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
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
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
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
that can or may in any wise be objected against the same c. it follows That all Acts and things heretofore had made or done by any Person about any Consecration Confirmation or Investing of any Person elected to the Office or Dignity of any Archbishop or Bishop c. by Uirtue of the Queens Majesty's Letters Patents or Commission c. be and shall be by Authority of this present Parliament declared judged and deemed at and from every of the several times of the doing thereof good and perfect to all respects and purposes any matter or thing that can or may be objected to the contrary thereof in any wise notwithstanding Sir E. Cook in the 4th part of his Iustitutes c. 74. viz. Of Ecclesiastical Courts takes notice how our adversaries had made objections against our Archbishops and Bishops consecrated about the beginning of the reign of Queen Eliz. and consequently against the Bishops ever since That they were never consecrated according to law because they had not three Bishops at least at their Consecration and never a Bishop at all as was pretended because they being Bishops in the reign of Edward the 6th were deprived in the reign of Queen Mary and were not as was pretended restored before their presence at the Consecration These pretences being but Cavils are answer'd by the Statute of 8 o Eliz. c. 1. and provision made by authority of that Parliament for the establishing of Archbishops and Bishops both in proesenti and in futuro in their Bishopricks But Mason in his 3d Book c. 7th De ministerio Anglicano in his answering the objection hath recourse to the Queens Patents referr'd to by the Statute of 8 o Eliz. and having mention'd the Queen's dispensing by her supreme authority cum quavis causâ aut suspicione câ—…jusvis DEFECTUS aut INABILITATIS quoe quovis modo contra eorum consecrationem obtendi poterat he saith verba in diplomate Regio sic se habent supplentes nihilominus suprema authoritate nostra Regia ex mero motu certa scientia nostris si quid in hiis quae juxta mandatum nostrum per vos fient aut in vobis aut vestrum aliquo conditione statu aut facultate vestris ad praemissa perficienda desit aut deerit eorum quae per statuta hujus Regni aut per leges ecclesiasticas in hac parte requiruntur aut necessaria sunt temporis ratione aut rerum necessitate sic postulante and then adds unde serenissima Regina ut omnem calumniandi ansam proecidere ipsique invidioeos obstruere posset c. DISPENSARE dignata est siquid forte Lynceis oculis invidia alicujus statuti vel canonis violati proetextu possit obtendere And then having brought in his Popish opponents objection Hem quid audio Vos Pâ—…ntificis maximi Dispensationes dente canino soletis arrodere jam nihil pudet in Actis Parliamentariis laicali magistratui Reginoe foeminoe dispensandi facultatem transcribere Dispensandi inquam cum quavis causâ aut suspicione ullius defectus aut INABILITATIS quoe incidere poterant idque in sacris ordinibus he makes this reply viz. Papa aliquando dispensat nimium papaliter sed non perinde Elizabetha Suas tantum leges RELAXAVIT Cum transgressionibus contra leges suas DISPENSAVIT Quod Deus fixit nunquam refigere aut rescindere est molita And there afterward to the objection si dicatur Reginam sufficientem dispensandi cum illis potestatem habuisse proferatur aliquod illius potestatis fundamentum â—…i non ex scripturâ sacrâ saltem ex Conciliis aut patribus aut uno aliquo approbato exemplo in toto mille quingentorum annorum curricuâ—…o the reply is Nonne Principis est legum suarum râ—…gorem res ubi postulat emollire Non magno opinor opus est mâ—…limine ad hoc probandum and as to what was objected against a Prince's dispensing with an ecclesiastical Canon he saith Canonum quatenus sunt leges Principis ecclesiasticoe summum jus rigorem duritiem moderari spectat ad officium principis And then he judiciously confutes Sanders his reproaching our Bishops in his book of Schism with the term of Parliamentarii episcopi and he referrs to the words in the Statute of 8 o Eliz. that I have mention'd to you and saith of them Omnino liquido ostendunt Comitia Parliamentaria non consecrasse ordinasse vel constituisse episcopos aut ministros sed jam secundum leges ecclesioe LEGITIME Consecraâ—…os ritè ordinatos ac Constitutos pro talibus habendos esse DECLARASSE c. And so I doubt not but you mind the words in that Act relating to the Queen's Letters Patents viz. shall be by authority of the Parliament not made good for they were so before but declared judged and deem'd good A. I apprehend you B. But to return to the Consideration of what you are on the whole matter obliged to by virtue of the Oath of Supremacy in the Case now before you and herein I find that by Virtue of the Queens interpretation of that Oath and the Parliaments Approbation thereof that when in the Assertory part of the Oath you do utterly testify and declare in your Conscience that the King's Highness is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal you have as in the Presence of God solemnly given your cordial Assent to and made your most Religious acknowledgment that the SOLE Supreme Government or Soveraignty and Rule under God over all manner of Persons born within these Realms is in the King and you are obliged to judge that tho the Oath speaks of all Spiritual or Ecclesiastical THINGS or Causes and the interpretation of all manner of Persons of what Estate either Ecclesiastical or Temporal soever they be yet there is no inconsistence between the Oath and the Interpretation for that as a Learned man in his Comment on that Oath hath well observ'd there is no Opposition between these two Persons and Causes the Principal object of a Law is a Person and a Person with respect to his Actions a Person morally Consider'd and he there quotes Suarez de Legibus l. 1. c. 8. saying Ad leges per se requiritur potestas in personam secundario in Res alias and for that the Assertory clause in the Oath declaring the King the only Supreme Governor of this Realm doth necessarily imply his being the only Supreme Governor of all Persons in it A. But perhaps you did not take notice that probably one reason why Queen Elizabeth was willing that her Interpretation that related to the Assertory part of the Oath I mean as to her Power over all the Persons of her Subjects and which was Publish'd in the Admonition after her Injunctions should in the aforesaid Act in the 5th year of her Reign be approved in Parliament might be to satisfie the scrupulousness of some mens Tender
