making his Interpretation of the Law to be a rule in all Cases as in divers late Proclamations he hath done And if you will look on His Majesty's Answer to the Declaration of bâ—…th Houses of Parliament of July 1. 1642. you will find there very many Profound Observations and Presidents and Authorities of Law and wherein he several times refers to the happy times of that good Queen Elizabeth as well as to ancient Times and he thence taking his measures saith in p. 15. The King caus'd Proclamations to be made for in such Cases Proclamations declaratory were not conceiv'd in those times to be illegal c. And you may easily imagine this Power of authentick Interpretation very well Consistent with the just Power of the House of Lords in declaring the Law in a particular Case of which I occasionally mention'd to you the late Earl of Anglesy's opinion But how not only the Lords but the House of Commons did often during the late Rebellion encroach on the Regal Power of declaring and by Ordinances without and against the King's consent I shall some other time shew you at large A. Can you readily now at this time give any instance of the House of Commons thâ—…n doing any thing of that Nature B. Yes and I can refer â—…ou for the fact of it to The Declaration of King Charles the First of August 12. 1642. to all his lâ—…ving Subjects and who there mentionâ—… That after several in imations of Treasons PLOTS and Conspiracies 〈◊〉 the Papists of great Provisions of Arms by them and training Men under-ground and many other false Reports created spread and countenanced by themselves upon some general Apprehensions of Designs against them a Protestation is made in the House of Commons for Union and Consent among themselves to perform those Duties which if they had meant no more then they had express'd had been sufficiently provided for by the Oaths they had already taken and which their former Duties obliged them to Hereupon a Protestation is framed and being put into such words as no honest man could believe himself obliged by it to any unlawful Action was voluntarily taken by all the Members of the House of Commons and presently recommended to the House of Lords where it receiv'd the same Countenance that is was look'd upon as containing nothing in it self unlawful tho some Members of that House refused to take it as being voluntary and not imposed by any lawful Authority Then 't is recommended to the City of London and over all the Kingdom by Order from the House of Commons a strange and unheard of Usurpation to be taken by all Persons But within very few days upon Conference among themselves and among those Clergymen who daily sollicite their unlawful and unwarrantable Designs with the People they find they were by this Protestation so far from having drawn People into their Combination that in truth all men conceiv'd that they were even engaged by it against their main Design by promising to defend the true Reform'd Protestant Religion express'd in the Doctrine of the Church of England And thereupon some Persons of that Faction prevail'd that after the Members of the Houses had taken it a Declaration was set forth by the House of Commons that by those words The Doctrine of the Church of England was intended only so far as it was opposite to Popery and Popish innovations and that the words were not to be extended to the maintenance of the Discipline and Government c. and so under this Explication and Declaration publish'd only by the House of Commons and never assented to by the House of Peers this Protestation was directed to be generally taken throughout England And to that purpose a Bill is drawn passed the House of Commons and sent up to the House of Lords who at the second Reading finding many particulars in it unfit to be so severely imposed upon the Subjects absolutely rejected You see here again an Instance of the Prudence of the great Consiliarii Naâ—…i His Majesty's great Councel in not aiding the Faction against Prerogative in that Point For tho on the account of His Majesty's tacit Dispensation by way of Connivence presumed in that Conjuncture many of the Loyal of the Church of England did take that Protestation and concur in the recommendation His Majesty not having Prohibited the taking of it as he did aâ—…terward by a Proclamation forbid the taking of the Covenant â—…et when it was visible that such an Interpretation so encroaching on the Church of England and on Prerogative was design'd without and against His Majesty's Approbation to be imposed on the People it is not to be wonder'd that the Lords as things then were rejected a Bill of that Nature But it follows then in His Majesty's Declaration Yet of this we took no notice but pressed still the Disbanding of the Armies c. so that the ferment about the Protestation and the trouble it gave the Kingdom by the Super-induced Interpretation were in a short time over A. You having from the occasion given you by Queen Elizabeth's Power of interpreting and by her dispensing with disability