thing of that nature but in such a fair and legal way as should satisfie all his loving Subjects The Duplys of the Divines of Aberdene p. 54. and p. 130 131. Whereupon Mr. Ley thus goes on viz. Wherein Wise men who judge of Consultations and Acts by their probable Effects and not unexpected Events cannot but highly commend His Majesty's Mildness and Clemency which we doubt not would condescend to your Requests for a removal of this great aggrievance if you would please to interpose your Mediations to so acceptable a purpose and upon our humble sute which in all submissive manner we tender to your Lordship and by you to the rest of your Reverend Order we hope you will do so since we have it upon his word His Royal Majesty's word which neither in Duty nor Discretion we may distrust that the Prelates were their greatest Friends i. e. of his Scottish Subjects their Councels were always Councels of Peace and their Solicitations vehement and earnest for granting those unexpected Favours which we were pleas'd to bestow upon our People The King 's large Declaration p. 420 Thus then the Royal Dispensation with the five Articles of Perth was at the Intercession of the Bishops tho' they knew the same Establish'd by Act of Parliament graciously afforded to his Scotish Subjects Those Articles of Perth related to various Religionary Matters viz The introducing of Private Baptism Communicating of the Sick Episcopal Confirmation Kneeling at the Communion and the observing such ancient Festivals as belong'd immediately to Christ and of which Doctor Heylin in his History of the Presbyterians having spoken saith That the King 's indulging the Scots in Dispensing with the Penal Laws about them was an Invitation to the Irish Papists to endeavour by armed force to Compass the King's Dispensation But how tenderly the Consciences of the Roman Catholics in Ireland were in the Reign of the Royal Martyr THEN Protected under the Wing of the Dispensative Power contrary to what the Dr. observ'd any one may see who will Consult my Lord Primate Bramhal's Replication to the Bishop of Chalcedon where he saith That the Earl of Strafford Lord Lieutenant of Ireland did commit much to my hands the Political Regiment of that Church for the space of Eight years In all that time let him name but one Roman Catholic that suffer'd either Death or Imprisonment or so much as a pecuniary Mulct of Twelve Pence for his Religion upon any Penal Statute if he can as I am sure he cannot c. And such was the acquiescence of the Populace and of the three Estates in the Penal Lawes there against the Roman Catholics being thus dead or asleep that in the Printed Articles of Impeachment against the then Lord Chancellor of Ireland and that Lord Primate thâ—…n Bishop of Derry and others of His Majesty's Publick Ministers of State exhibited by the Commons to the Lords in the year 1640. there is not a syllable of Complaint against those Lawes being so dispens'd with by Connivence Nor yet in the Printed Schedule of Grievances of that Kingdom voted in the House of Lords there to be transmitted to the Committee of the same House then attending in England to pursue Redresses for the same is there any representation of such Indulgence being any Gravamen nor yet of the great Figure the Irish Papists then made in the Government the Majority of the Parliament and of the Iudges and Lawyers then being such And pursuant to that Prince's Indulgence offer'd to the tender Consciences of his Subjects in the year 41. he was graciously pleas'd in the Treaty at Uxbridgâ—… to order his Commissioners who were such renown'd Confessors of the Church of England to make the first Royal offer there that freedom be left to all Persons of what Opinion soever in Matters of Ceremony and that all the Penalties of LAWS and Customs be SUSPENDED And the truth is since the Christian Religion did in its first settlement so rationally provide for its Propagation in the World and its bespeaking the favour of Princes by its enjoyning Subjection and Obedience to their Lawes not only for Wrath but Conscience sake and since that Principle of humane Lawes binding the Conscience which was so often and so publickly avow'd by that Prince and Arch-bishop Laud and Bishop Sanderson and the Divines of the Church of England in General is the surest guard to Princes Thrones and their Tribunals and that therefore 't is the Interest of the Prince and People to be more watchful in preserving that Principle then all the Iewels of the Crown or Walls of the Kingdom that Prince did therefore necessarily take Care to preserve and to perpetuate in some of his tender-Conscienced Subjects a continued Tenderness for his Lawes by his lawful Dispensative Power as particularly in the Case of his Scottish Subjects in taking off the Obligation of Obedience and of Conforming themselves to the Establish'd Lawes for such Dispensation intrinsecally notes the taking off such Obligation from the Persons dispens'd with And it is indeed a Solecism for any one to ask Indulgence from a Prince who owns the Law of the Land binding him in Conscience if he doth not think such Prince perswaded that his Power of granting it is a part of that LAW He was not ignorant of his Father's Aversion against the Penal Lawes in general and on which Account my Lord Bacon celebrating him saith As for Penal Lawes which lie as snares upon the Subjects and which were as a Nemo scit to King Henry 7. it yields a Revenue which will scarce pay for the Parchment of the King's Records at Westminster And religionary Penal Lawes requiring the greatest tenderness as he found when he came to the Government that the two most famous Puritan Divines Mr. Hildersham and Mr. Dod Men of great Probity and Learning had often been in his Father's time Pursuant to the Act for Uniformity disabled from Preaching and been re-inabled to it by particular Indulgence and as likewise Fuller tells us in his Church History that Bishop Williams when he was Lord Keeper of the Great Seal of England procured a Licence from King Iames under the Great Seal for Mr. Cotton the famous Independent to Preach notwithstanding his Non-Conformity so he in the same manner that his Royal Father did held the Reins of the Law loose in his hands as to those two other Non-Conformists beforemention'd The History of Mr. Hildersham's Life mentions that he was silenced in Iune A 1590 and restored again in Ianuary A. 1591. Again he was deprived and silenced April 24 A. 1605. for refusal of Subscription and Conformity and after some time again restored and was again Silenced in November A. 1611. by the King 's particular Command and on April 23. A. 1613. he was judicially admonished by the High Commission that saving the Catechizing of his own Family only he should not afterward Preach Catechize or use any of the Offices or Function of a Minister
Majesty his Heirs and Successors in England and which were granted to them with non-obstante's to all Acts of Parliament B. And the Act 22 o Car. 2. entitled Seditious Conventicles prevented and suppressed passing in the Parliament of England in the same Year that the Act against Conventicles did in Scotland and concluding with a Proviso That nothing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical Affairs but that his Majesty and his heirs and Successors may from time to time c. exercise and enjoy all Power and Authority in Ecclesiastical Affairs c. any thing in this Act notwithstanding shewed such a Concordant Sympathy between the two Realms in tenderness for the prerogative of dispensing with the Penal Laws Ecclesiastical as is between the Strings of two distant Lutes on the touching the String but of one of them But I must tell you that tho by this Proviso the benefit of the Dispensative Power hath been sufficiently secured to the Churches of Forreigners here and the King 's Ecclesiastical Supremacy justify'd in its power of indulging the Conventicles of all sorts of Recusants yet as in the Scotch Act the Crown 's dispensing with Conventicles hath been more express then in the English Act so hath the administration of Prerogative in that kind been more tenderly and signally exercised in Scotland then I have observ'd it to be in England For I find in a Look call'd A Compendious History of the mâ—…st remarkable Passages of the last 14 Years c. printed An. 1680. that in p. 205. the Author referring to the Month of Iuly 1677. saith that upon a Rebellion in that Kingdom being nipt in the Bud his Majesty was pleas'd to publish a Proclamation Commanding the Iudges and all Magistrates to apprehend and punish all such as frequented any Field-Conventicles c. according to the Prescript of the Law as also to prosecute with all Legal Rigour the execrable Murtherers of the late Arch-Bishop of St. Andrews declaring withal that his Majesty being desirous to reclaim all such as had been mis-lead through Ignorance or blind zeal had according to the Power reserved to his Majesty by the 5th Act in the 2d Session of the 2d Parliament suspended the execution of all Laws and Acts against such as frequent house-Conventicles on the south-side of the River Tay excepting the Town of Edenburgh and two Miles round the same c. And the truth is it must likewise be to the honour of that Nation acknowledged that in the worst of Times they after their Covenant did not Contract any such guilt of Perjury by a superfetation of enterfering Oaths as great Numbers of our Land did and that they were exemplary to England in Loyalty and in propping up the hereditary Monarchy while so many here in the Plott-Conjuncture were infatuated with the Project of the EXCLUSION as to give me occasion by a fresher instance and but of yesterdays occurrence to invite you to behold a Spectacle of the divine Iustice in abandoning such Men here to the guilt of Superstition who used unjust means to extirpate it Such among us who had not took notice of that English and Scotch SAINTE LIGUE and its being so generally exploded and who in the late Ferment about Popery would have fortify'd an Exclusion with an Association and again set up Association as of Divine-Off-spring you see how being wild with excessive Fears and Iealousies of the growth of Popery they were guilty of the Superstition of founding Dominion in Grace A. Considering how Men here have laughed at the Obligation of their lawful Oaths and that for unlawful Oaths a Land mourns methinks 't is an adventurous thing for a Prince to take possession of his Inheritance of the Empire of such a Land so encumbred with the guilt of Swearing and Forswearing O when may we see that antient general tenderness in point of Oaths here that flourished among us in the days of our first Reformation nay even in some times of our Roman Catholick Ancestors B. I believe never till after all the living here being resolved to dust and a new Race of Mankind enriching themselves and their Country by the Culture of the Earth and Manufactures men shall be above Temptations from necessity to take God's Name in vain and when the very use of Oaths Assertory or Promissory will be dispens'd with by Nature I am sure the Spectacle of mangled and slaughter'd Bodies covering a Field immediately after a Battle hath not more horror in it then the sight of the Consciences mai'md and wounded by the inobservance of publick Oaths hath been since the Aera of 41. And as our Chronicles mention that they who were born in England the Year after the great Mortality An. 1349. wanted some of their cheek Teeth I may say that generally they who have been born here the Years after 41. wherein the Plague of Perjury by the outraging those Oaths of Allegiance and Supremacy was so epidemical have seem'd able only to swallow those Oaths but not to â—…hew upon them in serious and considerate thoughts no not at the very frequent times of their taking them And still tho in speculative Points in England Consulitur de Religione yet conclamatum est as to a general tender regard to the Religion of those Oaths There was I think a want of tenderness in some as to their sworn assisting and defending all the Priviledges and Preheminences belonging to the Crown during the late Ferment about my Lord Danby's Pardon and I may more sadly reflect on the same Mens want of recollecting their Oath obliging them to the King his Heirs and Successors at the time of the Ferment about the Exclusion A. I think that many who by repentance have been cured of the Epidemical Plague of Perjury that reged here in 41. and of such a Plague and another of Fears and Iealousies since 81 have yet sustain'd more damage thereby then they who were born the Year after 1349 did in wanting some of their Cheek Teeth and that their case is like that of those who were recover'd of the great Plague at Athens that Thucydides hath described and who tells us that after their recovery their Souls had lost the faculty of Memory and were dozed with an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 about what themselves had done or what had passed in the World during the horror of that very Plague or before or since But after all this said I am to ask you if you will make all those perjured who having took the Oaths of Allegiance and Supremacy promoted the exclusion B. By no means I have more Humanity and Christian Charity then to do so I shall here observe to you that Divines in their measures of Mens sinful Actions do often make use of the distinction of materialiter and formaliter Thus for example Ames in his Cases of Conscience l. 5. c. 53. Si quis falsum dicit putans esse verum mentitur tantum
Roman Catholick Physicians and Lawyers had incurr'd by his Acts of Parliament I have told you But what if I should now tell you how afterwards he did take care as it were unâ liturâ to delete the Execution of â—…ll the Penal Laws disabling ones and others against the Roman Catholicks and that as to what he did therein the most zealous Protestants among his Bishops and the Lords Temporal and others of his Privy Council did concur with him in so doing A. I think you would tell me of that which was very strange B. As in the Happy future State of England it was with an intent to detect the Degeneracy and Vanity of the Politick and Protestant-would-be's of the Age who pretended to Advance Religion by Excluding the next Heir in p. 219. shewn that one of the general and publick Articles sent by King James the First to his Embassador in Spain in Order to the Match with the Infanta was that the Children of this Marriage shall no way be compell'd or constrain'd in point of Conscience or Religion wherefore there is no doubt that their title shall be prejudiced in case it should please God that they turn'd Catholicks and that it was afterward sent as an additional Article offer'd from England that the King of Great Britain and Prince of Wales should bind themselves by Oath for the Observance of the Articles and that the Privy Council should sign the same under their Hands and that accordingly the Articles were sign'd by Archbishop Abbot John Bishop of Lincoln Keeper of the Great Seal Lionel Earl of Middlesex Lord high Treasurer of England Henry Viscount Mandevile Lord President of the Council Edward Earl of Worcester Lord Privy Seal Lewis Duke of Richmond and Lennox Lord high Steward of the Houshold James Marquess of Hamilton James Earl of Carlisle Lancelot Bishop of Winchester Oliver Viscount Grandison Arthur Baron Chichester of Belfast Lord Treasurer of Ireland Sir Thomas Edmonds Knight Treasurer of the Houshold Sir John Suckling Comptroller of the Houshold Sir George Calvert and Sir Edward Conway Principal Secretaries of State Sir Richard Weston Chancellor of the Exchequer Sir Julius Caesar Mr. of the Rolls and for the truth of which Facts reference is there made to Mr. Prynne's Introduction to the Archbishop of Canterbury's Trial p. 43 so you may there read it in p. 44. that some private Articles were agreed on and probably were Sworn to by the same Persons that the other general ones were and of which private ones the first was in short That none of the Penal Laws against Roman Catholicks should at any time hereafter be put in Execution But you may thus see it at large viz. That particular Laws made against Roman Catholicks under which other Subjects of our Realms are not comprehended and to whose Observation all generally are not obliged as likewise general Laws under which all are equally Comprised if so be they are such as are repugnant to the Romish Religion shall not at any time hereafter by any means or chance whatsoever directly or indirectly be commanded to be put in Execution against the said Roman-Catholicks And we will cause that our Councel shall take the same Oath as far as it pertains to them and belongs to the Execution which by the hands of them and their Ministers is to be exercised The 2d was That no other Laws shall hereafter be made anew against the said Roman Catholicks but that there shall be a perpetual Toleration of the Roman Catholick Religion within Private Houses throughout all our Realms and Dominions which we will have to be understood as well of our Kingdom of Scotland and Ireland as in England c. And the 4th was That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks c. And the Conclusion there is viz. That we will interpose our Authority and will do as much as in us shall lie that the Parliament shall approve confirm and ratifie all and singular Articles in favour of the Roman-Catholicks capitulated between the most renowned Kings by reason of this Marriage and that the said Parliament shall revoke and abrogate the particular Laws made against the said Roman-Catholicks to whose observance also the rest of our Subjects and Vassals are not obliged as likewise the general Laws under which all are equally comprehended to wit â—…s to the Roman-Catholicks if they be such as is aforesaid which are repugnant to the Roman-Catholick Religion and that hereafter we will not consent that the said Parliament should ever at any time Enact or Write any other new Laws against Roman-Catholicks We accounting all and singular the preceding Articles ratified and accepted out of certain Knowledge as far as they concern us our Heirs or Successors approve ratifie applaud and promise bonâ—… fide and in the word of a King by these Presents inviolably firmly well and faithfully to keep observe and fulfill the same and to cause them to be kept observed and fulfilled without any Exception or Contradiction and do confirm the same by Oath upon the holy Evangelists notwithstanding any Opinions Sentences or Laws whatsoever to the contrary In the presence of the most Illustrious Don John de Mendoza Marquess of Inojosa and Don Charles Coloma Extraordinary Ambassadors of the Catholick King of George Calvert Knight one of our Chief Secretaries of Edward Conway Knight another of our Chief Secretaries of Francis Cottington Baronet of the Privy Councel to our Son the Prince of Francis de Corondelet Apostolical or the Pope's Prothonotary and Arch-Deacon of Cambray Dated at our Palace at Westminster the 20 day of July 1623. in the English style Jacobus Rex A Compared and true Copy George Calvert Chief Secretary The Form of the Oath which the Lords of the Councel took to the former Articles is this which followeth found among the Lord Cottington's Papers Formula Juramenti à Consiliariis Praestandi Ego N. Iuro me debitè plenéque observaturum quantum ad me spectat omnes singulos Articulos qui in tractatu Matrimonii inter Serenissimum Carolum Walliae Principem Serenissimam Dominam Doâ—…nam Mariam Hispaniarum Iâ—…fantem continentur IURO ETIAM Quod neque per me nec per Ministrum aliquem inferiorem mihi inservientem legem ullam contra quemcunque Catholicum Romanum conscriptum executioni mandabo aut mandari faciam Poenamve ullam ab earum aliqua irrogatam exigam Sed in omnibus quae ad me pertinent Ordines à Majestate sua ex ea parte constitutos fideliter observabo Thus far Mr. Prynne who verifies the Facts above-mention'd not only from my Lord Cottington's Papers but from the Mercure Francois Tom. 9. A.
