atque odiosis Papoe Wolsoei Cardinalis Actis summum supplicium exitium Romanoe Curioe divinitùs paratum est A. You have enough minded me of the King 's dispensing with the disabiity incurr'd by the Canons both in the C se of Cromwel a Lay-man intermedling in Ecclesiastical Matters and of Câ—…anmer a Clergyman intermedling in secular proving so necessary to the Reformation and accordingly as Queen Elizabeth's dispensing with disability proved so to the Establishment of the present Hierarchy of the Church of England And I shall most seriously consider what the Act of the 37th of H. the 8th hath in such plain and liquid terms declared of the Power given to the King by Scripture and to all such Persons as he shall appoint to exercise Ecclesiastical Iurisdiction however incapacitated so to do by lawful Canons and Constitutions and which were by that Eminent Iustitiary you mention'd held Equivalent to Acts of Parliament and shall grant that iâ—… never so many Acts of Parliament had attempted to deprive the King of a Power inherent in him by Scripture such attempt would be nugatory and the fremuerunt gentes against it would be but the Peoples imagining a vain thing And I shall consider it how far by clear and necessary Consequences and no wire-drawn ones it follows from what is declared by this Act of Parliament as to the King 's being authorized by Scripture to choose some sorts of Officers to serve the Crown in Church and State that he is so authorized to choose others in like manner as you mention'd it to me declared by the Scotch Act of Parliament that the King by virtue of the Royal Power he holds from God All-mighty is to have the SOLE choice and appointment of the Officers of the State c. But I Pray do not many other Acts of Parliament in Harry the 8ths time whereby the Royal Prerogative is so much advanced and particularly that of the 25th of Harry the 8th that sets up the Dispensative Power seem to make it depend on Statute-Law And may it not seem to be more than a flaw in the Diamond of Prerogative and a great depretiating of it in cutting it out as it were into four by making its Establishment depend on the King and three Estates B. I shall therefore here once for all tell you that the occasion of so many mens mistake in thinking so many of those Acts of Parliament in Harry the 8th's time prejudicial to Prerogative as seeming to found it on Statute-Law is their not considering that such Statutes were but declaratory of old Laws and not introductive of new ones My Lord Primate Bramhal in his Schism guarded p. 155. saith I profess clearly I do not see what advantage Henry the 8th could make of his own Laws which he might not have made of the ancient Laws except only a gawdy Title of Head of the English Church which survived him not long and the Tenths and first-fruits of the Clergy c. But you may as fully take notice how Harry the 8th throughout his great Declarative Laws so often declares in effect his Regal Power to be given him by God. My Lord Coke in his Caudry's Case instanceth in the famous Statute of 24 o H. 8. c. 12. and calls it declaratory of the ancient Law and you see how it is declared there That the King is by the goodness of God furnish'd with Prerogative c. And the Statute of 37 o H. 8. begins as I shew'd you with the three Estates DECLARING That the King's Majesty is and hath always justly been Supreme Head in the Earth of the Church of England by the Word of God. You know too how the style runs in another of his Acts of Parliament viz. The Bishop of Rome and See Apostolick contrary to the great and inviolable Grants of Iurisdictions by God immediately to Emperors Kings and Princes c. And thus tho there are various Statutes in his Reign and particularly that of the 25th year of his Reign c. 19. by which it was Enacted That the King's Highness shall have Power and Authority to nominate and assign at his pleasure Two and thirty persons whereof Sixteen to be of the Clergy and Sixteen of the Temporalty of the Upper and Nether House of the Parliament to view search and examine the Canous Constitutions and Ordinances Provincial and that such of them as the King's Highness and the said Two and thirty or the Major part of them shall deém and adjudge worthy to be continued kept and obey'd shall beÌ„ from henceforth kept obey'd and executed within this Realm so that the Kings most Royal assent under his Great Seal be first had to the same c. and tho according to the ancient usage of the Realm as well as to those Canons Lay-men were not only incapacitated to make Ecclesiastical Constitutions and Canons but Kings Bishops or Noblemen who believed that the Decrees of the Bishops of Rome may be violated or shall suffer them so to be are in the Canon Law anathematized yet as this enacting Clause was made on the Clergy's Petition to the King as the Preamble of the Act mentions that those Constitutions and Canons may be committed to the Examination and Iudgment of his Highness and of Two and Thirty persons of the King's Subjects whereof sixteen were to be of the Upper and Nether House of the Parliament of the Temporalty and all the said Two and thirty persons to be chosen and appointed by the King's Majesty c. and be empower'd to do what I mention'd out of the enacting Clause and whereby the King alone was in effect both according to the Clergy's Petition and the enacting Clause vested with the jus vitoe necis of the Canons so in a Memorable Epistle of Harry the 8th Printed before the Reformatio legum Ecclesiasticarum and intended as a draught for a Publication or Promulgation of the King 's new Ecclesiastical Laws after the draught of
them had been by those Clergymen and Laymen prepared for his Royal Consideration and been by him establish'd he there declares his Power of so doing to be pursuant to his Supreme Headship of the Church of England recogniz'd quemadmodum divini atque humani juris tatio postulat and mentions the Power granted to him and his Ancestors ipso jure divino as recognized and applies to himself the words Sapientioe cap. 7. Audite Reges intelligite quoniam data est a Domino potestas vobis c. and founding his Power of making Ecclesiastical Laws on that jus Divinum he saith En vobis authoritate nostra editas leges damus c. And here I shall tell you that as my Lord Coke in Cawdry's Case calls the Act of the 24th of H. 8. beforemention'd An Act declaratory of the Ancient Law so he likewise doth the Act of the 25th of his Reign c. 21. that so much props up the Dispensative Power And I assure you that they look but at a few things in general and in that Statute in particular who think that the Dispensative Power inherent in the King lost any ground thereby and he who takes the Statute altogether will find that that Power if it seem'd in any words to go back from it self was but by such retreat to leap the further forward For if you will take a glancing view of the intent of that Statute to that end you will see that instead of that Law making it self to be the Fountain of the Dispensative Power it makes the Dispensative Power to be the very Fountain of a great part of the Common Law it self for its style gives you the figure of our Laws as either devised made and obtain'd within this Realm for the wealth of the same or such as by SUFFERANCE of your Grace and your Progenitors which is a Dispensation by way of Permission or Connivence the People of this your Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long use and Custom to the observance of the same c. And the King in his Legislative Capacity having with the consent of the three Estates superseded the Pope's Dispensative Power that had so long Usurp'd on the King's Laws and having provided that the Money that should be paid as Fees for Dispensations should be rais'd and moderated by their Consent obtain'd from them a Clause in the Act containing so great a deference to the Dispensative Power of the Crown as that after the Act had authorized the Archbishop of Canterbury and his Successors to grant such Dispensations Licences and Faculties as were accustomed to be had from the See of Rome and not grant any others till the King his Heirs and Successors or their Councel were first advertised thereof and determined whether they should pass It Provided that if it were thought and determin'd by the King his Heirs and Successors or their Councel that Dispensations Faculties Licences or other Writings in any such Case UNWONT shall pass that then the said Archbishop or his Commissary having Licence of His Majesty his Heirs and Successors for the same shall dispense with them accordingly and in Case of his refusing to dispense that any other two Bishops the King his Heirs and Successors should nominate should be appointed to dispense in such Cases And this Act with all the Clauses in it you find reviv'd by the 1st of Elizabeth c. 1. The Pope's rehabilitations did customarily extend to Lay-men as well as Clergy-men and that particularly in case of Heterodoxy in Religion then call'd Heresy which both by ancient usage and Acts of Parliament loaded men with various incapacities And his relaxing the incapacities that relate to Clergy-men any one may see by the Taxa Cameroe and the Fees thereby payable viz. in the Age of those who were to take Orders and were defective in some of their Members and in the Case of Clergy-mens incapacity incurr'd by irregularity But after this Act of the 25. of H. the 8th had shew'd the World the Authority the King had to rehabilitate and dispense here in his own Country both as to matters customarily dispens'd with at Rome and such as were not so and how small the Fees were for the same the bringing rehabilitations and Perinde valere's from Rome to England was like carrying Coals to New-Castle A. I was not satisfy'd with your extending the King's Power of Dispensing here as far as the Pope's reach'd and it seems you extend it further I hope you intend not to bring in here the Tax of the Apostolical Chancery and which Mr. Crashaw translating into English in the year 1625. call'd it The Rates of the Pope's Custom-house and wherein are contain'd Indulgences for Sins past present and to come and such a kind of Pardoning Power as in The historical Narration of the first Fourteen years of King James appear'd to that King so scandalous in the Case of the Draught of the Earl of Somerset's Pardon and