in all who took the Oath of Supremacy according to the sense notify'd in The Admonition referr'd my thoughts often to the Regal Power of interpreting and having in the beginning of our Discourse this meeting left it to me tâ—… consider how much the Power of Dispensing with any Law may be thought â—…o-incident with interpreting and promised me that you would some other time shew me at large that the Dispensing with Laws is in effect the equitable interpreting that in such and such Cases and Circumstances they were not intended and ought not to bind but ought to be relax'd I shall be glad if before we part you would do it B. I had rather do it at our next meeting And if in the mean time you please to entertain your self with Bishop Taylor 's Ductor Dubitantium you will there find much learnedly writ of this subject And he there in l. 3. c. 6. particularly tells us that the Interpretation of Laws made by Iudges is matter of Fidelity and nothing of Empire and Power and it is a good probable warranty of Conscience â—…ut no final Determination in case any doubt happen to oppose it No man is to ask favour of the Iudge but of the Prince he may And he had before said That when the Power that made the Law doth interpret it the Interpretation is authentical and â—…bligeth Conscience as much as the Law and can release the Bond of Conscience as far forth as the Interpretation extends as if the Law were abrogated and that whether it be by declaring the meaning of the Law or by abating the rigour or by dispensing in the Case or enlarging the Favour or restraining the Severity it is all one as to the event of the Obligation of Conscience A. But it seems then that he makes the declaring or interpreting the meaning
containing all things necessary to such Consecration and Ordering c. It is Enacted c. that all Subscriptions hereafter to be had or made to the said Articles by any Deacon Priest c. or other person whatsoever who by this Act or any OTHER LAW now in force is required to subscribe unto the said Articles shall be construed and taken to extend and shall be applyed for and touching the said 36th Article to the Book containing the form and manner of making ordaining and consecrating of Bishops Priests c. in this Act mentioned in such sort and manner as the same did heretofore extend to the Book set forth in the time of King Edward the 6th mention'd in the said 36th Article any thing in the said Article or in any Statute Act or Canon heretofore had or made to the Contrary hereof in any wise notwithstanding It is clear that the Parliament had then their Eye on the Act of 13. Eliz. and on that Canon of King Iames and which you may take as referr'd to by the words or any other Law now in force for so they then knew it to be and as it still is tho with the interpretation extended by the Act to it and afterward by the word Canon But one may guess that by the Authority of some of the Lords the Bishops there was before the making of this Canon of King Iames and after the Act of 13. Eliz. in her Reign some Subscription under disabling Penalties required of Ministers beyond what that Statute required by what the Author of Certain Considerations tending to promote Peace mentions in p. 4. viz. That in the 30th year of the Reign of Queen Elizabeth the House of Commons presented to the Lords Spiritual and Temporal a Petition containing divers particulars for the redress whereof they desire that no Oath or Subscription might be tender'd to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of the Realm except the Oath against Corrupt entring that they may not be troubled for the omission of some Rites or Portions prescribed in the Book of Common Prayer that such as had been suspended for no other Offence but only for not subscribing might be restored A. It seems those Bishops then did as your Expression was Dispensare in lege and were as I may say Non-conformists to it by going beyond it For they were obliged sapere ad Regulam and all Conformity is respectu regulae and he who doth over-shoot or who over-does what is enjoyn'd is a Non-conformist B. You here put me in mind how some of our Bishops and Clergy have been thus Non-conformists in over-shooting their mark at the same time that they have with undistinguishing severity executed the rigour of the Laws against all who did shoot short The Royal Martyr in his Declaration to all his Loving Subjects Publish'd with the Advice of his Privy Councel A. 1641. refers to some Ceremonies in our Church which have been used without any legal Warrant or Injunction and which already are or speedily may be abolish'd A. But I a little wonder that a House of Commons should Petition for the Dispensing with some legal Rites and required both by Injunctions and Canons and by Acts of Parliament B. I do not wonder at it at all For Conjunctures having happen'd when some Non-conformists having been tender of the Peace of the Government you need not wonder at any tenderness in it for them For as in the Conjuncture of the Resteration