other Penalties incurr'd by Popish Recusants pursuant to any Statutes as for example those of Queen Elizabeth or King Iames and even that of 3 o Iac. c. 5. whereby Convicted Recusants are disabled from Military Offices and Offices in the Navy and in the Law and fâ—…m the Practice of Physick and any publick Office and Charge in the Commonwealth or the Test-Act 25 o Car. 2. No question is to be made of the King 's absolute and undoubted Power of dispensing with particular persons in such a Case And during the ferment about the Laws and Statutes whereon the Petition of Right was founded and which were of another Nature as Mr. Glanvile's words are you will not forget that there was a tenderness for Prerogative avow'd by both Houses while you remember those words of the Royal Martyr in his Speech at the Prorogation of the Parliament the 20th of October A. 1628. viz. That the Profession of both Houses at the time of hammering the Pâ—…tition of Right was no way to entrench upon his Prerâ—…gative and their saying that they had neither intention noâ—… power to hurt it c. You may too call to mind that as during the fâ—…rment that the suspending the Penal Laws by His late Majesty's Declaration of Indulgence his Power of Dispensing in them came not in question so the heat about his Preregative to SUSPEND them was soon over The Opinion of that loyal Patriot and learned and upright Iustitiary Sir William Ellis deliver'd in his Argument about Thomas and Sorrells Case I told you of namely that the King may SUSPEND an Act of Parliament till next Session which was a flâ—…ght beyond what was moved for or adjudged in the late Case of Gâ—…dden and Hales did never meet with any angry reflection that I have heard of from any Person either of the People diffusive or representative tho yet that Argument of his containing such Opinion was both after the Votes of the House of Commons about the illegality of the suspending of Penal Laws in Matters Eccleâ—…iastical otherwise then by Act of Parliament and after the Act for the Test. And how near the Prerogative of Dispensing as allow'd by my Lord Chief Justice Vaughan in his Argument in Thomas and Sorrell's Case and who argued after Sir W. Ellis came up to SUSPENDING you may see there by what he saith p. 347 Where the King can dispense with particular Persons he is not confined to number or place but may Liceâ—…s as many and in such Places as he thinks fit But further to shew you to how quiet and temperate a State that ferment of the Prince's suspending all the Religionary Penal Laws without an Act of Parliament was grown I shall let you see that several years after the late King's Declaration of Indulgence and the Act for the Test the late Earl of Sâ—…aftsbury appear'd in Print as owning the legality of the King's Prerâ—…gative in that kind and without his Lordship's being in the least censured for it by any of that numâ—…rous Party he was then the Head of And here I am to tell you that in a Book call'd A Letter from a Person of Quality to his Friend in the Country Printed in the year 1675. the Earl of Shaftsbury is by Mr. Marvell the supposed Author of the Book introduced as owning that the Power of the King's Supremacy meaning in Matters Ecclesiastical was of another Nature then that he had in Civils and had been exercised without exception in this very Case i. e. as in the Declaration of Indulgence by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England c. A. Did the Earl of Shaftsbury then in the year 1675. own the Prerogative of suspending Penal Laws in Matters Ecclesiastical when the King had long before quitted it and when his Lordship was Embarqued with those Men to whom nothing could once seem more unpopular then the owning of any such Prerogative B. I refer you to the Book it self and where you will see that that Great Statesman did then assert the extent of Prerogative in that Point with as much strength of Wit and Reason as if he had been then fitting at the Helm of State and where he further shews the Necessity of a standing Supreme executive Power to mitigate or wholy to SUSPEND the execution of any Penal Laws c. But I shall best entertain you with his Lordship 's own words as so great a Narrator as Mr. Marvell relates them and who as he saith telling his Lordship that the Declaration of Indulgence assumed a Power to repeal and SUSPEND all our Laws his Lordship â—…eplyed that he wonder'd at his Objection there being not one of these in the Case For the King assumed no Power of repealing Laws or suspending them contrary to the will of his Parliament or People and not to argue with me at that time the Power of the King's Supremacy which was of another Nature then that he had in Civils and had been exercised without exception in this very Case by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England nor to instance in the SUSPENDING the execution of the two Acts of Navigation and Trade during both this and the last Dutch War in the same words and upon the same necessity and as yet without clamour that ever we heard But to pass by all that this is certain a Government could not be supposed whether Monarchical or other of any sort without a standing Supreme executive Power fully enabled to mitigate or WHOLT to SUSPEND the execution of any Penal Law in the intervals of the Legislative Power which when assembled there was no doubt but wherever there lies a Negative in passing of a Law there the Address or sense known of either of them to the Contrary as for instance of either of our two Houses of Parliament in England ought to determine that Indulgence and restore the Law to its full execution For without this the Laws were to no purpose made if the Prince could annul them at pleasure and so on the other hand without a Power always in being of dispensing on occasion was to suppose a Constitution extremely imperfect and impracticable and to Cure those with a Legislative Power always in being is when consider'd no other then a perfect Tyranny A. I find that his Lordship doth not in the least distinguish between the Right of Prerogative in suspending the Disabling or incapacitating Penal Laws and others And he by giving the Power of suspending all the Penal Laws to the Prince during the Intervals of Parliament and till an Address should be thence made to the Prince to revoke such suspension hath given his Prince this Power in effect during life For 't is obvious to consider by how many accidents a suspension of Penal Laws revocable on an Address from the Parliament may happen to be not so revoked B. You
be TENDER as he is likewise of our Liberty let us enter into a true and indifferent Consideration how far forth the Case in question may touch his Authority and how far forth our Liberty And to speak clearly in my opinion it concerns his Authority much and our Liberty nothing at all That Expression concerning tenderness for the Regal Rights was very acceptable to the House of Commons when his late Majesty in his Letter to them from Bredagh April 14. 1660 thus made use of it viz. We have not the least doubt but you will be as TENDER in and jealous of any thing that may infringe our Honour and Authority as of your own Liberty and Property which is best preserv'd by preserving the other Remember therefore that your tenderness for Property is best preserv'd by your tenderness for the Regal Authority and if you would have your thoughts adorn'd by a constant Idea of true English Loyalty like a noble Picture retain'd there let me direct you to a Saying which like an Original drawn by a great Master may be fit for you to Copy after viz. that Saying of the Lord Keeper Coventry in a Speech in the House of Lords viz. Some would have the King's Prerogative rather tall then great others è contra But none can be truly loyal but he that is a good Patriot and none can be a good Patriot but he that is truly loyal Nor need it be further insinuated to you that without your keeping up a tenderness for the Regal Rights you cannot maintain your tenderness for Oaths And here I must take occasion to tell you that one of my aims in entertaining you with the Queries relating to Oaths out of that Book was to lay before your thoughts a tenderness as to Oaths in general both in keeping the lawful ones you have taken and in not imposing unlawful doubtful unnecessary or inexpedient ones on others and on such as our Prince considering the several Constitutions of their minds both as to firmness and infirmness hath thought fit to exempt from taking such strong Physick Moreover if you will think that another of my aims was to mind you that the same Queries might have been as ingeniously and ingenuously put in the year 1673. before the passing of the Test-Act as they were in debating the Test-Bill in the year 1675 I shall allow you so to do You may too if you will here occasionally consider how soon God in the course of his Providence doth sometimes turn the Tables and make such who were lately so active in imposing on others Oaths that seem'd doubtful and oppressive to them to be in danger of suffering by the like Impositions Mr. Burrough's a Pious Independent Divine who lived in the late times referring in his Irenicum to the Impositions and Persecution design'd by the Presbyterians against those of his Perswasion saith there but the Tables may turn one day wherein the Sufferers shall have the greatest Ease and the Inflicters the sorest Burthen But God forbid that their Brethren should lay it upon them tho it were put into their Power to do it And you may take notice that the Book we before spoke of owns the Activity of the Roman-Catholick Lords then in hindering that Test's being brought on Protestants the Consideration whereof may I think justly incline all who account it their Happiness to have been freed from that design'd Oath not to grudge at the favour that hath been extended by the Diâ—…pensative Power to particular Roman-Catholicks excused from taking other Oaths or at any just favour if ever happening to be afforded them by the Authentick Interpretation of what in the Statute-Oaths seems doubtful to them So tender was the Government in the time of Edward the 6th about the not making the Consciences of the People uneasie by Oaths that you will find it in the Reformation of the Ecclesiastical Laws begun in Harry the 8th's Reign and carry'd on in his that the Magna nomina who were employ'd to make a New Body of Laws did in Compassion to the Consciences of those who took the usual Promissory Oaths for the observance of the Statutes of Universities Collegiate Churches and such like Societies and Corporations order this Clause to be added to the Oaths viz. Haec omnibus partibus servabo â—…uibus cum sacrâ Scripturâ cum legibus civilibus Ecclesiasticis hujus Regni consentient quantum vires meae patientur The School-men saith one would be thought most tender and most curious in the point of Oaths They mince them out so fine that a wholâ—… Million of Oaths may stand as some speak of Angels on the point of a sharp needâ—…e I have therefore not wonder'd at it when I have seen men standing on this sharp point of Oaths so often inconsistent with themselves Notwithstanding what I told you out of my Lord Coke that an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common Law or by Act of Parliament be alter'd but by Act of Parliament yet as you know that the House of Commons in the 30th year of Queen Elizabeth desiring that no Oath or Subscription might be tendred to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of this Realm except the Oath against Corrupt entring did thereby however approve of the tendring of that Oath so my Lord Coke likewise Inst. 3. c. 71. viz. Of Simony seems to approve of that Oath in saying that Simony is the more odious because it is accompany'd with Perjury for the Presentee c. is Sworn to commit no Simony referring there to Lynwood and had before in that Chapter referr'd to Canon 40. 1 Iacobi 1603. The Oath against Simony You may too remember what I so lately told you of my Lord Coke's having with some approbation or fair respect mention'd the Clergy's Oath of Canonical obedience And I can tell you that I lately looking on the Charter of the Corporation of Shipwrights granted by King Iames the First in the Tenth year of his Reign observed therein that Thomas Lord Ellesmere Lord Chancellor of England Sir Thomas Flemming Lord Chief Justice of England Sir Edward Coke Lord Chief Justice of the Common Pleas did pursuant to the Statute in the 19th year of Henry the 7th allow and approve under their Ha ds and Seals divers Articles Acts and Ordinances for the better Order Rule and Government of the Art or Mystery of Shipwrights exhibited to them by the Corporation and did moreover oâ—…in the form of three new Oaths to be taken by the Officers and Freemen of that Corporation and did DISABLE the Refusers of such Oath to be Members of the Corporation But I may here occasionally by the way tell you what you will find in Croke 3d. Sir Edward Coke Sheriff of Buckingham's Case viz. That upon several Exceptions there mention'd as by him
writ for it were with great heat impugned in Print by Mr. Gillespy a Divine of Scotland and one of the Commissioners in England for that Kingdom and who in a Printed Sermon of his Preach'd before the House of Lords doth call Erastus the great Adversary and in one of his Pamphlets against Mr. Coleman call'd Nihil Respondes mentions how the Presbyterians and Independents were both equally interessed against the Erastian Principles And as to the greatness of the number of the Covenanters out of Parliament that rejected the Iure-divinity of the Scots ruling Elders Mr. Coleman gives us his Judgment in p. 12. of his Reply to Nihil Respondes viz. that 9 10 of the Assembly and 900 1000 of the Kingdom denyed a Ruling Elder to be an instituted Officer jure divino But Heylin having told us in his History of Presbytery That Presbytery did never setle its Lay-Eldership in any one Parish in England we may easily thence suppose the National Violation of that National Covenant without any apparent regret of Conscience on that account How all the Independent Clergy and Layety who had took the Covenant did in a manner simul semel most notoriously violate it in setting up the model of their Church-Government is not unknown But indeed as the very sagacious Author of the Book call'd The main Points of Church-Government c. Printed in London A. 1649. hath observ'd The known sense of the Scotish Nation which framed the Covenant and for whose Satisfaction the Covenant was here taken doth include Independency under the name of Schism or at least under those words contrary to sound Doctrine and our Independent Divines could not but know this to be their sense of it and yet we know of none that did protest against it or explain themselves otherwise at the first taking of the Covenant if they have done it since And I might further tell you that after the Engagement was set up of being true and faithful to the Common-wealth of England as it is now Establish'd without a King or House of Lords tho several of the Presbyterian Divines out of a sense of their Oaths and Allegiance and their Covenant were so Loyal as to refuse it I have not heard of any of those Independent ones who did But such was the Inundation of Practical Atheism in the Kingdom that our Civil Wars had caus'd that when the Engagement was set up almost the whole Body of the Lawyers in England took it rather then they would lose their Practice These men knew the meaning of the Acts of Parliament containing the Oaths of Allegiance and Supremacy and yet were abandon'd by a disloyal Sophistical Principle of the want of Power in a lawful Sovereign to protect them absolving them from their Obedience to cancel their Oaths in the Court of Conscience And in a word further to shew you how the tender Regard of publick Promises was here grown one of Pancirol's lost things I shall tell you that tho in the Parliament of Richard Cromwell none was allowed to sit but he who had first took a Recognition of engaging to be true and faithful to the Lord Protector c. and not to propose or give any Consent to alter the Government as 't is setled in one single Person and a Parliament yet the Republicans in that Parliament were not in the least diverted by that Recognition from endeavouring there to alter the Government and it was there avowed by them that a Promise or Oath took without Doors did not bind within And at last to bring up the Rear of mens Perjury after all the Oaths legal and illegal had been so much confounded when the late King's Restauration was almost in sight on the then General Monk with his Army coming to London a new Oath of Abjuration of the Royal Line was at that time set on foot in Councel and which some there would have had imposed on the General himself A. Good God! What a Concatenation of Perjuries was our Land so long enslaved with you have referr'd to the Solemn League and Covenant for extirpating Popery and Superstition and while a General Assembly and Parliaments were planting here the Doctrine of the Council of Lateran namely the Absolving Subjects from their Oaths of Allegiance B. And while they were planting a Discipline that Archbishop Whitgift in his Reply to T. C. p. 299. 559. and Bishop Hall in his Book of Episcopacy Part 3. p. 34. and Bishop Downham in his Defence of his Sermon l. 1. c. 8. p. 139. And Archbishop Bramhal in his Fair warning to take heed of the Scotish Discipline almost throughout do charge with POPERY and where the last Archbishop doth represent the Covenant with the terms of Baal Baal berith and Baalims and saith It were worth the enquiring whether the marks of Anti-Christ do not agree as eminently to the Assembly general of Scotland as either to the Pope or to the Turk This we see plainly that they spring out of the Ruines of the Civil Magistrate they sit upon the Temple of God and they advance themselves above those whom the Scripture calls Gods. A. That Archbishop's saying It were worth the enquiring thus concerning that general Assembly as then used is the only thing wherein I differ from him for I think there is no doubt in the case B. To this you may add the thoughts of their being associated against Superstition while they were planting the grossest Superstition that any Age hath known if we may take our measures of Superstition from that definition of it in the Reformatio legum Ecclesiasticarum viz. Superstitio cultus est ad Deum relatus immenso quodam proficiscens humano Studio vel animi certâ propensione quam vulgò bonam intentionem vocant c. Let any one consider how after the beginning of the Parliament of Forty they had obtain'd in the very Act that took away the Ship-money that all the Particulars prayed or desired in the Petition of Right should be enacted one whereof was That no Oath should be imposed on the Subjects that was not establish'd by Act of Parliament and how in despite of that Law they without any such Act out of a blind Zeal for Religion imposed this dreadful Oath on the People Let any one but read over The Covenant with a Narrative and the Speeches of Mr. Nye and Mr. Hendersham at the time of the Solemn Reading Swearing and Subscribing of the Covenant by the House of Commons and Assembly of Divines in St. Margaret's Church and observe in Mr. Nye's Speech his Saying that ASSOCIATION is of Divine offspring and his resembling of this Covenant to the Covenant of Grace and the matter of it there represented by him as worthy to be sworn by all the Kingdoms of the World as a giving up of all those Kingdoms to Christ and where it followeth yea we find this very thing in the utmost accomplishment of it to have been the Oath of the greatest Angel that
