Roman Catholick Physicians and Lawyers had incurr'd by his Acts of Parliament I have told you But what if I should now tell you how afterwards he did take care as it were unâ liturâ to delete the Execution of â—…ll the Penal Laws disabling ones and others against the Roman Catholicks and that as to what he did therein the most zealous Protestants among his Bishops and the Lords Temporal and others of his Privy Council did concur with him in so doing A. I think you would tell me of that which was very strange B. As in the Happy future State of England it was with an intent to detect the Degeneracy and Vanity of the Politick and Protestant-would-be's of the Age who pretended to Advance Religion by Excluding the next Heir in p. 219. shewn that one of the general and publick Articles sent by King James the First to his Embassador in Spain in Order to the Match with the Infanta was that the Children of this Marriage shall no way be compell'd or constrain'd in point of Conscience or Religion wherefore there is no doubt that their title shall be prejudiced in case it should please God that they turn'd Catholicks and that it was afterward sent as an additional Article offer'd from England that the King of Great Britain and Prince of Wales should bind themselves by Oath for the Observance of the Articles and that the Privy Council should sign the same under their Hands and that accordingly the Articles were sign'd by Archbishop Abbot John Bishop of Lincoln Keeper of the Great Seal Lionel Earl of Middlesex Lord high Treasurer of England Henry Viscount Mandevile Lord President of the Council Edward Earl of Worcester Lord Privy Seal Lewis Duke of Richmond and Lennox Lord high Steward of the Houshold James Marquess of Hamilton James Earl of Carlisle Lancelot Bishop of Winchester Oliver Viscount Grandison Arthur Baron Chichester of Belfast Lord Treasurer of Ireland Sir Thomas Edmonds Knight Treasurer of the Houshold Sir John Suckling Comptroller of the Houshold Sir George Calvert and Sir Edward Conway Principal Secretaries of State Sir Richard Weston Chancellor of the Exchequer Sir Julius Caesar Mr. of the Rolls and for the truth of which Facts reference is there made to Mr. Prynne's Introduction to the Archbishop of Canterbury's Trial p. 43 so you may there read it in p. 44. that some private Articles were agreed on and probably were Sworn to by the same Persons that the other general ones were and of which private ones the first was in short That none of the Penal Laws against Roman Catholicks should at any time hereafter be put in Execution But you may thus see it at large viz. That particular Laws made against Roman Catholicks under which other Subjects of our Realms are not comprehended and to whose Observation all generally are not obliged as likewise general Laws under which all are equally Comprised if so be they are such as are repugnant to the Romish Religion shall not at any time hereafter by any means or chance whatsoever directly or indirectly be commanded to be put in Execution against the said Roman-Catholicks And we will cause that our Councel shall take the same Oath as far as it pertains to them and belongs to the Execution which by the hands of them and their Ministers is to be exercised The 2d was That no other Laws shall hereafter be made anew against the said Roman Catholicks but that there shall be a perpetual Toleration of the Roman Catholick Religion within Private Houses throughout all our Realms and Dominions which we will have to be understood as well of our Kingdom of Scotland and Ireland as in England c. And the 4th was That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks c. And the Conclusion there is viz. That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks to whose observance also the rest of our Subjects and Vassals are not obliged as likewise the general Laws under which all are equally comprehended to wit â—…s to the Roman-Catholicks if they be such as is aforesaid which are repugnant to the Roman-Catholick Religion and that hereafter we will not consent that the said Parliament should ever at any time Enact or Write any other new Laws against Roman-Catholicks We accounting all and singular the preceding Articles ratified and accepted out of certain Knowledge as far as they concern us our Heirs or Successors approve ratifie applaud and promise bonâ—… fide and in the word of a King by these Presents inviolably firmly well and faithfully to keep observe and fulfill the same and to cause them to be kept observed and fulfilled without any Exception or Contradiction and do confirm the same by Oath upon the holy Evangelists notwithstanding any Opinions Sentences or Laws whatsoever to the contrary In the presence of the most Illustrious Don John de Mendoza Marquess of Inojosa and Don Charles Coloma Extraordinary Ambassadors of the Catholick King of George Calvert Knight one of our Chief Secretaries of Edward Conway Knight another of our Chief Secretaries of Francis Cottington Baronet of the Privy Councel to our Son the Prince of Francis de Corondelet Apostolical or the Pope's Prothonotary and Arch-Deacon of Cambray Dated at our Palace at Westminster the 20 day of July 1623. in the English style Jacobus Rex A Compared and true Copy George Calvert Chief Secretary The Form of the Oath which the Lords of the Councel took to the former Articles is this which followeth found among the Lord Cottington's Papers Formula Juramenti à Consiliariis Praestandi Ego N. Iuro me debitè plenéque observaturum quantum ad me spectat omnes singulos Articulos qui in tractatu Matrimonii inter Serenissimum Carolum Walliae Principem Serenissimam Dominam Doâ—…nam Mariam Hispaniarum Iâ—…fantem continentur IURO ETIAM Quod neque per me nec per Ministrum aliquem inferiorem mihi inservientem legem ullam contra quemcunque Catholicum Romanum conscriptum executioni mandabo aut mandari faciam Poenamve ullam ab earum aliqua irrogatam exigam Sed in omnibus quae ad me pertinent Ordines à Majestate sua ex ea parte constitutos fideliter observabo Thus far Mr. Prynne who verifies the Facts above-mention'd not only from my Lord Cottington's Papers but from the Mercure Francois Tom. 9. A.
thing of that nature but in such a fair and legal way as should satisfie all his loving Subjects The Duplys of the Divines of Aberdene p. 54. and p. 130 131. Whereupon Mr. Ley thus goes on viz. Wherein Wise men who judge of Consultations and Acts by their probable Effects and not unexpected Events cannot but highly commend His Majesty's Mildness and Clemency which we doubt not would condescend to your Requests for a removal of this great aggrievance if you would please to interpose your Mediations to so acceptable a purpose and upon our humble sute which in all submissive manner we tender to your Lordship and by you to the rest of your Reverend Order we hope you will do so since we have it upon his word His Royal Majesty's word which neither in Duty nor Discretion we may distrust that the Prelates were their greatest Friends i. e. of his Scottish Subjects their Councels were always Councels of Peace and their Solicitations vehement and earnest for granting those unexpected Favours which we were pleas'd to bestow upon our People The King 's large Declaration p. 420 Thus then the Royal Dispensation with the five Articles of Perth was at the Intercession of the Bishops tho' they knew the same Establish'd by Act of Parliament graciously afforded to his Scotish Subjects Those Articles of Perth related to various Religionary Matters viz The introducing of Private Baptism Communicating of the Sick Episcopal Confirmation Kneeling at the Communion and the observing such ancient Festivals as belong'd immediately to Christ and of which Doctor Heylin in his History of the Presbyterians having spoken saith That the King 's indulging the Scots in Dispensing with the Penal Laws about them was an Invitation to the Irish Papists to endeavour by armed force to Compass the King's Dispensation But how tenderly the Consciences of the Roman Catholics in Ireland were in the Reign of the Royal Martyr THEN Protected under the Wing of the Dispensative Power contrary to what the Dr. observ'd any one may see who will Consult my Lord Primate Bramhal's Replication to the Bishop of Chalcedon where he saith That the Earl of Strafford Lord Lieutenant of Ireland did commit much to my hands the Political Regiment of that Church for the space of Eight years In all that time let him name but one Roman Catholic that suffer'd either Death or Imprisonment or so much as a pecuniary Mulct of Twelve Pence for his Religion upon any Penal Statute if he can as I am sure he cannot c. And such was the acquiescence of the Populace and of the three Estates in the Penal Lawes there against the Roman Catholics being thus dead or asleep that in the Printed Articles of Impeachment against the then Lord Chancellor of Ireland and that Lord Primate thâ—…n Bishop of Derry and others of His Majesty's Publick Ministers of State exhibited by the Commons to the Lords in the year 1640. there is not a syllable of Complaint against those Lawes being so dispens'd with by Connivence Nor yet in the Printed Schedule of Grievances of that Kingdom voted in the House of Lords there to be transmitted to the Committee of the same House then attending in England to pursue Redresses for the same is there any representation of such Indulgence being any Gravamen nor yet of the great Figure the Irish Papists then made in the Government the Majority of the Parliament and of the Iudges and Lawyers then being such And pursuant to that Prince's Indulgence offer'd to the tender Consciences of his Subjects in the year 41. he was graciously pleas'd in the Treaty at Uxbridgâ—… to order his Commissioners who were such renown'd Confessors of the Church of England to make the first Royal offer there that freedom be left to all Persons of what Opinion soever in Matters of Ceremony and that all the Penalties of LAWS and Customs be SUSPENDED And the truth is since the Christian Religion did in its first settlement so rationally provide for its Propagation in the World and its bespeaking the favour of Princes by its enjoyning Subjection and Obedience to their Lawes not only for Wrath but Conscience sake and since that Principle of humane Lawes binding the Conscience which was so often and so publickly avow'd by that Prince and Arch-bishop Laud and Bishop Sanderson and the Divines of the Church of England in General is the surest guard to Princes Thrones and their Tribunals and that therefore 't is the Interest of the Prince and People to be more watchful in preserving that Principle then all the Iewels of the Crown or Walls of the Kingdom that Prince did therefore necessarily take Care to preserve and to perpetuate in some of his tender-Conscienced Subjects a continued Tenderness for his Lawes by his lawful Dispensative Power as particularly in the Case of his Scottish Subjects in taking off the Obligation of Obedience and of Conforming themselves to the Establish'd Lawes for such Dispensation intrinsecally notes the taking off such Obligation from the Persons dispens'd with And it is indeed a Solecism for any one to ask Indulgence from a Prince who owns the Law of the Land binding him in Conscience if he doth not think such Prince perswaded that his Power of granting it is a part of that LAW He was not ignorant of his Father's Aversion against the Penal Lawes in general and on which Account my Lord Bacon celebrating him saith As for Penal Lawes which lie as snares upon the Subjects and which were as a Nemo scit to King Henry 7. it yields a Revenue which will scarce pay for the Parchment of the King's Records at Westminster And religionary Penal Lawes requiring the greatest tenderness as he found when he came to the Government that the two most famous Puritan Divines Mr. Hildersham and Mr. Dod Men of great Probity and Learning had often been in his Father's time Pursuant to the Act for Uniformity disabled from Preaching and been re-inabled to it by particular Indulgence and as likewise Fuller tells us in his Church History that Bishop Williams when he was Lord Keeper of the Great Seal of England procured a Licence from King Iames under the Great Seal for Mr. Cotton the famous Independent to Preach notwithstanding his Non-Conformity so he in the same manner that his Royal Father did held the Reins of the Law loose in his hands as to those two other Non-Conformists beforemention'd The History of Mr. Hildersham's Life mentions that he was silenced in Iune A 1590 and restored again in Ianuary A. 1591. Again he was deprived and silenced April 24 A. 1605. for refusal of Subscription and Conformity and after some time again restored and was again Silenced in November A. 1611. by the King 's particular Command and on April 23. A. 1613. he was judicially admonished by the High Commission that saving the Catechizing of his own Family only he should not afterward Preach Catechize or use any of the Offices or Function of a Minister
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
the Statute of 37 o. H. 8. beforemention'd that speaks of Bishops Vicars-General useth only the Style of Vicegerent for Cromwel's Office. And I have observ'd in his Injunctions to the Clergy that he styles himself Lord Privy Seal Uice-gerent to King Henry the 8th for all his Iurisdiction Ecclesiastical within this Realm c. But the word Vicar being perhaps by the envy of the Monks put on him and his Office in common Discourse the word Vicar in the Proper signification of it signifying a Servant to a Servant according to that in Martial Esse sat est servum jam nolo Vicarius esse the Archbishop speaking Cum vulgo might then call him the King 's Vicar-general and so others since I should before have mention'd what he saith p. 323. speaking of Cromwel Inter hunc Cranmerum summam necessitudinem Evangelium conciliavit ut dum ille Experientiâ hic Doctrinâ câ—…nctos anteâ—…elleret tum utrique Regi intimi chari essent Ex horum Consilio impiis atque odiosis Papoe Wolsoei Cardinalis Actis summum supplicium exitium Romanoe Curioe divinitùs paratum est A. You have enough minded me of the King 's dispensing with the disabiity incurr'd by the Canons both in the C se of Cromwel a Lay-man intermedling in Ecclesiastical Matters and of Câ—…anmer a Clergyman intermedling in secular proving so necessary to the Reformation and accordingly as Queen Elizabeth's dispensing with disability proved so to the Establishment of the present Hierarchy of the Church of England And I shall most seriously consider what the Act of the 37th of H. the 8th hath in such plain and liquid terms declared of the Power given to the King by Scripture and to all such Persons as he shall appoint to exercise Ecclesiastical Iurisdiction however incapacitated so to do by lawful Canons and Constitutions and which were by that Eminent Iustitiary you mention'd held Equivalent to Acts of Parliament and shall grant that iâ—… never so many Acts of Parliament had attempted to deprive the King of a Power inherent in him by Scripture such attempt would be nugatory and the fremuerunt gentes against it would be but the Peoples imagining a vain thing And I shall consider it how far by clear and necessary Consequences and no wire-drawn ones it follows from what is declared by this Act of Parliament as to the King 's being authorized by Scripture to choose some sorts of Officers to serve the Crown in Church and State that he is so authorized to choose others in like manner as you mention'd it to me declared by the Scotch Act of Parliament that the King by virtue of the Royal Power he holds from God All-mighty is to have the SOLE choice and appointment of the Officers of the State c. But I Pray do not many other Acts of Parliament in Harry the 8ths time whereby the Royal Prerogative is so much advanced and particularly that of the 25th of Harry the 8th that sets up the Dispensative Power seem to make it depend on Statute-Law And may it not seem to be more than a flaw in the Diamond of Prerogative and a great depretiating of it in cutting it out as it were into four by making its Establishment depend on the King and three Estates B. I shall therefore here once for all tell you that the occasion of so many mens mistake in thinking so many of those Acts of Parliament in Harry the 8th's time prejudicial to Prerogative as seeming to found it on Statute-Law is their not considering that such Statutes were but declaratory of old Laws and not introductive of new ones My Lord Primate Bramhal in his Schism guarded p. 155. saith I profess clearly I do not see what advantage Henry the 8th could make of his own Laws which he might not have made of the ancient Laws except only a gawdy Title of Head of the English Church which survived him not long and the Tenths and first-fruits of the Clergy c. But you may as fully take notice how Harry the 8th throughout his great Declarative Laws so often declares in effect his Regal Power to be given him by God. My Lord Coke in his Caudry's Case instanceth in the famous Statute of 24 o H. 8. c. 12. and calls it declaratory of the ancient Law and you see how it is declared there That the King is by the goodness of God furnish'd with Prerogative c. And the Statute of 37 o H. 8. begins as I shew'd you with the three Estates DECLARING That the King's Majesty is and hath always justly been Supreme Head in the Earth of the Church of England by the Word of God. You know too how the style runs in another of his Acts of Parliament viz. The Bishop of Rome and See Apostolick contrary to the great and inviolable Grants of Iurisdictions by God immediately to Emperors Kings and Princes c. And thus tho there are various Statutes in his Reign and particularly that of the 25th year of his Reign c. 19. by which it was Enacted That the King's Highness shall have Power and Authority to nominate and assign at his pleasure Two and thirty persons whereof Sixteen to be of the Clergy and Sixteen of the Temporalty of the Upper and Nether House of the Parliament to view search and examine the Canous Constitutions and Ordinances Provincial and that such of them as the King's Highness and the said Two and thirty or the Major part of them shall deém and adjudge worthy to be continued kept and obey'd shall beÌ„ from henceforth kept obey'd and executed within this Realm so that the Kings most Royal assent under his Great Seal be first had to the same c. and tho according to the ancient usage of the Realm as well as to those Canons Lay-men were not only incapacitated to make Ecclesiastical Constitutions and Canons but Kings Bishops or Noblemen who believed that the Decrees of the Bishops of Rome may be violated or shall suffer them so to be are in the Canon Law anathematized yet as this enacting Clause was made on the Clergy's Petition to the King as the Preamble of the Act mentions that those Constitutions and Canons may be committed to the Examination and Iudgment of his Highness and of Two and Thirty persons of the King's Subjects whereof sixteen were to be of the Upper and Nether House of the Parliament of the Temporalty and all the said Two and thirty persons to be chosen and appointed by the King's Majesty c. and be empower'd to do what I mention'd out of the enacting Clause and whereby the King alone was in effect both according to the Clergy's Petition and the enacting Clause vested with the jus vitoe necis of the Canons so in a Memorable Epistle of Harry the 8th Printed before the Reformatio legum Ecclesiasticarum and intended as a draught for a Publication or Promulgation of the King 's new Ecclesiastical Laws after the draught of