some mens Minds are involv'd in they can no more alter their beliefs about Transubstantiation then they can transubstantiate themselves into other Creatures and are under a Moral incapacity of preventing another incurred by Law. And therefore as it would be Injustice in a Judge to Punish a man for the Errors of the mind that he knoweth not to be voluntary and for a man 's not putting himself into a Capacity to serve the King by the Professing of the truth in Problematical Points when the King of Kings hath by the not sufficient promulgating of such truth to his understanding render'd him innocent in his disbelief thereof and so long morally uncapable to profess it so by one man's after another appearing thus unable to qualifie himself to serve the King he may be totally unserved I have often heard you complain of the narrow Idea's of the King's Supremacy in some of the Non-Conformists but if you will read the Protestation of the King's Supremacy made by the Nâ—…n-conforming Ministers and Printed A D. 1605. you will find that they have there given in sufficient caution for tâ—…eir Principles not allowing any of the King's Subjects being disabled from serving him For they having said in § 1. We hold and maintain the same Authority and Supremâ—…cy in all Causes and over all Persons Civil and Ecclesiastical granted by Statute to Queen Elizabeth and expressed and declared in the Book of Advertisements and Injunctions and in Mr. Bilson against the Iesuites to be due in full and ample manner without any limitation or qualification to the King and his Heirs and Successors for ever they add in § 2. We are so far from judging the said Supâ—…emacy to be unlawful that we are persâ—… aded that the King should sin highly against God if he should not assume the same to himself and that the Churches within his Dominions should sin damnably if they should deny to yield the same to him yea tho the STATUTES of the Kingdom should deâ—…y it to him And they tell you in Sect. 6. that the height of the King 's Royal Dignity consists in his Supremacy It is thus likewise a kind of familiar or Vulgar Error among Protestants to think that in the â—…ncient times this Fundamental Assertory part of your Oath tâ—…at the King is the only Supreme Governor of this Râ—…alm was not allow'd Long before the Rescript of the University of Oxford to Henry the 8th A. 1534. mention'd that he was next under God their happy and Supreme Moderator and Governor and on which being brought into the Parliament House an Act passed whereby the King was declared Supreme Head and Governor of the Church and long before it was declared by the Parliament 16. R. 2. c. 5. that the Crown â—…t England hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regality of the same Crown and to none other and long before Bracton's writing in the Reign of H. 3. Omnis quidem sub Rege ipse sub nullo sed tantum sub Deo and ipse autem Rex non debet esse sub homine sed sub Deo. c. you will find if you look into Coke's 4th Instit. c. 74. that in the Law before the Conquest the style runs Rex autem quia Uicarius summâ—… Regis est ad hoc est constitutus ut Regnum terâ—…enum populum Domini super omnia sanctam veneretuâ—… Ecclesiam ejus regat c. and where he tells you of the style of King Edwin in his Charters viz. of Angâ—…orum Rex totius Britannicae telâ—…uris Gubeâ—…nator Rector And he there refers likewise to several Grants made by Abâ—…ots and Priors to King E. 4. wherein they style him by these very words Supremus Dominus noster But that he might perimere litem as to the point of the ancientness of the King's Supremacy he there referreth to the judgment of Parliament declared in the Statute of 24 o. H. 8. c. 12. viz. That by divers authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governâ—…d by one Supreme Head and King c. unto whom a Body-Politick compact of all sorts and degrees of People divided in terms and by names of Spiritualty and Temporalty been bounden and owen to beat next unto God a natural and humble Obedience c. And here I am led to tell you that as it is on this Foundation of the King 's being the Supreme Governor and Ruler of all sorts and degrees of men thus anciently acknowledged by our Roman Catholick forefathers that the Regal Power of Dispensing with the Laws that were Penal by Incapacity and particularly in order to the Crown 's being enabled to command the Obedience and Service of all Estates and Degrees of men was built so it is on the same that the Usurpations of the Papal Dispensative Power of that kind were opposed I shall before we part give you instances hereof A. I thank you but shall here tell you that the Expression you used just now about the King being disabled by his Subjects being so hath overcast my thoughts with some kind of horror B. I cannot help it but if you will have me speak with the frankness of a Philosopher concerning the Nature of things the disabling of the Subjects must have that effect in Nature and of the disabling of their Country too And I think too you gave me a hint for some such thought at our last meeting If you do but consider the Services done to Monarchs by that abject Nation of the Iews and who by Tacitus were call'd the Vilissima pars servientium and how in our Saviour's time they were serviceable to the Roman Empire in the Collection of the Customs and how much they have been since and still are useful to the Grand Signior and to many Christian Princes by gathering in their Imposts you will easily imagine the loss that would redound to Princes by Religionary Heterodoxy disabling any to serve them It is but natural to men of the most inquisitive and penetrating thoughts to differ from many Points of Theology receiv'd by Princes and their People and since such heterodoxy doth difficult their access to Preferment it is but Natural to them by their working Thoughts and Industry to arrive at the excelling the duller Orthodox in whatever course of life they take and by that means to try to push on their way into their Prince's favour and consequently to have very sharp regrets against any Methods that would incapacitate them for it And as if this Civil Death were to Men of great Thoughts the terrible of terribles and what as hindring them from serving their Prince and Country were like Burying them alive I shall shew you how a Man of great Abilities and who had made a great Figure in the Church