ever was who setting his feet on two of Gods Kingdoms the one upon the Sea the other upon the Earth lifting up his hand to Heaven as you are to do this day and so Swearing Rev. 10. c. and consider how he there makes this Oath to be the most effectual means for the ruining Popery and Prelacy and leaves it to be consider'd whether seeing the preservation of Popery hath been by Leagues and Covenants God may not make a League and Covenant to be its Destruction after he had before-mention'd the Associations of the Religious Orders and Fraternities and the Combination by the la Sainte Ligue for the muniting of Popery as incentives to this League and how he doth again go to the Magazine of the Apocalypse for some Weapons for this Covenant and hath other artillery for it from the Iewish State citing the words of the Prophet Let us joyn our selves to the Lord in a perpetual Covenant that shall not be forgotten how according to the ratio nominis of Superstition viz. of mens over-importunate Prayers that their Children might out-live them he concludes with a devout Prayer that this Covenant may out-live their Childrens Children and let any one behold in Mr. Henderson's Speech the like flame of Enthusiastick Zeal or of the Superstition quam vulgo bonam intentionem vocant against Superstition and Idolatry in Worship c. and concluding it with his belief that the weight of that Covenant would cast the balance in our English Wars I say let any one consider all this and tell me if ever he saw a more pompous Scene of Superstition and more magnificent Procession bestow'd on it and contrived as Bishop Sanderson's words are in his Lecture De bonâ intentione and having his eye on that Covenant viz. Obtentu gloriae Dei reformandae Religionis propagandi Evangelii extirpandae superstitionis exaltandi regni Domini nostri Iesu Christi and if ever he saw what the Bishop in that Lecture calls The Iesuites Theology viz. Omnia metiri ex Commodo Sanctae matris Ecclesiae more strongly asserted then in the Contexture and Imposition of that Covenant But those two Divines lived to recover their Allegiance and a due sense of their Oaths for it and to see that foetus of their Brain that at its solemn Christning they wish'd immortality to renounced publickly as a spurious Birth and to the Scandal of that Age a race of other Oaths in England as infamously born intercept its inheritance Nay let me tell you that in the Nation of Scotland Loyalty hath been a growing Plant of Renown since the year 1660. and the Idol of their former Covenanted Presbytery been by the Loyal Nobility and Gentry and Populace there generally abhorr'd And tho Sir George Wharton in his Gesta Britannorum relates it as a strange thing that on the 21st of August A. 1663. the Parliament of Scotland Passâ—…d an Act for a National Synod the first that ever was in that Kingdom under the Government of Bishops yet I can tell you of an Act of Parliament that pass'd there afterward that declared the right of the Crown to dispense in the external Government of the Church I shall entertain you with it out of the Scotch Statutes viz. In the first Session of the Second Parliament of King Charles the Second there pass'd an Act asserting His Majesty s Supremacy over all Persons and in all Causes Ecclesiastical Edenburgh November 16 th 1669. THe Estates of Parliament having seriously considered how necessary it is for the Good and Peace of the Church and State That His Majesty's Power and Authority in relation to Matters and Persons Ecclesiastical be more clearly asserted by an Act of Parliament Have therefore thought fit it be Enacted Asserted and Declared Like as his Majesty with Advice and Consent of his Estates of Parliament doth hereby Enact Assert and Declare That his Majesty hath the Supreme Authority and Supremacy over all Persons and in all Causes Ecclesiastical within this his Kingdom and that by virtue thereof the Ordering and Disposal of the External Government and Policy of the Church doth properly belong to his Majesty and his Successors as an inherent Right to the Crown And that his Majesty and his Successors may Setle Enact and Emit such Constitutions Acts and Orders concerning the Administration of the External Government of the Church and the Persons employed in the same and concerning all Ecclesiastical Meetings and Matters to be proposed and determined therein as they in their Royal Wisdom shall think fit Which Acts Orders and Constitutions being recorded in the Books of Councel and duly published are to be observed and obeyed by all his Majesty's Subjects any Law Act or Custom to the contrary notwithstanding Like as his Majesty with Advice and Consent aforesaid doth Rescind and Annul all Laws Acts and Clauses thereof and all Customs and Constitutions Civil or Ecclesiastick which are contrary to or inconsistent with his Majesty's Supremacy as it is hereby asserted and declares the same void and null in all time coming A. You told me before how the King dispens'd with the five Articles of Perth setled by Act of Parliament but this Act yields so great a territory to the Dispensative Power that my thoughts cannot suddenly travel through it It acknowledgeth in the Crown a more sublime Power then of dispensing with Presbyterians or Independents or of suspending the Penal Laws against them namely of abolishing Episcopacy and of making Presbytery or Independency the National Church-Government Car tel est notre plaisir now for the external Form of Church-Government is allow'd to make the Pattern in the Mount. And 〈◊〉 accordingly as Mr. Baxter in his Book call'd a Search for the Schismaticks represents Archbishop Bramhal's new way of asserting the Church of England in his Book against him 1. To abhor Popery 2. That we all come under a foreign spiritual Iurisdiction obeying the Pope as the Western Patriarch and also as the Principium Unitatis to the Universal Church governing by the Canons c. may not the King by this Act make the external Government of the Church of Scotland Patriarchal and the Pope Patriarch B. The Act needs no Comment and if you will tell me that the Scots shew'd themselves Erastians or Latitudinarians when they made it I shall acquaint you that that Archbishop in his Schism guarded p. 319. asserts That a Sovereign Prince hath Power within his own Dominions for the Publick good to change any thing in the external Regiment of the Church which is not of divâ—…ne Institution and that he had in p. 4. of that Book allow'd the Pope his Principium unitatis and his Preheminence among Patriarchs as S. Peter had among the Apostles and that in p. 78. of his Iust Vindication of the Church of England he takes notice that by the Statute of Carlisle made in the days of Edward the First it was declared That the Holy Church of England was founded in the
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
shall further But I conceive it here necessary for me to acquaint your Lordship that I have been often put to it as speaking cum vulgo grosso modo and for brevity's sake to use the aforesaid Expression of Dispensing with Disability and with Disability incurr'd by Act of Parliament that is with what is generally enacted to be incurr'd and SEEMS to be alike incurr'd by all Persons who perform not what the Act enjoins and which Dispensing with Disability is frequently used in popular discourse for the pardoning it and for the liberatio à poenâ and as the Lord Chief Iustice Vaughan's Report by me so much cited mentions dispensing to have been defined by some of the Iudges But to a judgment so vastly comprehensive and profoundly penetrating as your Lordships the dispensing with Disability must easily appear to be properly meant of the preventing it and the dispensing with what might Cause it according to the style of Queen Elizabeth's Letters Patents or effect the actual incurring of what will reverâ be incurr'd by the Persons not exempted by Dispensation from the doing what the Law enjoins and which will be made to appear obvious to every man's understanding in one of the following Parts and wherein I shall have occasion to speak less cum vulgo and more closely and accurately of the Nature of Dispensing and of its effects in either forum then yet I have had And now having Named that Great Queen I shall not doubt but since the Members of the Church of England do now under our most puissant and most just Monarch find themselves as secure in the Profession of the Religion by Law establish'd as they did in her great and glorious Reign it will upon recollection of thought appear as natural to them to hold themselves obliged to shew the same tenderness for every branch of Prerogative and particularly for that of the Dispensative Power that was then so remarkable in Parliament and throughout the Realm My Lord Your Lordship 's most Obedient Servant P. P. PART II. B. I again bid you welcome and am ready to go on where we last left off and do not in the least doubt of your welcoming any thing I can say to you that may import you to know in order to your sworn assistance and defence of every Privilege belonging to the Crown And I shall frankly tell you that you and other Protestants who in a late Conjuncture did shew a more then ordinary zeal against Popery or Papal Usurpations ought to consider that you have thereby put your selves under an especial Obligation of tenderness â—…for all the rights of your Prince and of hating all popular Usurpations or diminutions thereof with an exemplary and most perfect hatred and of thereby avoiding the being judged hypocrites and factious A. I do herein most fully agree with you and that the late zeal of the same Persons against papal Usurpations and for popular ones was a scandal to the Age. I remember you once observ'd to me how tender the Protestants in the times of Queen Elizabeth and King Iames the first were of every Right and Privilege of the Crown with the most perfect tenderness while the Attaques from the Court of Rome against those Princes had made the highest Ferment in the minds of the Populace But I think there never was any Conjuncture of time here when so many of the declaimers against Popery and so many of the fautors of Plot-witnesses were so much at the same time for a Plot and no Plot and for a King and no King that is to say did so much make a stalking-horse of Popery whereby to strike at Prerogative B. But you know that the talk of Plots and Popery was before apply'd to that use You know Archbishop Laud in his Star-chamber Speech A 1637. mentions it p. 11. as the scope of the Libellers of the Faction to kindle a jealousy in Mens minds that there were some great Plots in hand to change the Religion established and to bring in I know not what Romish Superstition And the history of those times sheweth you how the Men that cry'd up Plots then did decry Prerogative And in the Conjuncture of 41. the famous Protestation of May the 5th that year begins with Out-cries of Designs of Popish Priests and Iesuits and other Papists and their PLOTS and CONSPIRACIES and the Preface of the Covenant runs on in the style of â—…loody Plots and Conspiracies But you likewise know the dismal state of Prerogative in those times then occasion'd by raising of those false Alarms of Plots And I may account it as a beneficial Providence to the Age that shortly after our last Plot-Epoche M r. Hobbs his History of the Civil-Wars coming first out in print through the License of the Press and having been reserved to the detecting then the artifices of the Demagogues that produced the Usurpations between the Years 1640. and 1660. the Book notwithstanding all the prejudice against the Author whether just or unjust being writ with so much strength and beauty of Wit as to make it fly like lightning round the Kingdom in so many Impressions did then prove to many ingenious and thinking Men an effectual Antidote against the poysons of those old Artifices then again scatter'din the Press being so destructive to Loyalty as heretofore Sir Iohn Davis in his Report of the Case of praemunire Hil. 4. Iacobi doth but right to the loyalty of Roman Catholicks and to the genius of the People of England when he saith there That the Commons of England may be an example to all other Subjects in the World in this that they have ever been TENDER and sensible of the wrongs and dishonours offer'd to their Kings and have ever contended to upheld and maintain their Honour and Soveraignty And their Faith and Loyalty hath been generally such tho every Age hath brought forth some particular Mâ—…nsters of disloyalâ—…y as no pretence of Zeal of Religion could ever withdraw the greater part of the Subjects of submit themselves to a foreign yoke no not when Popery was in its height and exaltation It is therefore no marvel that toward the latter end of the Reign of the late King the very Mobile who had been so zealous against papal usurpations and so fiery in charging ALL Papists with disloyalty did upon their discovery of the artifices of republican deluders to put an inglorious domestic yoke on the Monarchy then think themselves obliged by the universality of their loyal addresses to shew the more extraordinary zeal against any Popular Usurpations And so I account it but natural to you who are made è meliore luto to be ready to shew your most consummate zeal for every Privilege of the Crown A. It is not possible for any Man to wish me more sensible of my obligation in this point then I really am and the rather for that I find so many mens loyalty to be but a kind of loud noisy nothing or a
