and I cannot then guess how he should determine this point of the Dispensing Power But let us now consider what this Author alledges to prove That the Archbishop did teach that this Dispensing Power is an inherent and inseparable Right of the Imperial Crown And to set this matter in a clearer light I shall place his quotations in that natural Order they stand in in the Archbishops Book He having then searched into the ground of Soveraignty and by Reason and Witnesses of all sorts deduced the Original thereof from no lower an head than Heaven it self as he himself tells us The Power of Princes p. 66. Ed. 2. 1683. he proceeds to look a little into those Royal Prerogatives which are annexed to the eminent Estate of such supreme Governors And the principal thing he takes notice of is their exemption from Laws P. 68. as the Senate of Rome decreed to Vespasian That what Laws soever either of the Senate or People it was ordained that the Emperor's Predecessors were not tied to from those he should be loose also So that this freedom from Laws tho a Branch of the Imperial Power was decreed and confirmed by the Laws of the Empire and granted to the Emperor by the Roman Senate which indeed signified making him Emperor for without this he had not been an Imperial Prince But what is this exemption from Laws which belongs to the Imperial Crown And that he tells us from the Civilians That they are free from all Coactive Obedience to them and are held by none of the written Ordinances For the understanding of which he distinguishes between God's Law the Law of the King and that which is the Law of God and the King together As for God's Law which signifies the unwritten Law of Nature or the Written Word the greatest Prince in the World is as much bound to obey it as the meanest Subject But then he adds which is one of our Author's quotations By the Law of the King I understand such Ordinances as are meerly Civil and Positive the Coactive Power whereof being derived from him who is the supreme Law-giver under God on Earth he himself cannot be properly said to be tied thereby Which he proves from Grammarians Civilians and Schoolmen and by this good Argument As no man therefore is superior to himself so no man hath jurisdiction over himself because none can oblige a man against his Will but only his Superior and the jurisdiction over a mans self may be dissolved at pleasure Which only signifies that the King is not bound in his own person to observe the Laws as Subjects are because no body has any jurisdiction over him but himself and no man can command himself any longer than he pleases Right But suppose a Soveraign Prince has bound himself by Oath to God and his Country that he will observe the Laws is he not as much obliged then to observe the Civil and Positive Laws of his Country made and confirmed by his own Authority as he is to observe the Laws of God for tho by making a Law he does not immediately oblige himself yet by his Oath he may The Archbishop only considered what was the Right of Soveraign Power without any Super-induced obligation not what a Soveraign Prince might oblige himself to by Sacred and Solemn Oaths And yet I wonder this Writer should have no more regard to the Sacred Majesty of Princes than to found their Rights upon such a Power as the wisest and best Princes have not thought fit to use As he might have learnt in the same place had he thought fit to have read on For there the Archbishop quotes the saying of Valentinian the younger p. 74. It is in truth a greater thing than the Empire to submit the Princedâ—m it self unto the Laws And that of Alexander Severus Although the Law of the Empire hath freed the Emperor from the Solemnities of the Law yet nothing is so proper for Empire as to live by the Laws And that which Severus and Antoninus set down so oft in their Prescripts Altho we be loosed from the Laws yet we live by the Laws Whereunto also we may add that commendation which Plutarch giveth to Alexander the Great That he conceived he ought to be thought Superior to all Men yet subject to Justice That is to be obliged to observe all the Laws of Justice not to be subiect to any Coercive Power And Pliny to Trajan He thinks himself to be one of us and so much the more excellent and eminent he is that he so thinketh and no less remembreth that he is a Man than that he is a Ruler of Men. For he who hath nothing left to increase his height hath but this one way to grow by if he submit himself being secure of his Greatness And in his direct Speech to the Emperor himself Thou esteemest us the same and thy self the same and in this only greater than the rest that thou art better than they And Thou hast made thy self-subject to the Laws O Caesar which were not written to restrain the Prince by but Thou wilt have nothing more lawful to Thee than is to Vs Now when this has been the Sense and Practice of the wisest and best Heathen Princes that it is an Imperial Vertue and Dignity tho they are free from Laws yet to submit themselves to the observance of Laws I should think it no great Complement to a Christian Prince to found any part of his Imperial Power upon such Exemptions as Soveraign Power must have but yet which Soveraign Princes think it their greatest Glory not to use For if the Exercise of such a Liberty be inglorious that Power which is founded on it cannot be glorious And here comes in the first Citation of this Writer who I think has not mended the Arch-Bishop's Sense by altering his Method The Power of the Prince P. 76. For such positive Laws as these being as the other works of Men are imperfect and not free from many discommodities if the strict Observation thereof should be perused in every particular it is sit the Supream Governour should not himself only be excepted from subjection thereunto which shows that before he had only spoke of the personal exemption of the Prince from the necessity of obeying his own Laws and that he now enters upon a new Prerogative of the Crown in the Words that follow but also be so far Lord over them that where he seeth cause he may abate or totally remit the Penalty incurred by the breach of them dispense with others for not observing them at all and generally suspend the execution of them when by experience he shall find the imconveniencies to be greater than the profit that was expected should redound thereby to the Common-wealth Plutarch sctteth this down as a chief point of that natural skill which Philopaemen had in Government that he did not only rule according to the Laws but over-ruled the Laws
abrogate Laws by their Proclamations I am sure Dr. Barrow said no such thing tho our Author did believe or would have his Readers believe that he did unless he quoted it to no purpose And that is not improbable by his next Quotation which is to as little purpose as one could wish P. 318. The power of enacting and dispensing with Ecclesiastical Laws touching exterior Discipline did of old belong to the Emperor and therefore not to the Pope which is the design of it and it was reasonable that it should because old Laws might not conveniently sute with the present state of things and the publick Welfare because new Laws might conduce to the good of the Church and State the care of which is incumbent on him because the Prince is bound to use his Power and Authority to promote Gods Service the best way of doing which may be by framing Orders conducible thereto And what is all this to a Power of dispensing with Acts of Parliament whether they concern Church or State Who ever but the Pope denied the Princes Authority in Ecclesiastical Affairs If the Oath of Supremacy indeed prove the dispensing Power then not only a few Bishops and Doctors but the whole Church of England teaches it if it does not our Author might have spared this Quotation And so he might his next P. 400. It is a Priviledg of Soveraigns to grant Priviledges Exemptions and Dispensations No doubt but it is and they may in many Cases do it by Law which owns this Authority in the Soveraign There are many legal Priviledges Exemptions Dispensations in the Power of the Prince Ergo What Thus much for Dr. Barrow and the Pope's Supremacy which was never favourable to the Prerogatives of Princes The The next in course is The Reverend Doctor Sherlock Master of the Temple who says in a positive manner It does not become any man who can think three consequences off to talk of the Authority of Laws in derogation of the Authority of the Soveraign Power The Soveraign Power made the Laws and can repeal them and dispense with them and make new Laws The only Power and Authority of the Laws is in the Power that can make and execute Laws Soveraign Power is inseparable from the Person of a Soveraign Prince Here our Author breaks off for he durst go no further it immediately following And though the exercise of it may be regulated by Laws and that Prince does very ill who having consented to such a regulation breaks the Laws yet when he acts contrary to Law such Acts carry Soveraign and irresistible Authority with them while he continues a Soveraign Prince Now it is all out and let him make his best of it But to expose the Shuffling Arts of this Writer it will be convenient to consider what the Dr. was a proving when these words dropt from his Pen. The Case of Nonresistance of the Supream