Fra. Walsingham And what sense the House of Commons had in the beginning of the Reign of King Iames the First of the Disabling of several of the Nonconformist Divines being a Gravamen to the Realm appears by the Petition of that House to the King Anno 1610. as I find it in Mr. Nye's Beams of former Light p. 103. viz. Whereas divers painful and learned Pastors that have long time travell'd in the work of the Ministry with good Fruit and Blessing of their Labour have been removed from Ecclesiastical livings being their free-hold and from all means of maintenance to the great grief of sundry your Majesty's well-affected Subjects we therefore humbly beseech your Majesty would be graciously pleas'd that such deprived and silenced Ministers living quietly and peaceably may be restored c. But in short if you consider that the great Cause that excited the Loyal Zeal express'd in the Statute of the First of Queen Elizabeth and whereby so many Statutes of Harry the 8th against the Papal â—…pations were revived was that the King and Kingdom might not be disabled by Clergy-mens not being Subjects to the Crown through Papal Exemptions and that the Crown might Cum effectu be restored to its Government over them i. e. of the whole Realm and that our Monarchs should by means of such Exemption be no more disabled from being Governors only IN their Realm and not OF it and as when the Right of two Persons claiming to be Princes of Tuscany was before the Pope's Arbitrage he determin'd that one of them should be A Prince IN Tuscany and the other Oâ—… it you will find that this Supreme Power over all Persons as inherent in the King is the very Lapis Angularis on which your Abjuration of foreign Iurisdiction and on which the whole Promissory part of your Oath are built For when you have first declared in your Oath that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal and then what followeth upon that viz. That no foreign Prince Person Prelate State or Potentate hath or ought to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm you say And THEREFORE I do â—…tterly renounce and forsake aâ—…l foreign Iurisdictions c. And do promise that from henceforth I shall bear Faith and true Allegiance to the King's Highness c. and to my Power shall assist and defend all Iurisdictions c. granted or belonging to the King's Highness c. or united and annex'd to the Imperial Crown of this Realm Thus then the Reason why you abjure foreign Jurisdiction for you ABIURE when you swear to quit and forsake as Mr. Nye in his Observations on that Oath tells us and why you promise to assist and defend all Iurisdictions granted or belonging to the King whose Subject you are is resolved into the Kings being the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal I am here further to tell you that when by your Oath you have renounced the Pope's Dispensative Power you have asserted and have obliged your self to defend the Jurisdiction of the King 's Dispensative Power in the room of it and the defence of which was the great design and drift of the entire Statute of 1 o. Eliz. and of your Oath therein and no collateral thing A. I have been and am pleas'd with that Prospect you have given me into the Region of the Dispensative Power used by the Crown in the Interpretation of my Oath a Region that was before to me like the terra Australis Borealis incognita but to deal frankly with you I am yet to seek out the meaning of this notion last â—…rted by you that the drift and design of the Statute of 1 o. Elizabethae and the Oath was to prop up the King 's Dispensative Power I doubt not but you are perfectly sensible that he who speaks to that tender thing call'd Conscience and about an Oath ought to be tender of any point he urgeth to it and not to wyre-draw any thing by forced Consequences that is to be offered to it as Obligatory B. I assure you I go by those very measures in giving you my Judgment of the design and drift of that Statute as I have done and that he must put the Statute on the wrack that will make it speak any other meaning Consider what the Prefatory part as the key of it mentions viz. That divers good Laws and Statutes that were made in Henry the Eighth's time as well for the utter extinguishment and putting away of all Usurped and Foreign Power c. as also for the restoring and uniting to the Imperial Crown of this Realm the ancient Iurisdictions c. to the same of Right belonging by reason whereof we your most humble and obedient Subjects from the 25th year of the Reign of your said dear Father were continually kept in good order and were disburden'd of divers great and intolerable Charges and Exactions before that time unlawfully taken and exacted by such Foreign Power and Authority as before that was usurped until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second years of the Reigns of the late King Philip and Queen Mary c. were repeai'â—… by reason whereof they then further mention how they were then brought under an Usurped Foreign Authority to their intolerable Charges and they thereupon desire the Repealing of that Act. Here we are given to see by their dating the aera of their being well govern'd and disburthen'd of divers great intolerable Charges and Exactions taken and exacted by Foreign Power from the 25th of Henry the 8th and had their eye on the Statute of the 25th of Henry the 8th c. 21. entituled No Imposition shall be paid to the Bishop of Rome which sets forth how the Subjects of this Realm were impoverish'd by intolerable Exactions of great Sums of Money taken out of this Realm by the Bishop of Rome as well in Pensions Censes Suits for Provisions and Expeditions of Bulls c. and also for Dispensations Licences Faculties Grants Relaxations Writs call'd Perinde valere Rehabilitations Abolitions and other infinite sorts of Bulls Breves and Instruments of sundry Natures c. wherein the Bishop of Rome hath been not only to be blamed for his Usurpation in the Premisses but also for his abusing and beguiling your Subjects pretending and persuading them that he hath Power to Dispense with all Humane Laws Uses and Customs of all Realms in all Causes which be call'd Spiritual which matter hath been usurped and practised by him and his Predecessors by many years in great deâ—…gation of your Imperial Crown and Authority Royal contrary to Right and Conscience For where this your Graces Realm recognizing no Superior under God but only your Grace hath been and