metaphysical universale however they may â—…ansie it to be a real being but what I know cannot exist a part from the particular Rights and Privileges belonging to the Crown being assisted and defended and from a serious endeavour to understand the truth about their belonging to it And my solicitousness to find out which in the shortest way possible and particularly as to the Privilege of discharging incapacity or disability incurr'd by Act of Parliament as I told you at our last meeting engaged me to divert you out of the course of your method and whereupon you told me you would refer my thoughts to the Assertory part of the Oath B. Well what ever damps I may see on English Mens loyalty or degeneracy from its nature by the arts of faction a while perverting them not to assist and defend this or that Privilege of the Crown I shall never despair of their coming again to themselves and that tho as in a vessel of Water and Oyl while any one is shaking it the Water may over-top the Oyl so likewise in their minds while shaken and stirred by Demagogues the Oyl of the Lord 's anointed is not there uppermost yet that through its own nature and through the English good nature and their natural addiction to Religion it will in time naturally appear to be so And now to go on without further prefacing on either side what if I should tell you that it imports you to consider that in in the Assertory part of the Oath of Supremacy you have declared and asserted that authority as due to the King that was challenged and used by king Henry the 8th and Edward the 6th that is that the King under God hath the Soveraignty and Rule over all manner of Persons born within these his Realms of what Estate either Ecclesiastical or Temporal so ever so as no other foreign Power shall or ought to have any superiority over them A. I would then tell you that you have mentioned some things to be in this Oath that I remember not to be there B. I grant that I mention'd to you somethings that are not express'd in the Oath and in the form of it as it is administred and was enacted 1 Eliz. c. 1. and by which Act the refusers of such Oath are punish'd with DISABILITY to bear Office. But in the same year in which that Act pass'd Queen Elizabeth in an ADMONITION annext to her Injunctions thought fit to exercise her Royal authority of the Interpretation or Declaration of the sense of that Oath enjoyn'd by Act of Parliament and in that Admonition you will find those words that you remember not in the Oath you took as likewise her ACQUITTAL of all Persons from all manner of Penalties and consequently of disability who took the Oath according to the sense of it publish'd in her Interpretation And if you consult the Act you will see that the disabilities inflicted in the Act on the refusers of the Oath are various And thus then you see that as soon as you have done taking the Oath you are immediately call'd on by your Conscience to defend the Privilege and preeminence of your Prince viz. of interpreting his Laws and of discharging the disabilities thereby inflicted A. I now remember that I have read that Admonition of the Queens but I account Proclamations Injunctions and Admonitions of Princes to be but temporary Laws and that therefore this Interpretation of the Queen's and her discharging of Disabilities expired with her Reign B. To obviate such thought I shall tell you that in the Act of the 5th of Queen Elizabeth c. 1. and by which the Refusal of the Oath of Supremacy is punish'd more severely then by the before-mention'd disability viz. by Proemunire for the first Refusal and by making it Treason for some Persons to refuse it a second time but Penalties that none ever doubted but the Crown might by its Pardon discharge there is a Proviso that the Oath viz. of Supremacy expressed in the said Act made in the said first year shall be takeu and expounded in such form as is set forth in an Admonition annexd to the Queens Majesties Injunctions Publish'd in the first year of her Reign that is to say to confess and acknowledge in her Majesty her Heirs and Successors none other Authority then was challenged and lately used by the Noble King Henry the Eighth and King Edward the Sixth as in the said Admonition may more plainly appear And this too lets you see that the Parliament by thus referring to the Queen's Admonition did approve of her Power therein exercised and of her having acquitted her Subjects from the Punishment of disability A. I must then I see fairly grant you that by that Parliament's having thus perpetuated the interpretation of the Oath of Supremacy contain'd in Queen Elizabeth ' s Admonition I am bound in Conscience to take it in that sense and am perjured if I do not so keep that Oath and must likewise grant that you have shewn how auspicious that Oath by the Queens interpreting the same and the Parliament about five years after approving that Interpretation was to the Assertion of such her Power and that if any taker of the Oath should gain-say such Power you have prepared such a Confutation in the case as was used to the old Philosopher who disputed against Motion and whom his Adversary confuted by removing him from his place But as you are a fair arguer I am to take leave to tell you That that Parliament tho they approved the Queen's Admonition in general did not particularly shew their Approbation of the Queen's Power of dispensing with the Penalties that she exercised in that Admonition B. They did sufficiently shew their Approbation of the whole and therefore you need not question their approving of its parts But because you seem to lay some stress on that Parliament's not expresly approving in terminis the Queen 's Power of discharging the Penalties and one of which by the Act of 1 o Elizabethoe was disability I shall tell you that whereas Queen Elizabeth had thought it expedient for the Supporting of the Consecration of the Bishops of the Church of England to dispense with whatever might cause Disability according to her Supream Authority by her Letters Patents the very same Parliament at their next Session did 8 o Elizabethoe c. 1. in terminis terminantibus declare their Approbations of the Queens dispensing with disability by those Letters Patents for it having been in that Statute mention'd that for the avoiding of all Ambiguities and Questions that might be objected against the lawful Confirmations investings and Consecrations of the said Archbishops and Bishops her Highness in her Letters Patents under the Great Seal of England c. hath used and put in her said Letters Patents divers other general words and Sentences whereby her Highness by her Supreme Power and Authority hath DISPENS'D with all Causes or doubts of any Imperfection or DISABILITY
doth appertain and is not nor ought to be subject to any foreign Iurisdiction Where we attribute to her Majesty the Chief Government by which Title we understand the minds of some slanderous Folks to be offended we give not to our Princes the ministring either of Gods Word or of the Sacraments the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify but that only Prerogative which we see to have been given always to all Godly Princes in holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers The Bishop of Rome hath no jurisdiction in the Realm of England The Laws of the Realm may punish Christian Men with death for hâ—…inous and grievous Offences It is lawful for Christian Men at the Commandment of the Magistrate to wear Weapons and serve in the Wars Now after the Oath of Supremacy had been enjoyn'd in the first year of her Reign and the Admonition annexed to her Injunctions was then likewise publish'd viz. A. D. 1559. and after the Parliament had by proviso 〈◊〉 the interpretation of the Oath which Parliament began the 12th of Ianuary in the 5th year of her reign and from which day all things dâ—…ne in that Session are to bear date the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation holden at London in the 5th year of her reign and A. D. 1562. were by the Archbishops and Bishops of both Provinces subscribed the 29th of Ianuary in that year and by the Clergy of the lower House of Convocation on the 5th of February following and to all which the Queen gave her Royal Assent And in the Articles there was by the Queens Royal Prerogative an additional Interpretation probably at the instance of the Clergy given to the interpretation in the Admonition and in the Parliaments Proviso and the which additional interpretation had in it no respect to nor mention of what being in several places of the former one might amuse the Clergy with some Fears and Iealousies namely the Duty Allegiance and Bond that were acknowledged due to Harry the 8th and Edward the 6th and the Authority that was challenged and lately used by those Princes however yet that latter Clause is qualify'd in the Admonition But for the 37th Article before-mentioned allowing the measures of the Royal Supremacy from the Prerogatives given by God in Scripture to holy Princes whereby our Clergy might seem to have brought the Prerogative into its own proper Element and theirs too the knowledge of the Scriptures being their profession our Clergy no doubt were always thankful to the Crowns Dispensative power and so exercised out of Parliament and whereby they were secured from penal disabilities either by suspension or deprivation for not taking the Oath in the sense of the Admonition Thus as things in their proper place are at rest the Queens Dispensative power and the Consciences of the Clergy by this interpretation of the Oath were so much at rest that about eight or nine years afterward the same 39 Articles that had been by the Archbishops and Bishops and Clergy of both Provinces agreed on in the year 1562. were by the said Archbishops Bishops and Clergy again agreed upon and again ratify'd by the Queen in the year 1571. the 13th year of her reign and when care was taken by the Government that that interpretation being incorporated in the body of the 39 Articles should be deem'd good in Parliament by the Statute of 13 o Eliz. c. 12. as the other interpretation in the Admonition had been by the proviso in the Act of the 5th of that Queen and probably for the same reason and as her dispensing with disability expresly in the 8th year of her reign was In the Act of the 13th of Eliz. reference was made to those Articles as agreed on by the Archbishops and Clergy and set forth by the Queens authority Anno 1562. and the Act is entituled Reformation of Disorders in the Ministers of the Church and in which it was enacted That all such as were to be ordained or permitted to preach or to be instituted into any Benefice with cure of Souls should publickly subscribe to the said Articles which shews if you mind it that tho the Parliament did well allow and approve of the said Articles yet the said Book oweth neither Confâ—…rmation nor Authority to the Act of Parliament And that Act concerning only Clergy-men tho the interpretation in the 37th Article is left to oblige the Clergy yet that in the Admonition might concern you to stick to if nothing had since happen'd whereby the dispensative power inherent in the Crown may have given your Conscience the benefit of the interpretation thus afforded to the Clergy But therefore I shall here tell you that the Canons of King Iames the â—…st Anno 1603 being confirmed for him and his Heirs and Successors are binding now however it hath been objected as the unhappiness of Queen Elizabeths Canonâ—… viz. A. 1571. A. 1584. A. 1597. wanting those formal words of Heirs and Successors to expire with her And as those words are in King Iames's Canons so are the words of enjoyning their being observ'd fuâ—…fill'd and kept not only by the Clergy but by all other Persons within this Realm as far as lawfully being Members of the Church it may concern them and tho in the first Canon there entituled The King's Supremacy over the Church of England in Causes Ecclesiastical to be maintain'd 't is order'd That all Ecclesiastical Persons shall keep and observe and as much as in them lyeth all and singular Laws and Statutes made for the restoring to the Crown of this Kingdom its ancient Iurisdiction over the state Ecclâ—…siastical yet in the next Canon entitled Impugners of the King's Supremacy censurâ—…d the measures of the King 's ecclesiastical Authority being taken from the Godly Kings among the Iews according to the 37th of the 39 Articles was an extending to the Layety the ben fit of the Interpretation obtain'd by the Clergy the which was in effect a judgment of the Convocations that the pursuance of that Interpretation of the King 's Ecclesiastical Power and the avoiding of the punishment of Disability by the use of that Power was not agaâ—…st the Law of the Land but the 5th Canon viz. Impugners of the Artiâ—…les of Religion establish'd in the Church of England censured and in which the establishment of the 39 Articles is solely referr'd to them as agreed on in Convocation in the year 1562. without any notice of the Parliament of the 13th of Eliz. having done any thing about them doth more clearly secure to you the benefit of the Interpretation the Clergy had A. You have mention'd so many things to me relating to the interpretation
reason that lyes in this Assertory part of the Oath that so many Writers of the Common Law have founded their Assertion of the King's Power oâ—… Commanding the Service of all his Subjects as essential to the keeping up the Monarchy or the Rule of all Estates committed to him by God that I lately spoke of and inseparable from it noâ—… alienable by any Humane Laws It is the Supreme Power of our Princes as Governors of the Realm that hath always entitled them to Press men for the Service of the Crown by Land or Sea and to recall both Soldiers and Mariners from the Service of Foreign Princes upon emergent Occasions to serve their natural Liege Lord. And the Book writ by a Learned Common Lawyer against the Exclusion call'd A Letter from a Gentleman of Quality in the Country c. and Printed A. 1679. and so deservedly extoll'd by the Iudicious loyal tells you in p. 7. and 8. that If it should be enacted by Parliament that No man should honour the King or love his Parents or Children c. such an Act would be ipso facto void because contrary to the express Divine Command c. The Statute of 23 H. 6. c. 8. and several other Statutes Enact that no Man shall be Sheriff of any County above one year and that any Patent of the King to any Person for a longer term tho with an express Clause of Non-obstante shall be void and of none Effect and the Patentee perpetually disabled to bear the Office. And yet notwithstanding it is Resolv'd by all the Iudges of England that these Acts of Parliament are void and that the King may by Non-obstante Constitute a Sheriff for Years Life or Inheritance And what is the Reason which the Iudges give of this Resolution Why because say they in express words this Act of Parliament cannot bar the King of the Service of his Subject which the immutable Law of Nature doth give to him For Obedience and Ligeance of the Subject add they is due to the Soveraign by the Law of Nature See 2 Hen. 7. 6. v. Calvin's Case 14. a. in Coke's 7th Rep. We know that by the Statute of 4 o. H. 4. c. 5. 't is ordain'd That every Sheriff of England shall abide in proper Person within his Bailywick for the time that he shall be such Officer But this Act hath never been construed to hinder the King as Supreme Governor and Ruler of all Persons in the Realm from Commanding any Sheriffs to serve him elsewhere during their Shrievalties nor on such case to oblige the Sheriffs in Conscience to observe the Statute by such Personal residence Baker in the reign of King Charles the first tells us of an Information A. 1629. in the Star-chamber against Mr. Long for that he being high Sheriff of the County of Wilts had the Charge and Custody thereof committed to him and had taken his Oath according to the Law to abide within his Bailys-wick all the time of his Sheriff-wick and his Trust and Employment requiring his personal attendance therein did contrary thereto suffer himself to be chosen a Citizen for the City of Bath to serve in the last Parliament and did attend at Westminster in Parliament WITHOUT HIS MAIESTIES LICENCE he being Sheriff at that time and that for the foremention'd Offences and Breach of his Oath and neglect of his Trust and Contempt of his Majesty the Decree was That he should be Committed to the Tower during his Majesties Pleasure and pay a Fine of 2000 Marks to the King. Hereby you see that his Majesties LICENCE or Dispensing with that Statute had indemnify'd him from it in the Court of Law and that the potestas Superioris being necessarily imply'd in a promissory Oath the King as supreme Governour of all Persons in his Realms commanding or allowing such Officers service to the publick elsewhere had secured him in either forum The known Custom of the Speaker of the House of Commons DISABLING himself when presented to the King but of entring on his Charge on the King's approbation and pleasure signify'd according to that saying of Cuâ—… me posse negem quod tu posse putes may pass for some representation to our thoughts of Disability to serve the publick then evaporating when the King as Governor of the Realm doth give the Subject a Call so to do You may find this practice of the Speaker's disabling himself set down in Coke 4. Inst. c. 1. And I shall here by the way take notice that he there likewise mentions it that one of the Principal ends of Calling of Parliaments is for the redress of the Mischiefs and Grievances that dayly happen And he had there before said Now forasmuch as divers Laws and Statutes have been enacted and provided for these ends aforesaid and that divers Mischiefs in particular and divers Grievances in general concerning the Honour and Safety of the King the State and Defence of the Kingdom and of the Church of England might be prevented an excellent Law was made Anno 36. E. 3. which being applied to the said Writs of Parliament doth in few and effectual words set down the true subject of a Parliament in these words For the maintenance of the said Articles and Statutes and redress of divers Mischiefs and Grievances which daily happen a Parliament shall be holden every year as another time was Ordain'd by a Statute Before the Conquest Parliaments were to be holden twice every year c. But accordingly as my Lord Coke there takes notice of the style of the Statute of 36. E. 3. viz. to the Honour of God and of holy Church and quietness of the People and according to the style of the Statute of 10. E. 3. Because our Sovereign Lord the King Edw. 3. which Soverainly desireth the maintenance of the Peace and Safeguard of his People c. hath Ordain'd c. for the Quietness and Peace of his People c. and suitably to the style of the Statute of 14 o E. 3. 1. To the honour of God c. The King for Peace and Quietness of his People as well great as small doth Grant and Establish the things under-written c. and to that of 20. E. 3. and for this Cause desiring as much for the Pleasure of God and Ease and Quietness of our Subjects and according to that style in the Register Nos oppressiones duritias damna excessus praedicta gravamina volentes relinquere impunita volentesque salvationi QUIETI populi nostri in hac parte prospicere ut tenemut c. and according to the Trust committed to Princes by God to endeavour that their Subjects may under them lead QUIET and Peaceable lives in all Godliness and Honesty and which is the great Fundamental reason of the Moral Obligation of Princes to relax the Summum jus of their Laws by sometimes DISPENSING therein since we may easily imagine by our thinking of a late Conjuncture how possible it was that the