of King Charles the Second very many of the Presbyterians and of other Sects then shewing their Loyalty the Author I lately cited taking notice thus of the Declaration A. 1660. viz. in which his Majesty saith Our present Consideration and work is to gratifie the private Cosciences of those who are grieved with some Ceremonies by indulging to and dispensing with the omitting of those Ceremonies A Member of the House of Commons in an Epistle to His Majesty useth these words viz. which Indulgent Declaration so ravished the hearts of all your Loving Subjects that your whole House of Commons their Representatives then assembled in Parliament immediately after the Publication October 8th 1660 repair'd in a Body to White-hall and there by their Speaker's Oration in the Banquetting-House express'd their extraordinary great Ioy and presented their general Thanks to your Majesty for this your Majesty's most gracious Declaration and Dispensation with their Consciences in Matters not being of the substance or essence of Religion which gave abundant satisfaction to all peaceable sob rminded Men and such as are truly Religious in which return of their Thanks they were all unanimous Nemine Contradicente then Ordering a Bill in Pursuance of your Majesty's Declaration Note that this was that House of Commons which together with the House of Lords brought His Majesty to the Throne so long before namely in the first year of King Charles the First and A. 1625. both Houses presented a Petition to the King wherein they desire that His Majesty would please to advise the Bishops by fatherly entreaty and tender usâ—…ge to reduce to the peaceable and orderly Service of the Church such able Ministers as have been formerly SILENCED c. and which is in effect all one such able Ministers as have been formerly disabled A. I am highly pleas'd with your further bringing any thing to me like Iudgment of Parliament that may strengthen the Regal Power of interpreting or of dispensing with disability We have discours'd of the Subject a pretty while together at this Meeting and I must acknowledge you have entertain'd me with an account of many Statutes that have propp'd up the Regal Power of dispensing with disability and that too tho you observ'd it not to me not only in their Preambles but in their enacting parts the which I account more momentous Nor can I forbear observing it to you that in the late Printed Books of some who asserted this dispensative Power nothing like Iudgment of Parliament hath been cited in the case for it but that out of Rot. Parl. 1. H. 5. 11. 22. out of Rolle Tit. Prerogative le Roy fol. 180. viz. The Commons prayed that the Statutes for voiding of Aliens out of the Kingdom might be executed to which the Kiâ—…g agreed saving his Prerogative that he might dispense with such as he pleas'd And upon this the Commons answer'd that their intention was no other nor ever should be by the help of God. But this was only the judgment of a House of Commons and that is short of the Authority of a House of Lords concurring with them tho but in a Petitionary manner that the Regal Dispensative Power might be exerted and which latter is far short of the Authority of an Act of Parliament And among the many Parliamentary Recognitions of the Dispensative Power you have mentionâ—…d to me that which you told me at our first meeting of the Act of Uniformity 16 o Car. 2.
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
Consilium Peritorum and Discourse and Communication with others whom in meekness and lowliness of mind I am obliged to esteem better then my self to fix my own Iudgment of Discretion in this matter and will not deny to assist and defend this Preheminence of my Prince in particular without being morally certain that it is not granted or belongs not to him and will take the best care I can to effect that by any that by any lachesse or omission of the great Duty of Consideration I may give no man occasion again to exercise his Charity in not pronouncing me to be formally perjured and that after my Prince hath pardon'd me my attempted excluding him from the Throne I may not endeavour the disabling him from any one of his Rights while he is on it for so the style of the Exclusion Bill ran and it might have been as well call'd the Disabling Bill according to the words there shall be Excluded and DISABLED and is hereby Excluded and Disabled c. from all Titles Rights Prerogatives c. and rights that I have sworn to defend The Lord Chief Justice Vaughan who was a man of the first-Rate Talents if you consider both his natural and acquired parts doth yet in Thomas and Sorrell's Case in his Reports call the King's Power of Dispensing dark Learning and saith it seem'd so to him tho after so many Arguments in the Case And as that great Man found it dark so I think he left it such in some measure however yet so many daring Sciolists and who never look'd on a Law-Book in their lives will pretend to Oâ—…niscience in the Matter and perhaps out of a vain Jealousie