o Eliz. beforemention'd B. I can easily direct you to such a Writer of our Church who hath done the thing to the universal Satisfaction of the Inquisitive as to this Point and that is the Lord Primate Bramhal in his Book of Schism Guarded He saith there in p. 330 and 331. As our Grievances so our Reformation was only of the abuses of the Roman Court. Their bestowing of Prelacies and Dignities in England to the Prejudice of the right Patrons Their Convocating Synods in England without the King's leave Their Prohibiting English Prelates to make their old feudal Oaths to the King and obliging them to take new Oaths of Fidelity to the Pope Their imposing and receiving Tenths and first Fruits and other Arbitrary Pensions upon the English Clergy and lastly their Usurping a Legislative Iudiciary and Dispensative Power in the exterior Court by Political Coaction these are all the branches of Papal Power which we have rejected This Reformation is all the Separation that we have made in point of Discipline And for Doctrine we have no difference with them about the old Essentials of Christian Religion and their new Essentials which they have patch'd to the Creed are but their erroneous or at the best probable Opinions no Articles of Faith. Thus then according to these measures you see how much the hinge of the Reformation turns on the Usurpation of the Papacy in Dispensing for in all these particulars enumerated the Pope dispens'd with the King's Laws And he had before in p. 26. said This Primacy neither the Ancients nor we deny to St. Peter of Order of Place of Preheminence If this first movership would serve his turn the Controversie were at an end for our parts But this Primacy is over-lean the Court of Rome have no gusto to it They thirst after a visible Monarchy on Earth an absolute Ecclesiastical Soveraignty a Power to make Canons to abolish Canons to dispense with Canons to impose Pensions to dispose of Dignities to decide Controversies by a single Authority This was that which made the breach not the Innocent Primacy of St. Peter And afterward in p. 149. he saith But I must contract my Discourse to those Dispensations that are intended in the Laws of Henry the 8th that is the Power to dispense with English Laws in the exterior Court Let him bind or loose inwardly whom he will whether his Key erre or not we are not concern'd Secondly As he is a Prince in his own Territories he that hath Power to bind hath Power to loose He that hath Power to make Laws hath Power to dispense with his own Laws Laws are made of Common Events Those benign Circumstances that happen rarely are left to the Dispensative Grace of the Prince Thirdly As he is a Bishop whatever Dispensative Power the ancient Ecclesiastical Canons or Edicts of Christian Emperors give to the Bishop of Rome within those Territories that were subject to his Iurisdiction by Humane right we do not envy him so he suffer us to enjoy our ancient Privileges and Immunities freed from his Encroachments and Usurpations The Chief ground of the ancient Ecclesiastical Canon was let the old Customs prevail A possession or Prescription of Eleven hundred years is a good ward both in Law and Conscience against an Human Right and much more against a New pretence of Divine Right For Eleven hundred years our Kings and Bishops enjoy'd the sole Dispensative Power with all English Laws Civil and Ecclesiastical In all which time he is not able to give one instance of a Papal Dispensation in England nor any shadow of it when the Church was formed Where the Bishops of Rome had no Legislative Power no Iudiciary Power in the exteriour Court by necessary Consequence they could have no Dispensative Power He then in p. 169. mentions the said Statute of 25. H. 8th and having referr'd to the Proviso there to shew that its intent was not to vary from the Church of Christ in any other things declared by the Holy Scripture and the Word of God necessary to Salvation he saith then followeth the scope of our Reformation only to make an Ordinance by Policies necessary and convenient to repress Vice and for good Conservation of the Realm in Peace Unity and Tranquillity from ravine and spoil ensuing much the ancient Customs of this Realm in that behalf not minding to seek for any relief succours or remedies for any worldly things and Humane Laws in any cause of necessity but within this Realm at the hands of your Highness your Heirs and Successors Kings of this Realm which have and ought to have an Imperial Power and Authority in the same and not obliged in worldly Causes to any other Superior Thus then you see this Prelates sense of how much the taking away the Pope's Dispensative Power here and restoring that Power to the Crown was the Soul of the Reformation and tota in toto of it And this Act you see revived by the First of Elizabeth without garbling it in the least and the Dispensative Power thereby restored to her her Heirs and Successors and a Declaration that no Subjects of the Realm need for any worldly things and Humane Laws in any Cause of Necessity seek for any relief but within this Realm at the hands of our Soveraign as aforesaid And I shall tell you that the Bishop in the next Page refers to the Statute of the First of Eliz. and saith on his view of both Statutes Whatsoever Power our Laws did devest the Pope of they invested the King with it And of this the Power of Rehabilitating any of his Lay or Clerical Subjects is a part as was beforesaid A. You have cited somewhat out of this Great Champion for the King's Supremacy and for the Church of England and reputed to be the most clear Vindicator of it from Schism our Church hath had which hath created more anxiety in my mind about the Assertory part of the Oath then any thing hath done For the words in the Oath are I do utterly testify and declare c that no Foreign Prelate or Person hath or ought to have any Iurisdiction Power Ecclesiastical or Spiritual within this Realm and you have brought in the Primate granting that the Pope hath Power here to bind or loose inwardly and asserting that he hath here a Spiritual Power B. You judge right of the Bishop's Opinion and which is indeed express'd throughout his whole Book He tells us in p. 25. That St. Cyprian made all the Bishopricks in the World to be but one Masse whereof every Bishop had an entire part And he saith in p. 60 and 61. That neither King Harry the 8th nor any of our Legislators did ever endeavour to deprive the Bishop of Rome of the Power of the Keys or any part thereof either the Key of Order or the Key of Iurisdiction I mean Iurisdiction purely Spiritual which hath place only in the inner Court of Conscience and over such Persons as