Powers chap. 6. p. 186. Having at large proved the Doctrine of Non resistance from Scripture Testimonies and the common Principles of Reason in the Sixth Chapter he answers some Objections against it The Second Objection is That a Prince has no Authority against Law as is urged in Julian the Apostate There is no Authority on Earth above the P. 109. Law much less against it It is murder to put a man to death against Law and if they knew who had Authority to commit open bare-faced and down right murders this would direct them where to pay their Passive Obedience But it would be the horrid'st Slander in the World to say that any such Power is lodged in the Prerogative as to destroy Men contrary to Law To this the Doctor answers Now I perfectly agree with them in this also that a Prince has no just and legal Authority to act against Law that if he knowingly persecute any Subject to death contrary to Law he is a Murderer and that no Prince has any such Prerogative to commit open bare-faced and down-right Murders But what follows from hence Does it hence follow therefore we may resist and oppose them if they do This I absolutely deny because God has expresly commanded us not to resist And I see no inconsistency between these two Propositions that a Prince has no legal Authority to persecute against Law and yet that he must not be resisted when he does He who exceeds the just bounds of his Authority is lyable to be called to an Account for it but he is accountable only to those who have a Superior Authority to call him to an Account Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he has no Superior on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings In answer to what is said That an Inauthoritative Act which carrys no obligation at all cannot oblige Subjects to Obedience thereby meaning Passive Obedience he urges That it is very false and absurd to say that every illegal is an Inauthoritative Act which carrys no obligation with it This is contrary to the practice of all human Judicatures and the dayly experience of Men who suffer in their Lives Bodies or Estates by an unjust and illegal Sentence Every Judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This he explains at large and comes at last to P. 195. enquire Whence an illegal Act or Judgment derives its Authority and Obligation The Answer is plain It is from the Authority of the Person whose Act or Judgment it is Which he proves and confirms in four Propositions 1. That there must be a Personal Power and Authority antecedent to all human Laws For there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more Persons invested with the Power of Government of which making Laws is one branch For a Law is nothing else but the publick and declared will and command of the Law-maker whether he be the Soveraign Prince or the People Which shows in what sense the Dr. affirmed That Soveraign Power made the Laws and can repeal them and dispense with them and make new Laâ—… viz. That there is no such thing as a Law without a Lawgiver who can make and repeal and dispence with Laws and without whose Authority too the Law can have nâ—ne For without doubt the same Power that makes Laws can repeal and dâ—spense wiâ—h them too 2. And hence it necessarily follows That a Soveraign Prince dâ—… not receive his Authority from the Laws but Laws receive theâ—… Authority from him For the Law has no Authority nor can give any but what it receives from the King and then it is a wonderful Riddle how the King should receive his Authority from the Law 3. Hence
the Divines of the Church of England have formerly taught This he asserts and this I hope I may examine without any offence for it is no Condemnation of their Reasons tho' I shou'd say that they were never us'd by Divines Now a Reason has a necessary Relation to the Conclusion or to that which is to be prov'd by it for tho' a hundred men should say the same thing and draw a hundred several Conclusions from it you cannot say that their Reason is the same because their Conclusions are not the same for those only reason alike who from the same Premises draw the same Conclusion so that tho' every one of these Propositions which are here said to be the Judges Reasons had been asserted a hundred times over by the Divines of the Church of England yet if they did not draw the same Conclusion from them which the Reverend Judges have done they cannot be said to be the same Reasons and whether they have done that or not may be learn'd from what has been already said And yet in truth I cannot tell whether the Premises be the same or not for they are set down in such loose and general terms in this Paper as admit of very different Senses and in which Sense they are understood by the Reverend Judges is not said And therefore I shall shew you in what Sense these Propositions have been own'd by the Divines of the Church of England and then those who know the Judges sense of them will easily see where they agree and where they differ 1. That the Kings of England are Soveraign Princes This is universally own'd by the Divines of the Church of England but then they make some difference between Soveraign Princes not with respect to the fulness of Power for they have all the Rights of Soveraignty but with respect to the Exercise of this Soveraign Power for some Princes are under no Restraints and Limitations but only the Laws of God and Nature they can make what Laws they please repeal them when they please dispense with them as they please without the consent of any but themselves Other Soveraign Princes tho' they have all Soveraign Power and therefore are irresistable and unaccountable to any but God yet the Exercise of their Power is by their own consent directed and regulated by Laws that they can neither make nor abrogate Laws but by the Consent of their Nobles and Commons assembled in Parliament and therefore tho' they never can do any thing to forfeit their Power yet they may do that which is illegal and how far the legal Exercise of such a Soveraign Power extends must be known by the particular Laws and Constitutions of their several Kingdoms not from the unlimited notions of Soveraign Power and Soveraign Will and Pleasure And the Divines of the Church of England have generally look'd upon the Kingdom of England as such a limitted Monarchy and if they have been mistaken in it I hope it is a pardonable mistake because it has been so general 2. That the Laws of England are the Kings Laws This also is universally acknowledged and the reason assigned for it by the Learned Doctor Sanderson Sanders Praelectio septima de Legum humanarum causâ efficiente Quin in jure nostro in quotidianis processibus juridicis in foro contentioso ex solenni formulâ Regiâ—… Leges diâ—… solent the King's Laws non aliam ob causam ut nos docuerunt juris nostri periti quam quod Reges Angliae sint fons justitiâ—… Legum legibus ipsis ut pro legibus habeantur vim omnem imponendi habeant concessam sibi à Deo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 potestatem because as the Lawyers teach the Kings of England are the Fountain of Justice and Laws and have alone that Soveraign Authority that can give the Force and Vertue of Laws to the Laws themselves For tho' as he observes there is something necessary to prepare the matter for Laws as the consent and advice of Parliament yet it is the consent of the King only which gives them the Form and Obligation of Laws So that they are the Kings Laws because that it is his Authority that makes them Laws but when they are made Laws by the King they become the Laws of the Land the Rule of his own Government and his Subjects Obedience 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispence with penal Laws in particular cases and upon particular necessary Reasons It is also asserted by the Divines of the Church of England That the King may pardon what Crimes he pleases and in some cases upon great and urgent necessities may dispence with some Laws for a greater publick Good or for the Relief of some particular Persons where the Law appears too hard and rigorous while the general Intention and Vigour of the Law is secur'd For as they urge the Imperfection of all humane Laws requires such an Authority as this to supply their defects But the therefore I do not so well understand for I find none of them resolve this dispensing Power into the Laws being the Kings Laws which indeed will prove a Power of dispensing with all Laws where he pleases for all Laws as well as penal Laws are the Kings Laws Nor do I find any of them say that this dispensing Power is equal in all Soveraign Princes For they generally make some difference between absolute and limited Soveraigns that is the Exercise of whose Power is bounded by Laws of their own making the first sort who can make and abrogate Laws at their own pleasure may certainly dispense with them also when they see fit whether those who can neither make nor abrogate Laws without the consent of their People can dispence with what Laws they please is a question which I find no where debated among them and therefore cannot give their opinion in it 4. That of these Reasons and these Necessities the King himself is Sole Judge This I do not find any of our Divines meddle with tho' I think the Case is very plain every Man judges for himself and will do so and therefore a Soveraign Prince who has no Superiour will finally judge for himself and no man can call him to an account for it no more than they can resist him tho' he shou'd judge amiss and exercise an illegal Power But this does not alter the case nor make that legal which in it self is illegal he is concern'd to judge right and exercise no Authority but what he may because there is a Superiour Judge even of Soveraign Princes and then which is consequent upon all 5. That this is not a trust vested in or granted to the King by the People but is the ancient remains of the Soveraign Power and Prerogatives of the Kings of England which never yet was taken from them nor can be This also is universally own'd by