in which Sir Robert Cotton having been desired by the Earl to find out the largest Pardon that former Presidents could shew brought him one that was made by the Pope to Cardinal Wolsey and by a fac simile after which the Draught of the Earls ran for Pardoning all manner of Felonies and Treasons committed and to be committed B. Premising to you that the Christian offices do more call on you to mind what Sins you dispense with in your self then what the Pope dispenseth with in others and that this present Pope hath spoil'd the Trade of raillery about Indulgences by spoiling the Trade of them and damning so great a number of them and that in his vast Supplies of Money toward the taking of Buda the Souls in Purgatory contributed nothing and that Sir Paul Ricaut in the Life of this Pope having done right to his Vertue in mentioning his having suppress'd an Office of the Virgin Mary and a multitude of Indulgences hath further judiciously observ'd That Wisemen at the Councel of Trent finding that the Doctrine of Indulgences was not solid did but slightly touch it and tho yet it was the CHIEF matter for which that Councel was assembled nothing was determin'd therein but only that Indulgences be used with such Moderation as was approved by the Ancient Custom of the Church that is not at all I say premising all this I shall mind you that I have said enough already to let you see that it is only the ancient Dispensative Iurisdiction of the Crown that I direct you to prop up and more particularly with respect to the Case before you While we are considering the Obligation of an Oath it were pity that the thoughts of either of us should be embarras'd with Moot-points and so without troubling you with a reference to More f. 463. where all the Power of the Pope is not given to the King by the 25th of H. the 8th but is extinct Hallywel ' s
commanding Obedience to be given to the Word of God by reforming Religion according to his prescribed Will by assisting the Spiritual Power with the Temporal Sword by reforming Corruptions by procuring due Obedience to the Church by judging and cutting off all frivolous Questions and Schisms as Constantine did and finally by making decorum to be observ'd in every thing and establishing Orders to be observ'd in all indifferent things for that purpose is the ONLY intent of the Oath of Supremacy and whereby as he effectually confuted the Cardinal whose Letter charged the Oath of Supremacy as tending to this end That the Authority of the Head of the Church in England may be transferr'd from the Successor of St. Peter to the Successor of King Henry the 8th and to oppose the Primacy of the Apostolick See so at the end of his Book he shews that his design of Publishing the same was to satisfie all his good and natural Subjects and likewise Strangers about the things therein contain'd and whereby the King's Mind was publickly notify'd that in the right done to the Crown by the Oath of Supremaâ—…y as well as of Allegiance there was no wrong intended to St. Peter or his Successors A. I hope you have now put a Period to the History of the Dispensative Power of the Crown that was exercised in-the interpreting of any parts of the Oath of Supremacy or the 37th Article thereto relating You have named to me so many interpretations of the Oath that according to the wisdom of our State and the Lex Consuetudo Parliamenti making a Bill to be thrice read in each House of Parliament and then receiving the Royal Assent to be thought like Gold seven times purify'd may shew the interpretation of the Law to be so too But tho I will account any good Law to be more precious then Gold yet if like Gold it be too far extended by ductile interpretation it may be drawn to such a thinness as to lose all its weight and estimation and retain only a poor tincture and colour that will signifie little or nothing And as Pliny in his Panegyrick on Trajan said that by reason of the multitudes of sutes upon Penal Laws in Rome there was danger till Trajan's time ne Civitas fundata legibus legibus everteretur so a Law whose Obligatoriness is founded on interpretations may be endanger'd by the multitudes of them to be destroy'd and may like the Papal Laws of New Rome by the infinite interpretations of Casuists in the forum internum which is their Tribunal be brought to signifie nothing in either forum and to be only an Engine to make Perplexities You have given me here such a Genealogy of interpretations that according to the common Story of Arise Daughter c. one may say Arise Interpretation and go to thy Interpretation c. I shall therefore be glad now you have been so largely communicative of your thoughts to me about the assertory part of the Oath you will deal as frankly with me in acquainting me with what may in the Promissory part of the Oath be of importance for me to know in order to the better discharge of my Duty in the Case before me B. I shall therein be most ready to serve you when we meet next for the entire Consideration of what according to the Assertory part of the Oath you are obliged to do will I see be as great a load as both our patiences will at this time bear and therefore according to the Saying of Must is for the King I am to tell you that let our Kings make never so many interpretations one after another of this your Oath you must finding them all Consistent with one another consider them all with all due regarâ—… 〈◊〉 thank God and them when their Consciences being inclined to a tenderness for the doubting of yours they interpose their Dispensative Power of that kind And hereupon I shall tell you that in the year 1628. King Charles the First did cause the 39 Articles to be reprinted and with a Declaration before the same made by him as Supreme Governor of the Church within his Dominions that those Articles contain the true Doctrine of the Church of England and that if any Difference should arise about the external Policy concerning Injunctions Canons or other Constitutions whatsoever belonging to the Church of England the Clergy in their Convocation is to order and settle them c. he approving their said Ordinances c. that the Bishops and Clergy shall have licence under the Broad Seal to deliberate of and do all such things as being made plain by them and assented to him shall concern the setled Continuance of the Doctrine and Discipline of the Church of England c. and then having respect to the Article wherein the Arminians and Antiarminians were concern'd 't is order'd that no man hereafter shall either Print or Preach to draw the Article aside any way c. But the first Canon that was afterward viz. A. 1640. made was that concerning the Regal Power which begins with taking notice that sundry Laws Ordinances and Constitutions had been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King over the state Ecclesiastical and Civil and then enjoyns them to be ALL carefully observ'd by all persons whom they Concern upon the Penalties in the said Laws and Constitutions express'd and then decrees that the Clergy shall read the following Explanation of the Regal Power and where the words A Supreme Power is given to this most excellent Order i. e. of Kings by God himself in the Scriptures which is that Kings should rule and Command in their several Dominions all persons of what Rank or Estate soever whether Ecclesiastical or Civil and that they should restrain and punish with the Temporal Sword all stubborn and wicked doers shew they had then the 37th of the 39 Articles in their eye and some other words viz. for any person or persons to set up maintain or avow respectively under any pretence whatsoever any independent Coactive Power either papal or popular c. is to undermine their great Royal Office shew they had an Eye on that 37th Article and on your Oath and where they did speak out that sense of the Clause The Bishop of Rome hath no Iurisdiction c. and of the words in the Oath that no foreign Prelate hath or ought to have any Iurisdiction c. that is that the Bishop of Rome had here no independent Coactive Iurisdiction the sense in which all considerate Persons who were Members of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's time took the old Oath of Supremacy and the Members of the Church of England in Queen Elizabeth's time and ever since took the new one As for Non-conformists who think the Government of Bishops unlawful this Clause that no foreign
Bishop hath or ought to have any Iurisdiction in the forum internum wanted no relief in their Case from the Dispensative Power of interpretation Nor did those of the Church of England who convers'd with the Statute-Book want the Crown 's interpretation of this Clause in the Oath for the scope of the Statute of the 35th of H. the 8th that enjoyn'd the old Oath of Supremacy and from whence this Clause in the New one had its rise was not to break the Measures of St. Cyprian about the Unity of Episcopal Power but in effect to repress the Usurp'd independent Coactive Power of the Bishop of Rome and which several of the following words in that Oath sufficiently evince and which did bind the Swearer to defend and maintain all other Acts and Statutes made or to be made within this Realm for the Extirpation and Extinguishment of the ururped and pretended Authority Power and Iurisdiction of the See and Bishop of Rome c. And Queen Elizabeth finding the Oath thus at her coming to the Throne she like a wise Reformer would not make any breach in the World wider then necessity required and probably supposing that mens Allegiance having been used to the yoke of several words in that Oath that related to the renouncing and farsaking of foreign Iurisdiction would draw more quietly in the same and that according to the Rule of quod necessario subintelligitur non deest there being no solutio continui imagin'd by any to be design'd in the Unity of the Episcopal Power when the Clause of utterly testifying and declaring that neither the See nor Bishop of Rome hath nor ought to have any Iurisdiction Power or Authority within this Realm c. was inserted in the old Oath it ought to be judged that nothing derogatory to the order of Bishops could be intended in the Clause of the new Oath by her introduced And according to the Rule of Analogum perse positum c. Jurisdiction being to be taken for Coactive Jurisdiction the Clause relating to any foreign Prelates