the late King's moderation in the matter which is That having consulted the Judges and others Learned in the Law and finding them not only ready to countenance the Vndertaking but assuring him he had a Power of Dispensing with the Penalties of those Statutes he might therefore lawfully exercise that Power so confidently declared in him To this I say that thô it should be granted that such a Dispensing Power had been vested in him yet it cannot be denyed but that it was accompanied with a Trust not to make use thereof but for the Good of his People and it can never be made out that what he did was so so long as the preservation of the Protestant Religion is the great Interest of the Nation This Answer supposes the King acting according to Law but if we take the Case as it really was we shall find that the Long Robe did not make the King of their pretended Opinion but that he made them of his which is plain by the many Removes he made on the Benches before he could get a Sett for his purpose and then the famous Judgment so much insisted on was such a piece of pageantry as was never acted in Westminster-Hall The Judges may deny as they do that they knew who was Plantiff or that he wore the Defendant's Livery or that the Defendant or Graham paid the Fees of both sides but herein their luck was very bad to be ignorant of what few of the Nation were But supposing this the dispatch they made was very extraordinary for it was obvious to all Men of Sence as well as Law that the Case was of some consequence and deserved more than a short Vacations Consideration and more Arguments than one and if what a late Author tells us be true and one that had any regard to his Credit could scarce publish a Lye in so notorious a matter and so easie to be disproved the Court denied to hear Mr. Wallop argue the Case for which Sir Edward Herbert makes no excuse in his Book neither could he if it be true But what further clears the matter beyond all dispute is that in delivering the Judgment they carried the matter further then the necessity of the Case before them required which amongst Lawyers always lessens the Authority of such Resolutions but I forbear entring on the Legal part of this Controversie because it has already been done and is not within the Task I have undertaken The rest of this Page is taken up in magnifying the late King's kindness to the Church of England in assuring them all their Rights and the sole Injoyment of their Dignities Offices and Benefices thereto belonging and that no Persons were presented to any Ecclesiastical Dignities belonging to the Hierarchy but Members of the Church Something has been already said to the kindness designed for the Church in general and more shall be said when we consider the Author's Objections in the mean time it is sufficient to say we have heard of the Reproaches thrown by him on the Church where in one of his kind fits to Alsop he threatned Ours should be the last Church to which he would turn And that we know not whether Sam. Oxon or his Brother of Chester should be accounted of our Church but if they were we know no difference between imposing such Men and professed Papists on us That we look upon the Preferments in our Universities to be of great concern to our Church yet there we find Obadiah Walker a great Ruler and a whole swarm at Magdalen-Colledge If theirs were not Ecclesiastical Preferments what had our late Ecclesiastical Commissioners to do with them though they deprived the Fellows as Visitors yet sure their incapacitating Decree was by vertue of their Ecclesiastical Supremacy Next we find our Author giving some instances of the late King's with-drawing his Protection from the Church of England which he modestly calls one Objection instead of many For the clearing whereof he tells us That as soon as the King published his Declaration for Indulgence there presently began a great ferment in the Nation and that the Roman Catholicks finding the Church of England imbittered against them he means unwilling to submit to the Romish Yoke which our Forefathers were not able to bear they fell a Caressing the Dissenters vainly supposing them the most powerful Interest of the Nation All that I shall observe from hence is That this procedure exactly follows their old measures in keeping up the Divisions amongst Protestants they had not forgotten the Old saying Divide impera But I have not seen the end of keeping up these differences so plainly owned by any of the Party as by our Author who says plainly That when the Church of England would not serve their turn they joyned with the Dissenters in confidence that in conjunction with them they had the most powerful interest of the Nation which I always looked upon as the true reason of the Indulgence when I reflected on the time when we were blessed with it it was then that the generality of the Dissenters were better satisfied with the Church than ever they had been they were then fully satisfied the Church had no inclination or warping towards Popery so that it was really timed so as to blast the fair hopes we had of a perfect Union amongst our selves From hence let us learn how to regard such as promote the old or any new difference amongst us for let the Pretensions be never so plausible the Design is to weaken us by dividing us which hopes are not quite