1624. p. 25 26 27. and on which Author he in p. 47. bestows the Character of one of the truest Historians of this latter Age and whom Mr. Prynne had before in p. 40. cited for the truth of the general Articles referring to Tom 9. p. 11. and 28. And I shall here observe to you that what Mr. Prynne hath set down as aforesaid to be the Form of the Oath took by the Lords of the Councel to the former Articles doth appear to be referr'd by him to both sorts of Articles viz. both the general and the private ones For tho toward the end of the general Articles it appear'd only that the King and Prince were to be Sworn that all the Privy Councellors should sign those Articles under their hands and that the King Subscribed those Articles and was sworn to them in the presence of those Bishops and other Privy Councellors before named yet the first of the private Articles agreeing that the Councel should take the Oath as far as pertain'd to them and belong'd to the Execution which by the hands of them and their Ministers is to be exercised that the Penal Laws should not be executed against Roman-Catholicks I account it appears according to Mr. Prynne that the Privy Councellors were Sworn to both Articles together and that by the words of IURO ETIAM c. the private Articles were referr'd to and the which will appear the more manifest if you consider that the general Articles had not one word therein for the tolerating of more Papists then those of the Infanta's Family and such who particularly belong'd to her Nor was there any thing more as to the Privy Councellors agreed to in the general Articles then their signing them And both the general and private Articles bearing the same Date it may be the rather supposed that pursuant to the first private Article containing the King's Covenant for the Privy Councel's being sworn to them that the Bishops and the other Privy Councellors might then be sworn to them as well as their having then particularly signed or subscribed the general Articles appears for so Mr. Prynne's words are p. 44. The King and the Embassadors went to the Councel-Chamber where all the Lords of the Councel seal'd and subscribed the general Articles of the Marriage c. A. But I account you are not ignorant how much it hath been observ'd that Mr. Prynne who was so voluminous a Writer did too much take his Quotations on trust and that therefore what he had as out of the Mercure Francois might not be rightly cited B. Admitting that Mr. Prynne being so infinite in his Quotations might often erre that way I shall tell you that I engaging a Learned Man of the University of Oxford to consult Mr. Prynne's Quotations out of the Mercure of which the Tomes are in the Bodleian Library he return'd me word that they exactly agreed with the Author in the places cited by Mr. Prynne A. But one would scarce think that Archbishop Abbot should swear to these private Articles for there went about a Letter of his in that Conjuncture by the warm name of his Remonstrance to His Majesty against the Match and the toleration of the Roman-Catholicks B. I grant that there did and Mr. Prynne in p. 39. and 40. sets down the Letter and he calls it A Remonstrance and the Archbishop is there brought in saying thus viz. This Toleration which you endeavour to sâ—…t up by your Proclamation cannot be done without an Act of Parliament c. But Heylin in his History of the Presbyterians represents this as a Sham-Letter and put upon the Archbishop and saith that the Archbishop could not be so ill a Statesman having been long a Privy Councellor as not to know that he who sits at Helm must steer his Course according to Wind and Weather and that there was a great difference between such Personal Indulgences as the King had granted in the Case to his Popish Subjects and any such Publick exercise of their Superstitions as the word Toleration doth import And so he giveth Judgment that Abbot was only the reputed Author of this Bastard Letter and not the natural Parent of it In the various Editions of this Letter I have observ'd no date to it and it is in that Book of Mr. Prynne before his mention of the general or private Articles and before the Match was resolv'd on by the King. And if notwithstanding that Letter the Archbishop was afterward Sworn to the Articles his altering his judgment on grounds of Reason was both commendable and exemplary and worthy of that mutual Confidence between the King and him and the other Bishops in the Councel and his Privy Councel in general and which was such that in a lawful Matter the King could stipulate for their Obedience in the first private Article as was before mention'd A. Your having shew'd me out of the Copy of the Publick Instruments found by Mr. Prynne among my Lord Cottington's Papers what concerns the Toleration hath given me much satisfaction in the truth of that Fact. For otherwise what a late Book writ for The King 's Right in dispensing with the Penal Laws directed me to in Rushworth of The Declaration touching the Pardons Suspensions and Dispensations of the Roman-Catholicks sign'd by the Lord Conway and others Aug. the 7th A. 1623. would have left the Matter to me full of doubt and mystery But I see by those Copies of Articles found among the Papers of my Lord Cottington the Toleration of Papists had been reverâ about a Fortnight before the date of that Paper sworn to by all the Privy Councellors of King Iames. And tho King Charles the First did fall as a Martyr for the Protestant Religion and was a Confessor of it in Spain as Archbishop Laud sets forth in his Star-Chamber Speech and as likewise the Earl of Bristol shews in his Learned and Loyal Apology Printed A. 1657. which if you have not read is highly worth your most serious perusal and where having spoke of the Papal Dispensation for the Marriage on the Articles formerly agreed on in point of Religion and of the Civil Letters that passed between that King then Prince and the Pope he said that those Letters were Publish'd and Translated into several Languages referring there I suppose to the Mercure Francois which tho he could not say corruptly yet strained as much as might be to his disadvantage and that it is probable that the like Letters of Compliance mâ—… have been procured in the Treaty of the Match with France wherein the Pope's Dispensation was likewise held necessary yet I shall tell you that Mr. Prynne in p. 46 47. after he had mention'd the Oath taken by the Privy Councellors saith His Majesty call'd an Assembly of Divines to Consult with what he ought to do for the discharge of his Conscâ—…ence in this regard and their Resolution was first that the Prince of Wales should promise on â—…is Oath
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
of the Advocate for Conscience Liberty discoursing of the Oath of Supremacy in p. 181. seq saith That Luther Calvin Knox Gilby disliked it and mentions that a Iurisdiction purely spiritual was communicated to H. the 8th by his Supremacy and assumed by him and that he wanted his Spiritual By-title of Supremacy to justifie his Divorce aâ—…d his taking the Church Revenue into his hands and that the Protectorship in E the 6th's time by virtue of the Oath of Supremacy continued to make new Church-Laws Institutions c. and that Queen Elizabeth reassumed this Iurisdiction having a greater necessity for it then her Brother because her Marriage was declared null by the Pope So then the state of Protestancy abroad and at home call'd on the Queen to distribute or dispense her Supreme Power in her Law by her Interpretation making a change not of it but in the body of it and which had it been changed by a repeal in Parliament for another would have seem'd to blemish her figure of semper Eadem and have reflected on the Understandings and Consciences of those who had before took the Oath There was then in that Conjuncture an universal outcry of Conscience that Sin lies at the door a thing worse then Hannibal ad Portas a burthen that hath caus'd all the Groans of the Creation that ever happen'd And where there is Periculum animae there is always Periculum in morâ and which the Queen 's authentick Interpretation did remove and which was approved by the next Parliament and no noise made or complaining heard in our streets about any seeming Alteration made in the Law or Oath it self by the Prerogative of interpretation or acquittal from the disabling Punishments then exercised And it is but congruous to humane Nature and common Policy in men when they see any thing not ill in it self done that hath eminently conduced to make the World easie not to embarass such thing with litigious scruples about the fieri non debuit nor to adventure to trouble the World again when it is inclined to and resolv'd upon its rest Some thoughts of this Nature probably inclined my Lord Coke to shew the Complaisance he did not only to King Iames his incapacitating Canon about the double Subscription but as to the Oath against Simony that of Canonical obedience and which inclined Judge Croke to be pleas'd with the Canons of 1640. tho containing the Oath with an Et caetera and which made the Iudges so apt to over-rule some of Sir E. Coke's Exceptions to the Sheriffs Oath as I have mention'd You may indeed find that some among the Puritans in some Conjunctures in Queen Elizabeth's time did presume to reproach the Government of the Church with her having dispens'd with the disability of some Persons incurr'd by Act of Parliament The Author of the famous Book publish'd in her Reign call'd An Abstract of certain Acts of Parliament hath in the Conclusion these two factious Queries viz. Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Chancellor and so may Excommunicate Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Register contrary to an Act of Parliament The Author intendeth there to referr to the Statute of 37 o. H. 8. c. 17. and as he had before expresly done in p. 196. Seq and of which Statute we have so much discours'd and he in p. 201. instanceth in many Lay-men who were not Doctors of the Civil Law and yet then exercised Ecclesiastical Iurisdiction He had too in p. 196. took notice that as that Statute establish'd and confirm'd to the King and his Successors and so unto our most Gracious Soveraign the Queen's Majesty that now is lawful Preheminence Power Superiority and Lordship over all Persons within her Dominions of what state or Condition soever touching Punishments for any Heresies Errors Vices Schisms Abuses Idolatries Hypocrisies and Superstitions springing or growing by means of any her disobedient and disloyal Subjects so hath her Majesty by her Injunctions publish'd that her Highness did never pretend any Title or challenge any Authority to punish any of her Subjects for any of the said Offences by Censure Ecclesiastical in right belonging to her Royal Person but that her Highness meaning and intent is and always hath been to commit the execution thereof always to the Ecclesiastical State of her time and he then sets down her Interpretation in the Admonition But had that Author consider'd how it was declared by that Statute that by Holy Scripture all Authority and Power is given to His Majesty and all such Persons as His Majesty shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever and that this Statute was revived by the 1st of Eliz. he would not have wonder'd at the Queen's allowing that Statute to be dispens'd with as it was Nor would any one therefore wonder at the Royal Martyr in the 12th and 13th Canons of A. 1640. Condescending to humour the Complaints of the Puritans by an equal Interpretation of that Statute of 37 o H. 8. and by dispensing with it as he did and that so far as to the disabling Lay-Chancellors to proceed in such Censures as they were enabled by that Statute to do Mr. Bagshaw in his first Argument in Parliament concerning the Canons thus reflects on the Clergy for those two Canons viz. Concerning the 12th and 13th Canons touching the freeing and discharging of Chancellors and Officials from executing any Excommunication in their own Person or any Censure against the Clergy because they are Lay-men I say that in doing and enacting this they have done quite contrary to an Act of Parliament still in force in taking from them this Power of exercising the Censures of the Church which that Statute gives them which I did look when some Civilians now in the House should have maintain'd And altho it were to be wish'd that only Clergymen should have this Power of Excommunication and other Censures of the Church yet seeing an Act of Parliament hath given this Power to Lay-men it is high Presumption to make Canons against it But he well knew that after the stamp of the Royal Authority put on these Canons as well as before Lay-men in the Court of Delegates did Excommunicate and as they did in the high Commission And you may observe it that in the Commission granted Primo Elizabethae to her Commissioners pursuant to the Statute of that year there were but two Clergy-men and those Bishops and 17 Lay-men My Lord Coke Inst. 4. c. 74. writing of the High Commission in Causes Ecclesiastical saith There is no question but the Commissioners for such Causes as are committed to them by force of this Act may if the Commissioners be Competent proceed to deprivation of the Popish Clergy which was the main object of the Act or to punish them by Ecclesiastical Censures c. And without question if
THE OBLIGATION Resulting from the OATH of SUPREMACY To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power BELONGING To the KING his Heirs and Successors In the asserting of that Power various Historical Passages occurring in the Usurpation after the Year 1641. are occasionally mentioned And an Account is given at large of the Progress of the Power of Dispensing as to Acts of Parliament about Religion since the Reformation and of divers Judgments of Parliaments declaring their Approbation of the Exercise of such Power and particularly in what concerns the Punishment of Disability or Incapacity Princes are Supreme over Persons not over Things This is the Supreme Power of Princes which we teach that they be Gods Ministers in their own Dominions bearing the Sword and freely to permit and publickly to Defend that which God commandeth in Faith and good Manners c. Princes may Command the Bodies of all their Subjects in time both of War and Peace c. Out of all Question where Princes may by God's Law Command all Men must obey them c. The Prince may discharge the Servant but no Man can discharge the Subject The Word of God teacheth you to obey Princes the words of men cannot loose you BISHOP BILSON of the SUPREMACY LONDON Printed for Thomas Dring at the Harrow at Chancery-Lane End in Fleetstreet William Crook at the Green Dragon without Temple-Bar and William Rogers at the Sun over against St. Dunstan's Church in Fleet-street 1687. To the Right Honorable JOHN Earl of MELFORT Viscount of Forth Lord Drummond of Rickartone c. His Majesty's Principal Secretary of State for the Kingdom of Scotland and one of His Majesty's most Honorable Privy Council in both Kingdoms of England and Scotland c. MY LORD AS the Historian hath told us of Ireland that long ago while the Arts and Sciences were generally banish'd from the Christian World they were enthroned in Ireland and that Men were sent thither from other Parts of Christendom to be improved in Learning so I have elsewhere observ'd that in some late Conjunctures and particularly during the turbid Interval of the Exclusion men might well be sent to Scotland to learn Loyalty And I having taken occasion in the first Part of this Discourse to shew my self a just honourer of that Country and as I may say somewhat like a Benefactor to it by sending thither the notices of some pass'd great Transactions that might possibly there give more light and life to the Moral Offices of Natural Allegiance or Obedience did hold my self obliged in Common Justice to address this Part of my Work to your Lordship For as your Station here qualifies you beyond other Subjects to receive what Tribute is offer'd to your Country so your handing it thither will necessarily make it there the more acceptable And when I consider with what an incomparable Tenderness for the Monarchy and its Rights so many of the Statutes of Scotland since the Year 1660. have been adorn'd I am apt to think that any matter of Presidents or Records by me recover'd out of the Sea of time where they lay so long useless and neglected and now happening to be serviceable to those Moral Offices before-mention'd would by the so many in that Kingdom devoted to consummate Obedience and Loyalty be more valued then if I could have imported into that Realm another such Treasure as that which lay so long buried in the Ocean near the Bahama Islands and that whoever Contributed to your Loyal Country any Substantial Notions that might enrich it in the discharge of the Duties of the born and sworn Allegiance would be esteem'd there as some way sharing in the honour of Arauna in giving like a King to a King. Long may your great Master live happy in the Enjoyment of the faithful Services of so vigilant a Minister as your Lordship who by the universality of your Knowledge accompany'd with universal Charity for all Mankind have appear'd to be born as I may say for the time of his most glorious Reign the time chosen by Heaven for Mercies Triumph on Earth Nothing vulgar was to be expected from a Person of your Lordship's extraordinary intellectual and moral Endowments and in whom the Loyalty and other Virtues of your many noble Ancestors have as it were lived extraduce And the World would be unjust to you if it acknowledged not its great Expectation answer'd by your greater Performances and particularly by your having been so eminently Ministerial in the Easing both the Cares of your Prince and of all his Subjects too by the Figure you have made in promoting the Ease of his People's Consciences and in further ennobling and endearing the Name of DRUMMOND by your Lordship's Prosecuting that by the Bravery of Action which the HISTORIAN of that your Name did by Words when he transmitted to Posterity the most Christian and Statesman-like Speech of Liberty of Conscience I know extant and as spoke by a Roman-Catholick Councellor in Scotland to King Iames the Fifth I most humbly kiss your Lordship's Hands and am My Lord Your Lordships most Obedient Servant P. P. THE OBLIGATION Resulting from the Oath of Supremacy To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power Belonging to the KING his Heirs and Successors c. PART I A. IN this Kingdom of England so naturally of old addicted to Religion and vehemence in it as to give a Bishop of Rome cause to complain he had more trouble given him by Applications from England about it then from all the World beside and afterward to make Geneva wonder at the Sabbatarians here exceeding the Iewish strictness and to cause Barclay in his Euphoâ—…mio to say of the English Nec quicqúam in numinis cultu modicum possunt and that our several Sects thought unos se Coelestium rerum participes exortes coeteros omnes esse did you ever observe hear or read of the style of Tenderness of Conscience so much used as in the year 41. and sometime afterward B. I have not From the Date of King Charles the First 's Declaration to all His loving Subjects about that time wherein he speaks of his Care for Exemption of Tender Consciences till the Date of King Charles the Second's Declaration from Breda wherein the Liberty of Tender Consciences is Provided for the clause of easing Tender Consciences ran through the Messages Addresses and Answers that passed between King and Parliament almost as much as the Clause of proponentibus legatis did run through the Councel of Trent A. But were not their Consciences extremely erroneous who thought themselves bound then to advance Religion by War B. Aâ—… and by a Civil War as you might have added against a Prince of the tenderest Conscience imaginable for that Character he had from an Arch-bishop in his Speech in the Parliament of 40 who said Our Sovereign is I will not say above other Princes but above all Christian men that ever I knew