of the King's Omnipotence being thereby asserted But I know your thoughts have travail'd far in this dark Learning and wherein you confess'd to me once that you had receiv'd some Illumination from that Iudge's Argument and as likewise you had from a Manuscript Report of that Case of Thomas and Sorrell containing an account of the things urged by the other Iudges and by the Councel concern'd in that Case and which are not mention'd in Sir I. Vaughan's Report of it and where he relates little but his own Argument He was a fair Reasoner and frank Discourser on all occasions and not byassed by any mercenary humour and according to that Candour you have often commended in him and which I have likewise experimented in your self let me now again make use of it in your imparting to me your thoughts in order to the Directing and Setling of mine as to the observance of my Oath in this particular And tho I know we live in a crooked and perverse Generation wherein so many are at the same time decrying both summum jus and Persecution and too all relaxation of the Laws and their Spirits lie like that Haven Acts 27. 12. toward the Southwest and Northwest two opposite Points and one would scarce think it possible that mens Spirits could be so extremely winding and crooked and thus opposite to themselves and while too they are crying out that any lawful Dispensing with the Laws establish'd is Contradictio in adjecto yet that Lord Chief Iustice's Report hath shew'd me the legality of the Dispensative Power in many particulars so far as to excite in me a desire to know more of it and to move me to pity the ignorance of my Countrymen who thus cry out of Contradictio in adjecto and not knowing what a Dispensation in Law means will fall under that censure of the Monk viz. Corrigis magnificâ—…t nescis quid Significat and of that Adage in Erasmus Stultior Choraebo who not being able to reckon in Numbers beyond five would yet undertake to Compute the numbers of the Waves in the Sea oras I may say in the words of S. Paul desiring to be Teachers of the Law understanding neither what they say nor whereof they affirm yet I assure you the Vogue of the Mobile will no more influence my thoughts about the Motion of the Laws by Dispensation then it would about the Motion of the Earth and who would take it very ill if they should be told it moves as fast as a Bullet out of a Canon because they do not perceive it A late great Philosopher of our Country hath told us That every day it appeareth more and more that years and days are determin'd by Motions of the Earth and another hath from the Diurnal and Annual Motion of the Earth endeavour'd to salve the Flows and Motions of some Seas illustrating the same by Waterin a Bowl arising or falling to either side according to the Motions of the Vessel but perhaps should a Prince in his Writings inculcate the Philosophy of the Earths motion the populace would have Fears and Iealousies of the instability of the Foundations of their Houses and Towns and of the shaking of their Property and as they have by Dispensations and they would be apt to quote Scripture against such Motion nay tho they should be told that such Motion would ennoble the Earth by exalting it into Heaven and too as Dispensations may be said to do by conducting those to Heaven who believe Humane Laws obliging the Conscience and yet shall not observe some of them But as when ever you have heretofore discours'd to me of Copernicus and Galilaeus and their Hypotheses you always found me an attentive Hearer you will be sure now much more to find me so while you are speaking of any of my Prince's Privileges that I am sworn to defend for I am now concern'd not to salve Phaenomena but to save my Soul by keeping my Oath And in the temper I am in now my whole Soul is overflowed with the sense of my having so lately through incogitancy violated that part of my Oath that so plainly obliged me to assist and defend the Hereditary Monarchy I shall be as chearfully attentive to you while you acquaint me with any Obligations resulting from my Oath as I would be to any one who told me how much I owed another and at the same time enabled me to pay it B. I shall be most ready when we meet next which I suppose will be very shortly to afford you lumen de lumine in any of the few things I know about this dark Learning In the mean time I shall observe to you on the occasion of your Mentioning the Lord Chief Iustice Vaughan's Report of Thomas and Sorrell's Case that as it hath through the Divine benignity been the frequent Method of Providence to send into the World unheard of Maladies and Remedies in the same Conjuncture of time and so likewise to make pestiferous Haeresiarchs and learned Confessors of the truth Contemporary and further when Heaven had made many of the inquisitive curious to thirst after the knowledge of truth in the works of Nature then to bless the World with the Discourses and Writings of Galilaeus Tycho-Brahe my Lord Bacon Gassendâ—…s and Des Cartes and Dr.