dead in the Author as we may imagine by his attributing all that was done against any Member of the Church os England to their struggle with the Dissenter I am confident the Bishop of London and the Fellows of Magdalen know where to place it better viz. to their struggle with the Papists which is plain if we consider the time when these things happened the Bishop of London's Persecution began the 14th of July 86 that being the Date of the King's Letter to him and his first Appearance was on the 4th of August following and the King's Declaration for Liberty of Conscience was not until the 4th of April after so that it is impossible to ascribe what was done to this Member of the Church to any struggle with the Dissenter occasioned by the Declaration of Liberty and how the business of Magdalen should be attributed to that I cannot see when the Letter in behalf of Farmer bore date the day after the Indulgence it was of a mighty force if it could set the Nation so soon in a ferment as the Author says it did and Alban Francis's Letter bore date the 7th of March before the Indulgence on which Dr. Peachell was deprived so that our Author must either mean that these were no Members of the Church of England or what is as ridiculous that there was nothing done against them or his Proposition is false that the Dissenters
with the private Intreigues of this sort Yet I can tell him of one Tucker that had not only his Estate granted from him but his Wife also perswaded to leave him and marry another Man and the poor Man after a miserable languishing in Gaol without that small support he was promised by those that perswaded him to plead Guilty to his Indictment of Treason has a Petition now lying before the House to be relieved in both and to have his Estate restored without the incumbrance of his Wife which is no extravagant request if It be true that she forsook him in his misery Though the Parliament were pleased to mention no other Grievances yet I would not have our Author too confident there were no other for certainly the displacing of the Judges so frequently and upon all occasions was a great one in it self and occasioned many more This made some of them stick closer to their directions from Court than to the Law in many Cases but for fear of this Judgment had never passed so quickly in Sir Edward Hale's Case I should be glad to know what our Author thinks of prosecuting the Subject with great rigour upon pretended Crimes As the Bishop of London for not Suspending Dr. Sharp the Seven Bishops for Petitioning him in the most humble manner Dr. Burnet for the slip of his Pen in a private Letter or for a less offence as we may judge by their quitting the first as soon as they had the other to lay hold on Mr. Baxter for his Notes on the New Testament these and many such like that might be instanced shewed as if the Government lay at catch and were glad of an opportunity no matter how just or honourable to be rid or revenged of any person they had no fancy to This kept all persons under jealousies and apprehensions Has our Author read the Statute of Charles the Second repealing the Act for Triennial Parliaments If he has let him tell me whether it was well observed if it had it might have prevented many of our other Grievances for the King would not have gotten Ministers so fool-hardy as to have executed his Orders if they had thought that a Parliament was likely soon to over-take them Lastly I should be glad to know what our Author thinks of those many Grievances relating to Ireland I shall only instance in my Lord Tyrconnel's Government that being the foundation and support of most of the rest The Sword was no sooner put into his hands but he displaces our Protestant Lord Chancellor Attorney-General and prime Serjeant and Lord Chief Baron before Term and the Judges who were always appointed in Hillary-Term for the Lent-Circuit waited beyond that for his Approbation the consequence whereof was That the two Protestant Serjeants were put by and Paplsts their Juniors sent in their stead His next blessing to the Nation was such a sett of Sheriffs the like whereof that or no other Nation ever saw and his Majesty was so eager for these Tools that Lord Clarendon was ordered not to name them and though usually the Sheriffs are named in November this Year waiting for his coming we had them not until the middle of February and then many of them were Men of no Estates To reprise the Country in case they injured them little understanding and less honesty to direct them in the due execution of their Offices which discouraged many so much that they chose rather to venture the loss of their Debts by not Suing than by Suing venture it in the Sheriff's hands and in that Vacation he attacked all the Corporations in the Kingdom with Quo Warranto's and soon afterwards disseised several persons of their Offices wherein they had Free-holds by putting others in their places as Bruno Talbot was made Chancellor of the Exchequer in the place of Sir Charles Meridith and Captain Giles Lieutenant-General of the Ordnance in the place of Sir Albert Coningham though they both had Patents of their Imployments for their Lives I might go on with the mention of other Injuries heaped by him on the Protestants to the length of a just Volume But in hopes that we shall not be any more