and State resented it in the Conjuncture of A. 1640. I mean Archbishop Williams who in his famous Speech in Parliament that year against the Bill that afterward passed into a Law to Disable Persons in Holy Orders from exercising any Temporal Jurisdiction doth thereupon represent it that under a CAIN ' s mark an eternal kind of disability or incapacity is laid on them from enjoying hereafter any of those Rights Favours or Charters of former Princes and which is the heaviest Point of all without killing of Abel or any Crime laid to their charge more then that in the beginning of the Bill 't is said roundly and in the style of Lacedaemon that they ought not to intermeddle c. And what his thoughts were of the Injustice of such incapacity put on the Clergy and of the odiousness of that Punishment of incapacity appears by what he afterward saith viz. I come to the 4th part of this Bill which is the manner of the inhibition every way heavy in the Penalty heavier a great deal in the incapacity In the weighing the Penalty will you consider the small wyers that is poor Causes that are to induce the same and then the heavy load that hangs upon these wyers It is thus If a Natural Subject of England interessed in the Magna Charta and Petition of Right as well as any other yet being a Person in Holy Orders shall happen unfortunately to Vote in Parliament to obey his Prince by way of Councel or by way of a Commissioner be required thereunto then is he presently to lose and forfeit for his first offence all his Means and Livelyhood c. This Peradventure may move others most but it doth not me It is not the Penalty but the Incapacity aâ—…d as the Philosophers would call it the Natural impotency imposed by this Bill on men in holy Orders to SERVE the KING or the STATE in this kind be they otherwise never so able or never so willing or never so vertuous which makes me draw a kind of Timanthe ' s veil over this Point and leave it without any amplification at all to your Lordships wise and inward Thoughts and Considerations But if with so much thunder of Passion as well as lightning of reason that learned Speech from the Bishops Bench did so much resent the punishing the Clergy with disability to execute secular Offices and to have the honour of serving their Prince and Country therein and for the imposing of which disability that known place of Scripture 2 Tim. 2. 4. No man that wars entangles himself with the Affairs of this life was alledged in the House as thus disabling them by the Law Divine and as to which the Bishop in his Speech gives a learned Answer we may well imagine how Lay-men of good Births and Educations and whose Diligence employ'd in Courts and Cities and Camps abroad may have qualify'd them here to stand before Kings must necessarily aggravate in their thoughts the dishonour of incapacity to serve their Prince in secular Employments A. Was that Speech of the Archbishop ever printed B. You will find it in the Apology for the Bishops to sit and Vote in Parliament printed in London A. 1661. And he hath in that Speech some other Expressions which corroborate that obvious natural notion of the King and Kingdom being disabled by disabling of Clergy-men from secular Employments For having reflected on the Bill for disabling them from sitting in the Star-chamber and at the Council-table sitting in Commissions of the Peace and other Commâ—…ssions of secular Affairs he afterward saith But my noble Lords this is the Case Our King hath by the Statute restored to him the Headship of the Church of England And by the word of God he is custos utriusque tabulae And will your Lordships allow this ecclesiastical Head no ecclesiastical Senses No Ecclesiastical Persons to be censulted with at all No not in any Circumstances of time and place If Cramner had been thus dealt with in the Minority of our young Jâ—…sias King Edward the 6th what had become of that great work of our Reformation in this flourishing Church of England A. The truth is it being a kind of a Rule that all Men of Parts who have been liberally educated and even those excelling in mechanical professions do naturally desire to serve the King and standing before Kings having been annext in Scripture as a reward to diligence in ones calling a Mark of disability put on Lay-men to serve their Prince cannot but tempt them to passion on that account more then it ought to have troubled the Bishop when he call'd it a Caiâ—…'s Mark in regard you have mention'd it that Clergy-men to some did seem by the Law-Divine disabled from secular Employments B. According to the Opinion of Iudge Vaughan in his Reports who in Hill and Good 's Case there makes a lawful Canon to be the Law of the Kingdom as well as an Act of Parliament and whatever is the Law is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus they were by the Canon Law disabled from intermedling in secular Affairs And according to his description of malum prohibitum in Thomas Sorreâ—…'s case p. 358. you may say they were by the Statute so disabled from intermedling For he there saith malum prohibitum is that which is prohibited per le statute Per le statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case for it is said the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon-Law and by the Council of Lateran not by Act of Parliament The Lateran Council his Lordship there means is that held under Alexander the 3d A. 1180 and which Council hath it in these words viz. neque servi neque spurii sunt ordinandi And uni plura ecclesiastica beneficia non sunt committenda And therefore the Bishop in that Speech saith That this Doctrine of debarring Persons in Holy Orders from secular Employments is the Doctrine of the Popish Church and first brought into this Kingdom by the Popâ—…s of Rome and Lanfrank Anselm Stephen Langthon and Othobone and with an intent to withdraw the Clergy from tâ—…eir receiving Obligations from either King or Lords and make them wholly dependants on the Popacy But Bishop Iewel tells us in his Apology p. 122. that Veteres Canones Apostolorum illum Episcopum qui simul Civilem magistratum ecclesiasticam functionem obire velit jubent ab officio summoveri A. Yet notwithstanding their being disabled by the antient Canons and the Nemo militans c. 2 Tim. 2. as often alledged against them by the Canons and Canonists I think they were frequently employ'd by our Princes in the greatest Offices of the State. B. They were so and the
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
knew that if Papists had been Punish'd for their Religion in her Reign by Iudges and Iuries and Sheriffs that it was she had punish'd them And accordingly he in his Premonition to Christian Monarchs doth more regio and with a style of Majesty relating to his Executive Power thus tell them viz. And yet so far hath both my Heart and Government been from any bitterness as almost never one of those sharp Additions to former Laws hath ever yet been put in execution Well Sir In fine I leave it to you to consider on the whole matter how far the Contents of that Canon and particularly what is declared therein about the care of God's Church being so committed to Kings in the Scripture that they are commended when the Church keeps the right way and blamed when it runs amiss and therefore her Government belongs in chief to Kings c. do shew that Kings not only may but ought out of a regard to their own Souls to provide that where the safety of their Subjects Souls is concern'd their Dispensative Power by the interpretation of their Laws and the relaxation of their Rigour in particular Cases may be exerted I doubt not but you have observ'd many more Cases wherein the Royal Martyr to prevent imminent peril of Soul was put to it to exert such his Power A. I remember not to have read of more B. No If you had read the 39 Articles Printed in the Edition that I have done with his Declaration prefix'd thereunto you would find that there being a high ferment about the Arminian Controversie in the Church of England and the Arminian and Anti-Arminian Divines who both had subscribed the Articles appropriating the sense of them to both their Perswasions and too many drawing then the sense of them too much aside and all of them professing themselves bound in Conscience by the Laws that required their Subscription to the Articles and that their Subscription to them was to be taken in the Imposers sense and that as to the Article of the King 's being Supreme Governor of the Church of England it being supposed as the words in the Declaration are Some differences might arise concerning the External Polity Injunctions Canons or other Constitutions thereto belonging His Majesty by his Declaration again ratifying the Articles and particularly publishing that he was Supreme Governor of the Church of England did notify his Pleasure that as to any such Differences arising as aforesaid the Clergy in their Convocation should order and settle them he approving their Ordinances c. and to the end they might not trouble themselves or the Church by putting their own interpretations on the Articles he Requires their taking the Articles in the Literal and Grammatical sense and notifies that literal sense as restrain'd to the way of the general Expressions in the Articles and such as the Divines of the several Perswasions took as making for them so that now by His Majesty 's thus interpreting that sense they might warrantably continue so to do And according to what hath been said of Manna that it was that to every man's taste wherewith it was pleas'd most mens sense of the Articles might be so too by means of the declared Complaisance of His Majesty therewith A. One would then the less wonder at the Complaisance of the Clergy with that King's Power of Dispensing in his Laws by Interpreting or Declaring B. I could tell you of another passage in his Reign that will shew you how our Bishops made use of that Power as their Sheat Anchor to preserve the Hierarchy in the Storms it met with and how then the Bishops issuing out the Processes of their Ecclesiastical Courts in their own Names was by the Artifice of the Faction improved as an occasion of making a very great ferment in Church and State and such a one as nothing but the Royal Power of Interpretation or of declaring the Law could settle And therefore Archbishop Laud in his Epistle to the King before his famous Star-Chamber Speech did in the Name of the Church of England then think himself obliged to apply to the King in a most pathetical and solemn manner to exert that great Power in that Conjuncture viz. I do humbly in the Churches name desire of your Majesty that it may be resolv'd by all the Reverend Iudges of England and then Publish'd by your Majesty that our keeping Courts and issuing Process in our own Names and the like Exceptions formerly taken and now renew'd are not against the Laws of the Realm as 't is most certain they are not that so the Church Governors may go on cheerfully in their Duty and the Peoples minds be quieted by this assurance that neither the Law nor their liberty as Subjects is infringed thereby The many Pamphleteers of the Faction who attacqued the Hierarchy â—…eproached them with the Non-observance of Humane Laws and charged their Proceedings with Illegality because by the Statute of 1 o E. 6. c. 2. that required Processes Ecclesiastical to be in the King's name it was declar'd That the Bishops sending out their Process in their own Names was contrary to the Form and Order of the Summons and Process of the Common-Law used in this Realm And therefore as Heylin tells us in the Life of Archbishop Laud p. 321. in A. 1637. the King accordingly 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 the Iudges Resolutions were therein notify'd to that purpose And upon all motions afterward for Prohibitions to the Ecclesiastical Court upon the pretence of their Processes not issuing out in the King's Name according to that Statute of E. the 6th the currant Law hath still been in Westminster-Hall for keeping up the sense of His Majesty declared in his Proclamation as to that Point According to the manner then of praising the Bridge we go over the Church of England having in Queen Elizabeth's time been preserv'd by the Regal Power of interpreting express'd in her Admonition and by the like Power in the time of King Charles the First and the salus animae having been at stake as to the Oath in her time and as to the avowed Principle of the Church of England about Humane Laws binding the Conscience in his time the use of that Dispensative Power being like a Bridge that kept them from falling into the Pit of Perdition deserv'd their Praise That eminent Divine Mr. Iohn Ley in his Learn'd Book call'd Defensive Doubts and Reasons for refusal of the Oath imposed by the Sixth Canon of the late Synod i. e. that in the year 1640. saith there p. 99. and 100 c. There are some of our Brethren who in good will to themselves and us have undertaken to expound the Oath so as that they and we without scruple may take it And we take kindly their good intention and in good will to them again
request them to consider that a Private Interpretation of a Publick Act can give no satisfaction unless it be either expresly or virtually allow'd by the highest Authority that doth impose it and then it is made Publick c. But the Authority of Interpretation of any doubt in such a Publick Act belongs properly not to private but publick Persons c. For private Men tho Learn'd if they take upon them the Interpretation of publick Dictates may be more like to light on mutual Contradictions of each other then on the true and proper Construction of the Text they interpret So did Vega and Soto Soto and Catherinus who wrote against each other contrary Comments on the Council of Trent In which respect it was a wise advice given to the Pope by the Bishop of Bestice viz. to appoint a Congregation for the expounding of the Councel and well follow'd by him when he forbade all sorts of Persons Clerks or Laicks being private Men to make any Commentaries Glosses Annotations or any Interpretation whatsoever on the Decrees of that Councel Dr. Burgesse indeed made an Interpretation of his own Subscription but there had been no validity in it as we conceive unless it had been allow'd by the Superior Powers And so it was for as he saith It was accepted by King James and the Archbishop of Canterbury affirm'd it to be the true sense and meaning of the Church of England He refers there to Dr. Burgesse in his Answer to a much applauded Pamphlet Praefat. p. 26. A. Your mentioning that of Dr. Burgesse his Interpretation of his Subscription minds me of what I have read at the end of his Book call'd No Sacrilege nor Sin to alienate or purchase Cathedral Lands viz. in his Postscript to Dr. Pearson and his No Necessity of Reformation of the Publick Doctrine of the Church of England Printed A. 1660. where he saith As touching the Regal Supremacy we own and will assert it as far as you do or dare Only we had reason to take notice of the improper Expression in the 37th Article that the Queen's Majesty hath the Supreme Power For if the Declaration father'd on the late King and prefix'd to the Articles had so much Power with his Printer that he durst not alter the word Queen into King even in the year 1642 and those Articles must be read Verbatim without Alteration or Explanation then we say again there is a Necessity of Reforming that Article in the expression of it and not to talk at random what was indeed the meaning unless we may have leave when we read it Regiâ declaratione non-obstante to declare the sense which the Declaration alloweth us not to do But the truth is that exception of the Doctor to the Articles may well pass for a Scruple or rather a Cavil and at this rate we should be put to it to say O King interpret for ever B. You say right Dr. Pierson in that Judicious Book of his call'd No Necessity of Reforming the Doctrine of the Church of England well observes that the 37th Article hath express reference to the Queen's Injunctions set forth in the year 1559. and those Injunctions take particular care that no other Duty Allegiance or Bond should be required to the Queen then was acknowledged to be due to the most noble Kings of famous Memory King Henry the 8th her Majesty's Father or King Edward the 6th her Majesty's Brother The words of the Article declare that the Doctrine contained in it concerneth all the Kings as Kings The title in General is of the Civil Magistrates and the words run thus where we attribute to the Queen's Majesty the chief Government we give not to our Princes c. shewing that what they gave to her they gave to all the Kings of England Which will appear more plainly out of the first Latine Copy Printed in the time of Queen Eliz. in the year 1563. read and approved by the Queen the words whereâ—…f are these Cum Regiae Majestati summam gubernationem tribuimus quibus titulis intelligimus animos quorundam Calumniatorum offendi non damus Regibus nostris aut verbi Dei aut Sacramentorum administrationem c. Being therefore the Article expresly mentioneth and concerneth the Kings of England as they are the Kings of England the mention of the Queen's Majesty in the Article can make the Doctrine no more doubtful then it doth our Allegiance in that Oath which was made 1 o Eliz. where the Heirs and Successors of the Queen are to appoint who shall accept the Oath the words of which are that the Queen's Highness is the only Supreme Governor of this Realm But I hope the Heirs and Successors of Queen Elizabeth did never appoint that Oath to be taken in the Name of the Queen's Highness but in their own It may be supposed that some such like Cavilling or Scrupling humour possess'd the fancies of some in the beginning of the Reign of King Iames the First and that some occasion was thereby given to that Prince in those his Canons expresly therein maintaining the 39 Articles and the Subscription thereunto and particularly in the 36th Canon there to enjoyn a Subscription to three Articles in such manner and sort as is there appointed and of which the first is That the King's Majesty under God is the only Supreme Governor of this Realm and of all other his Highness Dominions c. and that no foreign Prince Person Prelate HAUE or OUGHT to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual c. and in which the words have or OUGHT to have might possibly be inserted out of a Royal Complaisance with the Desires of some Scruplers in whose behalf the Famous Dr. Rainolds moved the King at the Hampton-Court Conference that to the Position in the 37th Article viz. The Bishop of Rome hath no Iurisdiction in this Realm of England might be added nor OUGHT to have but which motion the King then rejected as a thing superfluous and saying Habemus quod jure habemus You may find an Account of this twoâ—…old Subscription in Coke 4. Inst. c. 74. and where he saith Subscription required by the Clergy is twofold One by force both of an Act of Parliament CONFIRMING and Establishing the 39 Articles of Religion agreed upon at a Convocation of the Church of England and ratify'd by Queen Eliz. 13. Eliz. c. 12. Another by Canens made at a Convocation of the Church of England and ratify'd by King James A. I had thought you told me that the 39 Articles owed no Confirmation nor Authority to that Act of the 13th of Eliz. B. I did tell you so and do think that when my Lord Coke used the word Confirming he spake cum vulgo or as the word is taken minus propriè and as it is taken in declarative Acts of Parliament sometime to mean declared and as I and others may in Discourse sometimes use the word But speaking properly to