inclinable to follow such Guides as these and therefore I should have thought it more advisable to have taught people more to rely on the Opinions of Judges than of Divines in matters of Prerogative and Law because I fear that the honest Prerogative Divines will be greatly out-numbred by the Popish and Phanatick Common-wealths-men and whether this will prove for the service of the King should have been considered 2. My second Reason why I dislike this way is That I fear instead of doing service it will do great disservice to the King by weakning the Authority of those many excellent discourses which have been written about Non-resistance and which did great service not only to former Kings but even to our present Soveraign in the late evil and critical times It will not easily be forgot how many hard Censures those honest Divines underwent who durst both from the Pulpit and the Press oppose that factious humour which was then so rampant and presaged those wicked Conspiracies which were afterwards by the Divine Providence so happily discovered and disappointed The Doctrine of Non-resistance would very hardly go down and the great objection against it was That it made the Prince absolute and set him above all Laws which were Laws no longer than he pleased to have them so and thus our Lives and Properties and Liberties and Religion were at the Will of the Prince and if this were really the natural consequence of the Doctrine of Non-resistance I suspect it would to this day put a great many English Subjects out of conceit with it and yet this is in great measure the design of this Letter to apply those Sayings or Arguments which were urged for the Doctrine of Non-resistance to prove a Dispensing Power inherent and inseparable from the Crown Now far be it from me to dispute this Point Whether there be such an inherent Right in the Crown or no especially as far as the Judges have determined that there is but this I say That it is not a necessary Consequence of the Doctrine of Non-resistance that because we must not resist our Prince whatever he does therefore he may de jure dispense with what Laws he pleases and I think it is for the Interest of the Crown that these two should be kept distinct that the Prerogatives of the Crown should be asserted and maintained upon their own bottom and that the Doctrine of Non-resistance which must defend all other Prerogatives and is a better and cheaper security than Forts and Castles may not be entangled with other Disputes which will weaken its Authority though it be Divine when it is clogged as some men will think with such uneasie and fatal consequences This I confess gives me a just indignation against those half-witted Scriblers who to serve as they think a present turn have endeavoured to lessen the Reputation and to weaken the Arguments of those Divines who have appeared so zealous for the Doctrine of Non-resistance and Passive Obedience by affixing a great many consequences to them which are neither consequences nor theirs and by wresting their words to other purposes than they intended and for this reason I judg it a very good piece of Service to the Crown to undertake the Vindication of the men and of their Doctrines For Divines to determine points of Law especially such as require deep skill and insight into the nature of the Constitution as I observed before is out of their Sphere but obedience to Soveraign Princes both Active and Passive is not merely a point of Law but a Gospel command and this they not only may but ought to explain and press upon the Consciences of their hearers This the Church of England her self has done in the Homily of Obedience and this the Ministers of the Church have taken all occasions to do and with that success that there are not more Loyal Subjects in the World than the true Sons of the Church of England but farther than this they have not gone or if a few dablers in Politicks have let them answer for themselves The Scripture teaches Obedience but the Prerogatives of Princes and the Liberties of Subjects are the matter of human Laws and Constitutions which properly belong to another Gown And thus I come to consider what Testimonies this Writer has produced to prove That it is the Doctrine and Judgment of the Reverend Clergy of the Church of England that the Power of Dispensing with any Laws is an inherent and inseparable Right of the Crown where I will not meddle with the main point Whether the King have any such right for I will not dispute that but whether these Divines whose Authority is alledged in the cause ever taught any such Doctrine He begins with the Reverend Dr. Hicks Dean of Worcester and endeavours to render one of the best Books that ever was wrote for Passive Obedience wholly useless or odious to those men who are not fond of the dispensing Power But what does the Dean teach That the English Realm is a perfect Soveraignty or Empire and that the King of England by the Imperial Laws of it is a Compleat Imperial Independent Soveraign that it is a contradiction to call this an Imperial Crown unless he have all those Rights which are involved in the very Notion of his Imperial Soveraignty Well! to make short work with it does the Dean say That this Dispensing Power is one of those Rights which are involved in the notion of Imperial Soveraignty No he says no such thing but this Writer says so for him that this Power of dispensing with Penal Laws must be or nothing one of those Prerogatives which he proves from Sir Robert Pointz his Vindication of Monarchy and what then suppose it be does the Dean say so for that is the only point in question What his Judgment is No but he says That the Imperial Crown has all the Rights which are involved in the Notion of Imperial Soveraignty and our Author can prove that the dispensing Power is such a Right and therefore the Dean must grant that this dispensing Power is a Right inherent in the Crown Very well A Popish Priest will allow that an Imperial Crown has all the Rights that are involved in the Notion of Imperial Soveraignty now say I a Supremacy in all Causes over all Persons as well Ecclesiastical as Civil is an inherent Authority of the Imperial Crown therefore Popish Priests renounce the Supremacy of the Bishop of Râ—me and own the Supremacy of the Kings of England If he think this is not a good proof let him consider this matter over again which will be worth the while if it be only to teach him to Reason a little When there is any Dispute about the rights of Soveraignty it is a ridiculous inference to say That he who owns all the Rights of Soveraignty owns whatever any man says is a Right of Soveraignty for still he owns no more than what he himself believes to be so
his King and the Church the famous Archbishop Laud whose Judgment would weigh more with me than some other mens Reasons He quotes a saying of his out of his Book against Fisher but never directs us where to find it and that is a great book to search all over for one single passage but however the saying is so innocent that we may admit it to be his without farther Enquiry viz. That the Supreme Magistrate in the Estate Civil may not abrogate the Laws made in Parliament tho he may dispense with the Sanction or Penalty of the Law quoad hic nunc as the Lawyers speak Now unless quoad hic nunc signifies a general and unlimited Dispensation for all persons at all times I suppose it does not reach the plenitude of the Dispensing Power Quoad hic nunc I doubt may be expounded as a limitation of the Dispensing Power which will beget a dispute how far this Power of Dispensing may extend for which reason I wish he had concealed the Judgment of this great Archbishop tho the comfort is he was but a Divine and therefore his Judgment not Authentick in such matters any farther than this Author has made it so by appealing to it especially since he does not give his own Opinion in the case but refers to the received opinion of Lawyers at that time which whether it then was for an absolute Dispensing Power must be first known before we can know what the Archbishops Opinion was But he makes a much greater flourish with Archbishop Vsher who wrote an Excellent Book concerning the Power communicated by God to the Prince and the Obedience required of the Subject out of which he has transcribed four or five Pages how much to his purpose shall be presently examined But I must first mind him what another of his Witnesses The Right Reverend Dr. Sanderson Bishop of Lincoln has observed in his Preface to that Book Sect. 9 12 13. In the 9 Section he takes notice of several Objections which