publickly or privately 〈◊〉 he should be lawfully restored and releas'd of his said Suspension But shortly after the beginning of the Reign of the Royal Martyr he was again restored and was afterward again silenced and so continued till August 2. A. 1631. and then he was again restored And Mr. Dod's Life represents his Case as parallel with this before-mention'd He was in King Iames his time suspended and restored and again by the King 's particular Command disabled from Preaching and was by King Charles the First re-ennabled or restored Thus as fortis fortem amat one tender Conscienced man too loves another such and the Executive Power of the Law in re-ennabling after temporary Disability was tenderly administred by these our Princes to these Conscientious Men with respect to their real Capacity of Favour to be shew'd them A. You have here given me a taste en passant of part of the Dispensative Power as exercised in the three Realms during some Conjunctures in the Reign of King Charles the First and for which I thank you and particularly for what you told me of the Act of Parliament dispens'd with in Scotland of which I never heard before and am apt to suppose a thing of that Nature was never done before in that Realm B. I can assure you to those who know the Publick Transactions of that Kingdom the thing will not in the least seem new I can tell you that on the 26th of November A. 1593. King Iames the 6th of Scotland made an Act of State in favour of three Roman-Catholick Earls Huntly Arroll and Angus by which Act he allow'd them several Priviledges contrary to Acts of Parliament made against Roman-Catholicks And His Majesty in his Act of State expresly dispenseth with those Acts of Parliament and which Dispensation tho Queen Elizabeth importuned him to revoke and for that purpose sent the Lord Zouch as her Embassador to him he still adhered to the Act of State he had made and continued his Dispensation A. Have you this Matter of Fact out of any of the Records in England or Scotland B. I have it out of the Original Papers under the hand of Queen Elizabeth and her great Minister Burghly and the Original Instructions of the Lord Zouch when sent by her to expostulate with the King about it that were lately in my Custody and by me sent to our gracious Sovereign and I shall some other time give you a more particular account of that Dispensation A. But I beseech you did not the Protestant Divines of the Church of Scotland then cry out of the unlawfulness or inexpedience of that Dispensation B. I have read it in a learned Book of Dr. Maxwell a Scotch-man Printed A. 1644. and who was then Bishop of Killally in Ireland and had formerly been Bishop of Rosse that Mr. Robert Bruce one of the Ministers of Edenburgh and who had a great sway in the Church of Scotland was pleas'd with the King 's extending his Favour to Angus and Arroll but out of a factious Complyance with the Earl of Arguile was displeas'd at its being shewn to Huntly But that Loyal Bishop there acquiesceth in the reason of State that inclined the King to Pardon the three Earls and his thereby hindering the growth of Faction in Scotland and providing for his more easie and secure access to the Throne of England on the Death of Queen Elizabeth And so you may easily guess what sort of men in Scotland look'd with an evil eye on that Act of the Royal goodness and who did not The Bishop there had applauded the great depth of the King's Wisdom and his transcendent Goodness in the Pardoning the three Earls and mention'd that there was nothing of Religion in the Case of Bruce's Aversion against the Pardon of Huntly for that Angus and Arroll were as bigot Papists if not more then Huntly I can likewise direct you to my Lord Primate Bramhal's celebrated Book call'd A Fair warning to take heed of the Scotish Discipline where in Chap. 6. thus entituled viz. That it robs the Magistrate of his Dispensative Power he saith by way of instance When the Popish Earls of Angus Huntly and Arroll were excommunicated by the Church and forfeited for Treasonable Practices against the King it is admirable to read with what Wisdom Charity and Sweetness his Majesty did seek from time to time to reclaim them from their Errors c. and on the other side to see with what bitterness and radicated Malice they were prosecuted by the Presbyteries and their Commissioners c. sometimes threatning that they were resolv'd to pursue them to the uttermost tho it should be with the loss of all their Lives in one day c. sometimes pressing to have their Estates confiscated c. He refers there in his Margin to Ass. Edinb 1594. But any one who shall consult D'Ossat's Letters and there in the Second Book carefully read over the 37th Letter that was writ to Villeroy in the year 1596 and three years after the Date of King Iames his Act of State and observe what that great Sagacious Cardinal there refers to concerning the Circumstances of those three Earls and how all the Prudence that could be shewn by man was but little enough for the Conduct of that King in that Conjuncture in order to his removing what Impediments either from Rome or Spain or his Native Country might obstruct his Succession to the Crown of England will not wonder at his having dispens'd and continued his Dispensation as aforesaid A. I have not yet ask'd you whether the Divines of the Church of England did not lift up their voices like a Trumpet against the Dispensative Power thus exercised by their Prince as you have mention'd B. They discharged their Duties in Preaching occasionally against all growing Errors but they wanted none to mind them of the Saying Impium esse qui Regi dixerit Inique agis The Pious and Learned Author of Certain Considerations tending to Peace c. mentions how the Bishop of St. Davids in King Iames's Reign A. 1604. did in a set Speech in Convocation shew that Ministers were not in the late Archbishop's time disabled from their Ministry on the Account of Non-conformity to the Ceremonies by Law enjoyn'd and concluded his Speech with the motion of Petitioning the King That if the removal of some of the Ceremonies enjoyn'd could not be obtain'd nor yet a Coleration for them of more stay'd and temperate Carriage yet at least there might be procured a mitigation of the Penalty c. And as the Suspension or Disabling of Hildersham and Dod from their Ministerial Functions so the Restoring of them to the same without all such things done by them as the strictness of the Lawes required was in both those Princes Reigns executed by the Bishops Nor do I remember to have read of any Divine of the Church of England to have in the least look'd with an evil eye on the goodness of the
Majesty his Heirs and Successors in England and which were granted to them with non-obstante's to all Acts of Parliament B. And the Act 22 o Car. 2. entitled Seditious Conventicles prevented and suppressed passing in the Parliament of England in the same Year that the Act against Conventicles did in Scotland and concluding with a Proviso That nothing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs but that his Majesty and his heirs and Successors may from time to time c. exercise and enjoy all Power and Authority in Ecclesiastical Affairs c. any thing in this Act notwithstanding shewed such a Concordant Sympathy between the two Realms in tenderness for the prerogative of dispensing with the Penal Laws Ecclesiastical as is between the Strings of two distant Lutes on the touching the String but of one of them But I must tell you that tho by this Proviso the benefit of the Dispensative Power hath been sufficiently secured to the Churches of Forreigners here and the King 's Ecclesiastical Supremacy justify'd in its power of indulging the Conventicles of all sorts of Recusants yet as in the Scotch Act the Crown 's dispensing with Conventicles hath been more express then in the English Act so hath the administration of Prerogative in that kind been more tenderly and signally exercised in Scotland then I have observ'd it to be in England For I find in a Look call'd A Compendious History of the mâ—…st remarkable Passages of the last 14 Years c. printed An. 1680. that in p. 205. the Author referring to the Month of Iuly 1677. saith that upon a Rebellion in that Kingdom being nipt in the Bud his Majesty was pleas'd to publish a Proclamation Commanding the Iudges and all Magistrates to apprehend and punish all such as frequented any Field-Conventicles c. according to the Prescript of the Law as also to prosecute with all Legal Rigour the execrable Murtherers of the late Arch-Bishop of St. Andrews declaring withal that his Majesty being desirous to reclaim all such as had been mis-lead through Ignorance or blind zeal had according to the Power reserved to his Majesty by the 5th Act in the 2d Session of the 2d Parliament suspended the execution of all Laws and Acts against such as frequent house-Conventicles on the south-side of the River Tay excepting the Town of Edenburgh and two Miles round the same c. And the truth is it must likewise be to the honour of that Nation acknowledged that in the worst of Times they after their Covenant did not Contract any such guilt of Perjury by a superfetation of enterfering Oaths as great Numbers of our Land did and that they were exemplary to England in Loyalty and in propping up the hereditary Monarchy while so many here in the Plott-Conjuncture were infatuated with the Project of the EXCLUSION as to give me occasion by a fresher instance and but of yesterdays occurrence to invite you to behold a Spectacle of the divine Iustice in abandoning such Men here to the guilt of Superstition who used unjust means to extirpate it Such among us who had not took notice of that English and Scotch SAINTE LIGUE and its being so generally exploded and who in the late Ferment about Popery would have fortify'd an Exclusion with an Association and again set up Association as of Divine-Off-spring you see how being wild with excessive Fears and Iealousies of the growth of Popery they were guilty of the Superstition of founding Dominion in Grace A. Considering how Men here have laughed at the Obligation of their lawful Oaths and that for unlawful Oaths a Land mourns methinks 't is an adventurous thing for a Prince to take possession of his Inheritance of the Empire of such a Land so encumbred with the guilt of Swearing and Forswearing O when may we see that antient general tenderness in point of Oaths here that flourished among us in the days of our first Reformation nay even in some times of our Roman Catholick Ancestors B. I believe never till after all the living here being resolved to dust and a new Race of Mankind enriching themselves and their Country by the Culture of the Earth and Manufactures men shall be above Temptations from necessity to take God's Name in vain and when the very use of Oaths Assertory or Promissory will be dispens'd with by Nature I am sure the Spectacle of mangled and slaughter'd Bodies covering a Field immediately after a Battle hath not more horror in it then the sight of the Consciences mai'md and wounded by the inobservance of publick Oaths hath been since the Aera of 41. And as our Chronicles mention that they who were born in England the Year after the great Mortality An. 1349. wanted some of their cheek Teeth I may say that generally they who have been born here the Years after 41. wherein the Plague of Perjury by the outraging those Oaths of Allegiance and Supremacy was so epidemical have seem'd able only to swallow those Oaths but not to â—…hew upon them in serious and considerate thoughts no not at the very frequent times of their taking them And still tho in speculative Points in England Consulitur de Religione yet conclamatum est as to a general tender regard to the Religion of those Oaths There was I think a want of tenderness in some as to their sworn assisting and defending all the Priviledges and Preheminences belonging to the Crown during the late Ferment about my Lord Danby's Pardon and I may more sadly reflect on the same Mens want of recollecting their Oath obliging them to the King his Heirs and Successors at the time of the Ferment about the Exclusion A. I think that many who by repentance have been cured of the Epidemical Plague of Perjury that reged here in 41. and of such a Plague and another of Fears and Iealousies since 81 have yet sustain'd more damage thereby then they who were born the Year after 1349 did in wanting some of their Cheek Teeth and that their case is like that of those who were recover'd of the great Plague at Athens that Thucydides hath described and who tells us that after their recovery their Souls had lost the faculty of Memory and were dozed with an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 about what themselves had done or what had passed in the World during the horror of that very Plague or before or since But after all this said I am to ask you if you will make all those perjured who having took the Oaths of Allegiance and Supremacy promoted the exclusion B. By no means I have more Humanity and Christian Charity then to do so I shall here observe to you that Divines in their measures of Mens sinful Actions do often make use of the distinction of materialiter and formaliter Thus for example Ames in his Cases of Conscience l. 5. c. 53. Si quis falsum dicit putans esse verum mentitur tantum
of the Oaths of Supremacy and Allegiance our thoughts are obliged to have regard to Matters of Right and Law. We are to our Power to assist and defend all Privileges and Preheminences GRANTED or BELONGING to the King c. and which ARE united to the Imperial Crown of this Realm A. But by this means while you would have men keep up the ease of their Consciences by such assistance and defence will not they be put to it to make their lives uneasy by buying Law-Books and being Students of the Crown-Law and of the extent of the Regal rights a thing never intended by the Makers of the Laws for those Oaths and whereby such who are to assist and defend and Rights of the Crown by Action in Land or Sea-Service would be hinder'd therein by Speculation B. No man need amuse himself about any such matter Nor are our Princes who by their Coronation Oaths oblige themselves to defend all our rightful Laws and Customs bound thereby to study the Report-Books of the Law concerning the Rights and Properties of their Subjects and whereby the time of Princes would be taken up from defending them And I shall tell you that tho all men are morally bound to frame the best Conceptions and make the truest representations of the Divine Nature they can and which by the measures of the Scripture â—…s comprehended under our Duty of glorifying God yet not to study the Controversies between the Remonstrants and Contra-Remonstrants about the absoluteness of the Divine Decrees and Dominion or whether God according to his absolute Dominion can torment an innocent Creature And thus tho we are bound to honour God's Vice gerents and to assist and defend their Rights Privileges and Preheminences we are not to consume our whole lives in the investigation of Truth in the Moot-Points about the same But as to this thing that great Casuist of the Age Bishop Sanderson may help to set us right in his Third Lecture of Oaths Sect. 17 where putting the Case when Subjects are required to take an Oath for Preservation and Defence of Laws and Liberties Privileges Prerogatives and Preheminences of some Superior Power as of a King a Common-wealth or Lord Paramount such as are among us the Oaths of Hâ—…mage of Royal Supremacy c. he saith No man denies these Oaths to be lawful or obligatory but in respect of the frequent incertainty of the Laws whereunto they relate it may very well be doâ—…bted how far they oblige Doubtless the Subject to his Power is obliged to defend all Rights which appear either by Law or Custom Legitimate whether defined by the written Law or in force through long use of time or prescription that is so far as they are known or may morally be known But he is not equally obliged to the observation of all those which are Controverted or doubtful especially since Powerful men are accustomed to stretch their tedders and leap over the Land-marks of their Neighbours not contenting themselves within the bounds of their own Right Nevertheless a Subject ought always to be prepared in Mind so soon as the justness of those things which are doubtful shall appear to a knowledge and defend them It may be hence rationally deduced that such who are call'd to the Helm of State or are Members of Parliament if any Matters relating to any Iurisdictions Privileges and Authorities granted or belonging to the Crown shall come in question before them are by virtue of the Oath of Supremacy bound to endeavour to know whether those Jurisdictions Privileges and Authorities are granted or do belong to the Crown that is so far as they are known or may morally be known before they refuse to defend and assist them and much more before they shall do any act of offending or resisting the same and before they shall entertain any hard thoughts of their Prince for claiming this or that Privilege And where the right of any Iurisdictions Privileges granted or belonging to the Crown is not Controverted or doubtful that Oath binds them immediately to assist and defend the same and not so much as to move any thing against them except in some such case as I shall presently mention A. Did ever any Parliament presume to destroy or offend or usurp upon any Privilege or Preheminence or Authority of which the Right as belonging to the Crown was not controverted B. Yes the long Parliament of 40 did so The Power of the Militia was acknowledg'd by the Parliaments Petition at Windsor to be a flower of the Crown And therefore the Royal Martyr's dying Breath might one would think be Thunder to their Consciences when in his Speech on the Scaffold he said I never intended to intrench upon their Privileges They began upon me It is the Militia they began upon They confess'd that the Militia was mine but they thought fit to have it from me No doubt such men intended to entrench on the King's Privileges and Preheminences and they intended to violate their Oath of Supremacy A. Did they offend any other Uncontroverted Rights of the Crown B. Many more then I have now time to name but cannot forget the fatal Consequences of their outraging one of those uncontroverted Rights which was at the King's Pleasure to Prorogue or Dissolve Parliaments by putting such incessant hardships on that Pious King to engage him to pass the Act that that Parliament should continue till both the Houses did consent to the dissolution of it and of which Mr. Hobbs in his Behemoth saith that it amounted to a total Extinction of the King 's Right in case that such a grant were valid which I think it is not unless the Sovereignty it self be in plain terms renounced which it was not And he having said That the King signed that Bill the same day he signed the Warrant for the Execution of the Earl of Strafford and having rais'd the Question Whether the King could not have saved him by a Pardon and said that he would have done it if that could have preserv'd him against the Tumults rais'd and countenanced by the Parliament it self doth mind me of the horror of those days when they who were Sworn to assist and defend the King's Privilege and Preheminence in Pardoning any one tho he knew him justly Condemned to dye did endeavour by Tumults to oppose his Pardoning one whom he thought not to have deserv'd Death That Royal Privilege was in like manner by that Parliament trampled on in the Case of the Pardon of Archbishop Laud. A. I shall here by the way ask you if you did not once tell me that the most profound Observers of the Affairs in Ireland had agreed in it as their firm Judgment that the Irish Rebellion had never happen'd if the Parliament of 40 here had not meddled in the Case of the Earl of Strafford and occasion'd his removal from being chief Governour of Ireland B. I shall by the way answer you that I did tell you so and that
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
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.