kind B. Why then I can tell you if you will at any time turn to your Collection of Proclamations in the time of King Iames the First you will find that in his Proclamation of March the 5th the first year of his Reign he intimates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer and for that end gave forth his Commission under the Great Seal of England according to the Form which the Laws of this Realm in like Case prescribed to be used to make the said Explanation and to cause the whole Book of Common Prayer with the same Explanation to be newly Printed which being done and establish'd anew after so serious a Deliberation c. we have thought it necessary to make known by Proclamation our authorizing of the same and to require and enjoyn all men as well Ecclesiastical as Temporal to Conform themselves to it as the only publick Form of serving God establish'd and allow'd to be in this Realm And the rather for that all the Learned Men who were there present as well of the Bishops as others promised their Conformity in the practice of it only making sute to us that some few might be born with for a time Wherefore we require all Archbishops Bishops and all other publick Ministers as well Ecclesiastical as Civil to do their Duties in causing the same to be obey'd and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer You see there that all the Bishops and the great Parade of the literati present at that famous Conference did implore the King for the exercise of his Dispensative Power for a while to some few But what is more considerable is that the King here doth make a general relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things and instead of inserting an express Clause of discharging from the Penalties of that Act all that use the Common Prayer Book with the King's Alterations or Explanations as Queen Elizabeth's Admonition did in relation to those who took the Oath of Supremacy in the sense of her Interpretation a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law he enjoyns the uniform usage of the Book of Common Prayer as by him interpreted or explain'd the title of the Proclamation being A Proclamation for the authorizing an Uniformity of the Book of Common Prayer to be used throughout the Realm under the disabling Punishments of Queen Elizabeth's Act of Uniformity the Bishops all this while being ministerial to the King in his Power of thus interpreting and explaining an Act of Parliament and the loosening of its Obligation both as to themselves and others I am to tell you that in that Proclamation of March the fifth the King refers to a Proclamation he had before Publish'd on the 24th of October then last past wherein he gave the Puritan Divines an intimation of the Conference he intended to have and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation which saith he if there be Cause to make is more in our hearts then theirs c. and afterwards saith we are not ignorant that time may have brought in some Corruptions which may deserve a review and amendment which if by the Assembly intended by us we shall find to be so indeed we will therein procéed according to the Laws and Customs of this Realm by Advice of our Councel or in our High Court of Parliament or by Convocation of our Clergy as we shall find reason to lead us not doubting but that in such an orderly proceeding we shall have the Prelates others of our Clergy no less willing and far more able to afford us their Duty and Service then any other whose zeal doth go so fast before their discretion And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm and how loyally his Bishops and Clergy acquiesced therein A. I remember I have read both these Proclamations and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the People tho none in the Orthodox Clergy But I should be glad to know whether it made any fermentation in the Body of the People Representative and what was the Result of it Did the Parliament acquiesce in what the King had done as aforesaid For if so they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supremacy did in discharging the disabling Penalties in her first Act of Parliament and in relaxing by her interpretation the vinculum for its observance in that sense that many had before put on it B. King Iames his Parliament did in effect the very self-same thing And I shall give you the account of it out of his Proclamation of the 16th of Iuly A. 1604. in the Second year of his Reign for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it and his hoping that when the same should be made known all reasonable Men would have rested satisfy'd with that which had been done and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made His Majesty's following words are Notwithstanding at the late Assembly of our Parliament there wanted not many who renew'd with no little earnestness the Questions before determin'd and many more as well about the Book of Common Prayer as other Matters of Church Government and importuned us for our assent to many Alterations therein but yet with such Success as when they heard both our own Speeches made to them at sundry times shewing the Reasons of our former Proceedings in those Matters and likewise had had Conference with some Bishops and other Lords of the Upper House about the same they desisted from further Prosecution thereof finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same we had before with the Advice of our Councel had such Consideration as the present state of things would bear and taken order how the same should be prosecuted by such means as might be used without any publick disturbance or innovation And in how vigorous a State the Dispensative Power as to the Nonconformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Commons for the exercise of the same to the Non-conformists in the 10th year of his Reign Moreover how by Tacit Dispensation he dispens'd with the Disabilities that
to perform the Conditions and that the King his Father should do the like Secondly That the Promises of Marriage should be presently made c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experimentâ—…lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd c. As to the first the Prince of Wales took an Oath to His Majesty to observe the foresaid Conditions and sign'd them with his Hand and he likewise swore and sign'd this by way of Over-plus to permit at all times that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment and that he would never directly nor indirectly permit any to speak to the Infanta against the same But I shall here en passant observe to you out of the general Articles namely that in the 16th Article notwithstanding my Lord Coke's Opinion before-mention'd that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta and care taken that no Clause or word therein shall contradict the Roman Religion or Consciences of the Roman-Catholicks and that by the 24th Article for the Security that every thing that was agreed to should be fulfill'd the King and Prince were to be bound by Oath that all the Privy Councellors should sign the Agreement And I need not tell you that their being sworn to the private Articles was a new Oath A. Was nothing of the King's mind about the Suspending ALL the Penal Laws both the disabling ones and others against the Papists notify'd to his Privy Councel before the year 1623 B. Mr. Prynne there in p. 30. saith that for the hastening the Pope's Dispensation for the Match King James as the French Mercure Tom. 9. records it and as he had CREDIBLY been inform'd of from others assembling his Privy Councel together Febr. 25. 1622. made a long Oration to them which he recites at large the sum whereof was this That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods Bodies Consciences during Queen Elizabeth's Reign of which they hoped to be relieved in his c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects and was resolv'd to relieve them and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection permitting them the Liberty and entire Exercise of their Religion c. without any Inquisition Process or Molestation from that day forward and likewise will and ordain that they shall be restored to all their Estates Lands Fees and Seignories and re-establish'd in them Commanding all his Magistrates Iustices and other Officers whatsoever in this behalf to hold their hands and for what Cause soever it be not to attempt hereafter to grieve or molest the said Catholicks neither in publick nor private in the liberty of the exercise of their Religion upon pain of being reputed Guilty of High Treason and Disturbers of the Kingdoms peace and repose this being his will and definitive Sentence A. But still I cannot forbear wondring about what Considerations made our Divines and our Great Champions of the Church of England-Protestancy in the State as well as Church afterward thus inclinable to act their Parts about Toleration as Mr. Prynne hath mention'd B. They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy and that by reason of the various growth of the Potency of foreign Princes and States and of intestine Factions the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage and that where such Alliance was to be with the Familiâ—…s of Roman-Catholick Princes there could be no expectation of the Pope's relaxing his Laws by dispensing without our Princes doing something of that kind as to theirs I might here observe to you that we are told in The Regal Apology that the Oxford Antiquities mention'd to have been writ by Dr. Bate that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou and if it were true that an Universal Toleration was agreed on by King James it was intuitu majoris boni The Palatinate was to be restored again and the Protestants of Germany to be re-enstated in their Possessions on that Condition But to punish being a kind of Punishment and it being irreligious to punish Men for Religion and the highest tide of Anger being naturally succeeded by the lowest ebbe of it and the thoughts of rigorous Severity in Princes toward their Subjects being like such in the Head toward the Members of the same Body and King Iames having found that the general abhorrence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath and finding as appears by his long Proclamation of four sheets of Paper declaring his Pleasure concerning the Dissolving of the Parliament A. 16â—…1 that they were not the Papists who made his later breath so uneasie to him and he being of opinion that the reason of the severe Laws was much abated it may abate of our wonder that in that Conjuncture he put a Period to their Execution Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the Iâ—…dges in the year following to acquaint them that His Majesty having resolv'd out of deep Reasons of State and in expectation of like Correspondence from foreign Princes to the Professors of our Religion to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom had Commanded him to pass some Writs under the Broad Seal for that purpose and that he had accordingly done so and tells them that 't is His Majesty's Pleasure that they shall make no niceness or difficulty to extend that his Princely favour to all Papists imprison'd for any Church Recusancy whatsoever or refusing the Oath of Supremacy or hearing of Mass or any other point of Recusancy which doth touch or concern Religion only and not matters of State which shall appear to you to be totally Civil and Political A. You lately mentâ—…on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature as was in the Spanish Wâ—…at account doth Mr. Prynne give of that B. He tells you there p. 69. that the French Maâ—…ch was soon Concluded in the life of King James the Articles concerning
the other c. that the Wisdom of that House in acting as it hath done in many Conjunctures hath put an end to many ferments accidentally occasion'd by others mistakes about Prerogative and whereby that august Assembly did sometimes Cunctando restituere rem and by its forbearing out of tenderâ—…ess for Prerogative to give judgment about it hath often to the Satisfaction both of the Prince and People left the Regal Rights in their ancient quiet Estate I shall for this purpose observe to you that I once reading to the late Earl of Anglesy when he was Lord Privy Seal what I had in a Manuscript of mine set down as the Fact of what had passed between the late King and the House of Commons concerning his Declaration of Indulgence on March the 15th 1671. and the Penal Laws being thereby suspended and the suspension of which the Commons then urged could not be but by Act of Parliament and whereupon they apply'd to the King for the Vacating that Declaration his Lordship did dictate to me in order to my Compleating the state of that Fact and which I writ from his Mouth as followeth viz. But it is to be observ'd upon this whole Transaction between the King and the House of Commons that the Lords had no hand in the Address to the King about this great Point altho it be uncontroverted that the Lords are the only Iudicatory that can determine any controverted Point without an Act of Parliament and either the King or the Commons might in a particular Case have had this Point brought by Appeal to the Lords if they had pleas'd and consequently might have effected the judicial decision of the same A. In your State of that part of the Fact that concern'd the Commons did they Address against the Dispensing with Acts of Parliament B. No but only against the Suspending them which are things of a different Nature The same House of Commons by having Iuly the 10th 1663. resolved That His Majesty be humbly desired to issue forth his Proclamation for the punctual and effectual Execution and Observance of the Act of Navigation without any Dispensation whatsoever whereby the Act may be in the least violated and to recal such Dispensations as are already granted c. did virtually shew a Deference to His Majesty's right of Dispensing Nay let me tell you that the very many Acts of Parliaments which expresly provide against the Crown 's dispensing by Non-obstante in some particular Cases may all be cited as Presidents or Iudgments of Parliaments for the propping up the Dispensative Power and of Parliaments having admitted that Power in our Kings the exercise of which they provide against and desire to take away in such particular Cases But by referring to the Fact of the entercourse between the late King and the House of Commons about the suspending the Penal Laws I have took occasion to point out to you the Wisdom of the Government in then passing that affair over without a judicial decision And I can give you an instance of the Prudential measures formerly observ'd by Persons who made a great figure in the Administration of the Ecclesiastical Government of the Church of England and who at the Consecration of Bishop Manwaring when on the usual Process at Consecrations to call all Persons to appear to shew cause why the Elect should not be Confirm'd some then appear'd objected against him that upon his being Impeached 3 o Car. 1. by the Commons the Lords had given Iudgment against him to disable him from all Preferment in the Church forbore to consider the merits of the Exception and throwing them off by a Pretence of their being defective in some Formalities of Law went on in the Confirmation And which is more I can tell you that long afterward viz. A. 1640. the Lords highly resenting both the Pardon and Bishoprick he had obtain'd and calling to mind the Sentence they had pronounced against him did on the 18th of April that year refer the Consideration thereof to their Grand Committee for Privileges it being also moved that what can be alledged on the Lord Bishop of St. David ' s part either by Pardon Licence or otherwise may be produced and seen at the Sitting of the Lords Committees for their full and clear understanding and better expedition in the business and on the 21st of April that year order'd that on the following Monday the Records be brought into the House that the House might determine the Cause and on the 27th of April following order'd the Cause to be heard the next day and upon which day some such fatal Sentence being expected against the Bishop as And his Bishoprick let another man take by reason of his having been judicially disabled His Majesty commanded that Bishop not to Sit in Parliament nor send any Proxy thither and the serment of the debate went off without any Iudgment given by the Lords that might touch Prerogative in the Point And if in the year 1640. when the air of mens fancies was so much infected with the Pestilence of Faction so much tenderness was shewn to Prerogative and that too in the Case of a Criminal whom the Commons had for so many years made the great object of their anger as one whom they look'd on as a Proditor or Betrayer of his Country and Betrayer of their Properties the Loyal may well say quid non speremus as to any future ferment that can rise in Parliament being allay'd without Prejudice to the Crown The Iournals of Parliament in the Beginning of the Reign of King Charles the First do tell us of the great ferment about the Pardon of Bishop Montague whom the Commons had impeach'd before the Lords and who after the Parliament was Prorogued to the 4th year of the reign of that Prince had obtain'd his Pardon in the time of the Prorogation and that such Pardon was by the Commons question'd and that such questioning soon evaporated But according to that Great Saying of Sir Harry Martin in his Speech at a Conference between both Houses as you will find it in Râ—…shworth after he had mention'd the inconvenience of nice debates about the Original Latitude and Bounds of Sovereign Power viz. I have ever been of opinion that it is then best with Sovereign Power when it is had in tacit veneration and not when it is prophaned by Publick Hearings and Examinations you will find that it hath been the usual Practice of our great Loyal Patriots in many Critical Conjunctures of time to prevent the popular Criticising on Controverted Points of Prerogative and to provide for the ease both of Prince and People by giving no other rule in the Cause then the putting it off in longissimum diem A. I suppose that excellent Political remark of Sir Harry Martin's was so made by him in the Conjuncture of the Petition of Right I have read of the great ferment the Petition of Right made in the beginning of the Reign