either were or might be made against this Book The Second is That it is not yor Divines at all to meddle in these matters whereof they are not competent Judges nor do they come within the compass of their Sphere They ought to be left to the cognizance and determination of States-men and Lawyers who best understand the constitution of the several Governments and the force and effect of the Laws of their own several respective Countries and are therefore presumed to be best able to judg the one by constitution in whom the Soveraignty resideth and the other by the Laws how that Soveraignty is bounded and limited in the exercise thereof In answer to this he says Sect. 12. True it is that for the more ease of the Governors and better satisfaction of the people in securing their Properties preserving Peace amongst them and doing them Justice the absolute and unlimited Soveraignty which Princes have by the Ordinance of God hath at all times and in all Nations been diversly limited and bounded in the ordinary exercise thereof by such Laws and Customs as the Supreme Governors themselves have consented to and allowed As with us in England there are sundry cases wherein a Subject in maintenance of his Right and Property may wage Law with the King bring his Action and have Judgment against him in open Court and the Judges in such cases are bound by their Oaths and Duties to right the Party according to Law against the King as well as against the meanest of his Subjects So that it seems this Bishop thought that the exercise of the Soveraignty might be limited by Laws and by such Laws as would hold good against the King himself in his own Courts and therefore that all Laws were not dispensable at the Kings pleasure and this Preface was wrote long after his Cases of Conscience of which more presently And he adds That the debating and determining of every doubt or controversie belongeth to the Learned Lawyers and Reverend Judges who are presumed to be best skilled in the Laws and Customs of the Land as their proper study wherein they are daily conversant and not to Divines who as Divines are not competent Judges in these matters nor do they come within the compass of their sphere By which one would guess that this Reverend Bishop did not apprehend that he himself had been guilty of determining so nice a Point of Law as the Dispensing Power tho this Author has discovered for him that he has Well but how does he bring off the Arch-bishop after all this for medling with such nice points As to that he tells us Sect. 13. That there is no need of bringing him off That in relation to the present Treatise all that he had said about Divines determining Law Cases as far as they related to Conscience might well enough have been spared wherein the Reverend Author without medling with these Punctilio's of the Law undertaketh no more but to declare and assert the Power of Soveraign Princes as the Godly Fathers and Councils of the ancient Catholick Church from the evidence of Holy Scripture and the most judicious Heathen Writers by discourse of Reason from the light of Nature have constantly taught and acknowledged the same as to the unprejudiced Reader by the perusal of the Book it self will easily appear From whence one would guess that Bishop Saunderson did not apprehend that Archbishop Vsher had determined any one point of Law about the absolute or limited exercise of the Soveraign Power according to the Constitution of these Realms and therein he had our Author differ who has found the Dispensing Power plainly determined by the Archbishop But whoever consults the Book it self and it will reward any man's pains who will do it will find that the Bishop was in the right and those Reasons which the Bishop urges will convince him That he was so For he will find that the Archbishop does not meddle with the particular Laws and Constitutions of these Kingdoms but only urges the Authority of Fathers and Councils and the Holy Scriptures and the consent of Heathen Writers which can no more determine what the particular Laws and Constitutions of these Kingdoms are than the Laws of England can the Customs of the Roman Empire The Archbishop only considered what Rights belong to the Soveraign Power wherever it is by the consent of Scriptures Fathers Councils and Heathen Writers who followed the light and conduct of natural Reason and took it for granted as the Bishop observes he well might That the Kings of England are Soveraign Princes and therefore have all the Rights of Soveraignty belonging to their Crowns But how the exercise of this Soveraign Power is limited by the particular Laws and Customs of Nations and by the consent and grants of Soveraign Princes themselves which Bishop Sanderson asserts has at all times and in all Nations been diversly limited and bounded this the Archbishop says nothing of
themselves when he found it conducing to the Weal-Publick Now I do not see one Word in this but what is the undoubted Right of the Supream executive Power For it is impossible any Nation should be well and happily governed where this Power is not And that for this Reason which the Arch-Bishop gives Because Human Laws are imperfect and therefore there must be a living Authority to supply their Defects and to temper their Severities and to pity and relieve Subjects when the case is truly pitiable But then there are some natural Limitations of the exercise of this Power in the most absolute and despotick Princes and there may be Political Limitations of it by the consent of Soveraign Princes themselves according to the Laws and Constitutions of several Kingdoms For tho the Imperial Crown can be divested of no part of Soveraign Power yet the exercise of it may be directed and limited by publick Laws as we heard before from Bishop Sanderson This last the Arch-Bishop takes no notice of it not being his design as you heard before to adjust the Rights of Princes by Political Laws but only to consider in general what are the essential Rights of Soveraign Power without examining how the exercise of it is diversly limited in different Countries And therefore let us only consider what those natural Bounds and Limits are which he has set to this dispensing and suspending Power And they are included in the reason of this Power because all Human Laws are imperfect and therefore there wants a Soveraign Power which is so far Superior to all Laws that it can correct their Faults and supply their Defects and temper them to such particular Emergencies and Cases as could not be foreseen when the Laws were made For if human Laws could be so exactly framed as to fit all possible cases if the Law were for the good of the Common-wealth the dispensing with or suspending the execution of such Laws would be a publick mischief And a Power which could serve no good end could be no Prerogative of Soveraignty And therefore the very Dispensation must be for the publick good or else it is the abuse not the natural Right of Soveraign Power To which purpose he mentions the Opinion of John of Sarisbury P. 79. I do not take away the dispensing with the Law out of the Hands of the Powers but such Precepts or Prohibitions as have a perpetual Right are not as I think to be subjected to their Will and Pleasure In those things only that are mutable the Dispensation with the Letter of the Law is to be admitted yet so as by the compensation of Honesty or Vtility the Intention of the Law may be intirely preserved So that according to this Rule the natural Instances of this dispensing Power seem to be these When a Law is made and is for the Publick Good but happens to fall very severely upon some particular Persons without their own fault only because such particular Cases were not and could not be considered in making the Law here the Equity of the Prince ought to releive such Sufferers according to his long Quotation out of AEneas Sylvius P. 91. which this Author has transcribed at large and we readily own When the Penalty annexed to the Law may in some particular cases be remitted without the publick Injury and may be thought very just and convenient with respect to the pittiable Circumstances or former Merits of the Person offending as the Archbishop observes and this Author from him P. 79. While the Laws do stand in force it is fit that sometimes the King's Clemency should be mingled with the Severity of them especially when by that means the Subjects may be freed from much detriment and damage Which belongs to the Regal not to the Ministerial Power the condition of the Magistrates whose Sentence is held corrupt if it be milder than the Laws being one thing the Power of Princes whom it becometh to qualify the sharpness of them a far different matter If any thing happens after the making of a Law which was not foreseen when it was made and which is besides or contrary to the original intention of the Law-makers and renders the execution of that Law manifestly and notoriously oppressive to the Publick the Prince may certainly suspend the Execution of such Laws till they be alter'd or repealed by the Power which made them or in the same regular Exercise of the Legislative Power as they were first made This dispensing and pardoning suspending Power is so necessary to the Publick Good that for my part I would not willingly live under any Government