Harvey who open'd such great Springs of real Learning as refresh'd that noble thirst so it seems before the Date of His late Majesty's Declaration of Indulgence in the 24th year of his Reign and of the Act about the Test in the 25th year of it and both which were likely to produce among the Learned so many Inquiries into the Legality of the Dispensative Power inherent in the Crown and even among the unlearned an Epidemical Disease of talking about the same it came to pass in the course of Providence that by as Learned Iudges as ever sate on the English Bench and as Learned Councel as ever appear'd at its Bar the Learning about the Dispensative Power was ventilated and discuss'd in a Series of several years in the Case of Thomas and Sorrell For the Cause began in the King's Bench 18. Car. 2. and was there argued by some of the Great Councel of the Kingdom and there again argued on both sides by other Councel in Michaelmas-Term in the 19th year of his Reign And in Hilary-Term in 25. and 26. Car. 2. this Cause for the weight and difficulty of it was adjourn'd out of the King's-Bench into the Exchequer Chamber and there argued by others of the Greatest Councel of the Kingdom and many Law-Books quoted And the Case was afterward argued by all the Iudges of England at six several Days in Easter Trinity Michaelmas and Hilary Terms viz. by two Iudges each day and the Iudges differ'd in several Points and even about the definition or meaning of Dispensation For so that learned Chief Iustice tells you and saith That some of his Brothers defined it to be liberatio à poenâ and others to be Provida relaxatio Juris which saith he is defining an ignotum per ignotius and liberare à poenâ is the effect of a Pardon not of a Dispensation c. Thus as I may say there was a Circumvallation by the Learning which concern'd Dispensing that encompass'd some time preceding that Declaration of Indulgence in the 24th year of his Reign and some time following both it and the Act of the Test. I shall some other time perhaps entertain you with the Learned Manuscript Report of the whole Case but shall now tell you that during that Series of years there was no angry motion in the Sea of the Populace occasion'd by any thing said in any of the Arguments that propp'd up the Dispensative Power no not by that mention'd in Keeble's Reports about Thomas and Sorrell's Case to have been said in the Exchequer Chamber by Ellis the King's Serjeant and whose Opinion was as Currant for Sterling-Law as any Man 's of the long Robe Viz. That the King may SUSPEND an Act of Parliament till next Session And now since it hath thus appear'd out of that Chief Iustice his Report that at least a sixth part of the Sworn Iudges of the Realm as he thought were unacquainted with the meaning of Dispensing I think it may pass for a Miracle if any great number of the mobile did understand it But without their troubling their heads with Law-Books if they would but mind their English Bibles and there consult the 12th of S. Mathew they would soon forbear calling the lawful Dispensing with the Laws establish'd a Contradiction Our learned Ames on the Priests in the Temple Prophaning the Sabbath and being blameless observes very well in his Cases of Conscience 1. 3. c. 17. That Praecepta Deiex suâ naturâ nunquam ita Concurrent at necesse sit alterum eorum propriè violare per peccatum Quum enim praeceptum aliquod minus negligendum est ut majus observetur minus illud cessat pro illo tempore obligare that is to say is dispens'd with ita ut qui ex tali occasione illud negligunt sint planè inculpabiles id est non peccent Matth. 12. 5 7. And as to that in the Chapter of David's entring into the House of God and eating the Shew-bread which was not lawful for him to eat c. the Lord Bishop of London in his Second Letter to his Clergy Printed A. 1680. in the Paragraph about The half Communion occasionally thus observes with great Judgment That a positive Command of God cannot be disobey'd without guilt unless on some one or more of these grounds either 1. That God dispenses with it as he did with Circumcision in the Wilderness Or 2. That some Evil greater then the Consequence of the Non-Performance of it will certainly follow as when David ate the Shew-bread and they that were with him which depends on that rule of our Saviour which tho apply'd to the Sabbath yet extends to all other positive Commands that man was not made for them but they for man Or lastly in case of incapacity as the Children of Israels not going up to Ierusalem in the time of Captivity And there are other words in a foregoing Chapter of S. Matthew that are still applicable to the Pharisaical ignorance of such as reproach DISPENSING as unlawful Go and learn what that means I will have mercy and not sacrifice But according to the Example of our Blessed Lord in Having Compassion on the multitude I think you have taken a just occasion for the pitying so many of your Countrymen who in the present Conjuncture presume to exercise themselves in great Matters or in things too high for them relating to Law and State and who without enquiring about the modus of Dispensing with the Laws establish'd wherein Lawyers differ cry down the thing it self wholly and absolutely as a Contradiction to the lex terrae and in which not being so all Lawyers agree My Lord Primate Bramhal in his Book of A fair Warning to take heed of the Scottish Discipline shewing in Chap. 6. that I have before referred to That it robs the King of his Dispensative Power doth wish any one averse to that Power no greater Censure then that the Penal Laws might be duly executed on him till he recant his error And how Penal a thing by the Laws of Nations it is to alienate the hearts of People from the Prince's Government all the great Writers of those Laws and of the Iura Majestatis have enough shewn Moreover how Criminal a thing of that Nature is in the Court of Conscience our two great Writers of it Ames and Sanderson have enough taught us The Moral offices of Subjects toward their Princes are well set forth in Ames his Cases of Conscience 1. 5. c. 25. and where he saith Debent ex singulari reverentiâ cavere ne temerarium judicium ferant de ipsorum administrationes Exod. 21. 28. Eccles. 10. 20. 2 Pet. 2. 10. Jud. 8. Fundamentum hujus cautionis est 1. Candor ille qui cum erga omnes debet adhiberi tum singulariter erga Superiores 2. Difficultas explorandi fontes causas negotiorum Publicorum 3. Moderatio illa quâ leves infirmitates offensiones tolerare debemus communi tranquillitati
reason that lyes in this Assertory part of the Oath that so many Writers of the Common Law have founded their Assertion of the King's Power oâ—… Commanding the Service of all his Subjects as essential to the keeping up the Monarchy or the Rule of all Estates committed to him by God that I lately spoke of and inseparable from it noâ—… alienable by any Humane Laws It is the Supreme Power of our Princes as Governors of the Realm that hath always entitled them to Press men for the Service of the Crown by Land or Sea and to recall both Soldiers and Mariners from the Service of Foreign Princes upon emergent Occasions to serve their natural Liege Lord. And the Book writ by a Learned Common Lawyer against the Exclusion call'd A Letter from a Gentleman of Quality in the Country c. and Printed A. 1679. and so deservedly extoll'd by the Iudicious loyal tells you in p. 7. and 8. that If it should be enacted by Parliament that No man should honour the King or love his Parents or Children c. such an Act would be ipso facto void because contrary to the express Divine Command c. The Statute of 23 H. 6. c. 8. and several other Statutes Enact that no Man shall be Sheriff of any County above one year and that any Patent of the King to any Person for a longer term tho with an express Clause of Non-obstante shall be void and of none Effect and the Patentee perpetually disabled to bear the Office. And yet notwithstanding it is Resolv'd by all the Iudges of England that these Acts of Parliament are void and that the King may by Non-obstante Constitute a Sheriff for Years Life or Inheritance And what is the Reason which the Iudges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of his Subject which the immutable Law of Nature doth give to him For Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. We know that by the Statute of 4 o. H. 4. c. 5. 't is ordain'd That every Sheriff of England shall abide in proper Person within his Bailywick for the time that he shall be such Officer But this Act hath never been construed to hinder the King as Supreme Governor and Ruler of all Persons in the Realm from Commanding any Sheriffs to serve him elsewhere during their Shrievalties nor on such case to oblige the Sheriffs in Conscience to observe the Statute by such Personal residence Baker in the reign of King Charles the first tells us of an Information A. 1629. in the Star-chamber against Mr. Long for that he being high Sheriff of the County of Wilts had the Charge and Custody thereof committed to him and had taken his Oath according to the Law to abide within his Bailys-wick all the time of his Sheriff-wick and his Trust and Employment requiring his personal attendance therein did contrary thereto suffer himself to be chosen a Citizen for the City of Bath to serve in the last Parliament and did attend at Westminster in Parliament WITHOUT HIS MAIESTIES LICENCE he being Sheriff at that time and that for the foremention'd Offences and Breach of his Oath and neglect of his Trust and Contempt of his Majesty the Decree was That he should be Committed to the Tower during his Majesties Pleasure and pay a Fine of 2000 Marks to the King. Hereby you see that his Majesties LICENCE or Dispensing with that Statute had indemnify'd him from it in the Court of Law and that the potestas Superioris being necessarily imply'd in a promissory Oath the King as supreme Governour of all Persons in his Realms commanding or allowing such Officers service to the publick elsewhere had secured him in either forum The known Custom of the Speaker of the House of Commons DISABLING himself when presented to the King but of entring on his Charge on the King's approbation and pleasure signify'd according to that saying of Cuâ—… me posse negem quod tu posse putes may pass for some representation to our thoughts of Disability to serve the publick then evaporating when the King as Governor of the Realm doth give the Subject a Call so to do You may find this practice of the Speaker's disabling himself set down in Coke 4. Inst. c. 1. And I shall here by the way take notice that he there likewise mentions it that one of the Principal ends of Calling of Parliaments is for the redress of the Mischiefs and Grievances that dayly happen And he had there before said Now forasmuch as divers Laws and Statutes have been enacted and provided for these ends aforesaid and that divers Mischiefs in particular and divers Grievances in general concerning the Honour and Safety of the King the State and Defence of the Kingdom and of the Church of England might be prevented an excellent Law was made Anno 36. E. 3. which being applied to the said Writs of Parliament doth in few and effectual words set down the true subject of a Parliament in these words For the maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every year as another time was Ordain'd by a Statute Before the Conquest Parliaments were to be holden twice every year c. But accordingly as my Lord Coke there takes notice of the style of the Statute of 36. E. 3. viz. to the Honour of God and of holy Church and quietness of the People and according to the style of the Statute of 10. E. 3. Because our Sovereign Lord the King Edw. 3. which Soverainly desireth the maintenance of the Peace and Safeguard of his People c. hath Ordain'd c. for the Quietness and Peace of his People c. and suitably to the style of the Statute of 14 o E. 3. 1. To the honour of God c. The King for Peace and Quietness of his People as well great as small doth Grant and Establish the things under-written c. and to that of 20. E. 3. and for this Cause desiring as much for the Pleasure of God and Ease and Quietness of our Subjects and according to that style in the Register Nos oppressiones duritias damna excessus praedicta gravamina volentes relinquere impunita volentesque salvationi QUIETI populi nostri in hac parte prospicere ut tenemut c. and according to the Trust committed to Princes by God to endeavour that their Subjects may under them lead QUIET and Peaceable lives in all Godliness and Honesty and which is the great Fundamental reason of the Moral Obligation of Princes to relax the Summum jus of their Laws by sometimes DISPENSING therein since we may easily imagine by our thinking of a late Conjuncture how possible it was that the
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
commonly call'd Ecclesiastical Court c. as by the said Councils and Constitutions Provincial appeareth which standing and remaining in their effect not abolish'd by your Grace's Laws did sound to appear to make greatly for the said usurp'd Power of the Bishop of Rome and to be directly repugnant to your Majesty as Supreme Head of the Church and Prerogative royal your GRACE being a LAY-MAN and albeit the said Decrees Ordinances and Constitutions by a Statute made in the 25th year of your Reign be utterly abolish'd c. But forasmuch as your Majesty is the only and undoubted Supreme Head of the Church of England and also of Ireland to whom BY HOLY SCRIPTURE all Authority and Power is wholly given to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever and TO ALL SUCH PERSONS AS YOUR MAIESTY SHALL APPOINT THEREUNED that in Consideration thereof as well for the Instruction of Ignorant Persons c. and setting forth of your Prerogative Royal and Supremacy It may therefore please your Highness that it may be Ordain'd and Enacted that all and singular Persons as well LAY as those that be now Married or hereafter shall be Married c. which shall be made ordain'd constituted and deputed to be any Chancellor Uicar General c. Scribe or Register by your Majesty or any of your Heirs and Successors or by any Archbishop Bishop c. may lawfully execute and execute all manner of Iurisdiction commonly call'd Ecclesiastical c. Here you see the enacting clause founded on the previous solemn acknowledgment of the King's supremacy and on his having the power given him not by Parliaments or People but by SCRIPTURE to appoint such to be ecclesiastical Judges who were by Custom and by the Laws of Councils and Provincial Synods formerly equivalent to Acts of Parliament incapacitated so to be And from whence it is consequently apparent that no positive humane Laws whatsoever inflictive of Penal incapacity could against the Right inherent in him by the positive Law of God oblige him not to dispense with the others by his supreme Power when he found it necessary so to do For 't is on all hands confessedly true that Parliaments can no more then the Bishop of Rome delete such Power as is given by God to the Princes of the Earth A. But because a Parliament declared that such a supreme Power is given by the Scripture to Princes you know it doth not follow that it is so And moreover you know that was a Popish Parliament that so declared it B. But I likewise know that as 't is in my Lord Chief Iustice Vaughan ' s Reports in Hill and Good ' s Case that if a Marriage be declared by Act of Parliament to be against Gods Law we must admit it to be so for by a Law that is an Act of Parliament it is so declared so that Act of Parliament having declared it that by Holy Scripture all Authority and Power is wholly given to the King and to all such Persons as he shall appoint to hear and determine c. tho such Persons were by a lawful Canon incapacitated so to do a Canon that that Iudge in the words immediately following the other makes to be the Law of the Kingdom as well as an Act of Parliament we must admit such Power and Authority inherent in the King's Supremacy by the Word of God thus to supersede incapacity And whether the incapacitating Canons were lawful ones or no it is not tanti to enquire since as we know a Power inherent in Kings by the Word of God cannot be either by lawful Canon or Act of Parliament taken away and much more ought such Power to be construed and admitted as inherent in him by the Scripture while the Act of Parliament continues in being But I shall yet bring the acknowledgment of your Prince's Supremacy in this point as thus founded on Scripture closâ—…r to your Conscience by letting you see that you have not only the Judgment of a Popish Parliament in the Case but of that very Statute of Queen Elizabeth that enjoyns your Oath of Supremacy for it revives that Statute oâ—… Harry the 8th and all and every branches and Articles in it as you will find it in your Statute-book A. You have mention'd one thing in that Statute of Harry the 8th that doth a little startle me and that is that he and the three Estates apply'd there the design of keeping up those Canons of Councils and provincial Constitutions that incapacitated LAYMEN as level'd at the exclusion of the King himself not only from his Prerogative but from being in a capacity to exercise ecclesiastical Jurisdiction as supreme head of the Church as I find by those remarkable words YOUR GRACE BEING A LAY-MAN B. You do well to take notice of that and are therefore not to wonder at it if you should hear your Prince who was a Dissenter to the Church of England and others concern'd for him to have apprehensions of what prejudice might be meant him by some subtle Projectors of Laws to incapacitate all Papists and Presbyterians from acting in any Office in Church or State however many loyal Persons might be far from intending such prejudice thereby his Grace being a Papist or Presbyterian A. I must confess that if the Kings Power of commanding the Services of all his Subjects be inherent in him by the Word of God and as such declared by Parliament any Mens endeavours to take away that Power may well be imputed to great incogitancy B. You say right and I was hence induced to wonder that after the Act and Acknowledgment of his Majesty's Prerogative in the Choice of his Officers of State-Councellors and Iudges had thus passed in the first Parliament of Scotland in the late King's reign viz. The Estates of Parliament considering the great Obligations that lie upon them from the Law of God the Law of Nations the Municipal Laws of the Land and their Oathes of Allegiance to maintain and defend the Soveraign Power and Authority of the King's Majesty and the sad Consequences that do accompany an encrochment upon or diminution thereof do therefore from their sense of humble duty declare that it is an inherent privilege of the Crown and an undoubted part of the Royal Prerogative of the Kings of this Kingdom to have the sole Choice and Appointment of the Officers of States and Privy Councellors and Nomination of the Lords of Session as in former times and that the King 's sacred Majesty and his Heirs and Successors are by virtue of that Royal Power which they hold from God Almighty over this Kingdom to have the full exercise of that Right c. any Men could by a following Act of Parliament there be incapacitated to serve their Prince in those Stations I shall here tell you that the incapacitating a few Papists or Quakers Presbyterians or Anabaptists to serve their Prince may to some seem materia