clear'd of those doubtful Expressions in them which cause their scruples c. whereby they may to the entire Satisfaction of His Majesty and the Nation fully testifie the Allegiance and Fidelity of faithful Subjects and true Patriots and no longer remain as they generally now do distrusted c. But there was another Book that year Publish'd by a Roman Catholick of which the title was A seasonable Discourse shewing how that the Oaths of Allegiance and Supremacy as our Laws interpret them contain nothing which any good Christian ought to boggle at and where the Saying of Tertullian is quoted Bonae res neminem scandalizant niâ—… malam mentem c. and where having taken notice of the Queen's Admonition and the Proviso of the Statute of 5 o Eliz. and the 37th Article and the Iudgments of the Bishops Bramhal and Carleton as Sir Iohn Winter had done and for the same purpose giveth his Judgment that the taking of those Oaths gives no Scandal and he in p. 38. averrs that Sir John Winter told him many years ago that he had the Iudgment of Sorbouists Secular Priests and Iesuites that he might take the Oath of Supremacy declaring the sense which the Law allows And I shall here by the way take notice that as to the Oath of Allegiance F. Cressy saith in his Epistle Apologetical p. 111. that few Roman Catholicks if any at all would refuse that Oath if that unlucky word heretical were blotted out c. or if they might change heretical into contrary to the Word of God which he saith he verily believes was the sense intended by King James But now after all this said I shall tell you that according to what is observ'd by the generality of Writers oâ—… Princes easing their Subjects by their Dispensative Power of interpreting their Laws viz. That they take occasion then to intermix with such interpretation somewhat else that may advance their Power there were Fears and Iealousies that some of these foremention'd interpretations tho lessening the spiritual Power of the Crown might enlarge its temporal and particularly such as in the Queen's Admonition mention'd the Duty Allegiance and Bond acknowledg'd to be due to Harry the Eighth and Edward the Sixth and as I partly before hinted such as in the Proviso in the Act of the 5th of the Queen that ratifying the Admonition hath in it the additional words of acknowledging in her Majesty her Heirs and Successors the Authority that was challenged and lately used by Harry the Eighth and Edward the Sixth and such as in the 37th Article explain'd the Queen's Power by that given by God himself to all GODLY Princes in Scripture and where notwithstanding the Word Godly being put in there to gild the Pill of the Absolute Power of the Iewish Kings and to make it be the more easily swallow'd the real meaning was the Power given to all the Iewish Kings for the right of their Power depended not on their Godliness and such as in the Canons of King Iames ipso facto Excommunicate all that do not give the King the same Authority in Causes Ecclesiastical not only that the Godly Kings had among the Iews but what the Christian Emperors had in the Primitive Church And there too notwithstanding the word Christian might be for the like reason put in as that of Godly was and to cause the owning of that absolute Imperial Power which pursuant to the Lex Regia was used by the Christian Emperors as well as their Heathen Predecessors in punishing Heterodoxy ad libitum the meaning of the Canon was not to devest Heathen Emperors of their right of judging about Matters of Religion and as to which Grotius in his Letter to the States Embassador having said neither would Paul have appeal'd to Nero had he judged that no right of Iudging in a Case of Religion belong'd to him addeth Wherefore as Trajan Civilly honest Nero wicked are equal in the Right of Government so Pious Constantine and Impious Nero are equal in the right of judging in aptitude and skill unequal The Canons therefore of Forty enjoyning the Explanation or Interpretation of the Regal Power there inserted to be one Sunday in every Quarter of the Year read by the Clergy to their Flocks did well provide for the cautioning them as against the setting up any independent Coactive Power either Papal or Popular so against Fears and Iealousies relating to their Properties in their Goods and Estates and by that Explanation they shew that Christ came not to Undermine or Disturb but to Confirm the Civil Government of Pagan Princes and that in the first times of Christ's Church Christians were ready to submit their very Lives to the very Laws and Commands of those Princes A. But doth that Explanation of the Regal Power assert any thing in Defence of the Dispensative part of it B. You see how without wyre-drawing any Consequences the very first Paragraph of the Explanation doth both strengthen the foundation of the assertory part of your Oath we have been so long discussing and strike out new lights in the Fabrick of the Oath You see it tells you downright that A Supreme Power is given to the Order of Kings by God himself in the Scriptures which is that Kings should rule and Command in their several Dominions all Persons of what rank or estate soever c. And the Explanation doth effectually enough provide by the second Paragraph that Kings should take care that none in their Dominions but the stubborn and evil doers may be restrain'd with the Temporal Sword for it saith The Care of God's Church is so committed to Kings in the Scripture that they are commended when the Church keeps the right way and taxed when it runs amiss and therefore her Government belongs in chief to Kings For otherwise one man would be Commended for another's Care and taxed but for another's Negligence which is not God's way And this is an Argument taken ab absurdo and the strongest that can be used in Law and not to be set aside but by the alledging something as more absurd against it and amounts to this that it is absurd that Kings who are commended when those who are not stubborn nor evil doers are not under any restraint by the Temporal Sword for the Church runs not the right way when that Sword is a terror to any but evil doers and tax'd on the contrary being done should not be judged to be authorized to exempt those from all restraint thereby And when the People are not liable to blame for Kings erring in their Judgment about the Persons to be so exempted from restraint nor to be commended or rewarded for their not erring therein can any thing be more absurd then for the independent Coactive Power of Kings it self to be restrain'd to the Punishing such as they shall judge Innocent But the two tenderest things in the World are Sovereign Power and Conscience and both of them were made with a