which wanted the Exercise of this Power And if this be all this Writer intended to prove by his long Quotations out of the Archbishop I am perfectly of his mind that the Archbishop was of his Opinion and so I believe is every Man who considers any thing For the Exercise of such a Power as this is no Injury to the Laws nor to the Legislative Authority For in this way the Prime and original Intention of the Law is always secure and can never be dispensed with the general Force and Vigor of the Law is maintained though it be remitted in some particular cases all Mens Rights and Properties are secure which are secured by the Law for the Laws can be dispensed with not for the hurt and damage but only for the Benefit of the Subject and therefore no legal Rights can be taken away by a Dispensation and more than that some Men may find Refuge and Sanctuary in the Clemency and Soveraign Power of the Prince from the Severities of the Law as far as is consistent with the Publick Good and Safety But any other dispensing Power than this the Archbishop says nothing of And this I think is answer enough to what he alledges out of Archbishop Vsher After these 3 Archbishops the next who follows is the humble patient and learned Dr. Robert Sanderson late Lord Bishop of Lincoln and were he living this Writer would exercise all the Humility and Patience he had without offering him any occasion to shew his Learning At the end of his 9 th Lecture concerning the final Cause of humane Laws Sect. 16. he comes to explain that Aphorism Salus Populi Suprema Lex The Safety of the People is the Supream Law which was expounded in those days to set up the Interest and Safety as they pretended of the People in opposition to the King which he does with so great Learning and Judgment as not only to confute but to shame all such Protences From the 18 th Sect. this Writer among others which are nothing to his purpose transcribes these Words which I suppose he thought were Non ita se voluisse Legum vinculis astringi A King that gives Laws and Statutes to his People will not or did not intend to be bound up by the Laws that it should not be lawful to him the Safety of the Common-Wealth
it foll ws That the being of Soveraign Power is independent on Laws That is As a Soveraign Prince does not receive his Power from the Law so should he violate the Laws by which he is bound to Govern yet he does not forfeit his Power Hâ— breaks his Faith to God and to his Country but he is a Soveraign Prince stâ—ll And in this sense the Dr. affirmed That Soveraign Power is inseparable from the Person of a Soveraign Prince 4. Hence it plainly appears that every illegal Act the King does is not an Inauthoritative Act but lays an Obligation on Subjects to yield if not an Active yet a Passive Obedience For the King receives not his Soveraign Authority from the Law nor does he forâ—…t his Authority by breaking the Law and therefore he is a Soveraign Prince still and his most illegal Acts though they have not the Authority of the Law yet they have the Authority of Soveraign Power which is irresistâ—ble and unaccountable Now this shows in what sense the Doctor immediately adds It does not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of the Soveraign Power Which does not signifie that the Law cannot abridge the Kings dispensing Power nor have the Authority of a Rule to him which he does not meddle with but that no Law can have such Authority over a Soveraign Prince as to un-un-king him or deprive him of his Soveraign Authority and make all his illegal Acts inauthoritative if he breaks it For that is the direct answer to the Objection and he seems to have looked no further and indeed to speak the truth his Argument holds no further for it does not follow that the King is not bound to keep the Laws but he is a King still and cannot forfeit his Sovereign and irresistable Authority though he breaks them But if this Doctors Judgment be of any force we may learn what his Opinion was if he be not now better informed by his answer to the fourth Objection though possibly he will not thank me for my pains in transcribing it P. 207. 4. The next objection against the Doctrine of Non-resistance is this That it destroys the difference between an absolute and limited Monarchy between a Prince whose Will is his Law and a Prince who is bound to govern by Law which undermines the Fundamental Constitutions of the English Government To this he answers The difference between an absolute and limited Monarchy is not that Resistance is lawful in one case and unlawful in the other for a Monarch the exercise of whose Power is limited and regulated by Laws is as irresistable as the most absolute Monarch whose Will is his Law and if he were not I would venture to say that the most absolute and despotick Government is more for the publick good than a limited Monarchy But the difference lies in this that an absolute Monarch where by absolute it is plain he means a despotick Prince for otherwise a limited Monarchy may be called and often is an absolute Sovereignty is under the Government of no Law but his own Will He can make and repeal Laws at his pleasure without asking the consent of any of his Subjects he can impose what Taxes he pleases and is not tied up to strict Rules and Formalities of Law in the execution of Justice But it is quite contrary in a limited Monarchy where the exercise of the Soveraign Power is regulated by known and standing Laws which the Prince can neither make nor repeal without the consent of the People c. No you will say the case is just the same For what do Laws signifie when a Prince must not be resisted though he break these Laws and govern by an arbitrary and lawless Will He may make himself as absolute as the Great Turk or the Mogul when ever he pleases For what should hinder him when all mens hands are tied by this Doctrine of Non-resistance now it must be acknowledged that there is a possibility for such a Prince to govern arbitrarily and to trample upon all Laws And yet the difference between an absolute and limited Monarchy is vastly great 1. For this Prince though he may make his Will a Law to himself and the only Rule of his Government yet he cannot make it the Law of the Land He may break Laws but he cannot make nor repeal them and therefore he can never alter the Frame and Constitution of the Government though he may at present interrupt the regular administration of it And this is a great security to Posterity and a present restraint upon himself 2. For it is a mighty uneasie thing to any Prince to govern contrary to known Laws He offers as great and constant violence to himself as he does to his Subjects The breach of his Oath to God and his promises and engagements to his Subjects makes the exercise of such an arbitrary Power very troublesom And though his Subjects are bound not to resist him yet his own guilty fears will not suffer him to be secure And arbitrary Power is not so luscious a thing as to tempt Men to forfeit all the ease and pleasure and security of Government for the sake of it 3. Though Subjects must not resist such a Prince who violates the Laws of his Kingdom yet they are not bound to obey him and serve him in his Vsurpations Subjects are bound to yield an active obedience only according to Law though they are bound not to resist when they suffer against Law Now it is a mighty uneasy thing to the greatest Tyrant to govern always by force And no Prince in a limited Monarchy can make himself absolute unless his own Subjects assist him to do so 4. And yet it is very dangerous for any Subject to serve his Prince contrary to Law though the Prince himself is unaccountable and irresistible yet his Ministers may be called to an account and be punisht for it and the Prince may think fit to look on quâ—…tly and see it done or if they escape at preâ—ent it may be time enough to suffer for it under the â—ext Prince which we see by experience makes all Men wary how they serve their Prince against â—…aw None but Persons of desperate Fortunes will do this â—…ated and these are not always to be met with and 〈◊〉 â—eldom fit to be eâ—…plâ—…d 5. And therefore 〈◊〉 may observe that by the â—undamental Laws of our Government 〈…〉 Prince 〈◊〉 govern 〈…〉 so he is irresistible 〈◊〉 shews that our wise Law-makers dâ—d nâ—t think that Non resistance was destructive of alâ—…ited Mâ—…y Not long since this was â—…gh 〈…〉 Dâ—ctriâ— and I am sure it is very necessary to keep Peâ—…e 〈…〉 Prince 〈◊〉 for which reason I 〈…〉 though it doth not reach the height 〈…〉 And now I find our Author begins to run â—ow when 〈◊〉 â—akes up with Doctor Nâ—lson who says In the Kings Power it is to remit