Vice-gerent for ecclesiastical Causes and however incapacitated by some positive humane Laws to make that figure he did but uti Iure suo And I shall tell you as to the subject of the weight of one Man or the consequences of disabling one Man that we were upon if you consider how much the excesses of the Papal Usurpations and the over-ballance of the Monastic Revenue in the Nation were removed by the parts and endowments of Cromwel the Vice-gerent in Matters Ecclesiastical you may easily imagine that if the measures of the Canon-Law and Canonists and the long receiv'd customs or any humane Law had then prevail'd for the disabling of Cromwel cum effectu from bearing Office or intermedling in Ecclesiastical Jurisdiction as the Kings Vice-gerent what a Church of England we should have at this time enjoy'd You may well imagine how much the Disabling of Lay-men from intermedling in ecclesiastical Iurisdiction had passed for a general Custom here when Bishop Downham in the Defence of his Consecration Sermon p. 185. saith that as for lay-Chancellors or Commissaries the Bishops in the times of S. Austin and S. Ambrose had none and that not so much as the Steward of a Church might be a Lay-man and when the Puritan Writers did still upbraid our Discipline on the account of the incapacity of Lay-men to be Bishops Chancellors as adjudged by the ancient Canons and with the Canon of indecorum est laicum esse vicarium episcopi c. and by which Canon the Bishop who made a Lay-man his Vicar was declared to be contemptor Canonum But it was the Regal Power of Dispensing with the Canons and Customs that disabled Lay-men from intermedling in ecclesiastical Jurisdiction that laid the foundation of the Reformation in Harry the 8th's time as it was the same Power of dispensing with the Canons and Customs that disabled Clergy-men from intermedling in saecular Employments that perfected the superstructure of it in the reign of Edward the 6th that young Iosias as was before mention'd Fuller tells us in his Church-history that Harry the 8th's making a Lay-man his Vicar-general was the greatest instance of his ecclesiastical Power that ever was given And my Lord Herbert in his Harry the 8th doth seem to reflect on Cromwel's not being thought capable of that Office for his words on his being made the King's Vicegerent are It was thought strange by the People because there was no Example of any Kings of Israel the lawfully in their own Persons enjoying the mixt Power of the Temporal and Spiritual or of the Pope's having deputed Ecclesiastical Power to a Lay-man But as to his saying that there was no Example of the Pope's deputing Ecclesiastical Power to Lay-men I shall observe that his Lordship had not consider'd that according to the Glosse in C. bene quidem Distin. 96. Laicus potest excommunicare ex Papae delegatione and that tho a Bishop cannot by the Canon-Law delegate his Power to a Lay-man for that a Bishop is not above the Ius Commune Positivum of the Pope yet the Canonists hold that the Pope by the Plenitude of his Power may dispense with his own Laws and by so doing delegate the Power of Excommunicating to Abbesses altho jure Communi as not having the Power of the Keys they are disabled from so doing and that Pope Urban the Second constituted a Lay-man Roger Earl of Sicily and his Heirs his Legates a latere in that Kingdom by way of Inheritance for ever and that our Henry the Second writing to the Pope to recall Beâ—…ket's Legatine Power and to confer it on the Archbishop of York the Pope refused so to do but offer'd the Legatine Power to the King himself and sent Letters to the King for that purpose but which the King in scorn threw away The Legatine Powers are de jure Communi as the Canonists tell us very great and allow the Legates to visit or cause to be visited by such as they shall think fit all Churches Monasteries Colleges Universities Hospitals and do authorize them to make new Statutes and Orders and not only to receive Appeals from ordinary Judges and Delegates but to judge and decide all Ecclesiastical Civil and Criminal Causes and that summarily and sine formâ figurâ Iudicii to make Prisoners of Bishops and send them in Custody to the Pope to bestow Benefices that were vacant to unite Churches to interpret the Mandates of the Pope and if the Pope hath entrusted any thing to be done by them yet to entrust the doing thereof to others to execute all their Jurisdiction in Places exempt as well as not exempt and to dispense in all Cases wherein they are not Prohibited and to exercise the Iurisdiction of granting Indulgences and to dispense with pluralists and with the incapacity of Sons immediately succeeding their Fathers in Church-Livings and to give Absolution to the Excommunicate in many Cases reserv'd to the Apostolick See and likewise in many Causes inflictive of Excommunication ipso jure and in many Cases to restore such as are deposed and degraded and to rehabilitate them even by restoring them to Fame All these Branches of Authority with many others not named here were it seems offer'd by the Pope to our King but which he holding as Vicegerent to the King of Kings and by his Word might well refuse their tenure from the servus servorum and by his Bulls All our Roman-Catholick Princes having made an inroad on the Papal incapacitating Canons by way of Dispensation when they made their Lay-Judges Super-Intendents over their Bishops and who were by Lay-men required to Absolve such who were disabled by Excommunication and to receive their bounds and measures in Ecclesiastical Proceedings by Writs of Prohibition and Consultation and Attachment issued out by Lay-men the exercise of the Regal Power in Ecclesiasticks distributed and dispers'd among so many Lay hands did not seem so powerful nor invidious as when the united Beams of Ecclesiastical Vice-gerence met in the Ministry of one Lay Person and dazled the Eyes of the whole Kingdom and when according to the Power that was 37 o. H. 8. declared by the Parliament to be given to the King by Holy Scripture he made Cromwel his Vice-gerent for the Ecclesiastical Jurisdiction But as that Statute intimating that the Councils and Constitutions Provincial that ordain'd that no Lay-man should exercise or occupy any Iurisdiction Ecclesiastical did stand and remain in their effect not abolish'd by his Grace's Laws and did sound to appear to make greatly for the usurped Power of the Bishop of Rome and to he directly repugnant to his Majesty as Supreme Head of the Church and Pretogative Royal his Grace being a Lay-man altho such Decrees Ordinances and Constitutions were by the Statute made in the 25th year of his Reign intended to be utterly abolish'd frustrate c. but yet that the contrary thereunto being not used by Archbishops Bishops c. i. e. that they had not all that
while or since that Statute of the 25th of his Reign committed the exercise of Ecclesiastical Jurisdiction to Lay-men did or might give occasion to some Evil-dispos'd persons to think and little regard the Proceedings and Censures Ecclesiastical made by his HIGHNESSE and his Uice-gerent Officials Commissaries Iudges and Uisitors being also Lay and Married men to be of little or none effect whereby the people gathereth heart and presumption to do evil and not to have such reverence to your most Godly Injunctions and Proceedings as becometh them c. So I leave it to you to consider how the disabling of any subjects by reason of Religionary Heterodoxy to serve their Prince did or might give occasion to some evil-disposed Persons to attempt the disabling of their Prince on the same account as I bâ—…fore hinted it to you and as the popular incogitancy of the Power given by God extending to all such Persons as should be employâ—…d under the King producing the irreverence of their surmises of the incapacity of the Officials and Visitors employ'd by the Vicegerent and consequently of the incapacity of the Vicegerent himself did naturally terminate in their gathering heart and presumption to do evil and to surmise the King 's being disabled to exercise all manner of Ecclesiastical Jurisdiction and to do that which was directly repugnant to his Majesty as Supreme Head of the Church and to his Prerogative Royal his Grace being a Lay-man how you ought still to preserve a tenderness in your thoughts for that Prerogative Royal given him by God's Word of Commanding the Services of all his Subjects by what Laws or Constitutions soever de facto incapacitated And by the gradual Proceedings I have now mention'd you ought with horror to think of the incapacitating any one Subject to serve his Prince as of the first step from a Precipice A. You have provided variety of Entertainment for my Consideration and have my thanks for it But suppose I should be so Curious and Inquisitive as to ask where in God's Word that Power is given to Princes to employ such Persons as they shall think fit in their service according to the purport of that Statute B. You may likewise suppose that you would then find my Genius so inquisitive as to ask you where you have been at Church of late years For you could then go to no Church in England Scotland or Ireland without hearing St. Paul's Omnis anima spoken of Let every soul be subject to the higher Powers whether he be Apostle or Evangelist Prophet Priest Clergy or Layety whether he be of the People diffusive or representative and the like And as the well-drawn Effigies of a man seems to look on every one in the Room so hath the Picture of the Regal Power drawn by the Divines of the Church of England appear'd to cast its Eye on every one and been made as it were Vocal and saying to every one For he is the Minister of God to thee for good And the good old Book call'd God and the King that you have read over and over hath told you that the Bond of the King's Subjects Obedience to his Majesty is inviolable and cannot be dissolv'd And indeed the thing being so plain by the Law of Nature which being written in man's heart is the very same so far forth as it is yet undefaced with the Law of God reveal'd in the Word it is not tanti to raise Moot-Points about this relating to Scripture I doubt not but you remember it in my Lord Herbert's Harry the 8th that there being a Rebellion of many of the Commonalty A. 1536. and the Rebels sending the King their Grievances and one whereof was That his Grace had ill Councellors and of mean Birth among which Cromwel was not forgotten and the King sending an Answer penn'd by himself as to their Grievances he did therein upbraid them for medling in the choice of his Counsellors and command their acquiescence therein on the grounds of Nature and of his being their Natural Liege-lord A. Well Sir Let it for the present pass as a datum or concessum as you will have it that the Obedience of Subjects in serving their Prince is founded on the grounds both of Nature and Scripture And I shall moreover allow it to you that if you had an Enthusiast to deal with and such who as you said do outrage the 13th of the Romans out of the Apocalypse you might out of Brightman's Revelation of the Apocalypse shew him out of that part of Holy Scripture sufficient Authority for the King 's particularly making Cromwel his Vicegerent For he there on the 14th Chapter and the 17th and following Verses saith This Angel is Thomas Cromwel who lived in the days of Harry the 8th that most mighty King and was a man of great renown and place in our Kingdoms being the Earl of Essex and Lord Keeper of the Privy Seal who came out of the Temple and being a sincere favourer of pure Religion He had a Sickle in his hand being made the King's Deputy in all Ecclesiastical Matters and it was a sharp one as with which he sets stoutly and deliberately to his work and yet he had no Crown or Diadem to grace his head withal being a Minister rather to put another Man's Power in Ure then any that wrought by his own Power and Authority And he on Verse the 18th makes the other Angel to be a Martyr viz. Tho. Cranmer and refers the meaning of the words He cryed with a great voice to him that had the Sickle to Cranmer because saith he in the days of Harry the 8th he inflamed the mind of Tho. Cromwel by his words with a desire to make a Vintage B. I thank you for diverting me with that passage of Brightman but I can refer you to another Writer of our Church whose Authority will go further with us then Brightman's and who hath recorded it that the great figure that Cromwel made both in the Church and State and his and Cranmer's acting together in concert and by joynt Councels both in Church and at the Helm of State was so highly fortunate to the Reformation You may find this observed by Archbishop Parker in his De Antiquitate Ecclesiâ—… Britannicoe p. 530. where he saith Namque profligato Papa susceptâ Ecclesioe Anglicanoe defensione curâ tutelâ Rex excelsiâ—…ing â—…ii multarum rerum usu peritum Thomam Cromwellum Vicarium suum in spiritualibus generalem designavit Hic cum Thoma Cranmero Archiepiscopo tanquam in puppi sedit clavumque Ecclesioe Anglicanoe tenuit proramque à papali littore avertit in Christianum portum reduxit A. Was Vicar-general to the King in Spirituals Cromwel's style for his Office as the Archbishop there termed it B. I am apt to think it was not I never saw any Copy of his Patent or Commission for it The Acts of Parliament in H. the 8â—…h's time style him The King's Vicegerent c. And
Case or to the quite contrary in More 542. Armiger's Case I shall most consult the ease of your thoughts by directing them to what interpretation my Lord Coke in Cawdrys Case gives as to the words of the Statute of 1 o Eliz. and where he saith that that Act doth not annex any Iurisdiction to the Crown but what was of right or ought to be by the Ancient Laws of this Realm parcel of the King's Iurisdiction c. and which lawfully had been or might be exercised within the Realm The end of which Iurisdiction and of all the Proceedings thereupon that all things might be done in Causes Ecclesiastical to the Pleasure of Almighty God encrease of Vertue and the Conservation of the Peace and Unity of the Realm as by divers places of the Act appears And therefore by this Act no pretended Iurisdiction exercised within this Realm being ungodly or repugnant to the ancient Law of the Crown was or could be restored to the Crown according to the ancient Right and Law of the same And here I may tell you that as the Pope did often dispense with incapacity incurr'd by his Positive Laws and that even in the use of the Power of the Keys as by his delegating the Power of Excommunication to Lay-men and to Abbesses as aforesaid so our Kings d d anciently by their Letters Patents and Charters grant Power to those who were no Bishops Ordinaries or Ecclesiastical Iudges or Officers to inflict Ecclesiastical Censures of the greater Excommunication on Offenders and that for Causes not merely Spiritual or Ecclesiastical with Power to Certify them into Chancery and thereupon to obtain Writs de Excommunicato Capiendo as Mr. Prynne tells us in his Animadversions on the Fourth part of the Institutes and there cites the President of Edward the Third thus empow'ring the Chancellor of the University of Oxford tho a Lay-man so to do and so to Punish Breakers of the Peace Offenders against the Statutes Privileges and Customs of the University and all Forestallers and Regraters and Sellers of corrupt Meat and Wine and to Excommunicate such who refused to cleanse the Streets from filth and to Pave them before their Doors and this he saith was confirm'd by sundry succeeding Statutes of our Princes In what particulars it is by this Statute of the 25. of H. the 8th warranted that the King his Heirs and Successors may dispense with Persons and in Causes that the Papacy was never accustomed to dispense in I shall not trouble you or my self to enquire but shall tell you that Mr. Nye in his Book call'd Two Acts of Parliament and wherein are contain'd his Observations on the Oath of Supremacy doth in p. 164. cite this Statute of 25. H. 8. c. 21. and thereupon say the King's Majesty may dispense with any of those Canons or Ecclesiastical Laws meaning the King 's Ecclesiastical Laws indulge the Omission of what is enjoyn'd by them make void the Crime and remove the Penalty incurred by breach of them yea and give faculty to do and practice otherwise any Synodal Establishment or long usage to the Contrary notwithstanding in what offends not the Holy Scripture and Laws of GOD. And therefore when our Soveraign in the course of his Ecclesiastical Supremacy doth only dispense with incapacity we are sure he goes not to the height of the Dispensative Power justify'd in him by that Statute nothing having been more customary to the Papacy then rehabilitation It was upon the Revival of this Statute of Harry the 8th by that first of Queen Eliz. c. 1. that she according to the Papal custom of dispensing with the Commutation of Penance did in her Articles in the Synod began at London A. D. 1548. establish one De moderandâ solennis Poenitentioe Commutatione whereby she orders that such Commutation shall be but seldom and for weighty Causes and when it shall appear to the Bishop that that way is the safer to reform the guilty Person and that the Commutation-Money be employ'd to Pious uses And then follows the Title De Moderandis quibusdam Indulgentus pro Celebratione Matrimonii absque trinundinâ denunciatione quam bannos vocant Matrimoniales where you will find she makes Faculties and Indulgences all one And as I have shew'd you how she thought it necessary for the safety of her Subjects Consciences to exercise her Dispensative Power of interpreting and of relaxing disabilities occasion'd by the very first Statute of her Reign and how soon she put the Dispensative Power of those kinds in practice which by that Statute were restored and united to her Imperial Crown so I may observe to you that shortly after the making of the Second Statute in her Reign viz. That for Uniformity of Prayer and Administration of Sacraments which punisheth with Premunire Sequestration and Deprivation and Excommunication which while it is depending is so variously inclusive of disability the not using the Book of Common-Prayer as Publish'd in English she by her Letters Patents dated the 6th of April in the Second year of her Reign and A. 1560. alloweth the use of Latine Prayers to the Colleges of both Universities and to Eaton and Winchester Colleges with a particular Non-obstante to that Statute a Copy of which Letters Patents may be seen in Bishop Sparrow's Collection of Articles c. And I have before acquainted you in general how in her Letters Patents for the Consecrating new Bishops she expresly dispens'd with incapacity But what may perhaps seem to you as a new Indication of her being the better able to dispense with it is an Instance I shall give you of her making incapacity by her Supreme Ecclesiastical Power The instance of her thus making incapacity is a thing that Mr. Nye in his Beams of former Light reflects on as strange for he there in p. 201. referring to Queen Elizabeth's Injunctions A. 1559. Injunct 29. viz. It is thought very necessary that no manner of Priest or Deacon shall hereafter take to his Wife any manner of Woman without the Advice and Allowance first had by the Bishop of the Diocese and two Iustices of the Peace next to the place of her abode c. and if any shall do otherwise they shall not be permitted to Preach the Word or give Sacraments nor be Capable of any Ecclesiastical Benefice saith then Doth this seem strange now It seem'd very necessary in the judgment of our Governors then A. I must acknowledge that you have spoke that which is very much for my Satisfaction concerning the Dispensative Power and the Oath thus supporting one another But I wonder that I have not in any of our celebrated Writers of the Church of England read that the Contents of the Assertory and Promissory parts of this Oath and our abjuring foreign Iurisdictions Powers Superiorities and Authorities in the Oath i. e. those of the Papacy were intended in order to the statuminating our Prince's Dispensative Power pursuant to the Statutes of 25. H. 8th and 1
commanding Obedience to be given to the Word of God by reforming Religion according to his prescribed Will by assisting the Spiritual Power with the Temporal Sword by reforming Corruptions by procuring due Obedience to the Church by judging and cutting off all frivolous Questions and Schisms as Constantine did and finally by making decorum to be observ'd in every thing and establishing Orders to be observ'd in all indifferent things for that purpose is the ONLY intent of the Oath of Supremacy and whereby as he effectually confuted the Cardinal whose Letter charged the Oath of Supremacy as tending to this end That the Authority of the Head of the Church in England may be transferr'd from the Successor of St. Peter to the Successor of King Henry the 8th and to oppose the Primacy of the Apostolick See so at the end of his Book he shews that his design of Publishing the same was to satisfie all his good and natural Subjects and likewise Strangers about the things therein contain'd and whereby the King's Mind was publickly notify'd that in the right done to the Crown by the Oath of Supremaâ—…y as well as of Allegiance there was no wrong intended to St. Peter or his Successors A. I hope you have now put a Period to the History of the Dispensative Power of the Crown that was exercised in-the interpreting of any parts of the Oath of Supremacy or the 37th Article thereto relating You have named to me so many interpretations of the Oath that according to the wisdom of our State and the Lex Consuetudo Parliamenti making a Bill to be thrice read in each House of Parliament and then receiving the Royal Assent to be thought like Gold seven times purify'd may shew the interpretation of the Law to be so too But tho I will account any good Law to be more precious then Gold yet if like Gold it be too far extended by ductile interpretation it may be drawn to such a thinness as to lose all its weight and estimation and retain only a poor tincture and colour that will signifie little or nothing And as Pliny in his Panegyrick on Trajan said that by reason of the multitudes of sutes upon Penal Laws in Rome there was danger till Trajan's time ne Civitas fundata legibus legibus everteretur so a Law whose Obligatoriness is founded on interpretations may be endanger'd by the multitudes of them to be destroy'd and may like the Papal Laws of New Rome by the infinite interpretations of Casuists in the forum internum which is their Tribunal be brought to signifie nothing in either forum and to be only an Engine to make Perplexities You have given me here such a Genealogy of interpretations that according to the common Story of Arise Daughter c. one may say Arise Interpretation and go to thy Interpretation c. I shall therefore be glad now you have been so largely communicative of your thoughts to me about the assertory part of the Oath you will deal as frankly with me in acquainting me with what may in the Promissory part of the Oath be of importance for me to know in order to the better discharge of my Duty in the Case before me B. I shall therein be most ready to serve you when we meet next for the entire Consideration of what according to the Assertory part of the Oath you are obliged to do will I see be as great a load as both our patiences will at this time bear and therefore according to the Saying of Must is for the King I am to tell you that let our Kings make never so many interpretations one after another of this your Oath you must finding them all Consistent with one another consider them all with all due regarâ—… 〈◊〉 thank God and them when their Consciences being inclined to a tenderness for the doubting of yours they interpose their Dispensative Power of that kind And hereupon I shall tell you that in the year 1628. King Charles the First did cause the 39 Articles to be reprinted and with a Declaration before the same made by him as Supreme Governor of the Church within his Dominions that those Articles contain the true Doctrine of the Church of England and that if any Difference should arise about the external Policy concerning Injunctions Canons or other Constitutions whatsoever belonging to the Church of England the Clergy in their Convocation is to order and settle them c. he approving their said Ordinances c. that the Bishops and Clergy shall have licence under the Broad Seal to deliberate of and do all such things as being made plain by them and assented to him shall concern the setled Continuance of the Doctrine and Discipline of the Church of England c. and then having respect to the Article wherein the Arminians and Antiarminians were concern'd 't is order'd that no man hereafter shall either Print or Preach to draw the Article aside any way c. But the first Canon that was afterward viz. A. 1640. made was that concerning the Regal Power which begins with taking notice that sundry Laws Ordinances and Constitutions had been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King over the state Ecclesiastical and Civil and then enjoyns them to be ALL carefully observ'd by all persons whom they Concern upon the Penalties in the said Laws and Constitutions express'd and then decrees that the Clergy shall read the following Explanation of the Regal Power and where the words A Supreme Power is given to this most excellent Order i. e. of Kings by God himself in the Scriptures which is that Kings should rule and Command in their several Dominions all persons of what Rank or Estate soever whether Ecclesiastical or Civil and that they should restrain and punish with the Temporal Sword all stubborn and wicked doers shew they had then the 37th of the 39 Articles in their eye and some other words viz. for any person or persons to set up maintain or avow respectively under any pretence whatsoever any independent Coactive Power either papal or popular c. is to undermine their great Royal Office shew they had an Eye on that 37th Article and on your Oath and where they did speak out that sense of the Clause The Bishop of Rome hath no Iurisdiction c. and of the words in the Oath that no foreign Prelate hath or ought to have any Iurisdiction c. that is that the Bishop of Rome had here no independent Coactive Iurisdiction the sense in which all considerate Persons who were Members of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's time took the old Oath of Supremacy and the Members of the Church of England in Queen Elizabeth's time and ever since took the new one As for Non-conformists who think the Government of Bishops unlawful this Clause that no foreign
