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
they judged that the Character of that Earl's great Wisdom and Courage and Activity and of universality in his Correspondencies had gain'd such an Ascendant over the Genius of the Irish that if he had continued Lord Lieutenant of that Kingdom in his former Power they would not have ventured to rebel A. You have instanced in Uncontroverted Privileges of the Crown that that Parliament did offend and resist by their putting such incessant hardships on their King as your words are and it was folly as well as breach of their Oath for them thus to strike at the Pardoning Power of the Crown that is the Privilege both of King and People Yet let me ask you whether you account that he who in any case shall endeavour that by the Legislative Power any uncontroverted Iurisdiction Privilege Preheminence or Authority granted or belonging to the Crown may be alter'd or restrain'd in its exercise breaks his Oath Did that Parliament do so who made the famous Act for barring the known Privilege of Nullum tempus Occurrit Regi I mean that glorious Act of 21 o of King Iames the First C. 2. of which the Title is Conceald Lands shall not be Recover'd unless it may be proved that the King had title to them within 60 years i. e. 60 years before the 19th of February in the 21st year of King Iames the First which was the day of the beginning of that Parliament and on which Statute my Lord Coke hath an excellent Comment in Instit. 3. C. 87. against Concealors turbidum genus hominum and all pretences of Concealments whatsoever and on occasion of which Act it is yet acknowledg'd in the Book call'd The Court and Character of King James written by Sir A. W. and Printed A. 1650. that that King loved good Laws and had many made in his time and in his lâ—…st Parliament for the good of his Subjects and suppress'd Promoters and Progging Fellows gave way to the Nullum tempus c. to be confined to Sixty years which was more beneficial to the Subjects in respect of their quiets then all that Parliaments had given him during his whole Reign Or did the late Kings Loyal long Parliament do so in their obtaining the Act for the Habeas Corpus and others that might be named B. Having premised it to you that those words in the Oath of assisting and defending ALL Iurisdictions ALL Privileges c. are operative words and of strict Interpretation and whereby we stake our Eternities to assist the King 's Temporal Rights and invoke God so to help or assist us as we shall assist all those Privileges and that the Prince and the Church being look'd on as Minors the breach of an Oath to defend the Privileges of the King must appear to common sense as odious as if any Guardian of a Minor did break an Oath to defend his Person and Interest or did take part with any to destroy the Minor's Rights I shall yet be so fair as to tell you that I do not so account it provided that he who shall do so shall have a moral certainty that the Prince being sensible that the alteration or restraint of such Privilege will be very beneficial to the Subjects both in the present and future times and necessary to the enabling them the better to support the Crown hath signified his desire of the same and doth so desire it or if he knoweth not his Princes so desiring it believes that the Cogency of the Reasons he hath humbly to offer for such alteration being made is such as may Incline others to supplicate the Prince to consent to it and the Prince so to do Yet in this latter case if afterward the Sovereign notifies his desire of the continuance of such known Privilege I am then by my Oath to assist and defend the same and am not to the Cogency of my Reasons to add that of Importunity For there is a par or proportion between importunity and force whence we see that according to the King 's Ecclesiastical Laws in case of a former will a latter gain'd by importunoe preces in the time of the Testator's Sickness is often adjudged void And as I am not by importunity when my Princes Affairs are in a Sickly state or that the Die of War hath ran against him abroad to press and tire him then into a parting with his known Privileges so neither with a Salvo to my Oath which binds me to assist and defend them can I if I find his Judgment or Mind sickly lay Temptations before him to buy him as it were out of a Privilege that is just and adviseable for him to keep I am neither to starve nor pamper my Prince out of such a Privilege Nay more if my Prince did by any Error part with any such Privilege as not knowing the same to be inherent in the Crown as in the Case of an Answer of the Royal Martyr drawn by one of his Ministers not deeply vers'd in the Law to some of the Parliaments Propositions by which Answer he is acknowledg'd to be one of the three Estates I who know that the Privilege and Preheminence inherent in his Crown is to be above them all and have in the Oath of Supremacy Sworn that the King