insignificant as did the old Politicks I shall refer you to in the Sacred Story and when the whole Earth was of one Language and of one Speech and the Vogue was Let us build a City and Tower whose top may reach to Heaven and let us make us a Name least we be scatter'd abroad on the face of the whole Earth But Heaven confounded their Language and their City was call'd Babel and their feared Dissipation was their Punishment They were so diffident of the Divine Promise whose garranty they had that they were resolv'd by their own hands to provide against all Dangers of a future Deluge and having built their Tower with Brick they thought 't would defend them from the Power of Fire concerning which they had heard the Tradition that a general Destruction of the World should proceed from the fury of that Element and they vainly endeavour'd to secure themselves against the anger of Heaven rather by a lofty Pile then by lowly Minds A. That wretched vulgar Error you referr'd to did shew that the line of Confusion was stretch'd forth on Men's understandings as well as on the Realm in that Conjuncture and I have observ'd that that vulgar Error did last to the very time of the ferment about the Exclusion and long before which time as well as then some have talk'd and writ at this rate viz. That the Oath of Supremacy was expresly made as the title of it shews to shut out the Usurpation of foreign Powers and Potentates and was not meant to provide against any popular Usurpations or Diminutions of the King 's Supreme Authority B. O God! But to speak or write at that rate to Conscience is Chicanerie And I have elsewhere mention'd what one whom I cannot too often mention to be as fair a dealer with Conscience as any the Age hath had told us in his sixth Lecture of Oaths about the Oath of Supremacy binding in this Case You know I mean Bishop Sanderson who there shews that tho Popes Usurpations or arrogating to themselves the Supreme Iurisdiction in spiritualibus throughout this Kingdom was the Cause of the Oath of Supremacy yet the Oath is obligatory according to the express words in the Utmost Latitude the reason is that the intention of a Law is general to provide against all future inconveniences of the like kind or nature Moreover the words in Queen Elizabeth's Admonition referring to the Persons call'd to Ecclesiastical Ministry in the Church as the doubters and the tenour of all the subsequent Interpretations as speaking them principally occasion'd by the doubters in the Church of England do further shew the Vanity of that Objection And if you will more particularly think of the Queen 's Authentick Interpretation of that Oath and approved in Parliament you will find the Oath of Supremacy to be an Oath of Allegiance and that it may be so-likewise properly termed For in the beginning of the Admonition you will thus find it viz. The Queen's Majesty being inform'd that in certain places of this Realm sundry of her native Subjects being call'd to Ministry in the Church be by sinister Perswasion and perverse Construction induced to find some scruple in the form of an Oath which by an Act of the last Parliament is prescribed to be required of divers Persons for the recognition of their ALLEGIANCE to her Majesty c. A. As one may perceive by what the Queen's Interpretation in the Admonition refers to that there was a great ferment in the Kingdom about the sense of the Oath so suitably to what you mention'd of the Prudence of our Ancestors that caus'd various ferments to go off so insensibly the next Parliament in approving her Interpretation without troubling themselves to question the Authentickness of it doth corroborate your observation of the Excellence of the English understandings B. It doth so The fermentation in the minds of the People you speak of had been Epidemical And tho one might fancy by the Proem of the Admonition that the Interpretation as well as the Dispensing with Disability had an eye but on an inconsiderable number of People there referr'd to in the foremention'd words of sundry of her Majesty's Native Subjects in certain places of this Realm c. yet any one who knoweth the History of those times will find the Interpretation and Dispensation as I may say Calculated for the Meridian of all England and the Interpretation having an eye on all Christendom There was then in the Morning of that Queen's Reign and of the restoration of the Reform'd Religion such a thick mist of causeless Fears and Iealousies that had generally o'erspread the minds of Protestants and Papists shortly after the Birth of the Statute of 1 o Eliz. c. 1 o. that nothing but the Supremacy both of Power and Reason that shone in her authentick Interpretation of that Statute could disperse and that too not suddenly For as Mr. Nye in his Book of Two Acts of Parliament or Observations on that Oath tells us It is mention'd in the Admonition that the Queen 's Ecclesiastical Power is the same that was challenged and used by Henry the 8th c. which is supposed by some to be the same that was in the Pope the Person only and not the Power changed so that our Princes are but secular Popes This Objection was strengthen'd by the subtlety of Gardiner abroad and at home by a Sermon Preach'd at Paul's Cross in the year 1588. by Dr. Bancroft who calls Q. Eliz. a Petty Pope and tells us her Ecclesiastical Authority is the same which the Pope's was formerly and in the Margin opposite to what he had said of the subtlety of Gardiner strengthening the Objection abroad hath these words viz. Whom Calvin terms Imposterille And Mr. Nye afterward goes on to shew how the 37th Article did remove the Objection sufficiently The Author of The true Grounds of Ecclesiastical Regiment Printed in London A. 1641. doth in p. 53. mention some mens objecting it against the Ecclesiastical Supremacy of our Monarchs that it may descend to Infants under Age as it did to King Edward the 6th or to Women as to Queen Mary and Queen Elizabeth and that whatsoever we may allow to men such as Henry the 8th yet it seems unreasonable to allow it Women and Children The Papists think this Objection of great moment and therefore Bellarmine in great disdain casts it out that in England they had a certain Woman for their Bishop meaning Queen Elizabeth and she knowing what an odium that word would draw on her both among Papists and many Protestants also Consults her Bishops about it and by their advice sets forth a Declaration certifying the World thereby that she claim'd no other Headship in the Church but such as might exclude all dependency on foreign Headships and secure her from all danger of being deposed c. The Bishops in this did as warily provide for their own Claim as the Queen 's And the Roman-Catholick Author