Godly Iealousie and tenderness to support one another and that Tender-Conscienced Prince who confirm'd this Canon did in it variously dispensare in lege as I may properly say with Allusion to Suarez de Legibus where in stead of using the Common Expression of dispensing WITH Laws he so frequently mentions that of dispensing IN them and thereby doth seem to take off somewhat of the harshness of Questions about Popes or Princes dispensing WITH Laws For when Sovereigns do dispensare in lege they really distribute their Sovereign Power throughout the Body of their respective Laws for their Preservation and as the heart doth dispense or distribute Blood in and throughout the Body-natural and the Brain Animal Spirits throughout the genus nervosum all the Body over And here the King having a tender regard to the firm and infirm Consciences of his People respectively and to their various Capacities of understanding and he being as Zealous for all their keeping their Oaths of Supremacy and Allegiance as any Prince could be for their taking them doth in the beginning of the Canon let such as you know who have been brought up to Study and who have a tenacious Memory and could remember more interpretations of the Oath then I have recounted to you if they had been given by our Princes that whereas sundry Laws Ordinances and Constitutions have been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King 's most Excellent Majesty over the State Ecclesiastical and Civil c he doth enjoyn them all to be carefully observ'd by all such Persons whom they concern upon the Penalties in the said Laws express Here then the Acts of Parliament before-mention'd and the Oaths and Articles and Canons and Authentick interpretations appear to look you in the face and the Articles particularly do so to the Clergy as having subscribed them But that Pious Prince as their Sovereign Pastor being desirous that his Clergy should gently allure the Layety with Line upon Line and Precept upon Precept to keep their Faith to God and Loyalty to himself rather then by Interpretation upon Interpretation of their Oaths would not in this Canon have them frighted with the sight of the Oaths themselves and which are there not named and all Archbishops Bishops and inferior Priests are moreover by the Canon required to Preach Teach and Exhort their people to obey honour and serve their King and that they presume not to speak of his Majesty's Power any other way then in this Canon is exoress'd but which Canon gives them a very fair licence to speak to their People of and for the King's Power of disabling and of rehabilitating his Subjects For it disables the publick Abâ—…ttors of any Position contrary to the Explications of the Regal Power therein by Excommunicating them till they repent and for the first Offence suspends them two years from the Profits of their Benefices and for the second deprives them of all their spiritual Promotions and it was in the Canon before said That if any Parson Uicar Curate or Preacher shall neglect his Duty in Publishing the said Explications c. he shall be suspended by his Ordinary till such time as upon his Penitence he shall give sufficient assurance or Evidence of his amendment and in case he be of any EXEMPT Iurisdiction he shall be censureable by His Majesty's Commissioners for Causes Ecclesiastical And the Canon makes any Offenders against it in the Universities as being exempt Jurisdictions there censureable or before His Majesty's Commissioners for Ecclesiastical Causes and so you have the Canon likewise by securing the Rights of exempt Jurisdictions asserting the Dispensative Power But if you will take Mr. Bagshaw's word in his first Argument in Parliament concerning the Canons he there tells you that that very Canon of the Convocation containing the Explanation of the Regal Power did necessarily imply their declared sense of the Laws being dispens'd with For saith he in making Determinations concerning Royal Power they have done against Law and have medled with things of which they have no Conusance for the Exposition of them belongs to the Iudges of the Land and they have no more right to expound them then the Iudges have to expound Texts of Scripture And we know that our Laws have been so careful of preserving the Judges right of interpreting them that they allow not the Bishops and their Officials Power to interpret any Acts of Parliament tho made about Matters of their Jurisdiction and Matters merely Spiritual as appears out of Hobart 84. Spenloe's Case and Coke 3. Inst. where he saith that an Act of Parliament made about things merely Spiritual shall be construed by the Common Law 〈◊〉 Judges But how far the disabling by the Power of His Majesty's Commissioners for Ecclesiastical Causes such who explain'd not the Regal Power according to that Canon might appear as an Instance of the Prerogative of Disabling and of occasional re-ennabling Mr. Bagshaw's second Argument in effect exposeth it to Consideration by mentioning that the last Letters Patents of the High Commission were Mich. 9. Car. in which are contain'd all things wherein the Commissioners were to meddle and that therefore the Punishing of any there on the account of this new Canon made not a year ago could not be pursuant to those Letters Patents His first Argument likewise wherein he gives his Iudgment that by Law that Convocation was dissolv'd by the Dissolution of the Parliament may let us see how far they in making any Canon depended on the Dispensative Power of Prerogative But any one who hates Faction will find that that Author did needlesly inflame the minds of that Parliament of Forty against those Canons and particularly with the foremention'd Exception against the first on the Account of the Explanation of the Regal Power having not been made by the Iudges and where the Exception doth through the sides of the Convocation strike at the honour of that King by whom those Canons were Confirm'd His Majesty in his memorable Speech at the Prorogation of the Parliament on the 20th of October 1628. occasionally said I Command and all you that are here to take notice of what I granted you in your Petition i. e. the Petition of Right but especially you my Lords the Iudges for to you only under me belongs the interpretation of the Laws for none of the Houses of Parliament joynt or separate have any Power either to make or declare a Law without my Consent Nor will any one wonder at the tenderness of any Crown'd heads in preserving their Right as to the interpretation of their Laws who hath consider'd that the usage of the ancient Romans in making their Civil Law to be among the things Sacred and Ceremonies of their Gods preserv'd in the Collegium Pontificum and appropriating the interpretation of it to their Pontifices did induce Augustus to be inaugurated Pontifex Maximus and
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
confirm being firmum facere i. e. what was not so before you are not to think that the Parliament in 13 o Eliz. did so They Enacted what was by the Queen before authorized and as the words there are about the Articles viz. Put forth by the Queen's Authority And you may too for this purpose Consult the style of the Act 23 o Eliz. c. 1. Entituled An Act for retaining the Queen's Subjects in their due Obedience and where 't is made Treason for any to withdraw any Subjects from their Natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highness Authority establishâ—…d within her Dominions Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign pursuant to the Act of 1 o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction the Act of Parliament 35 o Eliz. c. 8. entituled Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good and Archbishops Bishops and Deans made by the Queen shall be adjudged lawful begins with acknowledging that the former were justly deprived and it is therefore Declared and Enacted by Authority of this Parliament that all and every Deprivation c. and all and every Sentence of Deprivation c. had pronounced and given c. shall be adjudged deem'd and taken good and sufficient in Law c. and as to the latter viz. That all such Archbishops Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty c. shall be taken and adjudged to be lawful c. Thâ—…y confirmed not what the Queen did in disabling the former and enabling the latter but only declared and enacted the validity of what the Queen had done And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling And here too by the way I am to tell you that you have another judgment of Parliament suitable to that in 8 o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty c. any ambiguity or question in that behalf heretofore made to the contrary notwithstanding and which QUESTION before made in the Case I have before shew'd to be disability A. But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of represented as a Gravamen by some B. I have so and the last Book I read that so represents it is the Answer to Dr. Stillingfleet ' s Sermon by some Non-Conformists c. Printed A. 1680. and where in p. 29. they thus express their desires viz. That all New devised Oaths Subscriptions and Declarations together with the Canonical Oath and the Subscription in the Canons be suspended for the time to come If that be too much we shall consent our selves with a modester motion that whatsoever these Declarations be that are required to be made subscribed or sworn they may be imposed only as to the matter and end leaving the takers but free to the use of their own Expressions And this expedient we gather from the Lord Coke who hath providently as it were against such a Season laid in this Observation The form of the Subscription set down in the Canons ratify'd by King Iames was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then in reference to the particulars therein contain'd what binders why they might not have the same restored in reference also to others It was the second Article enjoyn'd by that Canon to be subscribed viz. That the Book of Common-Prayer c. containeth in it nothing contrary to the Word of God and that it may lawfully be used c. at which they took so much offence and to which the Act of Parliament required not their Subscription A. I perceive then my Lord Coke doth not reflect on the form of Subscription as enjoyn'd by the 36th Canon of King Iames and by his Regal Authority out of Parliament as illegal notwithstanding what had been enacted in the 13th of Queen Elizabeth B. He doth not And he there further faith By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be proceeded withall by the Censures of the Church And I heard Wray Chief Iustice in the King's Bench Pasch. 23. El. report That where one Smith subscribed to the said 39 Articles of Religion with this addition so far forth as the same were agreeable to the Word oâ—… God that it was resolv'd by him and aâ—…l the Iudges of England that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice he is sworn to Canonical Obedience to his Diâ—…cesan But as to his saying that the Delinquent against this Canon is to be proceeded withall by the Censures of the Church I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain Admit or License any one except he first have subscribed in manner and form there appointed and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament and did likewise out of Parliament make incapacity to be the Punishment of refusing such new Subscription And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but as I may say virtually and tacitly by all our Kings and Parliaments ever since who have acquiesced in the same But what if I should tell you that the Authority of the King in thus making that Canon about Subscription hath been since expresly approved in Parliament A. I should be most ready to hear it B. You may therefore please to consult the Act for Uniformity 16 o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops c. set forth in the time of Edward the 6th as
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.
kind B. Why then I can tell you if you will at any time turn to your Collection of Proclamations in the time of King Iames the First you will find that in his Proclamation of March the 5th the first year of his Reign he intimates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer and for that end gave forth his Commission under the Great Seal of England according to the Form which the Laws of this Realm in like Case prescribed to be used to make the said Explanation and to cause the whole Book of Common Prayer with the same Explanation to be newly Printed which being done and establish'd anew after so serious a Deliberation c. we have thought it necessary to make known by Proclamation our authorizing of the same and to require and enjoyn all men as well Ecclesiastical as Temporal to Conform themselves to it as the only publick Form of serving God establish'd and allow'd to be in this Realm And the rather for that all the Learned Men who were there present as well of the Bishops as others promised their Conformity in the practice of it only making sute to us that some few might be born with for a time Wherefore we require all Archbishops Bishops and all other publick Ministers as well Ecclesiastical as Civil to do their Duties in causing the same to be obey'd and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer You see there that all the Bishops and the great Parade of the literati present at that famous Conference did implore the King for the exercise of his Dispensative Power for a while to some few But what is more considerable is that the King here doth make a general relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things and instead of inserting an express Clause of discharging from the Penalties of that Act all that use the Common Prayer Book with the King's Alterations or Explanations as Queen Elizabeth's Admonition did in relation to those who took the Oath of Supremacy in the sense of her Interpretation a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law he enjoyns the uniform usage of the Book of Common Prayer as by him interpreted or explain'd the title of the Proclamation being A Proclamation for the authorizing an Uniformity of the Book of Common Prayer to be used throughout the Realm under the disabling Punishments of Queen Elizabeth's Act of Uniformity the Bishops all this while being ministerial to the King in his Power of thus interpreting and explaining an Act of Parliament and the loosening of its Obligation both as to themselves and others I am to tell you that in that Proclamation of March the fifth the King refers to a Proclamation he had before Publish'd on the 24th of October then last past wherein he gave the Puritan Divines an intimation of the Conference he intended to have and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation which saith he if there be Cause to make is more in our hearts then theirs c. and afterwards saith we are not ignorant that time may have brought in some Corruptions which may deserve a review and amendment which if by the Assembly intended by us we shall find to be so indeed we will therein procéed according to the Laws and Customs of this Realm by Advice of our Councel or in our High Court of Parliament or by Convocation of our Clergy as we shall find reason to lead us not doubting but that in such an orderly proceeding we shall have the Prelates others of our Clergy no less willing and far more able to afford us their Duty and Service then any other whose zeal doth go so fast before their discretion And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm and how loyally his Bishops and Clergy acquiesced therein A. I remember I have read both these Proclamations and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the People tho none in the Orthodox Clergy But I should be glad to know whether it made any fermentation in the Body of the People Representative and what was the Result of it Did the Parliament acquiesce in what the King had done as aforesaid For if so they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supremacy did in discharging the disabling Penalties in her first Act of Parliament and in relaxing by her interpretation the vinculum for its observance in that sense that many had before put on it B. King Iames his Parliament did in effect the very self-same thing And I shall give you the account of it out of his Proclamation of the 16th of Iuly A. 1604. in the Second year of his Reign for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it and his hoping that when the same should be made known all reasonable Men would have rested satisfy'd with that which had been done and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made His Majesty's following words are Notwithstanding at the late Assembly of our Parliament there wanted not many who renew'd with no little earnestness the Questions before determin'd and many more as well about the Book of Common Prayer as other Matters of Church Government and importuned us for our assent to many Alterations therein but yet with such Success as when they heard both our own Speeches made to them at sundry times shewing the Reasons of our former Proceedings in those Matters and likewise had had Conference with some Bishops and other Lords of the Upper House about the same they desisted from further Prosecution thereof finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same we had before with the Advice of our Councel had such Consideration as the present state of things would bear and taken order how the same should be prosecuted by such means as might be used without any publick disturbance or innovation And in how vigorous a State the Dispensative Power as to the Nonconformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Commons for the exercise of the same to the Non-conformists in the 10th year of his Reign Moreover how by Tacit Dispensation he dispens'd with the Disabilities that