troubled with him I will forbear Having so long followed our Author close to his own method without omitting any thing that he can judge material For the future I will only consider the principal of his Assertions and Insinuations having already been so much longer than I at first intended I have spoken to the late King's Concessions before the Prince's Landing To which I shall now add because our Author lays so great stress thereon That if his Intentions had been so Candid and Princely as the Author phrases it why did he not suffer the Parliament to meet in January as he promised Why was he so angry at the Peers that desired it the 17th of November Why did he so long resist its Sitting until he should be in a condition to keep his Word or not as he pleased This he denied to those Bishops our Author says he granted so much to Lastly It must be noted that though the King redressed some of our Grievances yet he did not take away the great Cause of our jealousie and complaint As for instance he cancelled the Ecclesiastical Commission but did not disclaim the Power of setting up another when he should think fit nay did not so much as promise not to do it And for any assurance that we had he might by another Court have punished these Bishops for their present presumption and medling with State-affairs neither did he ever disclaim his absolute Power over us nor lay aside his Dispensing Power by which alone he could have rendred all our relief in Parliament useless therefore so long as he kept that all that he could do for us could not satisfie because without it we could not be secure for any longer time than the Jesuit's fears kept them in order Next our Author would insinuate a strange Proposition That the States contributed to the Invasion with a design to ruin our Trade In answer to which I say That it cannot be supposed that they have forgotten what helped well if not laid the first foundation of their Trade and Greatness and why they should not expect as much profit from the struggles about Religion in King James's time as from those in Queen Mary's time I cannot tell Surely Popery is not less terrible to us now than it was then that we should more tamely submit to it than we did then We have seen in France some late effects of prevailing Popery that does not more surprize than instruct us to be on our Guards to which the danger of our Civil Rights being joyned all undermined by the Dispensing Power and Obedience without reserve Surely the same or worse effects as to us might have been expected now than followed in those days that only contended about Religion Where that Persecution forced an Hundred abroad in all probability King James
their Proceedings against him for Alimony although this was one of the Articles their Commission authorizes them to hear and determine Here the Court looked on their Authority to be from the Statute not the Commission This is a full Judgment and many more might be instanced against those that assert That the King by his Supremacy or the Common Law could Erect such a Court though the Statute were repealed for in this Case he gave Authority to decree Alimony in Cases of severity but because the Statute gave none such their Proceedings were stopped by a Prohibition It is wonderful to me and seems something like an infatuation That the Projectors of that Court did not to gain some credit to it and in return for all the mischiefs they intended find out some real Criminals to make Examples of so that the Nation might sometimes be satisfied with their Judgments though they could not be with their Jurisdiction When we see vengeance over-take notorious Offendors it is but rarely that we inquire whence the blow comes and if we do we are seldom over-strickt in the matter But since they omitted this common piece of Policy after-times will rather suspect that they had not Power by the Commission to punish such Offendors then either that so populous a Nation should want fit Objects for their wrath or that so famed Politicians should contemn so prudent a course All the account I can give of this matter is that Quos Jupiter vult perdere prius dimentat The fifth Article is Levying Money for other time and in other manner than the same was granted by Parliament this he confesses ought not to have been done by the Petition of Right and some older Statutes he mentions which is a Confession of the justness of the Complaint But then what he did of this kind he says was by vertue of a Lease King Charles the Second was impowred to grant for three years This is another instance how small a matter was sufficient lately for Appearance of Law good enough to wrest the Legislative Power out of its proper course For this Lease our Author here speaks of was pretended but to be made by the Commissary of the Treasury the Fifth of February the day before King Charles dyed and when he was lying void of all reason and sence if not of life This looks so like a trick that it supersedes all necessity of enquiry Whether King Charles had power to make a Lease of that part of his Revenue granted him for Life only for any longer time than his Life But to shew the illegality of that Proceeding and the insincerity of the Author I will give the full account of this matter And first it is to be observed that the late King upon his first coming to the Crown