having here no Iurisdiction hath been still meant of none Coactive Mr. Rogers therefore writing on the 39 Articles hath thus fairly commented on that Clause in the 37th The Pope hath no Iurisdiction c. His Iurisdiction hath been and is justly renounced and banish'd out of England by many Kings and Parliaments as by King Edward 1st 3d and 6th by King Richard the 2d Harry the 4th 6th 8th and by Queen Elizabeth and by our most noble King James But that the Church of England intended no War against the Unity of Episcopacy by the Canons of 1640. which yet have the words of Popery's being a gross kind of Superstition and of the Mass being Idolatry and do ininflict a temporary disability namely that of Excommunication on Popish Recusants may appear by the tenderness there used to the Church of Rome in sparing to impute the Superstition of Popery to that whole Church by name And the 6th Canon having mention'd the Convocation's being desirous to declare their sincerity and constancy in the profession of the Doctrine and Discipline Establish'd in the Church of England i. e. the Doctrine of the 39 Articles and to secure all men against any suspicion of revolt to Popery or any other Superstition and enjoyn'd a new Oath against all innovation of Doctrine or Discipline to be taken by the Clergy the assertory part whereof hath in it an Approbation of the Doctrine and Discipline or Government established in the Church of England as containing all things necessary for Salvation and the Promissory part a Promise not to endeavour to bring in any Popish Doctrine contrary to that which is so establish'd c. and not to give consent ever to subject it to the Usurpations and Superstitions of the See of Rome Mr. Bagshaw in his Argument in Parliament concerning those Canons took occasion to criticise on the not subjecting out Church to the Usurpation and Superstitions of the See of Rome and to call it a Negative Pregnant that is to say as his words are you may not subject the Church of England to the See of Rome but to the Church of Rome you may Now there is as much difference between the See of Rome and the Church of Rome as betwixt Treason and Trespass and this appears plainly by the Statute of 23. Eliz. c. 1. where it is said that to be reconciled to the See of Rome is Treason but to be reconciled to the Church of Rome is not Treason for then every Papist would be a Traytor being a Member of the Church and therefore reconciled to it Now the See of Rome is nothing else but the Papacy or Supremacy of the Pope whereby by virtue of the Canon unam Sanctam made by Pope Boniface the 8th he challengeth a Superiority of Iurisdiction and Correction over all Kings and Princes upon Earth and those Persons which take the juramentum fidei contain'd in the end of the Council of Trent which acknowledgeth this Supremacy are said to be reconciled to this See. The Church of Rome is nothing else but a number of Men within the Pope's Dominions and elsewhere professing the Religion of Poperty and that the Clergy had an ill meaning in leaving this Clause in the Oath thus loose I have some reason to imagine when I find it in their late Books that they say the Church of Rome is a true Church and Salvation is to be had in it And if it were tanti after having said so much to say yet any thing more to prop up the safety of your taking the Oath of Supremacy with the Clause whose sense hath been propp'd up by so many Acts of the Dispensative Power of interpreting I could tell you that in Sir Iohn Winter's Observations on the Oath of Supremacy Printed A. 1679. he having there consider'd Queen Elizabeths interpretation in the Admonition and the Confirmation of that Admonition by her Majesty in Parliament by the Proviso in the Statute of 5 o Eliz. c. 1. and the whole drift of the Statute 1 o Eliz. by which the Oath was enacted and what Bishop Carleton and the Primate Bramhal writ of the ancient Jurisdiction restored to the Crown by that Statute and that on the whole Matter the design of the Oath was not to invest her with the exercise of the spiritual Jurisdiction left by Christ to his Apostles and their Successors but to leave that entire to them saith at the end of his Book that it is not the true meaning of the Oath explain'd in manner as abovesaid which makes many of the Roman-Catholicks refuse to take it c. and then makes the Explanations not being known to all and their intricacy and the constant tendring of the Oath for so many years without the aforesaid Explanation likely to give just Cause of Scandal and thereupon he wishes that that Oath and the other of Allegiance which are required of them under so great Penalties may be
knew that if Papists had been Punish'd for their Religion in her Reign by Iudges and Iuries and Sheriffs that it was she had punish'd them And accordingly he in his Premonition to Christian Monarchs doth more regio and with a style of Majesty relating to his Executive Power thus tell them viz. And yet so far hath both my Heart and Government been from any bitterness as almost never one of those sharp Additions to former Laws hath ever yet been put in execution Well Sir In fine I leave it to you to consider on the whole matter how far the Contents of that Canon and particularly what is declared therein about the care of God's Church being so committed to Kings in the Scripture that they are commended when the Church keeps the right way and blamed when it runs amiss and therefore her Government belongs in chief to Kings c. do shew that Kings not only may but ought out of a regard to their own Souls to provide that where the safety of their Subjects Souls is concern'd their Dispensative Power by the interpretation of their Laws and the relaxation of their Rigour in particular Cases may be exerted I doubt not but you have observ'd many more Cases wherein the Royal Martyr to prevent imminent peril of Soul was put to it to exert such his Power A. I remember not to have read of more B. No If you had read the 39 Articles Printed in the Edition that I have done with his Declaration prefix'd thereunto you would find that there being a high ferment about the Arminian Controversie in the Church of England and the Arminian and Anti-Arminian Divines who both had subscribed the Articles appropriating the sense of them to both their Perswasions and too many drawing then the sense of them too much aside and all of them professing themselves bound in Conscience by the Laws that required their Subscription to the Articles and that their Subscription to them was to be taken in the Imposers sense and that as to the Article of the King 's being Supreme Governor of the Church of England it being supposed as the words in the Declaration are Some differences might arise concerning the External Polity Injunctions Canons or other Constitutions thereto belonging His Majesty by his Declaration again ratifying the Articles and particularly publishing that he was Supreme Governor of the Church of England did notify his Pleasure that as to any such Differences arising as aforesaid the Clergy in their Convocation should order and settle them he approving their Ordinances c. and to the end they might not trouble themselves or the Church by putting their own interpretations on the Articles he Requires their taking the Articles in the Literal and Grammatical sense and notifies that literal sense as restrain'd to the way of the general Expressions in the Articles and such as the Divines of the several Perswasions took as making for them so that now by His Majesty 's thus interpreting that sense they might warrantably continue so to do And according to what hath been said of Manna that it was that to every man's taste wherewith it was pleas'd most mens sense of the Articles might be so too by means of the declared Complaisance of His Majesty therewith A. One would then the less wonder at the Complaisance of the Clergy with that King's Power of Dispensing in his Laws by Interpreting or Declaring B. I could tell you of another passage in his Reign that will shew you how our Bishops made use of that Power as their Sheat Anchor to preserve the Hierarchy in the Storms it met with and how then the Bishops issuing out the Processes of their Ecclesiastical Courts in their own Names was by the Artifice of the Faction improved as an occasion of making a very great ferment in Church and State and such a one as nothing but the Royal Power of Interpretation or of declaring the Law could settle And therefore Archbishop Laud in his Epistle to the King before his famous Star-Chamber Speech did in the Name of the Church of England then think himself obliged to apply to the King in a most pathetical and solemn manner to exert that great Power in that Conjuncture viz. I do humbly in the Churches name desire of your Majesty that it may be resolv'd by all the Reverend Iudges of England and then Publish'd by your Majesty that our keeping Courts and issuing Process in our own Names and the like Exceptions formerly taken and now renew'd are not against the Laws of the Realm as 't is most certain they are not that so the Church Governors may go on cheerfully in their Duty and the Peoples minds be quieted by this assurance that neither the Law nor their liberty as Subjects is infringed thereby The many Pamphleteers of the Faction who attacqued the Hierarchy â—…eproached them with the Non-observance of Humane Laws and charged their Proceedings with Illegality because by the Statute of 1 o E. 6. c. 2. that required Processes Ecclesiastical to be in the King's name it was declar'd That the Bishops sending out their Process in their own Names was contrary to the Form and Order of the Summons and Process of the Common-Law used in this Realm And therefore as Heylin tells us in the Life of Archbishop Laud p. 321. in A. 1637. the King accordingly issued out his Proclamation declaring That the Bishops holding their Courts and issuing Process in their own Names were not against the Laws of the Realm and the Iudges Resolutions were therein notify'd to that purpose And upon all motions afterward for Prohibitions to the Ecclesiastical Court upon the pretence of their Processes not issuing out in the King's Name according to that Statute of E. the 6th the currant Law hath still been in Westminster-Hall for keeping up the sense of His Majesty declared in his Proclamation as to that Point According to the manner then of praising the Bridge we go over the Church of England having in Queen Elizabeth's time been preserv'd by the Regal Power of interpreting express'd in her Admonition and by the like Power in the time of King Charles the First and the salus animae having been at stake as to the Oath in her time and as to the avowed Principle of the Church of England about Humane Laws binding the Conscience in his time the use of that Dispensative Power being like a Bridge that kept them from falling into the Pit of Perdition deserv'd their Praise That eminent Divine Mr. Iohn Ley in his Learn'd Book call'd Defensive Doubts and Reasons for refusal of the Oath imposed by the Sixth Canon of the late Synod i. e. that in the year 1640. saith there p. 99. and 100 c. There are some of our Brethren who in good will to themselves and us have undertaken to expound the Oath so as that they and we without scruple may take it And we take kindly their good intention and in good will to them again