is the only Supream Governour and so none Co-ordinate or equal to him I am to take no advantage of that error but am still to assist and defend such his Preheminence And if ever a Prince did by fear part with such Privilege or Preheminence there being a par between fear and force according to that Law of the Proetor in the Digests Quod vi aut metu factum est ratum non habebo and in which Law as Baldus saith the Proetor was inspired by the Spirit of God I am not only not to take any advantage of such act of the Prince done by fear or force or to upbraid him therewith but am still to assist and defend such Privilege so derelinquish'd by him and am to account the same belonging to him as the word is in my Promissory Oath and to account him still in Law possess'd of the same according to the rule of Possessio etiam animo retinetur and which is justly apply'd in the Case of any one who in a Storm at Sea throws his Goods over-board to lighten the Ship. His late Majesty therefore did but right to himself when in his Declaration of the 25th of October 1660. Concerning Ecclesiastical Affairs he took notice how some had caused to be Printed and Publish'd in England a Declaration before Printed in his Name when he was in Scotland i. e. referring to the Declaration Printed at Edenburgh 1650. and saith thus of it vizâ—… Of which we shall say no more then that the Circumstances by which we were enforced to sign that Declaration are enough known to the World And that the worthiest and greatest part of that Nation did even then detest and abhor the ill usage of us
lâ—…vis and that the King and his Realm cannot suffer much by the disabling a small party of men from publick employments But it is otherwise And let any one who hath observ'd but two or three of the late great transactions of the age here as for instance the late King's Restoration the throwing out of the Exclusion-Bill the turning of the current of Faction in our Metropolis and consider how much in each depended on the Talents of ONE man he will not wonder at him who shall affirm that the incapacitating of but one Man may be very fatal to the Common-weal I suppose you cannot have forgot the Verse you repeated to me out of the famed Poem of Absolon and Achitophel viz. So much the weight of one brave Man can do And Providence made use of his weight for the Publick good by the figure he made in his Prince's Councils notwithstanding the Address of the Commons to have him thence removed as likewise of the weight of another of those noble Persons heroical loyalty in the administration of the Government notwithstanding an Address from the Commons to his Prince to remove him from it I doubt not but you have read it in Cromerus his History of Poland l. 7th that the King of Poland being dead the Kingdom was offer'd to Lescus a Nephew of Casimire's on condition he would banish Govoritius and that Lescus refused the Crown rather then he would banish so faithful a Councellor And you cannot be ignorant of the weight of one man in the Nicene Councel I mean Pophnutiuâ—… who by citing those words of the Author of the Epistle to the Hebrews Marriage is honourable in all c. turn'd the stream of the whole Councel when they were going to give a Decree against the marriage of Priests You know of how much weight one Man would have proved in that place in Scripture Ezek. 22. 30. And I sought for a Man among them that should make up the Hedg and stand in the Gap c. And that the wise man hath told us that it was by the wisdom of ONE poor Man that a City was deliver'd You cannot but have observ'd that almost all the great and noble inventions in nature owe their births to a single Person and that particularly one poor Man by his Wisdom discover'd the American World. I need not mind you of the introduction of Laws by one Man in several of the old Graecian Polities and of the great Ocean of the Civil-Law yet encompassing the World having so narrow a Spring-head as the head of a single Person 's introducing the Laws at Athens You have read of the unus homo nobis cunctaâ—…do c. and of the tantum potuit unius Viri fortuna virtus You know how Queen Elizabeth express'd her value of the weight of one Man I mean our great Navigator Sir Francis Drake by her refusing to commissionate competent Judges to try him for putting to death Dourishius in America and after an Appeal brought about it by the next of Kinn to him and how afterward King Iames the first shew'd his value of the Talents and usefulness of Sir Walter Raleigh by employing him in his Service with Power of the Life and Death of others whilst he lay under the highest disability by being attainted of High-Treason It would be somewhat like pedantry to digress too far into such a Common Place and wherein almost infinite instances will be tumultuarily crowding into any Mans thoughts But I shall here further tell you that from the notion of ludit in humanis c. and of him who sitteth in the