to perform the Conditions and that the King his Father should do the like Secondly That the Promises of Marriage should be presently made c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experimentâ—…lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd c. As to the first the Prince of Wales took an Oath to His Majesty to observe the foresaid Conditions and sign'd them with his Hand and he likewise swore and sign'd this by way of Over-plus to permit at all times that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment and that he would never directly nor indirectly permit any to speak to the Infanta against the same But I shall here en passant observe to you out of the general Articles namely that in the 16th Article notwithstanding my Lord Coke's Opinion before-mention'd that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta and care taken that no Clause or word therein shall contradict the Roman Religion or Consciences of the Roman-Catholicks and that by the 24th Article for the Security that every thing that was agreed to should be fulfill'd the King and Prince were to be bound by Oath that all the Privy Councellors should sign the Agreement And I need not tell you that their being sworn to the private Articles was a new Oath A. Was nothing of the King's mind about the Suspending ALL the Penal Laws both the disabling ones and others against the Papists notify'd to his Privy Councel before the year 1623 B. Mr. Prynne there in p. 30. saith that for the hastening the Pope's Dispensation for the Match King James as the French Mercure Tom. 9. records it and as he had CREDIBLY been inform'd of from others assembling his Privy Councel together Febr. 25. 1622. made a long Oration to them which he recites at large the sum whereof was this That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods Bodies Consciences during Queen Elizabeth's Reign of which they hoped to be relieved in his c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects and was resolv'd to relieve them and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection permitting them the Liberty and entire Exercise of their Religion c. without any Inquisition Process or Molestation from that day forward and likewise will and ordain that they shall be restored to all their Estates Lands Fees and Seignories and re-establish'd in them Commanding all his Magistrates Iustices and other Officers whatsoever in this behalf to hold their hands and for what Cause soever it be not to attempt hereafter to grieve or molest the said Catholicks neither in publick nor private in the liberty of the exercise of their Religion upon pain of being reputed Guilty of High Treason and Disturbers of the Kingdoms peace and repose this being his will and definitive Sentence A. But still I cannot forbear wondring about what Considerations made our Divines and our Great Champions of the Church of England-Protestancy in the State as well as Church afterward thus inclinable to act their Parts about Toleration as Mr. Prynne hath mention'd B. They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy and that by reason of the various growth of the Potency of foreign Princes and States and of intestine Factions the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage and that where such Alliance was to be with the Familiâ—…s of Roman-Catholick Princes there could be no expectation of the Pope's relaxing his Laws by dispensing without our Princes doing something of that kind as to theirs I might here observe to you that we are told in The Regal Apology that the Oxford Antiquities mention'd to have been writ by Dr. Bate that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou and if it were true that an Universal Toleration was agreed on by King James it was intuitu majoris boni The Palatinate was to be restored again and the Protestants of Germany to be re-enstated in their Possessions on that Condition But to punish being a kind of Punishment and it being irreligious to punish Men for Religion and the highest tide of Anger being naturally succeeded by the lowest ebbe of it and the thoughts of rigorous Severity in Princes toward their Subjects being like such in the Head toward the Members of the same Body and King Iames having found that the general abhorrence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath and finding as appears by his long Proclamation of four sheets of Paper declaring his Pleasure concerning the Dissolving of the Parliament A. 16â—…1 that they were not the Papists who made his later breath so uneasie to him and he being of opinion that the reason of the severe Laws was much abated it may abate of our wonder that in that Conjuncture he put a Period to their Execution Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the Iâ—…dges in the year following to acquaint them that His Majesty having resolv'd out of deep Reasons of State and in expectation of like Correspondence from foreign Princes to the Professors of our Religion to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom had Commanded him to pass some Writs under the Broad Seal for that purpose and that he had accordingly done so and tells them that 't is His Majesty's Pleasure that they shall make no niceness or difficulty to extend that his Princely favour to all Papists imprison'd for any Church Recusancy whatsoever or refusing the Oath of Supremacy or hearing of Mass or any other point of Recusancy which doth touch or concern Religion only and not matters of State which shall appear to you to be totally Civil and Political A. You lately mentâ—…on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature as was in the Spanish Wâ—…at account doth Mr. Prynne give of that B. He tells you there p. 69. that the French Maâ—…ch was soon Concluded in the life of King James the Articles concerning
Religion being the same almost Verbatim with those formerly agreed on in the Spanish Treaty And he there refers to Rot. Tractationis Ratificationis Matrimonâ—… inter Dom. Carolum Regem Dom. Henret Mariam Sororem Regis Franc. 1 o Cat. in the Rolls and then in p. 71. saith Besides these general Articles of the Match these particular ones were concluded and agreed on in favour of the Roman-Catholicks the same in Substance with those of Spain and where he saith the Second is to this effect that the English Catholicks should be no more searched after or molested for their Religion But Mr. Prynne there particularly sets down only three short Articles and those comprised in about six lines and the words or molâ—…ted in the second Article are Printed in a different Character from the others as if he thereby intended them as his own Explication of the word searched A. You just now mention'd King Iames his having in the year 1622. order'd all the Popish Recusants who were in Prison on the account of their Religion to be set at liberty and you told me how he tacitly dispens'd with the Disability that Popish Physicians and Lawyers had incurr'd by Act of Parliament Was that all the favour he shew'd Roman-Catholicks B. No He allow'd them to make a very Considerable figure in the Government as you may find if you consult the Iournals of Parliament as referr'd to by Mr. Prynne p. 66. Seq of that Book For he there mentions that in the year 1624. The Commons sent a Petition to the Lords desiring their Concurrence with them in presenting it to His Majesty for removing Popish Recusants and those whose Wives were Papists from Offices of Trust which by Law they were DISABLED to execute which the Lords took into their Consideration and which Mr. Prynne saith was enter'd in their Iournal in this manner Die Jovis viz. Vicessimo die Maii 1624. The Lord Archbishop of Canterbury reported that at the meeting this Day with the Commons they Presented an humble Petition to the King desiring this House to joyn therein with them The which Petition was read in haec verba c. In short the Commons in their Petition take notice of the Growth of the Number of Popish Recusants in this Kingdom and of their insolency in all the Parts thereof and that many of them contrary to the Laws were gâ—…t into Offices and Places of Government and Authority under the King And the Prayer of the Petition is That the Lords and Gentlemen there undernamed may be removed from all His Majesty's Commissions of great Charge and Trust Commissions of Lieutenancy Oyer and Terminer and of the Peace and from all other Offices and Places of Trust. And they in their first Schedâ—…le there name 11 Lords and 18 Knights And in their second they name many Persons of Quality who were in Places of Charge and Trust in their several Counties and had marry'd Popish Wives and whose Children and Servants were bred up to Popery A. Doth any Act of Parliament disable a man from bearing Office because his Wife is a Papist or because his Children or Servants are bred up to be Papists B. Yes the Act of the Third of King Iames the First cap. 5. doth it as you will see if you consult it for 't is there Enacted That no Popish Recusant Convict nor any having a Wife being a Popish Recusant Convict shall at any time after this Session of Parliament or any Popish Recusant hereafter to be Convict or having a Wife which hereafter shall be a Recusant Convict at any time after his or her Conviction shall exercise any publick Office or Charge in the Common-wealth but shall be utterly DISABLED to exercise the same by himself or his Deputy except such Husband himself and his Children which shall be above the age of Nine years abiding with him and his Servants in Houshold shall once every Month in the least repair to some Church usual for Divine Service and there hear Divine Service and the said Husband and such his Children and Servants as are of meet Age receive the Sacrament of the Lord's Supper and do bring up his said Children in true Religion A. Now have you set me a longing to know what the House of Lords did in the Case of that Petition about removing those disabled Persons from serving the King in those great Stations And since the Judgment of Parliament was always had in such great veneration I think if the result of the desire of the House of Commons was that the Lords had joyn'd with them in the Petition and had urged that the King could not dispense with that Act of Parliament and Pardon Disability it may make a notable President in the Case we have been discussing B. You will find that the Commons urged nothing to the prejudice of Prerogative in the Prayer of their Petition Their style there was We humbly beseech your Majesty graciously to vouchsafe that the said Lords and Gentlemen here under-named for this important Reason and for the greater Safety of your Majesty and of your Realm may be removed from all your Majesty's Commissions of great Charge and Trust Commissions of Lieutenancy c. And the important reason did refer to the great Countenance hereby given to Popery the great grief and offence to all his best affected and true loving Subjects by putting the Power of Arms into such mens hands as by former Acts of His Majesty's Councel are adjudged Persons justly to be suspected c. But to let you see what the House of Lords did hereupon Mr. Prynne tells you p. 69. That this Petition being read the House did defer the Debate thereof at this time for that the day was far spent And answer was given to the Commons who attended for the same in the Painted Chamber that the Lords will send them an Answer of this Petition hereafter when they are resolv'd thereof Whereupon Mr. Prynne concludes his account of this Transaction thus Whether any of these were displaced upon this Petition I find not in any Memorials it being certain some of them were not but continued still in these Offices of Trust. A. How have you here disappointed my Curiosity in making that ferment then in the Government about the Disability of the Papists being dispens'd with thus silently to go off through the House of Lords forbearing to joyn with the House of Commons in their Petition B. I shall here afford your Curiosity a recompence by observing it to you with allusion to some of the words of the Royal Martyr in his Answer to the 19 Propositions That the ancient equal happy well poysed and never enough commended Constitution of the Government of this Kingdom having made this Nation so famous and happy to a great degree of Envy c. and the Lords being trusted with a Iudicatory Power are an excellent Screen and Bank between the Prince and the People to assist each against any Encroachment of
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
say right The King may thus according to his Lordship's Opinion suspend all Penal Disabilities as well as other Penalties incurr'd by Acts of Parliament and particularly by the Test-Act of 25 o Car. 2. and hereby to the Great figure he made in the framing of that Act any who are displeas'd with the Act may apply the Una eademque manus c. A. But I suppose his Lordship there has nothing that may favour the repealing of the Test or any of the Penal Laws against the Papists B. None would expect from him anything to be moved for the repealing of the Test however he allow'd Prerogative to suspend it But at that time that all People of narrow Souls and ignoble Thoughts were with so much clamour hunting down all Roman-Catholicks without distinction and when the most devout among them by being as it were ad bestias damnati and devoured by Informers appear'd as a spectacle of delight to many inhumane Protestants his Lordship's humanity was so great as to incline him in p. 6. there to give them somewhat like a Quietus from all Pecuniary Laws And the truth is when I consider how little Wool the fleecing of Roman Catholicks and Quakers or any Heterodox Religionaries at home or abroad hath brought to the Exchequer of any Prince or State and only to Informers and that the Consciences of peaceable Men have been burden'd by Men of no Conscience and by the turba gravis paci who are indeed burthens of the Earth I tremble to think what occasion may have been taken by Male-contents to say in their Hearts as to any such Prince or State according to those words of the Psalmist Thou sellest thy People for nought and dost not encrease thy Wealth by their Price or and takest no Money for them I shall at some other time of our meeting give you some account cut of the Records of the Exchequer of the inconsiderable Sums of Money that have for several years been brought to it by the severe Prosecutions of Roman-Catholicks and Quakers But there is another thing very well worth your reading in that Book and which is the more proper for our Consideration as suiting some great Points we have been discoursing that concern our Oath and that is this Hâ—…s â—…ate Majesty's Ministers in that year 1675. having brought in a Bill in Parliament for a TEST extending to Protestants and which as the Book saith was call'd by one of His Majesty's Ministers A moderate Security to the Church and Crown you will there in p. 15. see it mentioned how as to the Assertory Parts of the Oath in that Test It was worthy the Consideration of the Bishops whether Assertory Oaths which were properly appointed to give Testimony of a Matter of Fact wâ—…ereof a man is capable to be fully assured by the evidence of his Senses be lawfully to be made use of to confirm or invalidate Docâ—…inal Propositions and whether that Legislative Power which imposeth such an Oath doth not necessarily assume to it seif an Infallibility And as for promissory Oaths it was desired that those learned Prelates would consider the Opinion of Grotius De Jure Belli Pacis l. 2. c. 13. who seems to make it plain that those kind of Oaths are forbidden by our Saviour Christ Matth. 5. 34 37. and whether it would not become the Fathers of the Church when they have well weiâ—…h'd that and other places of the New Testament to be more tender in multiplying Oaths then hitherto the great Men of the Church have been It is there toward the end of the page mentioned how some of the Lords dâ—…sired that it might be clearly known whether it were meant all for an Oath or some of it a Declaration and some an Oath If the latter then it was desired it might be distinctly parted and that the declaratory part should be subscribed by it self and not sworn There was no small pains taken by the Lord Keeper and the Bishops to prove that it was brought in the two first Parts were only a Declaration and not an Oath and tho it was reply'd that to declare upon ones Oath or to abhor upon ones Oath is the same thing with I do Swear yet there was some difficulty to obtain the dividing of them and that the declaratory part should be only Subscribed and the reâ—…t sworn to A. But have you mention'd these things as if you would incline me to concur in opinion with that Lord as to the King's Power of suspending the Penalties incurr'd by Acts of Parliament and to agree with the Measures of some other Lords then about Oaths assertory and promissory as referr'd to B. If I were of the same opinion about the King's Power in that Matter as that Lord and Sir William Ellis were I would however forbear troubling you with it at this time while we are considering the Obligation of our Oath of Supremacy in order to our assistance and defence of the Preheminence of the Dispensative Power And therefore I shall not in the least endeavour to incline you now to imbibe the perswasion of any nice Controverted point of Law or Theology and wherein there seems probab lis causa litigandi And if when we are parted you on your recollection of our Discourse at this or our first meeting should have the least trouble by calling to mind any thing I have occasionally mention'd that is matter of Controversie you may with all my heart put it off with a temporary transeat from your thoughts But one of my aims in referring to that Opinion of his Lordship was That knowing you to be much concern'd for the ease and quiet of your Prince and Country I might Console you with an Instance of a great ferment about the Regal Power suddenly going off and as that Book too shew'd you that another did in the Government that was occasion'd by the new Test-Bill then introduced And I must tell you that another of my aims in my pointing you to his Lordship's Observation of the Suspensions of the Penal Statutes in the late Reigns was occasionally to direct you to a tenderness for the Regal Rights in general and for the undoubted Right of the Dispensative Power in Particular The same thing likewise hath been my aim in the several Presidents I have given you of the Ecclesiastical Power by Queen Elizabeth King Iames and King Charles the First exercised in suspending Penal Laws The expression of tenderness for the Rights of our Princes hath been much used by the loyal Patriot'y Writers in the late Reigns And here I shall à propos apply it as the Resuscitatio Part. 1. p. 37. mentions it as used by my Lord Bacon in a Speech in the House of Commons in the Reign of King Iames the First to the Question now before us in the Reign of King Iames the Second His Lordships words are Since therefore we have a Prince of so excellent Wisdom and Moderation of whose Authority we ought to
be TENDER as he is likewise of our Liberty let us enter into a true and indifferent Consideration how far forth the Case in question may touch his Authority and how far forth our Liberty And to speak clearly in my opinion it concerns his Authority much and our Liberty nothing at all That Expression concerning tenderness for the Regal Rights was very acceptable to the House of Commons when his late Majesty in his Letter to them from Bredagh April 14. 1660 thus made use of it viz. We have not the least doubt but you will be as TENDER in and jealous of any thing that may infringe our Honour and Authority as of your own Liberty and Property which is best preserv'd by preserving the other Remember therefore that your tenderness for Property is best preserv'd by your tenderness for the Regal Authority and if you would have your thoughts adorn'd by a constant Idea of true English Loyalty like a noble Picture retain'd there let me direct you to a Saying which like an Original drawn by a great Master may be fit for you to Copy after viz. that Saying of the Lord Keeper Coventry in a Speech in the House of Lords viz. Some would have the King's Prerogative rather tall then great others è contra But none can be truly loyal but he that is a good Patriot and none can be a good Patriot but he that is truly loyal Nor need it be further insinuated to you that without your keeping up a tenderness for the Regal Rights you cannot maintain your tenderness for Oaths And here I must take occasion to tell you that one of my aims in entertaining you with the Queries relating to Oaths out of that Book was to lay before your thoughts a tenderness as to Oaths in general both in keeping the lawful ones you have taken and in not imposing unlawful doubtful unnecessary or inexpedient ones on others and on such as our Prince considering the several Constitutions of their minds both as to firmness and infirmness hath thought fit to exempt from taking such strong Physick Moreover if you will think that another of my aims was to mind you that the same Queries might have been as ingeniously and ingenuously put in the year 1673. before the passing of the Test-Act as they were in debating the Test-Bill in the year 1675 I shall allow you so to do You may too if you will here occasionally consider how soon God in the course of his Providence doth sometimes turn the Tables and make such who were lately so active in imposing on others Oaths that seem'd doubtful and oppressive to them to be in danger of suffering by the like Impositions Mr. Burrough's a Pious Independent Divine who lived in the late times referring in his Irenicum to the Impositions and Persecution design'd by the Presbyterians against those of his Perswasion saith there but the Tables may turn one day wherein the Sufferers shall have the greatest Ease and the Inflicters the sorest Burthen But God forbid that their Brethren should lay it upon them tho it were put into their Power to do it And you may take notice that the Book we before spoke of owns the Activity of the Roman-Catholick Lords then in hindering that Test's being brought on Protestants the Consideration whereof may I think justly incline all who account it their Happiness to have been freed from that design'd Oath not to grudge at the favour that hath been extended by the Diâ—…pensative Power to particular Roman-Catholicks excused from taking other Oaths or at any just favour if ever happening to be afforded them by the Authentick Interpretation of what in the Statute-Oaths seems doubtful to them So tender was the Government in the time of Edward the 6th about the not making the Consciences of the People uneasie by Oaths that you will find it in the Reformation of the Ecclesiastical Laws begun in Harry the 8th's Reign and carry'd on in his that the Magna nomina who were employ'd to make a New Body of Laws did in Compassion to the Consciences of those who took the usual Promissory Oaths for the observance of the Statutes of Universities Collegiate Churches and such like Societies and Corporations order this Clause to be added to the Oaths viz. Haec omnibus partibus servabo â—…uibus cum sacrâ Scripturâ cum legibus civilibus Ecclesiasticis hujus Regni consentient quantum vires meae patientur The School-men saith one would be thought most tender and most curious in the point of Oaths They mince them out so fine that a wholâ—… Million of Oaths may stand as some speak of Angels on the point of a sharp needâ—…e I have therefore not wonder'd at it when I have seen men standing on this sharp point of Oaths so often inconsistent with themselves Notwithstanding what I told you out of my Lord Coke that an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common Law or by Act of Parliament be alter'd but by Act of Parliament yet as you know that the House of Commons in the 30th year of Queen Elizabeth desiring that no Oath or Subscription might be tendred to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of this Realm except the Oath against Corrupt entring did thereby however approve of the tendring of that Oath so my Lord Coke likewise Inst. 3. c. 71. viz. Of Simony seems to approve of that Oath in saying that Simony is the more odious because it is accompany'd with Perjury for the Presentee c. is Sworn to commit no Simony referring there to Lynwood and had before in that Chapter referr'd to Canon 40. 1 Iacobi 1603. The Oath against Simony You may too remember what I so lately told you of my Lord Coke's having with some approbation or fair respect mention'd the Clergy's Oath of Canonical obedience And I can tell you that I lately looking on the Charter of the Corporation of Shipwrights granted by King Iames the First in the Tenth year of his Reign observed therein that Thomas Lord Ellesmere Lord Chancellor of England Sir Thomas Flemming Lord Chief Justice of England Sir Edward Coke Lord Chief Justice of the Common Pleas did pursuant to the Statute in the 19th year of Henry the 7th allow and approve under their Ha ds and Seals divers Articles Acts and Ordinances for the better Order Rule and Government of the Art or Mystery of Shipwrights exhibited to them by the Corporation and did moreover oâ—…in the form of three new Oaths to be taken by the Officers and Freemen of that Corporation and did DISABLE the Refusers of such Oath to be Members of the Corporation But I may here occasionally by the way tell you what you will find in Croke 3d. Sir Edward Coke Sheriff of Buckingham's Case viz. That upon several Exceptions there mention'd as by him