request them to consider that a Private Interpretation of a Publick Act can give no satisfaction unless it be either expresly or virtually allow'd by the highest Authority that doth impose it and then it is made Publick c. But the Authority of Interpretation of any doubt in such a Publick Act belongs properly not to private but publick Persons c. For private Men tho Learn'd if they take upon them the Interpretation of publick Dictates may be more like to light on mutual Contradictions of each other then on the true and proper Construction of the Text they interpret So did Vega and Soto Soto and Catherinus who wrote against each other contrary Comments on the Council of Trent In which respect it was a wise advice given to the Pope by the Bishop of Bestice viz. to appoint a Congregation for the expounding of the Councel and well follow'd by him when he forbade all sorts of Persons Clerks or Laicks being private Men to make any Commentaries Glosses Annotations or any Interpretation whatsoever on the Decrees of that Councel Dr. Burgesse indeed made an Interpretation of his own Subscription but there had been no validity in it as we conceive unless it had been allow'd by the Superior Powers And so it was for as he saith It was accepted by King James and the Archbishop of Canterbury affirm'd it to be the true sense and meaning of the Church of England He refers there to Dr. Burgesse in his Answer to a much applauded Pamphlet Praefat. p. 26. A. Your mentioning that of Dr. Burgesse his Interpretation of his Subscription minds me of what I have read at the end of his Book call'd No Sacrilege nor Sin to alienate or purchase Cathedral Lands viz. in his Postscript to Dr. Pearson and his No Necessity of Reformation of the Publick Doctrine of the Church of England Printed A. 1660. where he saith As touching the Regal Supremacy we own and will assert it as far as you do or dare Only we had reason to take notice of the improper Expression in the 37th Article that the Queen's Majesty hath the Supreme Power For if the Declaration father'd on the late King and prefix'd to the Articles had so much Power with his Printer that he durst not alter the word Queen into King even in the year 1642 and those Articles must be read Verbatim without Alteration or Explanation then we say again there is a Necessity of Reforming that Article in the expression of it and not to talk at random what was indeed the meaning unless we may have leave when we read it Regiâ declaratione non-obstante to declare the sense which the Declaration alloweth us not to do But the truth is that exception of the Doctor to the Articles may well pass for a Scruple or rather a Cavil and at this rate we should be put to it to say O King interpret for ever B. You say right Dr. Pierson in that Judicious Book of his call'd No Necessity of Reforming the Doctrine of the Church of England well observes that the 37th Article hath express reference to the Queen's Injunctions set forth in the year 1559. and those Injunctions take particular care that no other Duty Allegiance or Bond should be required to the Queen then was acknowledged to be due to the most noble Kings of famous Memory King Henry the 8th her Majesty's Father or King Edward the 6th her Majesty's Brother The words of the Article declare that the Doctrine contained in it concerneth all the Kings as Kings The title in General is of the Civil Magistrates and the words run thus where we attribute to the Queen's Majesty the chief Government we give not to our Princes c. shewing that what they gave to her they gave to all the Kings of England Which will appear more plainly out of the first Latine Copy Printed in the time of Queen Eliz. in the year 1563. read and approved by the Queen the words whereâ—…f are these Cum Regiae Majestati summam gubernationem tribuimus quibus titulis intelligimus animos quorundam Calumniatorum offendi non damus Regibus nostris aut verbi Dei aut Sacramentorum administrationem c. Being therefore the Article expresly mentioneth and concerneth the Kings of England as they are the Kings of England the mention of the Queen's Majesty in the Article can make the Doctrine no more doubtful then it doth our Allegiance in that Oath which was made 1 o Eliz. where the Heirs and Successors of the Queen are to appoint who shall accept the Oath the words of which are that the Queen's Highness is the only Supreme Governor of this Realm But I hope the Heirs and Successors of Queen Elizabeth did never appoint that Oath to be taken in the Name of the Queen's Highness but in their own It may be supposed that some such like Cavilling or Scrupling humour possess'd the fancies of some in the beginning of the Reign of King Iames the First and that some occasion was thereby given to that Prince in those his Canons expresly therein maintaining the 39 Articles and the Subscription thereunto and particularly in the 36th Canon there to enjoyn a Subscription to three Articles in such manner and sort as is there appointed and of which the first is That the King's Majesty under God is the only Supreme Governor of this Realm and of all other his Highness Dominions c. and that no foreign Prince Person Prelate HAUE or OUGHT to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual c. and in which the words have or OUGHT to have might possibly be inserted out of a Royal Complaisance with the Desires of some Scruplers in whose behalf the Famous Dr. Rainolds moved the King at the Hampton-Court Conference that to the Position in the 37th Article viz. The Bishop of Rome hath no Iurisdiction in this Realm of England might be added nor OUGHT to have but which motion the King then rejected as a thing superfluous and saying Habemus quod jure habemus You may find an Account of this twoâ—…old Subscription in Coke 4. Inst. c. 74. and where he saith Subscription required by the Clergy is twofold One by force both of an Act of Parliament CONFIRMING and Establishing the 39 Articles of Religion agreed upon at a Convocation of the Church of England and ratify'd by Queen Eliz. 13. Eliz. c. 12. Another by Canens made at a Convocation of the Church of England and ratify'd by King James A. I had thought you told me that the 39 Articles owed no Confirmation nor Authority to that Act of the 13th of Eliz. B. I did tell you so and do think that when my Lord Coke used the word Confirming he spake cum vulgo or as the word is taken minus propriè and as it is taken in declarative Acts of Parliament sometime to mean declared and as I and others may in Discourse sometimes use the word But speaking properly to
confirm being firmum facere i. e. what was not so before you are not to think that the Parliament in 13 o Eliz. did so They Enacted what was by the Queen before authorized and as the words there are about the Articles viz. Put forth by the Queen's Authority And you may too for this purpose Consult the style of the Act 23 o Eliz. c. 1. Entituled An Act for retaining the Queen's Subjects in their due Obedience and where 't is made Treason for any to withdraw any Subjects from their Natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highness Authority establishâ—…d within her Dominions Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign pursuant to the Act of 1 o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction the Act of Parliament 35 o Eliz. c. 8. entituled Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good and Archbishops Bishops and Deans made by the Queen shall be adjudged lawful begins with acknowledging that the former were justly deprived and it is therefore Declared and Enacted by Authority of this Parliament that all and every Deprivation c. and all and every Sentence of Deprivation c. had pronounced and given c. shall be adjudged deem'd and taken good and sufficient in Law c. and as to the latter viz. That all such Archbishops Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty c. shall be taken and adjudged to be lawful c. Thâ—…y confirmed not what the Queen did in disabling the former and enabling the latter but only declared and enacted the validity of what the Queen had done And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling And here too by the way I am to tell you that you have another judgment of Parliament suitable to that in 8 o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty c. any ambiguity or question in that behalf heretofore made to the contrary notwithstanding and which QUESTION before made in the Case I have before shew'd to be disability A. But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of represented as a Gravamen by some B. I have so and the last Book I read that so represents it is the Answer to Dr. Stillingfleet ' s Sermon by some Non-Conformists c. Printed A. 1680. and where in p. 29. they thus express their desires viz. That all New devised Oaths Subscriptions and Declarations together with the Canonical Oath and the Subscription in the Canons be suspended for the time to come If that be too much we shall consent our selves with a modester motion that whatsoever these Declarations be that are required to be made subscribed or sworn they may be imposed only as to the matter and end leaving the takers but free to the use of their own Expressions And this expedient we gather from the Lord Coke who hath providently as it were against such a Season laid in this Observation The form of the Subscription set down in the Canons ratify'd by King Iames was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then in reference to the particulars therein contain'd what binders why they might not have the same restored in reference also to others It was the second Article enjoyn'd by that Canon to be subscribed viz. That the Book of Common-Prayer c. containeth in it nothing contrary to the Word of God and that it may lawfully be used c. at which they took so much offence and to which the Act of Parliament required not their Subscription A. I perceive then my Lord Coke doth not reflect on the form of Subscription as enjoyn'd by the 36th Canon of King Iames and by his Regal Authority out of Parliament as illegal notwithstanding what had been enacted in the 13th of Queen Elizabeth B. He doth not And he there further faith By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be proceeded withall by the Censures of the Church And I heard Wray Chief Iustice in the King's Bench Pasch. 