of the Royal Martyr and I shall be glad to know if the dispensing with the Penal Laws and particularly such as are inclusive of disability made any part of the fermentation B. No doubt if the Dispensative Power of the Crown as to any Penal religionary â—…aws had then appear'd any considerable gravamen to any of the three Estates they would then have cry'd out of it But which they did not Yet I shall tell you that they had a fair occasâ—…on then given them to do it if they had thought it tanti For in the first year of his Reign there was a ferment in Parliament about the Penal Laws against the Papists and particularly the disabling ones but which soon went off as I may say by insensible Perspiration It sâ—…ems that Mr. Prynne in p. 74. and 77. saith both Houses that year having presented a Petition to that Prince wherein they took notice that his Majesty had in his Princely Wisdom taken order that none of his natural born Subjects not professing the true Religion and by Law establish'd shall be admitted into the Service of his Royal Coâ—…sort and having further desired that his Majesty would be pleas'd to remove from all Places of Authority all such Persons as are either Popish Recusants or according to direction of former Acts of State to be justly suspected and that his Majesty said he would give order for it yet that that Parliament being unhappily dissolv'd in discontent his Majesty thought not fit to shew such severity to Recusants as he intended And in p. 76. Mr. Prynne had mentioned that Sir Iohn Winter Mr. Walter Mountague Sir Maurice Drummond and other Papists were admitted in her Majesty's Service But by what appears from Mr. Prynne in p. 80. in the following Parliament in the Second year of that King the House of Commons took divers Examinations concerning Recusants that were in Office and at last agreed on a Petition against Recusants in Office and to present their Names therewith to the King to the end they might be removed and He then saith that Martis 6. Iunii 2. Car. Regis The Petition against Recusants in Authority was engrossed read and allow'd to be presented to his Majesty and this to be done by the Privy-Councel of the House and Sir John Fâ—…llerton which was done accordingly but with what real success I can give no exact account But that the disabling and other Laws against the Papists had been dispens'd with by the Royal Martyr as well as his Father any one will conclude who reads what there followeth viz. In this Parliament these ensuing Articles against Popish Recusants were Consulted of in the House of Commons with an Intent to draw them into an Act and of which the 9th is No Recusant to bear Office of Iustice of Peace or otherwise or any man whose Wife shall be a Recusant or practice Law Common or Civil or Physick nor have Command in War c. And I should first have told you that the Third was A New Oath with more Additions to be taken concerning the Supremacy A. Good God! A new Oath with more Additions about the Supremacy B. You may suppose it would have been seemingly a New Oath by that Parliament's approving all the Authentick Regal Interpretations of the old one as Queen Elizabeth's Interpretation was approved by her Parliament But you may here observe that tho the Disabling and other Penal Laws were by this Pious Prince tacitly and often dispens'd with and the time of the doing of it caus'd some temporary ferments to arise in the Minds of his Subjects in Parliament yet their animosities have soon tacitly evaporated and the Regal Power of Dispensing then came to no question The Puritan Dissenters and scruplers of Ceremonies knew they wanted the benefit of that Power as well as the Papists and the exercise of that Power was in the Petition of both Houses before mention'd implored as to the disabled or silenced Ministers And therefore you will not wonder at it when I tell you that during all the great Patriotly efforts that were made for the removing all Grievances by the Petition of Right there was no offence taken at the Right of the Dispensative Power A. I thank you for that observation B. The thought is too obvious to deserve thanks and I assure you it is a kind of Proverbial Saying in the Canon Law that Dispensationum modus nulli Sapientum displicuit But even in the Conjuncture of the Petition of Right to shew you that the Dispensative Power did not in the least contribute to the ferment I shall let you see out of Rushworth how Mr. Glanvile who made so great a figure of a Patriot then in Parliament did with the greatest popular applause appear as an Assertor of that Power and when in his Speech in a full Committee of both Houses May 23. A. 1628. he inter alia said There is a Trust inseparably reposed in the Persons of the Kings of England but that Trust is regulated by Law For example when Statutes are made to Prohibit things not mala in se but only mala quia Prohibita under certain Forfeitures and Penalties to accrue to the King and to the Informers that shall sue for the breach of them the Commons must and ever will acknowledge a Regal and Soveraign Prerogative in the King touching such Statutes that it is in his Majesty's absolute and undoubted Power to grant Dispensations to particular Persons with the Clauses of Non-obstante to do as they might have done before those Statutes wherein his Majesty conferring Grace and Favour upon some doth not do wrong to others But there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded By those Statutes the Subject hath no interest in the Penalties which are all the fruit such Statutes can produce until by Sute or Information he become entituled to the particular Forfeitures whereas the Laws and Statutes mention'd in our Petition are of another Nature There shall your Lordships find us to rely upon the good old Statute called Magna Charta which declareth and confirmeth the ancient Common Laws of the Liberties of England and there he speaks afterward of other Statute Laws not inflicting Penalties upon Offenders in malis prohibitis but Laws declarative or positive conferring or confirming ipso facto an inherent Right and Interest of liberty and freedom in the Subjects of this Realm as their Birth-rights and Inheritances descendable to their Heirs and Posterities the Statutes incorporate into the Body of the Common Law over which with reverence be it spoken there is no Trust reposed in the King 's Soveraign Power or Prerogative Royal to enable him to dispense with them or to take from his Subjects the Birthright which they have in their Liberties by virtue of the Common Law. So then according to the sense of this loyal Patriot if the King shall by his Prerogative dispense with the Disabilities or Premunires or
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
making his Interpretation of the Law to be a rule in all Cases as in divers late Proclamations he hath done And if you will look on His Majesty's Answer to the Declaration of bâ—…th Houses of Parliament of July 1. 1642. you will find there very many Profound Observations and Presidents and Authorities of Law and wherein he several times refers to the happy times of that good Queen Elizabeth as well as to ancient Times and he thence taking his measures saith in p. 15. The King caus'd Proclamations to be made for in such Cases Proclamations declaratory were not conceiv'd in those times to be illegal c. And you may easily imagine this Power of authentick Interpretation very well Consistent with the just Power of the House of Lords in declaring the Law in a particular Case of which I occasionally mention'd to you the late Earl of Anglesy's opinion But how not only the Lords but the House of Commons did often during the late Rebellion encroach on the Regal Power of declaring and by Ordinances without and against the King's consent I shall some other time shew you at large A. Can you readily now at this time give any instance of the House of Commons thâ—…n doing any thing of that Nature B. Yes and I can refer â—…ou for the fact of it to The Declaration of King Charles the First of August 12. 1642. to all his lâ—…ving Subjects and who there mentionâ—… That after several in imations of Treasons PLOTS and Conspiracies 〈◊〉 the Papists of great Provisions of Arms by them and training Men under-ground and many other false Reports created spread and countenanced by themselves upon some general Apprehensions of Designs against them a Protestation is made in the House of Commons for Union and Consent among themselves to perform those Duties which if they had meant no more then they had express'd had been sufficiently provided for by the Oaths they had already taken and which their former Duties obliged them to Hereupon a Protestation is framed and being put into such words as no honest man could believe himself obliged by it to any unlawful Action was voluntarily taken by all the Members of the House of Commons and presently recommended to the House of Lords where it receiv'd the same Countenance that is was look'd upon as containing nothing in it self unlawful tho some Members of that House refused to take it as being voluntary and not imposed by any lawful Authority Then 't is recommended to the City of London and over all the Kingdom by Order from the House of Commons a strange and unheard of Usurpation to be taken by all Persons But within very few days upon Conference among themselves and among those Clergymen who daily sollicite their unlawful and unwarrantable Designs with the People they find they were by this Protestation so far from having drawn People into their Combination that in truth all men conceiv'd that they were even engaged by it against their main Design by promising to defend the true Reform'd Protestant Religion express'd in the Doctrine of the Church of England And thereupon some Persons of that Faction prevail'd that after the Members of the Houses had taken it a Declaration was set forth by the House of Commons that by those words The Doctrine of the Church of England was intended only so far as it was opposite to Popery and Popish innovations and that the words were not to be extended to the maintenance of the Discipline and Government c. and so under this Explication and Declaration publish'd only by the House of Commons and never assented to by the House of Peers this Protestation was directed to be generally taken throughout England And to that purpose a Bill is drawn passed the House of Commons and sent up to the House of Lords who at the second Reading finding many particulars in it unfit to be so severely imposed upon the Subjects absolutely rejected You see here again an Instance of the Prudence of the great Consiliarii Naâ—…i His Majesty's great Councel in not aiding the Faction against Prerogative in that Point For tho on the account of His Majesty's tacit Dispensation by way of Connivence presumed in that Conjuncture many of the Loyal of the Church of England did take that Protestation and concur in the recommendation His Majesty not having Prohibited the taking of it as he did aâ—…terward by a Proclamation forbid the taking of the Covenant â—…et when it was visible that such an Interpretation so encroaching on the Church of England and on Prerogative was design'd without and against His Majesty's Approbation to be imposed on the People it is not to be wonder'd that the Lords as things then were rejected a Bill of that Nature But it follows then in His Majesty's Declaration Yet of this we took no notice but pressed still the Disbanding of the Armies c. so that the ferment about the Protestation and the trouble it gave the Kingdom by the Super-induced Interpretation were in a short time over A. You having from the occasion given you by Queen Elizabeth's Power of interpreting and by her dispensing with disability in all who took the Oath of Supremacy according to the sense notify'd in The Admonition referr'd my thoughts often to the Regal Power of interpreting and having in the beginning of our Discourse this meeting left it to me tâ—… consider how much the Power of Dispensing with any Law may be thought â—…o-incident with interpreting and promised me that you would some other time shew me at large that the Dispensing with Laws is in effect the equitable interpreting that in such and such Cases and Circumstances they were not intended and ought not to bind but ought to be relax'd I shall be glad if before we part you would do it B. I had rather do it at our next meeting And if in the mean time you please to entertain your self with Bishop Taylor 's Ductor Dubitantium you will there find much learnedly writ of this subject And he there in l. 3. c. 6. particularly tells us that the Interpretation of Laws made by Iudges is matter of Fidelity and nothing of Empire and Power and it is a good probable warranty of Conscience â—…ut no final Determination in case any doubt happen to oppose it No man is to ask favour of the Iudge but of the Prince he may And he had before said That when the Power that made the Law doth interpret it the Interpretation is authentical and â—…bligeth Conscience as much as the Law and can release the Bond of Conscience as far forth as the Interpretation extends as if the Law were abrogated and that whether it be by declaring the meaning of the Law or by abating the rigour or by dispensing in the Case or enlarging the Favour or restraining the Severity it is all one as to the event of the Obligation of Conscience A. But it seems then that he makes the declaring or interpreting the meaning