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
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
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
I shall refer you to King Iames his Proclamation of Iune the 10th in the year 1606. and where having mentioned the Religion of the Roman-Catholicks he saith We deâ—…ïre still to make it appear in the whole Course of of our Government that we are far from accounting all those Subjects Disâ—…oyal that are that way affected and that we do DISTINGUISH of such as be carry'd only with blind zeal and such as sin out of Presumption c. and therefore as after times must give us tryal of ALL mens behaviour so must all men expect that their own deserts must be the only measure of their Fortunes at our hands either one way or other and having before spoke of the Gun-Powder Treason and the Doctrines of some Priests that might encourage it and said that thereby there is sufficient Cause to justifie the Proceedings of us and our said Parliament in the making and execution of these last and all other former Statutes tending to the same end it followeth nevertheless seeing the Soveraign Care appertains to us who have the Soveraign Power of Iustice in our hand and the Supreme Dispensation of Clemency and Moderation of the Severity of our Laws is likewise as proper to us to use whensoever we shall find it reasonable the same deserving to be no less allow'd in us being in our Dominions God's Lieutenant then it is prais'd in him among whose highest titles it is that his Mercy is above all his Works c. The King in the beginning of his Proclamation having profess'd his Zeal for the Religion of the Church of England by Law Establish'd and his constant Resolution for the maintenance and defence thereof said Of which our purpose and determination beside all other our former proceedings since our Entry into this Kingdom we have given a new and certain Demonstration by such two Acts as have been passed in this Session of our Parliament both tending to prevent the Dangers and diminish the number of those who adhering to the Profession of the Church of Rome are blindly led together with the Superstition of their Religion both into some points of Doctrine which cannot consist with the Loyalty of Subjects toward their Prince and oft-times into direct actions of Conspiracies and Conjurations against the State wherein they live as hath most notoriously appear'd by the late most horrible and almost incredible Conjuration c. The two Acts there referr'd to are those that you will find in your Statute-Book Anno tertio Jacobi Regis cap. 4. An Act for the Discovering and repressing Popish Recusants and in which the Oath of Allegiance is contain'd and Cap. 5. An Act to prevent and avoid dangers by Popish Recusants and whereby Popish Recusants Convict are disabled from bearing Office. But here you see how that wise Prince so soon after so horrid a real Plot did by distinguishing in his Proclamation between the Principles of some Roman-Catholicks and others as to Loyalty and alluring the Loyal by the avow'd Dispensative Power of his Mercy and hiding them under the wings of his Mercy from the terror of his Laws and affording to all his Subjects who should afterward behave themselves well a Tabula post naufragium as to the expectance of making up their fortunes think himself obliged then to cause his Moderation to be known to all men And you may hence take occasion when you think of the many Acts in terrorem in the Statute-Book and where there is no Proportion between the Crime and the Punishment and in some that seem inflictive of Punishments in the Case where men cannot be to any but the Searcher of hearts known to be Criminal at all as for example in their owning some Problematick Points of the Christian Religion to consider that most probably the Wisdom of the Government would not have pass'd them but on the Suppoâ—…ition of the Regal Power of dispensing therein expresly or tacitly You see how the Laws commonly call'd Sangâ—…inary have been tacitly suspended and I may tell you that tho I desire to live no longer then I shall be a maintainet of the internal Communion due from all Christians to all Christians as a part of that Holiness without which no man shall see God yet I should soon withdraw from the external Communion of the Church of England if it own'd the justness of such Laws otherwise then as in terroremâ—… and if it owned the lawfulness of putting men to Death for the Profession of any Religionary Principles their liberty to prosess which was purchased for them by the Blood of their Redeemer But I need not say more now about cautioning you or any one against the taking offence at any of our Laws Laws through want of considering which of them were designedly made for terror I might here likewise as to many Acts about Trade that swell the Statute-Book apply the Consideration of the Regal Power of dispensing therein having encouraged our Ancestors to perpetuate them as Laws A. The truth is you now put me in mind how I having long ago spent much time in considering the Trade and Traffick of our Country and of other Parts of Christendom and finding that shortly after His late Majesty's Restoration one of his Ministers had in a Publick Speech intimated it to the Parliament that His Majesty had setled a Councel of Trade consisting of some of the Lords of his Privy Councel and of some Gentlemen of Quality and Experience and of some Principal Merchants of the Principal Companies I had the curiosity to look over their Iournals and their Advices and Reports to the King and there I found somewhat of the same notion with yours in one of their Reports to His Majesty For there in one of their Papers of Advice addressed to the King taking notice that what they conceived fit to be done for the advancement of the Trade of the Realm was Prohibited by divers ancient Statutes they make them imply that the thing might be done by the King's licence or dispensing and whereupon they thus go on And therefore finding this Dispensation to be your Majesty's Prerogative preserv'd entire to the Crown through so many of your Royal Progenitors we have not thought fit to touch further upon this Matter as being humbly confident that your Majesty's Subjects shall upon all occasions be indulged the like if not more ready relief and accommodation for their Trade from your Majesty's Royal Grace and Bounty only because the Observation was obvious that perhaps all former Parliaments purposely left this door open to the People by the Grace of the King to be reliev'd with those dispensations as foreseeing how difficult if not impossible or how inconvenient at least it might be altogether to restrain what those Statutes prohibited we could not omit the same in this place c. B. And you have put me in mind how a very Loyal and judicious Gentleman of that Councel of Trade and whom I look on to be as deeply study'd in the
own Municipal ones who hath ex Professo and argumentatively writ of the Prince's Prerogative of dispensing with a Penal disability in particular Cases and deny'd it A. I did not as to our Lex terrae account it tanti to set up the Judgment of any one particular man when you have entertain'd me with Iudgment of Parliament in the Case But I am sure you cannot but know how that great Man in that great Case we have referr'd to I mean my Lord Chief Justice Vaughan in Thomas and Sorrel's Case seems to be of opinion that the King cannot dispense in the Case of Incapacity He saith the reason why the King cannot dispense in the Cases of buying Offices and Simoniacal Presentations is because the Persons were made incapable to hold them And a Person incapable is as a dead Person and no Person at all as to that wherein he is incapable c. B. Tho that great Man hath not therein as in other Passages in his Argument discuss'd the Point argumentatively I shall yet pay so much respect to his opinion as to give decent Burial to his dead Man. But you see that after he had said The Reason why the King cannot dispense c. is because the Persons were made incapable to hold them he only gives it as a reason of their being uncapable and of the King 's not being able to dispense in their Case viz. that they are dead Men that a Person uncapable is as a dead Person and whereby he giveth us a Magisterial gratis dictum or a Petitio Principii instead of what might deserve the name of a Reason or what might prove that the King could not dispense in the Case of one Politically dead or one dead in Law. I have formerly told you of the Saying used by Magerus and other Civil Law-writers that Mors civilis naturali non aequiparatur nisi in casibus in jure expressis And there are Cases enow express'd there that shew how the Prince who is according to the style of Seneca viz. Animus Reipublicae illa Corpus suum and ille spiritus vitalis quem haec tot millia trahunt and who in the Scripture Phrase is the breath of our Nostrils can according to the Law of the Land as I told you in the Case of Sir Walter Raleigh animate a Person dead in Law. And none need question why King Iames the Second cannot thus raise the dead as Queen Elizabeth did and King Iames the First or our following Princes and I may say as well as any who went before him Infames dicuntur civiliter mortui is a common Saying but you see that Fas est cuivis Principi maculosas notas vitiatae opinionis abstergere is as common Thus too Magerus tells us that Banniti pro mortuis reputantur and we know that the Excommunicate may in some respect by reason of their temporary disability be termed so too And if you will look on the Book call'd Reformatio legum Ecclesiasticarum under the title De excommunicatione you will there in the Chapter of the Denunciation of the Excommunicate find the Minister enjoin'd to tell the People that they must all abstain from the Excommunicate Person tanquam à Putri Projecto membro c. that an Excommunicate Person is to be thrown out of the Church as a dead Carcass but you will there find in the Formula reconciliationis excommunicatorum with what tenderness it is said reum hunc charissimum fratrem membrum assumamus agnoscamus Communis in Christo nostri corporis intimus ut noster affectus in hoc corporis nostri recuperato membro testatior sit c. and that the Pastor in the Absolution of that returning Prodigal who was dead and is alive again must in the administration of the King 's Ecclesiastical Laws say tibi rursus pristinum in Ecclesiâ tuâ locum plenum jus restitue Thus too at the end of the Canons A. 1571. you will find the same style of tenderness in Vogue in Queen Elizabeth's time that was in Edward the 6th's as likewise of the powerfulness in raising the dead You see there a Form of the Sentence of Excommunication viz. Fratres quoniam quicunque profitemur nomen Christi sumus omnes membrum ejusdem corporis par est ut unum membrum alterius membri sensu dolore afficiatur c. And it being afterward mention'd that the Person having been accused of such a Crime and having been contumaciously absent it followeth the Bishop in God's Name and by his Authority hath Excommunicated such a one from the Society of Christ's Church tanquam membrum emortuum amputasse à Christi corpore c. that you may shun his Company tamen ut Christiana charitas nos monet let us pray for him to God who is a merciful God and who can lapsos etiam à morte revocare And you may take notice of what is said in Croke 2d and Coke 8th Report Trollop's Case about the King's Pardon raising the Excommunicate from this civil death and that a man need not be Absolved by the Church if the King Pardons And thus Hobart Serle's Case p. 294. shews you that after the discharge of a Clerk Convict he shall never be question'd in the Ecclesiastical Court for deprivation You may likewise see it in Coke Inst. 3. Chapter Of Pardons The King may Pardon one Convict of Heresie or of any other offence Punishable by the Ecclesiastical Law. You may too in that Chapter observe his tenderness for Prerogative where having mention'd that by the 13th of R. 2. it is provided that no Charter of Pardon for Murther c. shall be allow'd c. if they be not specify'd in the same Charter and that before that Statute by the Pardon of all Felonies Treason was Pardon'd and so was Murder and at this day by the pardon of all Felonies the death of a Man is not pardon'd he thus goeth on these are excellent Laws for direction and for the Peace of the Realm But it hath been conceiv'd which we will not question that the King may DISPENSE with these Laws by a Non-obstante be it general or special albeit we find not any such Clauses of Non-obstante but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow but he doth not make them obligatory to him My Lord Coke then saith This is to be added that the intention of the said Act 13. R. 2. was not that the King should grant a Pardon of Murther by express Name in the Charter but because the whole Parliament conceiv'd that he would never Pardon Murther by special Name for the Causes aforesaid therefore was that Provision made which was grounded on the Law of God Quicunque effuderit humanum Sanguinem fundetur Sanguis illius c. Nec aliter expiari potest nisi per ejus Sanguinem qui alterius Sanguinem effuderit His Margin there cites Genes 9. 6.
Numb 35. 33. A. But by the way do you think then that Sovereign Princes offend the Law of God in Pardoning Murther B. I do observe that many presume to censure Kings for so doing and are superstitiously misguided by thinking that those two places of Scripture referr'd to by my Lord Coke do necessarily make it a sin in Princes to Pardon Murther But I shall when we meet again shew you the mistake of such therein and shall shew you that David at that time when the Law of God and the lex terrae was the same thing and who had Sworn and would perform it that he would keep God's righteous Iudgments was not to be censured to have sinned either in the reprieve of Ioab who had murthered Amasa and Abner and in delaying the Execution of the Law and leaving it to Solomon his Son or in the Pardon of Absolon who had slain his Brother Ammon and that when the Law faith in Numb 35. The Murtherer shall surely be put to death our best Commentators and out of the Rabbins say that this is spoken to the Iudges before whom such Causes regularly came and under the Supreme Power and by authority thereof judged those Causes and that tho the Iudges who were subordinate to the Supreme Power were to take no Satisfaction for the life of a Murtherer but were by that Law to Condemn him yet that it followeth not that the Supreme Power who made them Iudges might not in some Cases Reprieve and Pardon some whom they had Condemned A. I shall be glad to hear you discourse of this and the rather for that 't is so Customary to many when they find the Prince exercising this Prerogative of Pardoning to be apt too much to busy their heads with those two places in the Old Testament to their neglect of others there viz. Exod. 22. 28. Prov. 24. 21. Eccles. 10. 20. and of Acts 23. 5. in the New and likewise there of Rom. 13. 2. 5. 1. St. Peter 2. 17. and from whence they might Collect their moral offices of not doing or speaking or thinking dishonourably of the Lord 's annointed and of paying honour and obedience to his Sovereign Power and that for Conscience sake But in the mean time give me leave à propos to ask you if ever you heard of any one of the Iudges of the Realm in the Reign of our former Princes that gave his judgment for the allowance of the King's Pardon of disability Shew me but that and I shall not be affrighted with my Lord Ch. Justice Vaughan's Simoniacal Dead man. B. I shall tell you of a Case that was well enough known to him and which you may find in Croke 3d p. 55. Sir Iohn Bennet v. Dr. Easedale where you may see that Sir Iohn Bennet being fined 20000 l. for Bribery by the Star-Chamber and Censured to be Imprison'd and made uncapable of any Office of Iudicature and that he having a Pardon from the King reciting the Bribery and Offences mention'd in the Decree and all Penalties and Punishments by reason thereof and all Disabilities and Incapacities and all things concerning the said Sentence except the Fine of 20000 l. and the Court of Star-Chamber having the advice of all the Iudges relating to the Decree and Pardon it was resolv'd by them all that this Pardon hath taken away all force of the Sentence in the Star-Chamber except for the Fine of 20000 l. and all Disabilities are discharged thereby That Lord Chief Iustice knew that as it was set down in that Chapter of Pardons Inst. 3. the King's Pardon extends to all Suits in the Star-Chamber and he knew of what was mention'd Inst. 4. Chap. 1. Of the High Court of Parliament viz. Of a Pardon to the Lord Latimer of a Iudgment in Parliament and he knew that by his own and other Iustices of Assize going into their own Countrys in the Execution of their Offices by vertue of the King 's Non-obstante to the Statutes of 8. R. 2. c. 2. 3. H. 8. c. 24. himself and as many as went Iudges of Assize so into their own Countrys gave Judgment by so doing for the Prerogative of dispensing with such Acts of Parliament and he likewise knew that as it is well express'd in Theâ—… Answer of King Charles the First to the Declaration of both Houses of Parliament concerning the Commission of array A. 1642. An Act of Parliament in any Matter tho mistaken being assented to by the King and his two Houses is equally binding as having equal Authority with an Act introductive of a new Law and that therefore Acts of Parliament having so particularly declared the justness of the Prerogative's dispensing with disability no magna nomina of any particular Sages of the Law in otherwise opining can expect any deference And if you will consider what my Lord Coke in that Chapter of Pardons hath mention'd of the operation of Prerogative over the dead in Law and consider the President he refers to viz. Pasch. 22. E. 3. tit Cor. 239. Coram Rege Quidam indictatus de Felonia inde Culp dicit quod Rex eum Conduxit inde producit Chartam quod Rex eum Conduxit in Vasc. in exercitu dicta Charta allocata fuit per Curiam and there see his opinion grounded on it that if a man be Indicted of Felony and found Guilty and being in Prison the King may under the Great Seal reciting the Offence c. retain him to serve in his Wars on this side or beyond the Seas this Charter he may Plead and the Court ought to allow it I believe you will be of Opinion that any one who will desire any more Presidents for the Commanding the services of dead men ought to be sent for one to the REHEARSAL viz. that of Arise you dead Men and get ye about your business A. Well Sir As for this objected Dead-man requiescat in Pace I have done with him and since from some things you have said I gather that the dispensing with disability by Roman Emperors and Popes of Rome did never by any ferment disturb their Governments and moreover since no men of sense here have ever troubled themselves or the Government with any vexatious Question about the King's Power in discharging a man from a Praemunire but not from a Penal disability incurr'd whereas by a Praemunire as my Lord Coke shews us Inst. 3. c. 54. men are put out of the Protection of the King and DISABLED to have any Action or Remedy by the King's Law or the Kings Writs and exposed to many other dreadful Punishments I do now begin to wonder whence it is that the mistake in some mens Minds hath come about a Penal disability being so unremoveable And thus I think too one might wonder how such as will allow the King's Pardon to discharge one from an Excommunicatio minor or major do look on disability as such an anathematizing thing as is not to be touch'd or that cannot be