Heavens having some Disablers in derisien who imagined a vain thing and from Heavens often choosing to make that Stone that the Builders rejected and disabled the Head of the Corner and from the severe threatning in St. Matthew against him who shall offend ONE of these little ones who believe in Christ and from the caution there of despising not ONE of these little ones you may occasionally call to mind your moral Offices of honouring all Men and of adoring the Divine Providence when it makes such Persons its instruments in the preserving of Nations who by any systemes of Politics or Laws were disabled from being such A. I thank you for the occasion you have given me to meditate about this and do think that Man having the style of vain apply'd to him in Iob. c. 11. v. 12. Vain Man WOULD be WISE tho Man be born like a wild Asses colt and there made a politic-would-be and not only resembled to a Brute but made to be born like one and of Brutes like to the Ass and of Asses to the wild one and even of such to the wild Asses Colt and being thus under an incurable complication of natural Incapacities ought to be very careful how he goes about by any artificial incapacities to afflict or reproach any of his Race that are born to too many and much more to limit the Wisdom of Providence in the choice of its instruments and to take the work of the cicuration of the untamed World out of God's hand And here I shall afford you some amends for the pleasant historical hints I just now had from you by observing to you in short what partly makes for your purpose that tho as Palaeotus in his learned Tâ—…actate de Nothis spuriisque filiis hath mention'd such were tam Mosaicâ quam Pontificiâ ac Civili lege omnino detestabiles and as infamous disabled particularly by the Canon Law from ecclesiastical Dignities yet to shew how these out-casts of the Law were by Heaven rendered instrumental in the Government of the World he there saith Notantque hi qui historias ab origine Mundi sunt exorsi artes ownes scientias ab hujvsmodi sobole à filiis scilicet Lamech fuisse inventas ab eis subtiliora omnia utiliora excogitata and he concludes his Book by instancing in the Names of many Europaean Kings and Princes and Roman Emperors and particularly of Constantine the great and likewise of Popes of Rome who were of the base-born Class of Mankind Both God Almighty and our Princes can make Vessels of Honour of what Clay they please and place them where they will. B. You find it DECLARED in the Statute of the 31th of H. 8. c. 10. that It appertaineth to the King's Prerogative Royal to give such Honour Reputation and Placing to his Councellors AND OTHER his Subjects as shall be seeming to his most excellent Wisdom and so when King Iames gave Sir Walter Raleigh tho dead in Law and labouring under the highest disability beforemention'd the Power and Honour of commanding the lives of others he did but what appertain'd to his Prerogative And thus when King Harry the 8th by his Prerogative like the Sun both raising and gilding a poor Vapour made Cromwel who was the Son of a Black-smith Lord Privy-Seal and likewise enabled him tho a Lay-man to to be his
clear'd of those doubtful Expressions in them which cause their scruples c. whereby they may to the entire Satisfaction of His Majesty and the Nation fully testifie the Allegiance and Fidelity of faithful Subjects and true Patriots and no longer remain as they generally now do distrusted c. But there was another Book that year Publish'd by a Roman Catholick of which the title was A seasonable Discourse shewing how that the Oaths of Allegiance and Supremacy as our Laws interpret them contain nothing which any good Christian ought to boggle at and where the Saying of Tertullian is quoted Bonae res neminem scandalizant niâ—… malam mentem c. and where having taken notice of the Queen's Admonition and the Proviso of the Statute of 5 o Eliz. and the 37th Article and the Iudgments of the Bishops Bramhal and Carleton as Sir Iohn Winter had done and for the same purpose giveth his Judgment that the taking of those Oaths gives no Scandal and he in p. 38. averrs that Sir John Winter told him many years ago that he had the Iudgment of Sorbouists Secular Priests and Iesuites that he might take the Oath of Supremacy declaring the sense which the Law allows And I shall here by the way take notice that as to the Oath of Allegiance F. Cressy saith in his Epistle Apologetical p. 111. that few Roman Catholicks if any at all would refuse that Oath if that unlucky word heretical were blotted out c. or if they might change heretical into contrary to the Word of God which he saith he verily believes was the sense intended by King James But now after all this said I shall tell you that according to what is observ'd by the generality of Writers oâ—… Princes easing their Subjects by their Dispensative Power of interpreting their Laws viz. That they take occasion then to intermix