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
likewise all the Roman Emperors from Augustus to Gratian to assume that title and that the Christian Emperors tho as one saith à fucris Romanorum hoc Pontificis nomine abhorrebant in suis tamen Elogiis nummis passim se Pontifices maximos dici passi sunt quod ad hodiernum diem râ—…dera Romana inspicientibus satis constaâ—… Nor yet will any one find Cause to reflect on the memory of that our Prince for want of consulting his Iudges in the interpretation of his Laws in general nor even of this his Ecclesiastical Law in particular about the Explanation of the Regal Power For Heylin in his History of Archbishop Laud saith that so tender was His Majesty that before he gave his Consent that the Canons of 1640. should be tender'd to the Clergy to be subscribed â—…e caus'd them to be publickly read in Councel and before the Iudges there and by all whom they were approved c. And if Mr. Bagshaw had consider'd what himself had said of the Iudges having no Right to Expound texts of Scripture and how the Convocation in that Canon did introduce the Supreme Power given to Kings by God himself in the Scripture and explain'd by Regal Power Kings ruling and commanding in their several Dominions all Persons of what rank or estate soever and that they should restrain and punish with the Temporal Sword all stubborn and evil doers and likewise what was before mention'd in the Second Paragraph of the Explanation viz. of the Care of God's Church committed to Kings in the Scripture he would have found the Interpretation of the Regal Supremacy as built on the Scriptures by that Caâ—… and approved too by the Judges of the Land to have not been exorbitant The words in the 13th of the Romans of the Higher Powers being the Ordinance of God and of bearing not the Sword in vain and of being the Minister of God and a revenger to execute wrath on him that doth Evil and of rendring therefore to all their dues fear to whom fear honour to whom honour and the words in S. Peter of submitting our selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or unto Governors as unto them that are sent by him for the Punishment of evil doers and for the Praise of them that do well and other passages in Scripture and particularly in the Old Testament were in the eye of the Convocation in their so explaining the Regal Power and you may if you please have them now in your eye while you are considering the Case before you and see how far you are bound to submit to all Governors who shall be employ'd by the King in the executive Power of his Laws against evil doers and for the praise of them that do well and how you are not to disparage such Governors who are so sent for such praise But it is not to be wonder'd at that the Iudges approved of the Contents of that Explanation of the Regal Supremacy and particularly of the Power of punishing evil doers as inherent in the Crown since the same hath been declared so by so many Acts of Parliament and of which I shall name one to you that I have not yet referr'd to viz. that of 1 o Mariae c. 1. Sess. 2. of the Second Parliament of which the title is The Regal Power is in the Queens Majesty as fully as it hath been in any her Progenitors and where 't is said that For as much as the Imperial Crown of this Realm with all Dignities Honours Prerogatives Iurisdictions and Preheminences thereunto annex'd united and belonging by the Divine Providence of Almighty God is most lawfully and rightfully descended and come to the Queen's Highness that now is c. and invested in her Royal Person according to the Laws of this Realm and by force and virtue of the same all Regal Power Dignity Honour Authority Preheminence doth appertain and of right ought to appertain and belong unto her Highness as to the Sovereign Supreme Governor and Queen of this Realm and the Dominions thereof in as full large and ample manner as it hath done heretofore to any other her most noble Progenitors Kings of this Realm the ample manner of Harry the 8th's Power is not therein excepted Nevertheless the most ancient Statutes of this Realm being made by Kings then reigning do not only attribute and refer all Prerogative Preheminence Power and Iurisdiction Royal unto the name of King but also do give assign and appoint the Correction and Punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King c. And considering that a Popish Parliament of Queen Mary's did give this their august Declarative sense of the executive Power of punishing all Offenders against the Regality and Dignity of the Crown which is the great Offence taken at Popery and the Laws of the Realm as belonging to or inherent in our Kings by virtue of their being Supreme Governors of the Realm and that this Supreme Power was Committed to her and her Progenitors by the Divine Providence of Almighty God shall your acknowledgments of such Supreme Power of your Prince be narrower then any of Papists You know how wary and careful our English Princes have always been that their Subjects might see them hold the reins of the Executive Power of the Law in their hands and that none but the stubborn and evil doers need fear the being over-run by it And while I happen to think of the memorable Expression of a Loyal Lord in a Speech in a late Parliament of the unreasonableness of any ones suffering merely by the word Proditoriè being put into the charge of a thing that was not in its self Evil and as if it were said that such an one did traiterously pass over the Thames in a Boat I likewise think of the reasonableness of our Laws in providing for the common Safety by the Prince being allow'd to hold the Sail of the Executive Power in his own hands and which otherwise if ty'd fast about the Boat might cause it upon any sudden gust of wind to be overset You know therefore how King Iames the First in his Apology for the Oath of Allegiance in Answer to the Pope's first Breve thought himself obliged in justice for the maintenance of that Executive Power of the Crown to say as to the Pope's expressing his sorrow for that Persecution which the Catholicks sustain for the Faiths sake wherein beside the main untruth whereby I am so injuriously used as if he had thought it a personal injury to himself that any one in his Realm should be persecuted for Religion I must ever avow and maintain as the truth is according to mine own knowledge that the late QUEEN of famous Memory never PUNISH'D any Papist for Religion He doth not say her Laws and Ministers but SHE never punish'd c. He well