23. El. report That where one Smith subscribed to the said 39 Articles of Religion with this addition so far forth as the same were agreeable to the Word oâ—… God that it was resolv'd by him and aâ—…l the Iudges of England that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice he is sworn to Canonical Obedience to his Diâ—…cesan But as to his saying that the Delinquent against this Canon is to be proceeded withall by the Censures of the Church I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain Admit or License any one except he first have subscribed in manner and form there appointed and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament and did likewise out of Parliament make incapacity to be the Punishment of refusing such new Subscription And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but as I may say virtually and tacitly by all our Kings and Parliaments ever since who have acquiesced in the same But what if I should tell you that the Authority of the King in thus making that Canon about Subscription hath been since expresly approved in Parliament A. I should be most ready to hear it B. You may therefore please to consult the Act for Uniformity 16 o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops c. set forth in the time of Edward the 6th as
to perform the Conditions and that the King his Father should do the like Secondly That the Promises of Marriage should be presently made c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experimentâ—…lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd c. As to the first the Prince of Wales took an Oath to His Majesty to observe the foresaid Conditions and sign'd them with his Hand and he likewise swore and sign'd this by way of Over-plus to permit at all times that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment and that he would never directly nor indirectly permit any to speak to the Infanta against the same But I shall here en passant observe to you out of the general Articles namely that in the 16th Article notwithstanding my Lord Coke's Opinion before-mention'd that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta and care taken that no Clause or word therein shall contradict the Roman Religion or Consciences of the Roman-Catholicks and that by the 24th Article for the Security that every thing that was agreed to should be fulfill'd the King and Prince were to be bound by Oath that all the Privy Councellors should sign the Agreement And I need not tell you that their being sworn to the private Articles was a new Oath A. Was nothing of the King's mind about the Suspending ALL the Penal Laws both the disabling ones and others against the Papists notify'd to his Privy Councel before the year 1623 B. Mr. Prynne there in p. 30. saith that for the hastening the Pope's Dispensation for the Match King James as the French Mercure Tom. 9. records it and as he had CREDIBLY been inform'd of from others assembling his Privy Councel together Febr. 25. 1622. made a long Oration to them which he recites at large the sum whereof was this That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods Bodies Consciences during Queen Elizabeth's Reign of which they hoped to be relieved in his c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects and was resolv'd to relieve them and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection permitting them the Liberty and entire Exercise of their Religion c. without any Inquisition Process or Molestation from that day forward and likewise will and ordain that they shall be restored to all their Estates Lands Fees and Seignories and re-establish'd in them Commanding all his Magistrates Iustices and other Officers whatsoever in this behalf to hold their hands and for what Cause soever it be not to attempt hereafter to grieve or molest the said Catholicks neither in publick nor private in the liberty of the exercise of their Religion upon pain of being reputed Guilty of High Treason and Disturbers of the Kingdoms peace and repose this being his will and definitive Sentence A. But still I cannot forbear wondring about what Considerations made our Divines and our Great Champions of the Church of England-Protestancy in the State as well as Church afterward thus inclinable to act their Parts about Toleration as Mr. Prynne hath mention'd B. They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy and that by reason of the various growth of the Potency of foreign Princes and States and of intestine Factions the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage and that where such Alliance was to be with the Familiâ—…s of Roman-Catholick Princes there could be no expectation of the Pope's relaxing his Laws by dispensing without our Princes doing something of that kind as to theirs I might here observe to you that we are told in The Regal Apology that the Oxford Antiquities mention'd to have been writ by Dr. Bate that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou and if it were true that an Universal Toleration was agreed on by King James it was intuitu majoris boni The Palatinate was to be restored again and the Protestants of Germany to be re-enstated in their Possessions on that Condition But to punish being a kind of Punishment and it being irreligious to punish Men for Religion and the highest tide of Anger being naturally succeeded by the lowest ebbe of it and the thoughts of rigorous Severity in Princes toward their Subjects being like such in the Head toward the Members of the same Body and King Iames having found that the general abhorrence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath and finding as appears by his long Proclamation of four sheets of Paper declaring his Pleasure concerning the Dissolving of the Parliament A. 16â—…1 that they were not the Papists who made his later breath so uneasie to him and he being of opinion that the reason of the severe Laws was much abated it may abate of our wonder that in that Conjuncture he put a Period to their Execution Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the Iâ—…dges in the year following to acquaint them that His Majesty having resolv'd out of deep Reasons of State and in expectation of like Correspondence from foreign Princes to the Professors of our Religion to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom had Commanded him to pass some Writs under the Broad Seal for that purpose and that he had accordingly done so and tells them that 't is His Majesty's Pleasure that they shall make no niceness or difficulty to extend that his Princely favour to all Papists imprison'd for any Church Recusancy whatsoever or refusing the Oath of Supremacy or hearing of Mass or any other point of Recusancy which doth touch or concern Religion only and not matters of State which shall appear to you to be totally Civil and Political A. You lately mentâ—…on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature as was in the Spanish Wâ—…at account doth Mr. Prynne give of that B. He tells you there p. 69. that the French Maâ—…ch was soon Concluded in the life of King James the Articles concerning
of the Royal Martyr and I shall be glad to know if the dispensing with the Penal Laws and particularly such as are inclusive of disability made any part of the fermentation B. No doubt if the Dispensative Power of the Crown as to any Penal religionary â—…aws had then appear'd any considerable gravamen to any of the three Estates they would then have cry'd out of it But which they did not Yet I shall tell you that they had a fair occasâ—…on then given them to do it if they had thought it tanti For in the first year of his Reign there was a ferment in Parliament about the Penal Laws against the Papists and particularly the disabling ones but which soon went off as I may say by insensible Perspiration It sâ—…ems that Mr. Prynne in p. 74. and 77. saith both Houses that year having presented a Petition to that Prince wherein they took notice that his Majesty had in his Princely Wisdom taken order that none of his natural born Subjects not professing the true Religion and by Law establish'd shall be admitted into the Service of his Royal Coâ—…sort and having further desired that his Majesty would be pleas'd to remove from all Places of Authority all such Persons as are either Popish Recusants or according to direction of former Acts of State to be justly suspected and that his Majesty said he would give order for it yet that that Parliament being unhappily dissolv'd in discontent his Majesty thought not fit to shew such severity to Recusants as he intended And in p. 76. Mr. Prynne had mentioned that Sir Iohn Winter Mr. Walter Mountague Sir Maurice Drummond and other Papists were admitted in her Majesty's Service But by what appears from Mr. Prynne in p. 80. in the following Parliament in the Second year of that King the House of Commons took divers Examinations concerning Recusants that were in Office and at last agreed on a Petition against Recusants in Office and to present their Names therewith to the King to the end they might be removed and He then saith that Martis 6. Iunii 2. Car. Regis The Petition against Recusants in Authority was engrossed read and allow'd to be presented to his Majesty and this to be done by the Privy-Councel of the