the Divines of the Church of England that the Kings of England receive no power or Authority from the People for all Soveraign Power comes from God and the Crown of England is not Elective but Hereditary Nay they own that no Essential branch of Soveraign Power can be taken away from a Soveraign Prince the only question is whether the exercise of Soveraign Power can be regulated and limited by Laws of the Kings own making and this those who talk of a limited Monarchy must own for there can be no limited Monarchy if the exercise of Soveraign Power cannot be bounded by Laws Thus I have shewn as well as I can learn what the Sense of the Divines of the Church of England is in these Points how far they agree with the Judges reasons if they be theirs I cannot tell because I know not in what Sense they understood them As for his application of all this to the case of Liberty of Conscience I have nothing at all to say to it for since the King has declar'd his pleasure in it I will not dispute against it I am not without hope that Liberty of Conscience will not do the Church of England so much hurt as her Adversaries wish nor the Church of Rome so much good as they expected for tho' Fanaticism is a pleasing delusion Popery is not popular in this age and therefore it is not meer showing that will make Converts and I believe Liberty of Conscience it self at this time will not drive any Sober Dissenter the farther from Church And I have more hope of Gods Protection because we are upbraided as we are by this Writer with our very hope and confidence in the Divine Providence for who ever reads it can think it nothing less besides the knavery of the Quotation Doctor Hicks in answer to that Objection against the Doctrine of Passive Obedience Jovian p. 263. Where then is our security How can we be safe from the oppression of our Soveraign if we may not be allow'd to resist Among other things tells his Readers Pag. 265. that there neither is nor can be any absolute security either for the Soveraign against the Subjects or for the Subjects against the Soveraign in any Government and therefore in the second place it may be a sufficient answer to the question to show that we have all the security against the King that the King hath against us even all the security that any people in the World ever had have or ought to have and he instances in the Providence of God in the Conscience and Honour of the King and in the Laws of the Realm to which every man be he never so great is obnoxious besides the Prince himself This was all very much to the Doctors purpose it being all the Security we can have that our Prince will not oppress us which is not absolute security neither But what does this signifie to Liberty of Conscience how does this secure the Church of England if all her Enemies be let loose upon her But this Writer picking out two or three sayings from what the Doctor said of the Divine Providence without any regard to the series of the Argument concludes it with these words in Capital Letters So that they have all the security that any People in the world ever had have or ought to have As if the Doctor had taught that no People in the World ever had or ought to have any other security against the Oppression of a Soveraign Prince but only the Providence and Protection of God whereas he applies this not only to the Providence of God but To the Conscience and Honour of the King and the security of Laws The Providence of God indeed has the over-ruling determination of all things but ordinary Providence works by means and we have no reason to expect Miracles now and therefore the Providence of God does not make other securities needless The Doctor tells us Page 267. As the Princes best security against the People is the watchful Providence of God so the same watchful Providence is the Peoples best security against the Prince So that the Providence of God is an equal security to Prince and People against each other But how would any Prince look upon such a trifler who should tell him Sir all the security you have or possibly can have against your Subjects is only the Providence and Protection of God and therefore you may save Money and disband your Guards and Armies To perswade Men to part with all other securities and to venture upon the most destructive Methods in confidence of the divine Protection is like the Devils Temptation to Christ to cast himself down from the Pinnacle of the Temple for it is written he shall give his Angels charge concerning thee and in their hands they shall bear thee up lest at any time thou dash thy foot against a stone 4. Mat. 6. I believe both Prince and People desire all the security they can and do not think it reasonable to part with one good security because they have another We have the Kings Word his Conscience his Honour and his Laws and thank God for all and implore the Protection of his Providence without which all other Securities are nothing and next to the Providence of God Laws are the best security because they are the Foundation of Conscience and Honour too and of all promises to govern by Laws for Conscience respects Laws and where there is no Law in the the case Conscience is not concern'd and can hinder nothing and to be sure the Honour of a Prince as well as Conscience is less concern'd when it is under no restraint of Laws He concludes this Pamphlet with some few Authorities for Liberty of Conscience I shall not now examine how pertinent they are for I will give no other Answer but this when he has answered all the Presbyterian Arguments against Toleration but especially that Book call'd Tolleration discus'd and the Arguments of Doctor Parker now the Right Reverend Bishop of Oxford in his Ecclesiastical Policy When he can prove that Liberty of Conscience is the Doctrine and Practise of the Church of Rome and the standing Rule of the Inquisition then I will consider further on this Argument In the mean time Sir I am Your most Obedient Servant FINIS Books lately printed for Richard Chiswell A Discourse concerning the Necessity of Reformation with respect to the Errors and Corruptions of the Church of Rome Quarto First and Second Parts A Discourse concerning the Celebration of Divine Service in an Unknown Tongue Quarto A Papist not Misrepresented by Protestants Quarto An Exposition of the Doctrine of the Church of England in the several Articles proposed by the late BISHOP of CONDOM in his Exposition of the Doctrine of the Catholick Church Quarto A Defence of the Exposition of the Doctrine of the CHVRCH of ENGLAND against the EXCEPTIONS of Monsieur de MEAVX late Bishop of Condom and his VINDICATOR Quarto An Answer to THREE PAPERS lately printed concerning the Authority of the Catholick Church in Matters of Faith and the Reformation of the Church of England Quarto A Vindication of the Answer to SOME LATE PAPERS concerning the Unity and Authority of the Catholick Church and Reformation of the Church of England Quarto An Historical Treatise written by an AUTHOR of the Communion of the CHVRCH of ROME touching TRANSVBSTANTIATION Wherein is made appear That according to the Principles of THAT CHVRCH This Doctrine cannot be an Article of Faith Quarto A CATECHISM explaining the Doctrine and Practices of the Church of Rome with an Answer thereunto By a Protestant of the Church of England 8vo The Law-Christian's Obligations to read the Holy Scriptures Quarto The Plain Man's Reply to the Catholick Missionaries 24o. The Protestant's Companion Or an Impartial Survey and Comparison of the Protestant Religion as by Law established with the main Doctrines of Popery Wherein is shewn that Popery is contrary to Scripture Primitive Fathers and Councils and that proved from Holy Writ the Writings 〈◊〉 the Ancient Fathers for several hundred Years and the Confession of the most Learned Papists themselves Quarto A Discourse of the Holy Eucharist in the two great points of the Real Presence and the Adoration of the Host In Answer to the Two Discourses lately printed at Oxford on this Subject To which is prefixed a large Historical Preface relating to the same Argument Quarto The Pillar and Ground of Truth A Treatise shewing that the Roman Church falsly claims to be That Church and the Pillar of That Truth mentioned by S. Paul in his First Epistle to Timothy Chap. III Vers 15. Quarto A Brief Discourse concerning the Notes of the Church with some reflections on Cardinal Bell rmin's Fifteen Notes Quarto whereof Ten are extant The rest will be Published in their order A Defence of the Confuter of Bellarmin's Second Note of the Church Antiquity against the Cavills of the Aâ—…viser Quarto The Peoples Right to read the Holy Scriptures asserted In Answer to the 6th 7th 8th 9th and 10th Chapters of the Popish Representer Second Part Two Discourses Of Purgatory and Prayers for the Dead Quarto A Short Summâ—ry of the Principal Controversies between the Church of England and the Church of Rome Being a Vindication of several Protestant Doctrines in Answer to a late Pamphlet intituled Protestancy destitute of Scripture-Proofs