with such interpretation somewhat else that may advance their Power there were Fears and Iealousies that some of these foremention'd interpretations tho lessening the spiritual Power of the Crown might enlarge its temporal and particularly such as in the Queen's Admonition mention'd the Duty Allegiance and Bond acknowledg'd to be due to Harry the Eighth and Edward the Sixth and as I partly before hinted such as in the Proviso in the Act of the 5th of the Queen that ratifying the Admonition hath in it the additional words of acknowledging in her Majesty her Heirs and Successors the Authority that was challenged and lately used by Harry the Eighth and Edward the Sixth and such as in the 37th Article explain'd the Queen's Power by that given by God himself to all GODLY Princes in Scripture and where notwithstanding the Word Godly being put in there to gild the Pill of the Absolute Power of the Iewish Kings and to make it be the more easily swallow'd the real meaning was the Power given to all the Iewish Kings for the right of their Power depended not on their Godliness and such as in the Canons of King Iames ipso facto Excommunicate all that do not give the King the same Authority in Causes Ecclesiastical not only that the Godly Kings had among the Iews but what the Christian Emperors had in the Primitive Church And there too notwithstanding the word Christian might be for the like reason put in as that of Godly was and to cause the owning of that absolute Imperial Power which pursuant to the Lex Regia was used by the Christian Emperors as well as their Heathen Predecessors in punishing Heterodoxy ad libitum the meaning of the Canon was not to devest Heathen Emperors of their right of judging about Matters of Religion and as to which Grotius in his Letter to the States Embassador having said neither would Paul have appeal'd to Nero had he judged that no right of Iudging in a Case of Religion belong'd to him addeth Wherefore as Trajan Civilly honest Nero wicked are equal in the Right of Government so Pious Constantine and Impious Nero are equal in the right of judging in aptitude and skill unequal The Canons therefore of Forty enjoyning the Explanation or Interpretation of the Regal Power there inserted to be one Sunday in every Quarter of the Year read by the Clergy to their Flocks did well provide for the cautioning them as against the setting up any independent Coactive Power either Papal or Popular so against Fears and Iealousies relating to their Properties in their Goods and Estates and by that Explanation they shew that Christ came not to Undermine or Disturb but to Confirm the Civil Government of Pagan Princes and that in the first times of Christ's Church Christians were ready to submit their very Lives to the very Laws and Commands of those Princes A. But doth that Explanation of the Regal Power assert any thing in Defence of the Dispensative part of it B. You see how without wyre-drawing any Consequences the very first Paragraph of the Explanation doth both strengthen the foundation of the assertory part of your Oath we have been so long discussing and strike out new lights in the Fabrick of the Oath You see it tells you downright that A Supreme Power is given to the Order 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 c. And the Explanation doth effectually enough provide by the second Paragraph that Kings should take care that none in their Dominions but the stubborn and evil doers may be restrain'd with the Temporal Sword for it saith The Care of God's Church is so committed to Kings in the Scripture that they are commended when the Church keeps the right way and taxed when it runs amiss and therefore her Government belongs in chief to Kings For otherwise one man would be Commended for another's Care and taxed but for another's Negligence which is not God's way And this is an Argument taken ab absurdo and the strongest that can be used in Law and not to be set aside but by the alledging something as more absurd against it and amounts to this that it is absurd that Kings who are commended when those who are not stubborn nor evil doers are not under any restraint by the Temporal Sword for the Church runs not the right way when that Sword is a terror to any but evil doers and tax'd on the contrary being done should not be judged to be authorized to exempt those from all restraint thereby And when the People are not liable to blame for Kings erring in their Judgment about the Persons to be so exempted from restraint nor to be commended or rewarded for their not erring therein can any thing be more absurd then for the independent Coactive Power of Kings it self to be restrain'd to the Punishing such as they shall judge Innocent But the two tenderest things in the World are Sovereign Power and Conscience and both of them were made with a
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