of a Law and dispensing to be different things B. He had an excellent Metaphysical head and his Method of writing in that Chapter Of the Several ways of the changing of Humane Laws was partly after the Example of Suarez in his Book De Legibus and who was a voluminous Writer of Metaphysicks and writing of any Subject could not recedere ab arte suâ in that Learning that is so infinitely prolifick of Artificial distinctions without Natural differences I mention'd the Bishop's but PARTLY writing after the way of Suarez for he was far from crumbling the weightier Points of the Law into the Minutiae of Metaphysicks as the other did and he in his excellent Preface doth very passionately complain of Moral Theology having been made an Art of the Schools and that what God had made plain Men have intricated and for that purpose saith There is a Rule among the Lawyers which very much relates to the Conscience of those Men who are engaged in Suits and Sentences of Law in all Countrys which are ruled by the Civil Law in quolibet Actu requiritur Citatio of this Rule Porcius brings an hundred and sixteen Ampliations and an hundred and twenty four Limitations c. And thus Suarez in his 6th Book De Legibus and the Title of which Book is The Interpretation Cessation and change of Humane Laws hath there Twenty seven Chapters concerning the same and where his first Chapter is Of the way of rightly Interpreting an Humane Law his 2d Of the Extension in them by Interpretation of them and his 3d Of the Extension to a Case not Comprehended his 4th Doubts of the Extension of Laws his 5th Of the Restriction by Interpretation his 6th Of the Ceasing of the Obligation of a Law in particular Contrary to its words his 7th Of the Excusing of a Law by Equity his 8th Of the Use of Equity without recourse to the Prince his 9th Of the Ceasing of a Law upon its Cause ceasing his 10th Of Dispensation in an Humane Law his 11th Of the Effects of Dispensation his 12th Of the Material Cause of Dispensation his 13th Of the form of Dispensation and so on in the others with much Metaphysical subtlety But the Bishop in his before-mention'd Third Book and 6th Chapter viz. Of the Interpretation Diminution and Abrogation of Humane Laws brings in but seven ways of the changing of humane Laws so that the Obligation of Conscience is also changed whereof his first is by Equity His second is by Interpretation His third by a Contrary or a ceasing reason And his fourth by Dispensation c. and of which latter he saith If we use the word improperly Dispensation can signifie a Declaration made by the Superior that the Subject in certain Cases is not obliged that the Law-giver did not intend it c. but when Dispensation signifies Properly it means an Act of mere Grace and Favour proceeding from an extrinsick Cause that is not the Nature of the thing or the merit of the Cause but either the merit of the Person or some degrees of reasonableness in the thing which not being of it self enough to procure the favour of the Law is of it self enough to make a man capable of the Favour of the Prince c. But as here in this nice distinction he is enforced to make him who doth dispensare to do that which the Canonists make the ratio nominis of it namely diversa pensare and in the Scales of Equity to weigh and interpret the degrees of the reasonableness of the thing so in his handling of the Prince's Power of interpreting he makes Equity Co-incident with it and refers to the Law in the Code viz. Inter aequitatem jusque interpositam interpretationem nobis solis oportet licet inspicere and his instances of that Power of Interpretation are referr'd to the favours shew'd by it to Persons and particularly to Solomon's absolving Abiathar from the Sentence of Death because he had formerly done worthily to the Interests of his Father David And then saith Now this Power tho it may be done by Interpretation yet when it is administred by the Prince it is most commonly by way of Pardon absolute Power and Prerogative When a Law determines that under such an Age a Person shall be UNCAPABLE of being the General of an Army the Supreme Power can declare the meaning of the Law to be unless a great excellency of Courage and maturity of Iudgment supply the want of years in which very Case Scipio Africanus said wisely when he desir'd to be employ'd in the Punick War Se sat annorum habiturum si populus Romanus voluerit Thus Tiberius put Nero into the Senate at Fifteen years of Age and so did Augustus the like to Tiberius and his Brother and the People declar'd or dispens'd with the Law in Pompey ' s Case and allow'd him a triumph before he had been Consul or Praetor And he had before said When the Law-giver interprets his Law he doth not take off the Obligation of his Law i. e. meaning the Obligation of his Law in general but declares that in such a Case it was not intended to oblige Tacitus tells of a Roman Knight who having sworn to his Wife that he would never be divorced from her was by Tiberius dispens'd with when he had taken her in the unchaste Embraces of his Son-in-Law The Emperor then declared that the Knight had only obliged himself not to be divorced unless a great Cause should intervene And thus Suarez himself in his said 10th Chapter De Dispensatione in lege humanâ makes Dispensation apply'd to signifie an act quo quis ab obligatione legis eximitur and saith quia unus modus esse potest per Interpretationem ideo potuit etiam in eâ significatione usurpari tamen in hac etiam significatione sumpta non quamcunque interpretationem legis sed illam solam quae in casu dubio per potestatem superioris datur ad liberandum subditum ab obligatione legis significat quia haec tantum est Actus administrationis potestatis ADEO Commissae Et illa tantum tollit aliquo modo onus legis quod sine tali potestate auferri non posset and so saith he 't is agreed on by all that Dispensation is an Act of Iurisdiction but 't is drawn into the Law to signifie the taking away the vinculum of the Law in particular Cases and so we generally use it A. But Metaphysicks apart I shall not trouble my self about what is what but what is my Duty by virtue of my Oath And I observe that what you cited out of the Bishop viz. That when the Power that made the Law doth interpret the Interpretation is authentical c. may render him no favourer of an Interpretation not made in Parliament by the Legislative Power B. I shall sometime at our meeting again observe to you what the Bishop hath there asserted l. 3. c. 3. that Kings