being in apparent danger to provide for the Safety of the Kingdom and People committed to him by God even against the Words of the Law It is lawful for the Prince in the Preservation of his own and his Subjects Safety to lay aside for a while all strict observance of the Laws and to make use a little of an arbitrary Right lest by too unseasonable and superstitious Reverence of the Laws he may suffer both his own Person and his People that are subject to him and even the Laws themselves to fall into the Power of his Enemies Ergo the Power of dispensing with Penal Laws is an inherent and inseparable Right of the Crown Quod erat demonstrandum An excellent Logician to make an accidental Case the measure and Standard of a constant and unalterable Right To prove that to be a Right when there is no necessity which nothing but Necessity can justify nay to make Necessity which has no Law the Rule and Pattern of Legal Administrations to prove a dispensing Power in ordinary cases from a Right or Necessity to act without or against Law in extraordinary cases For the Bishop does not here say that in such absolute Necessity the King may dispense with Penal Laws but that he may act against the Words of the Law that he may lay aside for a while while that Necessity lasts all strict observance of the Laws and make use of an arbitrary Right So that if he can draw any Inference from this to ordinary cases where there is no such absolute danger it must be to prove a lawless and arbitrary Power which is a great deal more than a Power of dispensing with Penal Laws In the very next Section â—e says almost as much of the People That it is lawful for Subjects in defence of their Prince and of themselves when there is such a pressing necessity that a pious and prudent Man could not doubt but if the Lawgiver himself were present he would grant a relaxation of the Law to have greater regard to the common Good which is the supream Law and the end of all Laws than to any particular Laws which were made not to prejudice but to serve the common Good Now should any man hence draw a general Maxim that all Men must have greater regard to the publick Good than to the observance of the Laws of their Country it would be as bad Logick as it is Divinity and Law The last Bishop he calls in to bear his Testimony is the present Right Reverend Bishop of Chester but tho I have ventured to defend our dead Bishops who cannot speak for themselves but in their Writings I dare not make so bold with the living That great Man understands his own Sense best and if he be misrepresented wants neither Learning nor Interest to right himself And thus we proceed to the Reverend Doctors of our Church who I believe will be found to speak the same things with the most Reverend and Right Reverend Bishops The first is Dr. Heylin whose words are said to be these He viz. the King hath Authority by his Prerogative Royal to dispense with the rigor of the Laws and sometimes to pass by a Statute with a Non-obstante But where he says these words he does not tell us and therefore I know not where to find them and therefore know not upon what occasion they were said nor to what they are applied But as you have already heard no Man doubts but in some cases the King may dispense with the rigor of the Laws and before the Judges had declared their Opinions in the Point I know some good Lawyers who did not think that some few Instances of a Non-Obstante was a sufficient proof of a general dispensing Power and why might not Divines be of that mind too And then the Doctor 's saying that the King might sometimes pass by a Statute with a Non-obstante does not prove that he was for the dispensing Power in the modern Latitude of it for though it was as good Law before as it is now yet it might not be so well understood The next in order is the Learned and Judicious Dr. Isaac Barrow too learned and too judicious to be commended by so injudicious a Writer as will appear from what he transcribes out of his Treatise concerning the Pope's Supremacy I was mightily surprized to think what should come into the Doctor 's Head to state so nice a Point of Law as the dispensing Power in a Treatise of the Pope's Supremacy which seem'd as foreign to the business as could well be imagined and I was as much afraid that I should not have the Satisfaction of seeing what it was for he was resolved if Men would be so curious to examine they should take pains for it for he directs to no place where to find what he cites but sends his Readers to seek for three short Sentences in a Book of 428 Pages but by good luck I have found them and am very much edified by them The first is this Treatise of the Supremacy P. 311. Quarto It is indeed a proper endowment of an absolute Soveraignty immediately and immutably constituted by God with no Terms or Rules limiting it that it's Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed Where the Doctor was shewing how the Popes of Rome arrogate to themselves the most absolute and unlimited Soveraignty in the Church as it follows This Priviledg therefore in a high strain the Pope challengeth to himself asserting to his Decrees and Sentences the force and obligation of Laws c. The Mystery of this Quotation is this that he would have his unwary Readers to believe that this endowment or priviledg or Prerogative of Soveraign Power that it's Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed is immediately and immutably constituted by God with no terms or rules to limit it and thus indeed it is home to his purpose but shoots vastly beyond the Mark For this does not only prove that the King may dispense with Laws by his Proclamation but that he may make and abrogate Laws too by his Proclamation But the Doctor 's plain Sense is this That such an absolute Soveraignty as is immediately and immutably constituted by God with no terms or rules to limit the exercise of it and such a Soveraignty the Popes have challenged has this Endowment or Prerogative that its Will declared in way of Precept Proclamations concerning the Sanction of Laws the abrogation of them the dispensation with them should be observed And who ever denied this But I find no one asserting That the Kings of England were such absolute and unlimited Soveraigns by God's immediate and immutable Constitution That their Proclamations were as good Law as any Acts of Parliament That they could make and
the severities of the penal Laws whereby he may mâ—…st his clemency and goodness as well as his greatness and justice of graciously pardoning the â—maller Breaches of his Laws and the more capital offences which he might most justly punish For whoever denied this The King without doubt may not only pardon some smaller Fault but the greatest of Crimes but how this is to his purpose I still want to be inform'd And so I do as to what he quotes out of Doctor Puller's Book concerning The Moderation of the Church of England Iâ— that Equity which consists in remitting of the rigâ—… of the Laws when they press too hard upon particular Persons or in supplying the defects of the said Laws where they provide not sufficiently for particular â—ases which is all Doctor Puller contends for be all that this Writer wou'd have what need he to have writ a book about it and confirm'd it with so many great Authorities when I don't know that in this he has an Adversary in the World if he have it is fit such a man if ever he stood in need of Clemency and Mercy shou'd never have it Who thinks the Court of Chancery an illegal Court and yet that is properly a Court of Equity It is one thing to moderate the rigour of Laws in favourable cases another to dispense universally with such Laws as if Doctor Puller's Book prove any thing are very moderate already and yet this may be the Prince's Prerogative resulting not from Moderation and Equity but a Plenitude of Power As for his Anonymous Author with whom he concludes I neither know him nor his Book and suppose the cause will not depend upon a single Authority Thus we have heard what the Reverend Prelates and Doctors of the Church of England have said of this matter in the next place he tells us what were the Reasons that induc'd the Reverend Judges in Westminster-Hall so openly and solemnly after mature deliberation to declare their Resolutions in this Point for the thing But I had much rather he had told us what their Resolution was how far they extended this dispensing Power whether to all Cases or only to some or to all or to some as the King at any time judges necessary for I have heard very different Accounts of the matter but cou'd never see any authentick Record of it To have inform'd us in this matter had been a real Kindness because 't is the Rule of our Actions of our Words and of our Writing too for when I once know what the Judges declare to be Law I will enquire no further their Opinions solemnly declar'd must silence all Disputes because they carry Power and Authority with them unless any superiour Authority think fit at any time to judge over their Opinions This makes it very necessary to know what the Judgment and Resolution of the Judges is especially in any great and concerning Points but as for their Reasons I am not so fond of knowing them because it is the Authority of the Men not of their Reasons which must determine such matters for Mankind reasoning so very differently as they do there never cou'd be any final Determination of such Cases if all men must be first satisfied in the validity of their Reasons And therefore I think this Writer has done no service to the Cause by making their Reasons the Subject of Dispute for tho' they may be very good Reasons yet it may be all men will not think so and then such men will be apt to be dissatisfied that a Judgment which as they think is not founded on sufficient Reasons shou'd have such great Authority For it is not enough to say as this Writer does That the Reasons they went upon were only such as were exactly correspondent with the avow'd Doctrines before recited and that by this Declaration of theirs the Law of the Kingdom of England concerning this Soveraign Power in the Crown is no more than what was before publickly asserted to be the Divinity of the Kindom For tho' the Divinity of the Kingdom