levied Money on several Branches of the Revenue setled on King Charles for Life The Subsidies of Tonnage and Poundage and other sums of Money payable on Merchandises Exported and Imported were granted expresly by the Statute to King Charles during life yet the late King by his Proclamation of the 9th of February directs that the same shall be Collected as in the time of his Brother Herein he pretends to no other Law for this but that it is his Will and Pleasure the necessity â—f the Government requiring the same there is no three years Lease in this Case nor any pretence that King Charles did or could make any such so that as to this our Author's assertion is false But indeed as to the Excise the late King made use of that pretence and by his Proclamation of the 16th of February tells us That the late King's Commissioners of the Treasury did on the fifth of February contract and agree with Sir Peter Apsly Sir Benjamin Bathurst and James Grahme that they should receive the Duty of Excise for three years from the date thereof at the Rent of 550000 Pounds per annum And being certified by the Opinion of the Judges that the said Contract is good and valid in Law to the intent that the said persons may have no pretence of with-holding their Rent and that the Subjects may not incur the Penalties inflicted by the Laws of Excise for not making due Entries or Non-payment or concealing any part of the said Duty during the said three years He does publish to all his Subjects that the Judges have certified him their Opinions that the said Contract hath continuance notwithstanding the decease of his Brother His Will and Pleasure therefore is and he thereby Commands the Commissioners of the Excise and other Officers that they be Aiding and Assisting to the said persons in Collecting and Levying the said Duties and that all persons chargeable with the payment thereof do make due Entries and pay the same upon the pains and penalties to be inflicted thereupon according to the Laws of Excise Though these Proclamations were equally illegal yet the first was certainly the more generous it goes roundly to work and tells us in plain terms he wanted the Money and therefore would take it whereas the other pretends to be countenanced by the Law but instead thereof has only that of the Lawyers the Moiety of the Rent therein mentioned is a fair sum to be gained for three years by the private Opinion of the Judges which is sufficiently confuted by a bare stating of the Case The Excise was granted by two Acts of Parliament the one Moiety by one Act the other Moiety thereof by another The first is called a Grant of certain Impositions for the increase of his Majesty's Revenue during his life And Enacts That the Duties therein mentioned shall be paid to the King during his life ' the other Act lays the same Imposition on the several Liquors therein mentioned and Enacts expresly That the same shall be paid to the King his Heirs and Successors for ever Which being the Statutes of one Parliament shews plainly that it was intended that the one half of the Duty should dye with the King otherwise there was no need of two Acts and the reason of the difference is obvious for the last Moiety of this Duty was granted to the Crown in satisfaction of the Profits of the Court of Wards and for the Abolishing of the King 's Pre-emption and Purveyance in which the Crown had an Inheritance In both these Acts there is a Clause for making Leases not exceeding three years which was laid hold on to continue this Tax on us for three years longer than the express time we granted Had this Lease been made bona fide and in King Charles's health it would have been but a frivolous pretence but considering the time it was made it was the smallest way ever was laid hold of by a sinking Cause Our Author comes next to represent our present Condition to us and though he make a fearful Picture of it it is not so dreadful as Popery and Arbitrary Power in their best Dress He says we must pay great
's or his King's word And though this were a sufficient reason for the mild course taken by the new Act injoyning the Oaths yet certainly the Nation does attribute that course very much to the mild Nature of the King who would not too hastily exact a Complyance nor too severely punish the want of it though certainly the accepting of him for King and swearing Allegiance to him is a matter of far greater moment than any opposition King James met with from the Church and so might deserve a severer punishment than for not obeying an illegal Mandate Our Author misses no opportunity of telling what is doing in Scotland but he is not so forward to tell us News from Ireland He tells us the Scotch Clergy are obliged to pray for the King and Queen under pain of Deprivation and pray why should they not But does not tell us that the Bishop of Dunkell was deprived by the late King for Voting or Arguing in Parliament according to his Conscience neither does he give us any account of the pretended Act of Parliament in Ireland taking away many of the Rights of the Clergy without any pretended fault nor of their Act repealing the Acts of Settlement which almost renders useless another of their Acts attainting our Nobility Gentry and Clergy only for being in England Here is Fangs and Claws with a witness and of so weak a Government