the Commissioners be COMPETENT that is if they be spiritual men they may proceed to Sentence of Excommunication which may right well be Certify'd as well as Excommunication before Commissioners Delegates both of these Authorities being under the Great Seal c. And Excommunication certify'd ly Commissioners Del gates hath been allowed as it appeareth in 23. Eliz. Dyer 371. And in many Cases Acts of Parliament have adjudged men Excommunicate ipso facto But if they be meer Lay-men the fault is not in the Statute or in the Law but in the Nomination and upon Certificate made of the Excommunication according to Law a Significavit or Cap. Excom shall be awarded out of the Chancery for the taking and imprisoning the Bodies of such Excommunicate Persons But had his Lordship as I said in the Case of the other Author consider'd how by the Statute of 37. H. 8. it was declared that by Holy Scripture all Authority and Power is given to His Majesty and to all such Persons as he shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever he would not I believe have thought Lay-men incompetent or incapable Persons so to have acted in the high Commission or Delegacy or have said there was any fault in the Nomination of Lay-men And yet you see my Lord Coke shews you how the Government then acquiesced in such Nomination and assisted the execution of the Sentences given by such as he thought incompetent Nor are we therefore to wonder at what Mr. Bagshaw mentions of the Civilians in the House of Commons not objecting that the King had done contrary to an Act of Parliament in taking from Bishops Chancellors and Officials the Power of exercising Church Censures given them by the Act and which by the Power declared in that Act to be given him by Holy Scriptures he might have either continued to them or abridged or taken away the exercise thereof from them if he had pleas'd And considering that the Lex Scandali doth equally oblige Kings as well as Subjects in Point of Conscience it is not to be wonder'd that that Tender-conscienced King did in that Conjuncture think himself obliged so equitably to make his Interpretation of that Statute as in complaisance with some of his Subjects who had took offence at Lay-Chancellors Power of Excommunicating to disable them to it I told you before how that Pious Prince did in complaisance with the Fathers of our Church think himself obliged to exercise his Regal Power of interpreting or declaring and when in A. 1637. he 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 that the Iudges resolutions were notify'd therein to that purpose and that the ferment about that Point was setled and the Bishops issuing out their Processes was setled too the which Proclamation too you will find Mr. Bagshaw mentions in his second Argument where p. 40. he tells you of the Bishop's having procured a Proclamation A. 1637. declaring the Opinions of the Iudges that the Statute of 1 o Edw. 6. c. 2. is repeal'd and of no force at this day and that Bishops may keep Courts in their own Names And I shall now tell you that as in the year 1637. the Bishops were in so full and peaceable possession of their Privilege of issuing out of their Processes in their own names by means of what His Majesty had declared pursuant to the Resolutions unanimously given by all the Iudges and the Barons of the Exchequer and of which Sir E. Coke saith Inst. 2. that they are for Matters of Law of highest Authority next to the Court of Parliament so by Iudgment of Parliament the settlement of that Controversie by virtue of His Majesty's Declarative Power so exercised was afterward approved A. That is a thing I would gladly hear of for one would think that the exercise of the Regal Power of Declaring or Interpreting what relates to an Act of Parliament might occasionally heighten a ferment in stead of abating it B. You will find little or no cause if you consult our ancient English Story and there see how the mutual Confidence between King and People hath in several Ages supported the Government to fancy that Declaratory Proclamations relating to Acts of Parliament did make any ferment The Interpretation of the Statutes hath in all Causes between Party and Party and wherein meum and tuum and Property are concern'd been by ancient usage under our Kings still left to the Iudges and the Proclamations of our Princes on great emergent occasions in the State declaring or interpreting their Laws pursuant to the Supreme Power committed to them by God for the good of their People hath still been observ'd to tend both to the good of the People and the Laws too If you will look on all the Declaratory Proclamations in the Reigns of Queen Elizabeth and King Iames of which you have a Collection you will I believe find none but what were acceptable among all their Loyal Subjects But as to this Declaratory Proclamation of King Charles the First before-mention'd you will find it as I told you approved in Parliament And if you will please to consult in your Statute-Book