have a Legislative Power in the Affairs of Religion and the Church and where he saith that the LEAST part of this Power is to permit the free exercise of it and to remove all Impediments and to give it Advantages of free Assemblies and Competent maintenance and Publick Encouragements c. And shall then shew you what Power Circa Sacra the Church of England with great Prudence and Justice allow'd our Princes in the introducing the Reformation and which its Constitutions and Canons have since owned and from the allowance of which Power our great Church-men then knew there could be vestigia nulla retrorsum in the Case of a Prince of any other Religion coming to the Crown But I shall at present tell you that as to what I have mention'd to you out of Suarez and that Bishop altho you need neither now nor at any time to charge your memory with the subtlety of Distinctions and of the Propriè and minus Propriè when you are in eager pursuit of the substance of things you will find in both those Authors what is very substantial about the Doctrine of Dispensing and what I have cited of their rendring Dispensing and Interpreting thus Co-incident is à propos and may mind you of Princes being both empow'red and obliged in Justice in their administration of the executive Power of their Laws to declare or interpret their Religionary Penal Laws as dispensable in relation to particular times and Persons And you may therefore here call to mind that passage in the Council of Trent viz. That on Fryar Adrian ' s vociferating there about the Pope's dispensing being an Arbitrary favour Verdune the famous French Divine took him down with saying that it is a fond Perswasion that Dispensing is a mere favour for it is as good distribute Iustice as what is most so And the Priest sins if he giveth it not for it is nothing else but a right Interpretation of Law. You may very well suppose that thoughts arising from those words in the Ordination of Bishops viz. That you have your Authority not to destroy but to save not to hurt but to help c. to be so merciful as not to be remiss so to administer Discipline as not to forget Mercy c. have formerly inclined our Bishops in the Reigns of King Iames and King Charles the First to think themselves obliged to interpret and declare the Laws about Church discipline as dispensable and to dispense with them in the Cases of Mr. Hildersham and Mr. Dod as I told you at our last meeting And can you here see an Act of Parliament that thus sâ—…tleth the Ordination of Bishops and which Act not only allows but requires them thus to Interpretari dispensare in lege or in an Act of Parliament and fancy it possible for the King when as the Act of 37 o H. 8. tells you that Archbishops Bishops Archdeacons and other Ecclesiastical Persons have no manner of Iurisdiction Ecclesiastical but by under and from His Royal Majesty not to be empow'red to exercise such Jurisdiction And I may here add that when it is declared in the Statute of 1 o Eliz. c. 2. that the Queen's Majesty may ordaâ—… such further Ceremonies and Rites as may be most for the advancement of God's Glory c. will any one wonder at the Crowns relaxing the Penal Laws about Rites and Ceremonies in the Case of particular Persons and as Edward the 6th as is known did in the Case of Bishop Hooper And if you have a mind to see an Act of Parliament that not only approves the Prince's remitting of his Penal Laws but what applauds some excess in so doing I can for that purpose direct you to the Act of 1 o Edw. 6. c. 12. in the beginning of which 't is said Nothing being more Godly more sure more to be wish'd and desired between a Prince the Supreme Head and Ruler and the Subjects whose Governor and Head he is then on the Prince's part great Clemency and Indulgency and rather too much indulgency and remission of his Royal Power and just Punishment then exact Severity and Iustice to be shew'd c. But as when we were near the end of our former Conference you rightly observ'd that many perverse People would be crying out that any lawful Dispensing with the Laws establish'd was Contradictio in adjecto so I shall now observe to you that any who to the diminishing from a Prince's Character of being just presume to insinuate it that a Prince's valuing himself on that Character and yet shewing mercy to some in releasing them from the Bonds and Penalties of some of his Laws is a Contradiction do appear to me great objects of Compassion in so erring And for this I shall refer you to the Happy future State of England where in p. 233. 't is said that He who separates Mercy from Iustice is unjust to the very name of Iustice and robbeth it of the better half of its signification leaving its teeth and claws and taking away its heart and bowels Jarchas the Indian and Chief of the Brachmans in Philostratus is brought in finding fault with Apollonius Tyaneus and others of the Greeks for that they confined and apply'd the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to those only who do no wrong to one another and telling them that they were in an error for saith he among the Chiefest Offices of Iustice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 together with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ought to be reckon'd up And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 just and kind men are convertible terms in Aristophanes and joyn'd both together in Plutarch and Aristotle saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Moderation or Clemency is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a piece of justice better then all justice And you will find Mr. Gregory there cited for relating it in his Opusâ—… That the Mahumetans have another Lord's Prayer call'd by them the Prayer of Jesus the Son of Mary and that endeth thus And let not such a one bear rule over me that will have no Mercy on me for thy Mercies sake O thou most merciful A. I say Amen to that Petition and do at the same time pay my thanks to Heaven for that one doth bear rule over me in whose great Genius Iustice and Mercy do appear to the World as the same thing and whose Iustice when ever any one shall come to Paint in Story he will not need to do it in the way of a half-face to hide any defect of Mercy and wherein if any Prince be deficient his Historian will be put to do it in the way I mention'd and as Pliny tells us Appelles drawing the Face of a King who had but one Eye and intending to conceal that defect was put upon the Painting him turning his Visage a little away and so shewing but the one side of his Face and from whence Pliny makes the Invention of that
way of Painting to have come But as I have now represented Iustice and Mercy to you to be the same thing so at some other meeting I shall shew you that Dispensation and Mercy are the same And in the mean while I shall tell you that there was a time namely throughout the Reign of Queen Elizabeth and in part of the Reign of King Iames the First when the Learning about Dispensations was not in England Dark learning but generally understood and that not only by the Writers of the Church of England but by the Puritan Writers and I shall shew you when this learning went to sleep and which I account not to have been again awaken'd till in the Conjuncture of Thomas and Sorrel's Case But when I come to entertain you with the learned Notions about it out of some of our Church of England Writers I believe you will not in the least startle at the thoughts of your Prince's dispensing with disability One of those Writers writ of the Subject before Suarez and whose Book I suppose that our Excellent Bishop Taylor happen'd not to have read because I met with no references to it in his Ductor dubitantium and where probably there had been many had the Bishop read it The Book speaks the Author to have been profoundly knowing in the Civil and Canon Law and not unacquainted with the Lex terrae and one who I think made a great figure in the Administration of the Discipline of the Church of England and whose great talents might probably cause our great Church-men then to engage him for their Champion against some of the Puritan Writers who look'd with an evil eye on the Regal dispensing with disability or incapacity in many of our Clergy-men And as when of old some of the English-understandings were employ'd in the writing of School-Divinity they penetrated as far into the Subtleties of it as those of any Nation so I may tell you that in my poor opinion that Author hath writ of the Learning of Dispensations both with all the subtlety and solidity requisite and more substantially then Suarez I shall lay the Book before you at our next meeting but shall now tell you that as to some Points we have been discoursing he observes that There is a Dispensation call'd of Iustice as it were an Interpretation or Declaration of the true meaning of the Law juxta aequum bonum and he cites the Canon Law to prove that Dispensation is a due for that the Precept of Mercy is common to all And I may tell you here that if you will look on your Durand's Speculum in his first Volume where he writes so copiously of Dispensing his style is Dispensatio sive misericordia A. You have taken care enough to make my entertainment in this meeting end with an appetite for another and the rather for that nothing is more pleasant to me then to find an Historical account of the Progress of any Controverted Point of any learning that hath made a ferment in Church or State. And tho as the course of Providence hath made the knowledge of this learning to be the opus diei and so the Ignorance of some and Malice of others hath made it look'd on as angry work and as frightful as a Comet and as odious as if it were to bring us under a torrid Zone yet I think your having surrounded the Nature of Dispensation with such mild and gentle Rays as to represent it to be of the nature of the Sol justitiae with healing in its wings must needs engage the knowing to bid it welcom with a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and make all their animosities and ferments about it to be soon over B. Truly I do not suppose that any knowing man can have an aversion against it and that this Learning non habet inimicum nisi ignorantem And that you may continue in your judgment of any ferment about the Dispensative Power being soon over I can refer you to another Iudgment of Parliament wherein a great tenderness for this branch of Prerogative is shewn namely in the Statute of Octavo Elizabethae c. 6. and to which that Excellent and Learned Person and great Ornament of the Law Sir Robert Atkins as you will find it in Keble Vol. 3. referring in his Argument in Chomas and Sortell's Case saith 8. Eliz. cap. 6. takes notice of Licence to dispense with such Laws as were pro bono publico yet doth not forbid it but rather compounds the matter It hath been the luck of Dispensation to meet with an ill name from some of our famous Writers who tell us that there were no such things as Dispensation or Non-obstante heard of till they came from Rome here in the year of our Lord 1240. and that afterward Kings learn'd from Popes to dispense with their Laws whereas before they caus'd their Laws to be observ'd like those of the Medes and Persians as the Irish Reports tell you in the Case of Commendams and whereupon Mr. Prynne on the Fourth Part of the Institutes c. 22. treating largely of Non-obstantes calls them Papal Engines And our old Monkish Writers have been quoted for bestowing the terms of legum vulnera infames nuncii and repagalum c. on Dispensations and Non-obstantes But I shall at our meeting again shew you that the practice of Dispensing may easily be traced to the Imperial Laws and this you may soon find if you will look on Dr. Donne's Pseudo-Martyr that you have by you and where you may guess at the age of Dispensations by his referring you in p. 40. to the Divinae Indulgentiae in the Digests and his telling you out of the Code that Theodosius and Valentinian making a Law with a Non-obstante did praeclude all Dispensations which the Emperors themselves might grant in these words Si coeleste proferatur oraculum aut divina pragmatica Sanctio And if you will look on Gothofred's Notes on the L. Iubemus C. De Sacrosanctis Ecclefiis de rebus Privilegiis earum cited by the Doctor there you will thus find it in those Notes Caeleste oraculum quid est Principis dispensatio There is another thing I have not had time now to Discourse with you about and that is of the Nature of Laws in terrorem as I intended and which suitably to the Wisdom of a Father in menacing a Child with cutting off his Head if he doth this or that thing are by the Pater Patriae and the Estates of the Realm sometimes lawfully made to intimidate men grown childish and vain by Sanctions of Punishments not intended to be executed according to the general tenour of such Laws But as what may make for my purpose of shewing you how worthy it is of the Majesty of Princes to incorporate Mercy with Iustice in dispensing with many particular Persons and even to the freeing them from the terror of those Laws in some angry Conjunctures when others were to be affrighted with them
Dispensative Power in the Reign of King Charles the First being extended to particular Persons but the hated Sibthorpe who in his Sermon of Apostolick Obedience as he call'd it doth speak of Mens being bound to observe the Lawes of the Land where they live except they will suffer as busie bodies or except they will have that inconvenience granted that the general Lawes or Government of a Nation must be dispens's withal according to the particular Conceit and Apprehension of every private Person whereout what Coleration of Heresy what Connivence at Errors what danger of Schisms in the Church and Factions in the State must necessarily follow c. and having mentioned the Liberty of a few erroneous Consciences bringing the Bondage of many regulated Commands he saith We must prefer the general before the particular and not let every one be loose to their List and Affection but all must be kept within the Lists of their Duty and Subjection And I but just now told you of that Prince's avowing that the Bishops advised him to the tenderness he shewed in dispensing with his Lawes to gratifie the pretended tenderness of the Consciences of some of his Scotish Subjects in that Conjunctâ—… â—…eand by which Dispensing one would have thought they might have been sufficiently antidoted against the strong Delusions of entring into War for Religion Oh that such thoughts had been then impress'd on their Minds as are contain'd in the General Demands of the Ministers and Professors of Aberdene p. 29. as I find them cited in the Book of Mr. Ley before-mention'd viz. There be other means more effectual for holding out of Popery and so of any unlawful innovation in which we ought to Confide more then in all the Vowes and Promises of Men yea also more then in all the United Forces of all the Subjects of this Land to wit diligent Preaching and Teaching of the Word frequent Prayer to God humbling of our selves before him and Amendment of our Lives and Conversations and Arming our selves against our Adversaries by diligent searching of the Scriptures whereby we may encrease in the knowledge of the Truth and in ability to defend it against the Enemies of it Oh that the Demagogues of those times had caus'd such words then to have been writ in our Churches or I might rather wish that those Heads of Parties had had themselves then hearts of flesh and that such tender words had been like a Law written there But the Urgentia imperii fata were upon us and that delicate use of Conscience that is in 2. Cor. 13. 5. call'd examen vel probatio nostrum ipsorum and whereby it resembled the best property of a beam in Scales namely its tenderness and turning with the least part of a grain was among the great Actors in that Rebellion quite laid aside and all the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the weightier Matters of the Law did not stir their Consciences and the great Obligation of their Oaths of Allegiance and Supremacy signify'd no more then the dust of the balance Tho they pretended to so nice a Tenderness about any thing that look'd like an Oath in familiar discourse and was not one as at the Saying in faith or in troth and so would seem to come under Solomon's Character of him that feareth an Oath but as to which words of in faith or by my faith our Judicious Sanderson de Iuramento makes them amount to no more then a meer Asseveration or at the most an Obtestation and saith that the genuine interpretation of the words by my faith whether in an assertory or promissory matter is this I speak from my heart I pawn my faith to you that the thing is so yet they at the same time would ridicule or seize on any one who had told them of what they were Sworn to in the Oath of Allegiance and of the recognition they made there as the words of that Oath are heartily willingly and truly upon the true faith of a Christian. A. There was a Solemn League and Covenant afterward took by those who had so apparently outraged the Oath of Allegiance and it was taken generally by all the Layety and Clergy of the Parliaments Party and was there not a general Tenderness of Conscience express'd then in the observance of that Covenant B. In the course of my Observation of Men and Things some things have more particularly occurred to me to shew you that the great Takers and imposers of that Covenant did as plainly and without any seeming remorfe outrage their Oath in that Covenant as they did their Oaths of Allegiance and Supremacy For after they had first sworn to endeavour to preserve the Reformed Religion in the Church of Scotland in Doctrine Worship Discipline and Government and then sworn to endeavour to reform Religion in these Kingdoms of England and Ireland in all Points according to the Examples of the best Reformed Churches and so were bound to reform us according to the Pattern of Scotland for that Church must necessarily pass for the best Reform'd Church that stands in need of no Resormation being to be preserv'd by them in the State it was the Parliament instead of setling in England the Presbyterian Government which then in Scotland had within its Verge four Judicatories and all pretended to be founded on Divine Right 1. A Parochial Session 2. A Presbyterian Consistory 3. A Provincial Synod 4. A General Assembly as they were bound to did in effect settle ERASTIANISM a Tenet or hypothesis of Church-Government that the Scotch and English Presbyterian Divines avowed as great an hatred of as of Popery it self Erastianism giving the Supreme Power in Ecclesiasticals to the Civil Magistrate and in their Printed Votes and Orders reproved the Presbyterian Divines for challenging an Arbitrary Power and which they would not grant nor set up ten Thousand Iudicatories within the Kingdom as the Parliaments words were referring to the Scots Parechial Session where a competent number of Lay-Elders whom they call Presbyteri non docentes and Deacons proportionable to the Precinct and Extent of the Parish are conjoyn'd and which associate Body thus compacted is the Spiritual Parochial Sanhedrim But this very first Point of that Church-Government the Parliament hinder'd Presbytery from gaining here and opposed its moving in that lowest Sphere of the Parochial Session of setling so many Thousand Ecclesiastical Courts of Pye-Powder in England and whereby it could never hope to climb up to the Primum mobile of a General Assembly which in reality was the Sphere the Parliament it self moved in Mr. Prynne who was one of the greatest Champions for that Covenant was yet an Eminent profess'd Erastian and Mr. Coleman a Member of the Assembly of Divines another of those Champions for the Covenant was likewise a declared Erastian and a great Favourite of the Parliaments and whose frequent Sermons before them for Erastianism were Printed by their Order and which Sermons of his and likewise his Books