that one would think these Acts were designed for nothing else than to shew the Temper of the Man and those that influence him The fourth Article is against the Court of the Commissioners for Ecclesiastical Causes To which he says That the Statute repealing the first of Elizabeth hath a Salvo for the King's Supremacy so that there was an appearance of Law to justifie that Commission and that our Parliament meddle with Ecclesiastical matters also Our Author is pretty modest in this Answer pretending but to an Appearance of Law to justifie the late Commission-Court So that now I am not only to argue against the Court but also to shew how little that very Appearance really was which I think will be best done by considering the Statutes of 170 Car. primi C. 110. and the 13. Car. secundi Cap. 12. In the first we will find that the Clause of the Statute of the Queen which Erected the first Ecclesiastical Commission-Court is repealed In this I do not find any Salvo for the King's Supremacy but there is a Clause of another nature to wit That no new Court shall be Erected with the like Power Jurisdiction or Authority as the former had or pretended to have and that all such Commissions made or to be made by his Majesty his Heirs or Successors and all Sentences and Decrees by colour thereof shall be utterly void and of none effect By the 13th of King Charles the second part of this Statute is repealed but what relates to the High Commission or the new Erecting of such another Court is not this Statute has the Salvo I suppose our Author means So that now the matter is shortly thus The first Statute suppresses the High Commission-Court in being and prohibits the Erecting of any such other for the future and Enacts some other things forreign to this matter which by Charles the second 's Statute are repealed But as to the High Commission-Court it confirms the former with the Author 's Salvo that this Act shall not extend to abridge the King's Supremacy in Ecclesiastical Affairs Now though this Statute had by this Clause been Felo de se yet still by the first Statute the Erecting any such new Court is prohibited for the Salvo only is That nothing in that Act shall abridge the King's Supremacy but does not say that nothing in the former shall To obviate this our Author put his Salvo in the first rather than in the other But I say further That though the Salvo had been where our Author would have it or that the Clause had been That nothing in either of the Acts should abridge the Supremacy or to make the matter a little plainer Suppose it had been literally worded provided that the King by his Supremacy may Erect such a Court when he thinks fit the matter had been but little mended for the Enacting part that no such Court should be Erected had been good and the Proviso void for it is a known Rule in Law That the Proviso or Exception must not wholly destroy the preceding Grant though it may lessen or qualifie it As for instance If one grant to me all his Trees and afterwards adds a Proviso except all his Trees the Grant is good and the Proviso void because it would tender the Grant wholly useless but he may except all his Trees in such a place or twenty or any number by name because there is a subject both for the Grant and Exception So a Proviso in the Act might have preserved the Supremacy in Wales or any particular place but being general it is void or rather has no operation on the matter positively Enacted though it may preserve the Supremacy in other matters This Article complains as much of the Executing as the Issuing this illegal Commission To which since our Author says nothing I will only add That though the Law had been plain for the Prerogative in this case as to the Erecting of the Court yet since King Charles who was looked upon as a Protestant did not think fit to put this Power in execution during the Twenty-four years he lived after the Statute which implies That either there was no need of such a Court or that he thought he had no Power of Erecting it it was a bold step in the late King to venture on it but perfect madness as he managed the matter When the Statute was in force the Proceedings were for the Correction and Reformation of such Offences as by the Ecclesiastical Jurisdiction could lawfully be corrected and reformed during the continuance of that Court which was near an hundred years The Proceedings there were only against persons that disobeyed the King's Laws never one was punished by them for not obeying a Letter but the Bishop of London the disobeying the King 's Arbitrary and Illegal Mandates was never looked upon as a crime before the late times And for a further instance and proof of their illegal Proceedings the Commissioners that acted in pursuance of the Statute could not proceed against persons for small Crimes or such as could be remedied by the ordinary For which reason we find in our Books that a Prohibition went out of the Temporal Courts to stop their Proceedings against one for Adultery as Judge Hutton tells us in Isabel Peel's Case unless in such Cases as were very exorbitant and notorious Now unless we have lost another the most secret Adultery of the Commandments is a greater Offence and a little more expresly prohibited than the Contempts punished in that Court. In Drake's Case a Prohibition went to stop