the Act of 13 o Car. 2. c. 12. of which the title is Explanation of a Clause contain'd in an Act of Parliament made in the 17th year of the late King Charles Entituled an Act for repeal of a branch of a Statute 1 o Elizabethae Concerning Commissioners for Causes Ecclesiastical you will there find that this Act of the late King 's loyal long Parliament viz. 13 o Car. 2. hath in it three Proviso's The first is concerning the High Commission-Court the second Proviso is concerning the taking away the Oath ex officio And the third Proviso is to limit and confine the Power of Ecclesiastical Judges in all their Proceedings to what WAS and by Law might be used before the year 1639 which plainly includes allows and approves King Charles the First 's Proclamation in the year 1637. In the time of a former disloyal long Parliament the Regal Power of Interpreting or declaring was by them represented as a Gravamen and while yet they usurp'd that Power themselves If you will look on the Declaration of the Lords and Commons in Husband's Collections p. 686. you will there find they say It is high time for the whole Kingdom now to understand that His Majesty's Authority is more in his Courts without his Person then in his Person without his Courts when the Power of DECLARING Law shall be deny'd to the whole Court of Parliament in particular Causes before them for we have claim'd it we have exercised it no otherwise to be obligatory as a judicial Declaration of the Law and shall be attributed to His Majesty to do it in general by his Proclamation without relation to a particular Case and
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
quell'd by Prerogative Can you guess whence it is that men have imbibed this mistaken fancy B. I shall frankly tell you what I think hath occasion'd it It is most natural to all men in arguing to take the shortest course they can to bring their Adversaries to what is reputed by all to be an absurdity and there being some Disabilities that the Law-Books mention wherein Property is concern'd and wherein it appears as an absurd thing in any one who should say that they could be dispens'd with and as for Example what the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tells us of Disability where a man is not of whole Memory which disables him so that his Heir shall take advantage of his Disability after his death and where he passeth any Estate out of him it may be after his death disanull'd by his Heir and which cannot be disanull'd by himself during his life For it is a Maxim of Law That a man of full Age shall never be receiv'd to disable his own Person and for which he cites Sir E. Coke And he had before spoke of Disability by the Persons own Act which is if I bind my self that upon surrender of a Lease I will grant a new Estate to the Lessee and afterward I grant over my reversion in this Case tho I afterward repurchase the reversion yet I have forfeited my Obligation because I was once disabled to perform it Coke lib. 5. f. 21. Thus likewise it appearing to be against reason that men should be made Iudges who are under natural incapacities to exercise Jurisdiction and such as Vantius in his Book de Nullitatibus instancing in as Surdus mutus perpetuò furiosus impubes saith that quoniam defectus incapacitas istorum à naturâ ipsâ provenit ideo à quoquam etiam Supremo Principe suppleri non poterit quia etiam Imperatori tollere non licet quae juris naturalis sunt an asserting of the Power of Prerogative in dispensing with such incapacity would be absurd and it would shew somewhat of laesa Principia and of natural defects and incapacities in one who did rear Suppositions of a Prince's intending to employ such Uncapables and however nothing appearing to the first thought more ridiculous then a dispensing with incapacity of this kind many may be so apt to think that incapacities enacted by Penal positive Laws and by such Laws perhaps as were made in terrorem cannot be dispensed with But in fine when we meet hereafter I shall give occasion to both our thoughts for a higher flight then they had in that poor low Question Can the King dispense with Penal Disability and I shall shew you that where the King can as to any particular man relax the bond of his Law let the most penetrating Wisdom of Men or Angels be employ'd in the settlement and invention of the most terrible Penalties to guard the Law the Person so dispens'd with is ipso facto and ipso jure freed from them all He by being exempted from the Obligation of that Law is as innocent and free from any Sin by the transgression of it as the Child unborn The Dispensation hath intercepted all the Penalties hath absolv'd him à culpâ and therefore à paena and if you punish him you punish an innocent Person A. You will then make a happy riddance of the vexata quaestio of disability if you have not done it already B. But now Sir by WAT of RECOLLECTION as to what hath poss'd between us either at