is a great word and cannot be determin'd by a Jury of Divines who liv'd in different Ages and never spoke together about it nay indeed can never be determin'd by any single Divines tho' never so many and never so learned but only by the Authority of a Convocation or National Synod yet those who think the Reasons not good will like them never the better because some Divines have been of that mind when they can so out number as I said before the Church of England with Popish and Fanatick Divines who teach another Doctrine And besides this I doubt he puts it upon a very dangerous Issue For if after all his confidence and assurance other men shou'd not think that these Reasons do so exactly correspond with the avow'd Doctrines of the Bishops and Doctors of the Church of England that they have neither taught the same Doctrine nor us'd the same Reasons as possibly this Author by that time he has read thus far may see reason to suspect what then had he not better have let all this alone have not the Reverend Judges great reason to thank him for bringing their Judgment and Reasons to such a Test as they will not bear They need not the Authority of Divines to justifie their Determinations at Law and therefore it is at best over-officiousness and a lessening of their Authority to make such Appeals besides the folly and rashness of making such Appeals as will do no Service But suppose these were not the Judges Reasons how will he justifie himself for publishing these Reasons as theirs without their Authority which I dare boldly say he never had Nay I dare lay considerable odds that these were not their Reasons as he has worded and represented them and that for more Reasons than one Did all the Judges agree upon these Reasons and make a Record of them or has he seen them signed with all their Hands if not how does he know that these are their Reasons For a Bench of Judges may agree in their Conclusion when they differ in their Premises and Reasons And I will believe that they had other Reasons besides these here mentioned Possibly some such thing as this might be said in Court but I believe not as it is here reported and it is an Affront to Judges in such a weighty Point as this to declare their Reasons upon meer hear-say when it is so evident that of twenty men who hear the same thing searce two of them shall exactly agree in their Report so uncertain and variable a thing is Oral Tradition which how infallible soever it may be in Divinity is not so in Law But to let all this pass and to allow these Reasons to be very good for I will no more dispute any Reasons which are attributed to the Judges than I will dispute their Resolutions yet the question still remains Whether these Reasons are exactly the same with what
AN ANSWER to a late PAMPHLET INTITULED The Iudgment and Doctrine of the Clergy OF THE CHURCH of ENGLAND Concerning one Special Branch of the KING's PREROGATIVE VIZ. In dispensing with the Penal-Laws SHEWING That this is not asserted by The Most Reverend Fathers in God the Lords Arch-Bishops Bancroft Laud and Vsher The Right Reverend Father in God the Lord Bishop Sanderson The Reverend Doctors Dr. Heylin Dr. Barrow Dr. Sherlock Master of the Temple Dr. Hicks Dr. Nalson Dr. Puller So far as appears from their words cited in THIS PAMPHLET In a LETTER to a Friend LONDON Printed for Ric. Chiswell at the Rose and Crown in St. Paul's Church-yard MDCLXXXVII Imprimatur May 13. 1687. GVIL. NEEDHAM An Answer to a late Pamphlet c. SIR I Have received the Book you sent me Intituled The Judgment and Doctrine of the Clergy of the Church of England concerning one special branch of the King's Prerogative viz. Dispensing with the Penal Laws Had I not now learnt to wonder at nothing it would a little have surprized me but now I shall only tell you that I have read it and do not like it And reserving one little reason for by and by viz. That it is not true I shall at present give you some other reasons of my dislike to prevent mistakes And first negatively Not because it is for the King 's dispensing Power For I never envy my King any Prerogative that belongs to his Crown And tho it may be this Branch of the Prerogative was not so well understood in former days yet it is certainly now the right of the Crown as much as the Opinion of the Judges can make it so and I never dispute against such an Authority And I think it is a disparagement to the judgment of the Reverend Judges to call in Clergy-men to help them out when he himself tells us p. 34. Vnto the Judges the people are bound lastly and finally to submit themselves for matter of Law Why then does he make any further dispute about the matter As if he distrusted the Judgment of the Judges or thought that people would rather believe Divines than Judges in matter of Law which would be a great scandal to that Reverend and Learned Bench. And therefore I confess I am very much offended with that priority he gives to the Judgment of Churchmen in this point before the Judgment of the Judges He says We could not resolve our selves in this great point of the Supreme Power inherent in and inseparably annexed to the Crown to dispense with Penal Laws but by these two ways 1. To see how far the Judgment of our Church-men appearing in their Doctrines which are for our edification doth warrant this Prerogative to be in the King 2. To see how far the Judges Resolutions in declaring their sence of the Law of the Land in this doubtful question do agree in such their Judgments and Doctrines Fie for shame First make the Clergy Judges of Law and Preach edifyingly about the Prerogative and then set them before the Judges themselves as a Rule and Pattern for them to follow and then as it naturally follows judg over the Judges judgment by its agreement with the judgment of Divines about Law and Prerogative If the Writer of this Letter was a Divine it argues a good Opinion of his own Profession but if he were a Lawyer or but a Justice of Peace I know what he deserves Secondly This brings me to the positive Reasons of my dislike of this way and they are comprehended in two 1. That I do not think fit to lay such stress upon the Judgment of Church-men in matters of Law and such sure this unlimited dispensing Power is a meer point of Law and that such an abstruse point too as not all Lawyers nay not all Judges have formerly been agreed about Now what does a Churchman's Judgment signify in matters of Law No man's Opinion is of any value but in such things wherein he is skilled now a Churchman does not signifie one who is skilled in Law but in Divinity And tho a Church-man should be a good Lawyer if he gives his Opinion in any point of Law his Opinion is not valuable as the Opinion of a Church-man but of a Lawyer for suppose a Church-man were skilled in Physick too would you value his Judgment in Physick ever the more because he is a Church-man Or think your self more safe in his hands than in a professed Physicians There are Interlopers indeed in all Professions but that any man's Judgment should be valued because being of one Profession himself he gives judgment in another is a Mystery to me And therefore this Writer should first have proved all those great Divines Arch-bishops Bishops Deans Doctors with whose names he hath so pompously filled his Title Page and to whose judgment he appeals about the King's Prerogative to haxe been great Lawyers as well as great Divines or else the Cause is Coram non judice and yet he makes no offer at this unless by the Title he gives Dr. Sherlock of Master of the Temple he would intimate his great skill in Law too but this will not do for his Book of Non-resistance was written before he liv'd within the infection of the Law-air So that it seems a very great injury to the Cause to appeal to such Judges as have no skill in the matter For what credit can the Opinion of Divines do it when it is not a point of Divinity but of Law that is in question For it is generally seen that those are very apt to mistake who guess at things out of their Ken and people are apt to suspect that such contemplative men who keep their Studies and seldom look abroad into the World may form fine Romantick Idea's of Government which will not suit the publick Constitutions of Kingdoms and Nations Secondly I think it is a very dangerous thing to put the Question upon such an issue as this The design of it I suppose is to recommend it to the Layety of the Church of England by such venerable Names but he should have considered that the Layety of the Church of England are not so Priest-ridden as they are at Rome and Geneva they have not an implicite Faith in their spiritual Guides and their Guides do not desire they should and therefore it is not their Names but their Arguments must prevail but if people are taught to rely on the opinion of their Ministers in such Prerogative Disputes the Popish Priests and Phanatick Ministers are great Politicians too but if they may be Judges Sovereign Princes will get nothing by it The Church of England indeed has always been addicted to the Service of the Crown but there are other Maxims of Government among other men Bellarmin and Suarez and Mr. Baxter's Common-wealth and the Dissenters Sayings not to take notice now of Julian the Apostate are not very favourable to the Prerogatives of Princes and I fear people are more