House and Sir John Fâ—…llerton which was done accordingly but with what real success I can give no exact account But that the disabling and other Laws against the Papists had been dispens'd with by the Royal Martyr as well as his Father any one will conclude who reads what there followeth viz. In this Parliament these ensuing Articles against Popish Recusants were Consulted of in the House of Commons with an Intent to draw them into an Act and of which the 9th is No Recusant to bear Office of Iustice of Peace or otherwise or any man whose Wife shall be a Recusant or practice Law Common or Civil or Physick nor have Command in War c. And I should first have told you that the Third was A New Oath with more Additions to be taken concerning the Supremacy A. Good God! A new Oath with more Additions about the Supremacy B. You may suppose it would have been seemingly a New Oath by that Parliament's approving all the Authentick Regal Interpretations of the old one as Queen Elizabeth's Interpretation was approved by her Parliament But you may here observe that tho the Disabling and other Penal Laws were by this Pious Prince tacitly and often dispens'd with and the time of the doing of it caus'd some temporary ferments to arise in the Minds of his Subjects in Parliament yet their animosities have soon tacitly evaporated and the Regal Power of Dispensing then came to no question The Puritan Dissenters and scruplers of Ceremonies knew they wanted the benefit of that Power as well as the Papists and the exercise of that Power was in the Petition of both Houses before mention'd implored as to the disabled or silenced Ministers And therefore you will not wonder at it when I tell you that during all the great Patriotly efforts that were made for the removing all Grievances by the Petition of Right there was no offence taken at the Right of the Dispensative Power A. I thank you for that observation B. The thought is too obvious to deserve thanks and I assure you it is a kind of Proverbial Saying in the Canon Law that Dispensationum modus nulli Sapientum displicuit But even in the Conjuncture of the Petition of Right to shew you that the Dispensative Power did not in the least contribute to the ferment I shall let you see out of Rushworth how Mr. Glanvile who made so great a figure of a Patriot then in Parliament did with the greatest popular applause appear as an Assertor of that Power and when in his Speech in a full Committee of both Houses May 23. A. 1628. he inter alia said There is a Trust inseparably reposed in the Persons of the Kings of England but that Trust is regulated by Law For example when Statutes are made to Prohibit things not mala in se but only mala quia Prohibita under certain Forfeitures and Penalties to accrue to the King and to the Informers that shall sue for the breach of them the Commons must and ever will acknowledge a Regal and Soveraign Prerogative in the King touching such Statutes that it is in his Majesty's absolute and undoubted Power to grant Dispensations to particular Persons with the Clauses of Non-obstante to do as they might have done before those Statutes wherein his Majesty conferring Grace and Favour upon some doth not do wrong to others But there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded By those Statutes the Subject hath no interest in the Penalties which are all the fruit such Statutes can produce until by Sute or Information he become entituled to the particular Forfeitures whereas the Laws and Statutes mention'd in our Petition are of another Nature There shall your Lordships find us to rely upon the good old Statute called Magna Charta which declareth and confirmeth the ancient Common Laws of the Liberties of England and there he speaks afterward of other Statute Laws not inflicting Penalties upon Offenders in malis prohibitis but Laws declarative or positive conferring or confirming ipso facto an inherent Right and Interest of liberty and freedom in the Subjects of this Realm as their Birth-rights and Inheritances descendable to their Heirs and Posterities the Statutes incorporate into the Body of the Common Law over which with reverence be it spoken there is no Trust reposed in the King 's Soveraign Power or Prerogative Royal to enable him to dispense with them or to take from his Subjects the Birthright which they have in their Liberties by virtue of the Common Law. So then according to the sense of this loyal Patriot if the King shall by his Prerogative dispense with the Disabilities or Premunires or
other Penalties incurr'd by Popish Recusants pursuant to any Statutes as for example those of Queen Elizabeth or King Iames and even that of 3 o Iac. c. 5. whereby Convicted Recusants are disabled from Military Offices and Offices in the Navy and in the Law and fâ—…m the Practice of Physick and any publick Office and Charge in the Commonwealth or the Test-Act 25 o Car. 2. No question is to be made of the King 's absolute and undoubted Power of dispensing with particular persons in such a Case And during the ferment about the Laws and Statutes whereon the Petition of Right was founded and which were of another Nature as Mr. Glanvile's words are you will not forget that there was a tenderness for Prerogative avow'd by both Houses while you remember those words of the Royal Martyr in his Speech at the Prorogation of the Parliament the 20th of October A. 1628. viz. That the Profession of both Houses at the time of hammering the Pâ—…tition of Right was no way to entrench upon his Prerâ—…gative and their saying that they had neither intention noâ—… power to hurt it c. You may too call to mind that as during the fâ—…rment that the suspending the Penal Laws by His late Majesty's Declaration of Indulgence his Power of Dispensing in them came not in question so the heat about his Preregative to SUSPEND them was soon over The Opinion of that loyal Patriot and learned and upright Iustitiary Sir William Ellis deliver'd in his Argument about Thomas and Sorrells Case I told you of namely that the King may SUSPEND an Act of Parliament till next Session which was a flâ—…ght beyond what was moved for or adjudged in the late Case of Gâ—…dden and Hales did never meet with any angry reflection that I have heard of from any Person either of the People diffusive or representative tho yet that Argument of his containing such Opinion was both after the Votes of the House of Commons about the illegality of the suspending of Penal Laws in Matters Eccleâ—…iastical otherwise then by Act of Parliament and after the Act for the Test. And how near the Prerogative of Dispensing as allow'd by my Lord Chief Justice Vaughan in his Argument in Thomas and Sorrell's Case and who argued after Sir W. Ellis came up to SUSPENDING you may see there by what he saith p. 347 Where the King can dispense with particular Persons he is not confined to number or place but may Liceâ—…s as many and in such Places as he thinks fit But further to shew you to how quiet and temperate a State that ferment of the Prince's suspending all the Religionary Penal Laws without an Act of Parliament was grown I shall let you see that several years after the late King's Declaration of Indulgence and the Act for the Test the late Earl of Sâ—…aftsbury appear'd in Print as owning the legality of the King's Prerâ—…gative in that kind and without his Lordship's being in the least censured for it by any of that numâ—…rous Party he was then the Head of And here I am to tell you that in a Book call'd A Letter from a Person of Quality to his Friend in the Country Printed in the year 1675. the Earl of Shaftsbury is by Mr. Marvell the supposed Author of the Book introduced as owning that the Power of the King's Supremacy meaning in Matters Ecclesiastical was of another Nature then that he had in Civils and had been exercised without exception in this very Case i. e. as in the Declaration of Indulgence by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England c. A. Did the Earl of Shaftsbury then in the year 1675. own the Prerogative of suspending Penal Laws in Matters Ecclesiastical when the King had long before quitted it and when his Lordship was Embarqued with those Men to whom nothing could once seem more unpopular then the owning of any such Prerogative B. I refer you to the Book it self and where you will see that that Great Statesman did then assert the extent of Prerogative in that Point with as much strength of Wit and Reason as if he had been then fitting at the Helm of State and where he further shews the Necessity of a standing Supreme executive Power to mitigate or wholy to SUSPEND the execution of any Penal Laws c. But I shall best entertain you with his Lordship 's own words as so great a Narrator as Mr. Marvell relates them and who as he saith telling his Lordship that the Declaration of Indulgence assumed a Power to repeal and SUSPEND all our Laws his Lordship â—…eplyed that he wonder'd at his Objection there being not one of these in the Case For the King assumed no Power of repealing Laws or suspending them contrary to the will of his Parliament or People and not to argue with me at that time the Power of the King's Supremacy which was of another Nature then that he had in Civils and had been exercised without exception in this very Case by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England nor to instance in the SUSPENDING the execution of the two Acts of Navigation and Trade during both this and the last Dutch War in the same words and upon the same necessity and as yet without clamour that ever we heard But to pass by all that this is certain a Government could not be supposed whether Monarchical or other of any sort without a standing Supreme executive Power fully enabled to mitigate or WHOLT to SUSPEND the execution of any Penal Law in the intervals of the Legislative Power which when assembled there was no doubt but wherever there lies a Negative in passing of a Law there the Address or sense known of either of them to the Contrary as for instance of either of our two Houses of Parliament in England ought to determine that Indulgence and restore the Law to its full execution For without this the Laws were to no purpose made if the Prince could annul them at pleasure and so on the other hand without a Power always in being of dispensing on occasion was to suppose a Constitution extremely imperfect and impracticable and to Cure those with a Legislative Power always in being is when consider'd no other then a perfect Tyranny A. I find that his Lordship doth not in the least distinguish between the Right of Prerogative in suspending the Disabling or incapacitating Penal Laws and others And he by giving the Power of suspending all the Penal Laws to the Prince during the Intervals of Parliament and till an Address should be thence made to the Prince to revoke such suspension hath given his Prince this Power in effect during life For 't is obvious to consider by how many accidents a suspension of Penal Laws revocable on an Address from the Parliament may happen to be not so revoked B. You