Harry the 8th's Oath or Queen Elizabeth's in the words of no foreign Prelates having here any Iurisdiction c. any Power the Pope could justly claim as a Successor to the Apostles was impeachâ—…d And no doubt but Harry the 8th being by that Statute declared to be but a Lay-man no men of sense construed that Statute to give him the exercise of any Iurisdiction or Power of the Keys in foro interno as a Successor of the Apostles The old Distinction of Bracton l. 1. c. 8. that King's cannot Excommunicate ministerialiter because they are Lay-men but may do it authoritativè by appointing others to do it gave Satisfaction in Harry the 8th's time and might had it been thought of in Queen Elizabeth's Reign have sav'd the labour of the Interpretation in the Admonition in removing the ferment that the Oath occasion'd among Protestant Scruplers But tho the Preamble of the Admonition referrs to some Protestant Clergy-men as the Scruplers yet the following words viz. That her Majesty would that all her loving Subjects should understand that nothing was is or shall be meant or intended by the same Oath c. shew her Pious design of Complaisance as to the Consciences of her Catholick as well as Protestant Subjects and whose freedom from Imposition of ambiguous or otherwise unlawful Oaths she knew was purchased for both of them alike by the Blood of Christ. And you know I referr'd you to Sir Iohn Winter's Observations on the Oath of Supremacy as representing the Oath by the help of Queen Elizabeth's Interpretation in the Admonition and of the Enacting of that Interpretation in Parliament and of the Interpretation in the 37th Article as lawful to be taken tho possibly inexpedient on the account of Scandal and likewise to another Roman-Catholick Writer who on the account of those Interpretations thought it might both lawfully and without Scandal be taken And you and others who think that Oath of importance for the securing the Peace of the Government may thank the Prerogative of Regal Interpretation for supplying the Lamp of it with the Oil that hath made it last so long and which otherwise would soon have gone out in a snuff as I shew'd you by the offence that was taken at it at home and abroad when it was first set up and which now may perhaps help to illuminate the English World in the measures of Loyalty so long as the Sun and Moon endure that is if you suppose that the use of Oaths would endure so long But Dii meliora And it here coming into my mind that you in your somewhat airy way of discoursing of the Oath resembled it to a tender-sided Ship girdled with so many interpretations I shall take occasion further to impress it on your thoughts that it is still THE SAME OATH tho partaking of all those Interpretations and as we say of eadem navis toties refecta and the several interpretations are not by you to be resembled to girdlings but to its main inward beams and timbers that are become parts oâ—… it Moreover you know that a girdled Ship by reason of the incompactness of its adventitious parts with the other cannot last the fourth part of the time that another will. But you see how long this Oath hath continued and riding triumphantly in the Sea of time hath too carried out all its Guns in Stormy weather and made the Usurp'd Power of the Court of Rome strike Sail to our Princes Yet I shall here take occasion from my having just now minded you of the Interpretations of the Oath inclining Sir Iohn Winter and the other Roman-Catholick to judge of it as they did to tell you that I have often wish'd that in the times of the three last Reigns the Power of Interpretation had further exerted it self in the further clearing of any thing in that Oath and in the Oath of Allegiance at which offence was by so many taken however by the Oaths not given and that such Interpretations had been approved in Parliament and particularly that the Interpretation of the word HERETICAL in the Oath of Allegiance as being meant of Contrary to the Word of God had brought all our Roman-Catholick Brethren to the taking of that Oath as I told you that F. Cressy thought it would have done and who said that he believed that that was the sense intended by King Iames in the word heretical And I shall be glad if those Interpretations relating to the Oath of Supremacy which succeeded those that Sir Iohn Winter and the other Roman-Catholick took notice of may in the event Conduce to render it more acceptable to others of them and the rather for that it is apparent that all the Interpretations are Consistent with the Oath and with one another as from what I have spoken you may Collect. But by so many other Pious and Learned Roman-Catholicks appearing not to be of the opinion that the Interpretations of the Oath mention'd by those two Writers may legitimate the taking of it I have long wish'd to the Oath all the additional clearness that Law could give it and that they would wish given who were required to take it And as one Doctor 's opinion for the justness of a Litigants Cause hath on his being cast in it been allow'd to save him from being as a Calumnious and rash litigator condemned in Expences thus so great a Master in our Israel and Vindicator of our Church from Schism as Archbishop Bramhal having given his Opinion about the Oath as I told you namely as to what related to the King's Power in Spirituals and to no foreign Prelate having any Spiritual Iurisdiction here viz. This might have been express'd in words less liable to Exception I shall censure no man as a Caâ—…umniator of the Oath who shall wish that any lawful Interpretation may make those words less liable to Exception Sir Iohn Winter as I told you having mention'd the Explanations not being known to all and their intricacy and the constant tendring of the Oath for â—…o many years without the aforesaid Explanation as likely to give just cause of Scandal c. I must tell you I like not his words of the GIVING just cause of Scandal but what I have shew'd you of many passages about the Explanations which were not observ'd by him and particularly of the 37th Article affording only to the Clergy a more favourable interpretation and which was enacted as to them in 13 o Eliz and of the Canons of King Iames first extending the benefit of that Interpretation to the Layety and of the Canons of King Charles the First further explaining the 37th Article may justly incline you to wish that the sense of the Oath did Primâ facie appear as liquid to all as it now doth to us two And I shall here take occasion for the propping up the interpretation relating to the Oath made by those two Princes in their Canons to tell you that as you accounted King Iames his