this Conference or the other if any thing occurs to your thoughts by me either obscurely spoken and which you would wish better illustrated or what may seem in the least to reflect on our Laws or on the Religion of the Church of England by Law establish'd I do most earnestly conjure you now to name it to me It is possible that for a Month or two's time we may not meet again and therefore I shall be glad that our parting now may be without any offence given or taken as to any of these Matters premised and in order to which that while what hath passed between us is fresh in both our Memories any misunderstanding therein may be prevented And I yet further give you the liberty in case any thing of the nature aforesaid or of what nature soever shall occur to your thoughts after we are parted which we have discoursed of and which you would wish better consider'd that you would when we meet again freely impart it to me and when if you can shew me that I in any thing have erred I shall shew you my readiness not to persevere therein and so we shall be both gainers you will gain the Victâ—…ry and I the Truth A. I am sure I cannot oblige you more then by making use of the freedom you have offered me as I should find occasion so to do and for which at present I find but little I was during our Discourse of the Interpretation of the Oath of Supremacy afraid that you would have leâ—…t some great words in it that relate to no Foreign Prince or â—… relate having any Iurisdiction here Ecclesiastical or Spiritual c. under some clouds of doubtfulness and thereby have seem'd to derogate from the honour of the Oath till I found that you both asserted the honour of the Oath and of the Government too by shewing it from the Sentiments of my Lord Primate Bramhal and otherwise that Coactive Iurisdiction was thereby only meant B. I must caution you with a Nota bene to keep in your mind what I have both positively and argumentatively told you in obviating your scruples about the Oath and of the Regal Power of interpreting making the Coast of the Oath so clear to you and how I have supported the honour of the English Consciences of all considerate Persons of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's by shewing you that their sense of the Bishop of Rome's having here NO Iurisdiction was of no Independent Coactive Iurisdiction when they took the old Oath of Supremacy and likewise of those of the Church of England who in Queen Elizabeth's time and ever since took the new one And I need not tell you again that at the time of the making of the Statute of 37 o of H. 8. and of the Revival of it by Queen Eliz. and wherein it was declared that Archbishops Bishops c. have NO manner of Iurisdiction Ecclesiastical but by under and from His Royal Majesty both Harry the 8th and that Queen and the judicious in the Clergy of each knew that as to their Potestas Ordinis which by virtue of their Function they have to Preach and give the Sacrament and give Orders c. it was derived from Christ to the Apostles and their Successors and that so likewise was the Potestas Iurisdictionis in foro interno and that therefore none needed to suppose that either by
the other c. that the Wisdom of that House in acting as it hath done in many Conjunctures hath put an end to many ferments accidentally occasion'd by others mistakes about Prerogative and whereby that august Assembly did sometimes Cunctando restituere rem and by its forbearing out of tenderâ—…ess for Prerogative to give judgment about it hath often to the Satisfaction both of the Prince and People left the Regal Rights in their ancient quiet Estate I shall for this purpose observe to you that I once reading to the late Earl of Anglesy when he was Lord Privy Seal what I had in a Manuscript of mine set down as the Fact of what had passed between the late King and the House of Commons concerning his Declaration of Indulgence on March the 15th 1671. and the Penal Laws being thereby suspended and the suspension of which the Commons then urged could not be but by Act of Parliament and whereupon they apply'd to the King for the Vacating that Declaration his Lordship did dictate to me in order to my Compleating the state of that Fact and which I writ from his Mouth as followeth viz. But it is to be observ'd upon this whole Transaction between the King and the House of Commons that the Lords had no hand in the Address to the King about this great Point altho it be uncontroverted that the Lords are the only Iudicatory that can determine any controverted Point without an Act of Parliament and either the King or the Commons might in a particular Case have had this Point brought by Appeal to the Lords if they had pleas'd and consequently might have effected the judicial decision of the same A. In your State of that part of the Fact that concern'd the Commons did they Address against the Dispensing with Acts of Parliament B. No but only against the Suspending