be TENDER as he is likewise of our Liberty let us enter into a true and indifferent Consideration how far forth the Case in question may touch his Authority and how far forth our Liberty And to speak clearly in my opinion it concerns his Authority much and our Liberty nothing at all That Expression concerning tenderness for the Regal Rights was very acceptable to the House of Commons when his late Majesty in his Letter to them from Bredagh April 14. 1660 thus made use of it viz. We have not the least doubt but you will be as TENDER in and jealous of any thing that may infringe our Honour and Authority as of your own Liberty and Property which is best preserv'd by preserving the other Remember therefore that your tenderness for Property is best preserv'd by your tenderness for the Regal Authority and if you would have your thoughts adorn'd by a constant Idea of true English Loyalty like a noble Picture retain'd there let me direct you to a Saying which like an Original drawn by a great Master may be fit for you to Copy after viz. that Saying of the Lord Keeper Coventry in a Speech in the House of Lords viz. Some would have the King's Prerogative rather tall then great others è contra But none can be truly loyal but he that is a good Patriot and none can be a good Patriot but he that is truly loyal Nor need it be further insinuated to you that without your keeping up a tenderness for the Regal Rights you cannot maintain your tenderness for Oaths And here I must take occasion to tell you that one of my aims in entertaining you with the Queries relating to Oaths out of that Book was to lay before your thoughts a tenderness as to Oaths in general both in keeping the lawful ones you have taken and in not imposing unlawful doubtful unnecessary or inexpedient ones on others and on such as our Prince considering the several Constitutions of their minds both as to firmness and infirmness hath thought fit to exempt from taking such strong Physick Moreover if you will think that another of my aims was to mind you that the same Queries might have been as ingeniously and ingenuously put in the year 1673. before the passing of the Test-Act as they were in debating the Test-Bill in the year 1675 I shall allow you so to do You may too if you will here occasionally consider how soon God in the course of his Providence doth sometimes turn the Tables and make such who were lately so active in imposing on others Oaths that seem'd doubtful and oppressive to them to be in danger of suffering by the like Impositions Mr. Burrough's a Pious Independent Divine who lived in the late times referring in his Irenicum to the Impositions and Persecution design'd by the Presbyterians against those of his Perswasion saith there but the Tables may turn one day wherein the Sufferers shall have the greatest Ease and the Inflicters the sorest Burthen But God forbid that their Brethren should lay it upon them tho it were put into their Power to do it And you may take notice that the Book we before spoke of owns the Activity of the Roman-Catholick Lords then in hindering that Test's being brought on Protestants the Consideration whereof may I think justly incline all who account it their Happiness to have been freed from that design'd Oath not to grudge at the favour that hath been extended by the Diâ—…pensative Power to particular Roman-Catholicks excused from taking other Oaths or at any just favour if ever happening to be afforded them by the Authentick Interpretation of what in the Statute-Oaths seems doubtful to them So tender was the Government in the time of Edward the 6th about the not making the Consciences of the People uneasie by Oaths that you will find it in the Reformation of the Ecclesiastical Laws begun in Harry the 8th's Reign and carry'd on in his that the Magna nomina who were employ'd to make a New Body of Laws did in Compassion to the Consciences of those who took the usual Promissory Oaths for the observance of the Statutes of Universities Collegiate Churches and such like Societies and Corporations order this Clause to be added to the Oaths viz. Haec omnibus partibus servabo â—…uibus cum sacrâ Scripturâ cum legibus civilibus Ecclesiasticis hujus Regni consentient quantum vires meae patientur The School-men saith one would be thought most tender and most curious in the point of Oaths They mince them out so fine that a wholâ—… Million of Oaths may stand as some speak of Angels on the point of a sharp needâ—…e I have therefore not wonder'd at it when I have seen men standing on this sharp point of Oaths so often inconsistent with themselves Notwithstanding what I told you out of my Lord Coke that an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common Law or by Act of Parliament be alter'd but by Act of Parliament yet as you know that the House of Commons in the 30th year of Queen Elizabeth desiring that no Oath or Subscription might be tendred to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of this Realm except the Oath against Corrupt entring did thereby however approve of the tendring of that Oath so my Lord Coke likewise Inst. 3. c. 71. viz. Of Simony seems to approve of that Oath in saying that Simony is the more odious because it is accompany'd with Perjury for the Presentee c. is Sworn to commit no Simony referring there to Lynwood and had before in that Chapter referr'd to Canon 40. 1 Iacobi 1603. The Oath against Simony You may too remember what I so lately told you of my Lord Coke's having with some approbation or fair respect mention'd the Clergy's Oath of Canonical obedience And I can tell you that I lately looking on the Charter of the Corporation of Shipwrights granted by King Iames the First in the Tenth year of his Reign observed therein that Thomas Lord Ellesmere Lord Chancellor of England Sir Thomas Flemming Lord Chief Justice of England Sir Edward Coke Lord Chief Justice of the Common Pleas did pursuant to the Statute in the 19th year of Henry the 7th allow and approve under their Ha ds and Seals divers Articles Acts and Ordinances for the better Order Rule and Government of the Art or Mystery of Shipwrights exhibited to them by the Corporation and did moreover oâ—…in the form of three new Oaths to be taken by the Officers and Freemen of that Corporation and did DISABLE the Refusers of such Oath to be Members of the Corporation But I may here occasionally by the way tell you what you will find in Croke 3d. Sir Edward Coke Sheriff of Buckingham's Case viz. That upon several Exceptions there mention'd as by him
I shall refer you to King Iames his Proclamation of Iune the 10th in the year 1606. and where having mentioned the Religion of the Roman-Catholicks he saith We deâ—…ïre still to make it appear in the whole Course of of our Government that we are far from accounting all those Subjects Disâ—…oyal that are that way affected and that we do DISTINGUISH of such as be carry'd only with blind zeal and such as sin out of Presumption c. and therefore as after times must give us tryal of ALL mens behaviour so must all men expect that their own deserts must be the only measure of their Fortunes at our hands either one way or other and having before spoke of the Gun-Powder Treason and the Doctrines of some Priests that might encourage it and said that thereby there is sufficient Cause to justifie the Proceedings of us and our said Parliament in the making and execution of these last and all other former Statutes tending to the same end it followeth nevertheless seeing the Soveraign Care appertains to us who have the Soveraign Power of Iustice in our hand and the Supreme Dispensation of Clemency and Moderation of the Severity of our Laws is likewise as proper to us to use whensoever we shall find it reasonable the same deserving to be no less allow'd in us being in our Dominions God's Lieutenant then it is prais'd in him among whose highest titles it is that his Mercy is above all his Works c. The King in the beginning of his Proclamation having profess'd his Zeal for the Religion of the Church of England by Law Establish'd and his constant Resolution for the maintenance and defence thereof said Of which our purpose and determination beside all other our former proceedings since our Entry into this Kingdom we have given a new and certain Demonstration by such two Acts as have been passed in this Session of our Parliament both tending to prevent the Dangers and diminish the number of those who adhering to the Profession of the Church of Rome are blindly led together with the Superstition of their Religion both into some points of Doctrine which cannot consist with the Loyalty of Subjects toward their Prince and oft-times into direct actions of Conspiracies and Conjurations against the State wherein they live as hath most notoriously appear'd by the late most horrible and almost incredible Conjuration c. The two Acts there referr'd to are those that you will find in your Statute-Book Anno tertio Jacobi Regis cap. 4. An Act for the Discovering and repressing Popish Recusants and in which the Oath of Allegiance is contain'd and Cap. 5. An Act to prevent and avoid dangers by Popish Recusants and whereby Popish Recusants Convict are disabled from bearing Office. But here you see how that wise Prince so soon after so horrid a real Plot did by distinguishing in his Proclamation between the Principles of some Roman-Catholicks and others as to Loyalty and alluring the Loyal by the avow'd Dispensative Power of his Mercy and hiding them under the wings of his Mercy from the terror of his Laws and affording to all his Subjects who should afterward behave themselves well a Tabula post naufragium as to the expectance of making up their fortunes think himself obliged then to cause his Moderation to be known to all men And you may hence take occasion when you think of the many Acts in terrorem in the Statute-Book and where there is no Proportion between the Crime and the Punishment and in some that seem inflictive of Punishments in the Case where men cannot be to any but the Searcher of hearts known to be Criminal at all as for example in their owning some Problematick Points of the Christian Religion to consider that most probably the Wisdom of the Government would not have pass'd them but on the Suppoâ—…ition of the Regal Power of dispensing therein expresly or tacitly You see how the Laws commonly call'd Sangâ—…inary have been tacitly suspended and I may tell you that tho I desire to live no longer then I shall be a maintainet of the internal Communion due from all Christians to all Christians as a part of that Holiness without which no man shall see God yet I should soon withdraw from the external Communion of the Church of England if it own'd the justness of such Laws otherwise then as in terroremâ—… and if it owned the lawfulness of putting men to Death for the Profession of any Religionary Principles their liberty to prosess which was purchased for them by the Blood of their Redeemer But I need not say more now about cautioning you or any one against the taking offence at any of our Laws Laws through want of considering which of them were designedly made for terror I might here likewise as to many Acts about Trade that swell the Statute-Book apply the Consideration of the Regal Power of dispensing therein having encouraged our Ancestors to perpetuate them as Laws A. The truth is you now put me in mind how I having long ago spent much time in considering the Trade and Traffick of our Country and of other Parts of Christendom and finding that shortly after His late Majesty's Restoration one of his Ministers had in a Publick Speech intimated it to the Parliament that His Majesty had setled a Councel of Trade consisting of some of the Lords of his Privy Councel and of some Gentlemen of Quality and Experience and of some Principal Merchants of the Principal Companies I had the curiosity to look over their Iournals and their Advices and Reports to the King and there I found somewhat of the same notion with yours in one of their Reports to His Majesty For there in one of their Papers of Advice addressed to the King taking notice that what they conceived fit to be done for the advancement of the Trade of the Realm was Prohibited by divers ancient Statutes they make them imply that the thing might be done by the King's licence or dispensing and whereupon they thus go on And therefore finding this Dispensation to be your Majesty's Prerogative preserv'd entire to the Crown through so many of your Royal Progenitors we have not thought fit to touch further upon this Matter as being humbly confident that your Majesty's Subjects shall upon all occasions be indulged the like if not more ready relief and accommodation for their Trade from your Majesty's Royal Grace and Bounty only because the Observation was obvious that perhaps all former Parliaments purposely left this door open to the People by the Grace of the King to be reliev'd with those dispensations as foreseeing how difficult if not impossible or how inconvenient at least it might be altogether to restrain what those Statutes prohibited we could not omit the same in this place c. B. And you have put me in mind how a very Loyal and judicious Gentleman of that Councel of Trade and whom I look on to be as deeply study'd in the
Majesty his Heirs and Successors in England and which were granted to them with non-obstante's to all Acts of Parliament B. And the Act 22 o Car. 2. entitled Seditious Conventicles prevented and suppressed passing in the Parliament of England in the same Year that the Act against Conventicles did in Scotland and concluding with a Proviso That nothing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs but that his Majesty and his heirs and Successors may from time to time c. exercise and enjoy all Power and Authority in Ecclesiastical Affairs c. any thing in this Act notwithstanding shewed such a Concordant Sympathy between the two Realms in tenderness for the prerogative of dispensing with the Penal Laws Ecclesiastical as is between the Strings of two distant Lutes on the touching the String but of one of them But I must tell you that tho by this Proviso the benefit of the Dispensative Power hath been sufficiently secured to the Churches of Forreigners here and the King 's Ecclesiastical Supremacy justify'd in its power of indulging the Conventicles of all sorts of Recusants yet as in the Scotch Act the Crown 's dispensing with Conventicles hath been more express then in the English Act so hath the administration of Prerogative in that kind been more tenderly and signally exercised in Scotland then I have observ'd it to be in England For I find in a Look call'd A Compendious History of the mâ—…st remarkable Passages of the last 14 Years c. printed An. 1680. that in p. 205. the Author referring to the Month of Iuly 1677. saith that upon a Rebellion in that Kingdom being nipt in the Bud his Majesty was pleas'd to publish a Proclamation Commanding the Iudges and all Magistrates to apprehend and punish all such as frequented any Field-Conventicles c. according to the Prescript of the Law as also to prosecute with all Legal Rigour the execrable Murtherers of the late Arch-Bishop of St. Andrews declaring withal that his Majesty being desirous to reclaim all such as had been mis-lead through Ignorance or blind zeal had according to the Power reserved to his Majesty by the 5th Act in the 2d Session of the 2d Parliament suspended the execution of all Laws and Acts against such as frequent house-Conventicles on the south-side of the River Tay excepting the Town of Edenburgh and two Miles round the same c. And the truth is it must likewise be to the honour of that Nation acknowledged that in the worst of Times they after their Covenant did not Contract any such guilt of Perjury by a superfetation of enterfering Oaths as great Numbers of our Land did and that they were exemplary to England in Loyalty and in propping up the hereditary Monarchy while so many here in the Plott-Conjuncture were infatuated with the Project of the EXCLUSION as to give me occasion by a fresher instance and but of yesterdays occurrence to invite you to behold a Spectacle of the divine Iustice in abandoning such Men here to the guilt of Superstition who used unjust means to extirpate it Such among us who had not took notice of that English and Scotch SAINTE LIGUE and its being so generally exploded and who in the late Ferment about Popery would have fortify'd an Exclusion with an Association and again set up Association as of Divine-Off-spring you see how being wild with excessive Fears and Iealousies of the growth of Popery they were guilty of the Superstition of founding Dominion in Grace A. Considering how Men here have laughed at the Obligation of their lawful Oaths and that for unlawful Oaths a Land mourns methinks 't is an adventurous thing for a Prince to take possession of his Inheritance of the Empire of such a Land so encumbred with the guilt of Swearing and Forswearing O when may we see that antient general tenderness in point of Oaths here that flourished among us in the days of our first Reformation nay even in some times of our Roman Catholick Ancestors B. I believe never till after all the living here being resolved to dust and a new Race of Mankind enriching themselves and their Country by the Culture of the Earth and Manufactures men shall be above Temptations from necessity to take God's Name in vain and when the very use of Oaths Assertory or Promissory will be dispens'd with by Nature I am sure the Spectacle of mangled and slaughter'd Bodies covering a Field immediately after a Battle hath not more horror in it then the sight of the Consciences mai'md and wounded by the inobservance of publick Oaths hath been since the Aera of 41. And as our Chronicles mention that they who were born in England the Year after the great Mortality An. 1349. wanted some of their cheek Teeth I may say that generally they who have been born here the Years after 41. wherein the Plague of Perjury by the outraging those Oaths of Allegiance and Supremacy was so epidemical have seem'd able only to swallow those Oaths but not to â—…hew upon them in serious and considerate thoughts no not at the very frequent times of their taking them And still tho in speculative Points in England Consulitur de Religione yet conclamatum est as to a general tender regard to the Religion of those Oaths There was I think a want of tenderness in some as to their sworn assisting and defending all the Priviledges and Preheminences belonging to the Crown during the late Ferment about my Lord Danby's Pardon and I may more sadly reflect on the same Mens want of recollecting their Oath obliging them to the King his Heirs and Successors at the time of the Ferment about the Exclusion A. I think that many who by repentance have been cured of the Epidemical Plague of Perjury that reged here in 41. and of such a Plague and another of Fears and Iealousies since 81 have yet sustain'd more damage thereby then they who were born the Year after 1349 did in wanting some of their Cheek Teeth and that their case is like that of those who were recover'd of the great Plague at Athens that Thucydides hath described and who tells us that after their recovery their Souls had lost the faculty of Memory and were dozed with an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 about what themselves had done or what had passed in the World during the horror of that very Plague or before or since But after all this said I am to ask you if you will make all those perjured who having took the Oaths of Allegiance and Supremacy promoted the exclusion B. By no means I have more Humanity and Christian Charity then to do so I shall here observe to you that Divines in their measures of Mens sinful Actions do often make use of the distinction of materialiter and formaliter Thus for example Ames in his Cases of Conscience l. 5. c. 53. Si quis falsum dicit putans esse verum mentitur tantum