them which are things of a different Nature The same House of Commons by having Iuly the 10th 1663. resolved That His Majesty be humbly desired to issue forth his Proclamation for the punctual and effectual Execution and Observance of the Act of Navigation without any Dispensation whatsoever whereby the Act may be in the least violated and to recal such Dispensations as are already granted c. did virtually shew a Deference to His Majesty's right of Dispensing Nay let me tell you that the very many Acts of Parliaments which expresly provide against the Crown 's dispensing by Non-obstante in some particular Cases may all be cited as Presidents or Iudgments of Parliaments for the propping up the Dispensative Power and of Parliaments having admitted that Power in our Kings the exercise of which they provide against and desire to take away in such particular Cases But by referring to the Fact of the entercourse between the late King and the House of Commons about the suspending the Penal Laws I have took occasion to point out to you the Wisdom of the Government in then passing that affair over without a judicial decision And I can give you an instance of the Prudential measures formerly observ'd by Persons who made a great figure in the Administration of the Ecclesiastical Government of the Church of England and who at the Consecration of Bishop Manwaring when on the usual Process at Consecrations to call all Persons to appear to shew cause why the Elect should not be Confirm'd some then appear'd objected against him that upon his being Impeached 3 o Car. 1. by the Commons the Lords had given Iudgment against him to disable him from all Preferment in the Church forbore to consider the merits of the Exception and throwing them off by a Pretence of their being defective in some Formalities of Law went on in the Confirmation And which is more I can tell you that long afterward viz. A. 1640. the Lords highly resenting both the Pardon and Bishoprick he had obtain'd and calling to mind the Sentence they had pronounced against him did on the 18th of April that year refer the Consideration thereof to their Grand Committee for Privileges it being also moved that what can be alledged on the Lord Bishop of St. David ' s part either by Pardon Licence or otherwise may be produced and seen at the Sitting of the Lords Committees for their full and clear understanding and better expedition in the business and on the 21st of April that year order'd that on the following Monday the Records be brought into the House that the House might determine the Cause and on the 27th of April following order'd the Cause to be heard the next day and upon which day some such fatal Sentence being expected against the Bishop as And his Bishoprick let another man take by reason of his having been judicially disabled His Majesty commanded that Bishop not to Sit in Parliament nor send any Proxy thither and the serment of the debate went off without any Iudgment given by the Lords that might touch Prerogative in the Point And if in the year 1640. when the air of mens fancies was so much infected with the Pestilence of Faction so much tenderness was shewn to Prerogative and that too in the Case of a Criminal whom the Commons had for so many years made the great object of their anger as one whom they look'd on as a Proditor or Betrayer of his Country and Betrayer of their Properties the Loyal may well say quid non speremus as to any future ferment that can rise in Parliament being allay'd without Prejudice to the Crown The Iournals of Parliament in the Beginning of the Reign of King Charles the First do tell us of the great ferment about the Pardon of Bishop Montague whom the Commons had impeach'd before the Lords and who after the Parliament was Prorogued to the 4th year of the reign of that Prince had obtain'd his Pardon in the time of the Prorogation and that such Pardon was by the Commons question'd and that such questioning soon evaporated But according to that Great Saying of Sir Harry Martin in his Speech at a Conference between both Houses as you will find it in Râ—…shworth after he had mention'd the inconvenience of nice debates about the Original Latitude and Bounds of Sovereign Power viz. I have ever been of opinion that it is then best with Sovereign Power when it is had in tacit veneration and not when it is prophaned by Publick Hearings and Examinations you will find that it hath been the usual Practice of our great Loyal Patriots in many Critical Conjunctures of time to prevent the popular Criticising on Controverted Points of Prerogative and to provide for the ease both of Prince and People by giving no other rule in the Cause then the putting it off in longissimum diem A. I suppose that excellent Political remark of Sir Harry Martin's was so made by him in the Conjuncture of the Petition of Right I have read of the great ferment the Petition of Right made in the beginning of the Reign