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
the Statute of 37 o. H. 8. beforemention'd that speaks of Bishops Vicars-General useth only the Style of Vicegerent for Cromwel's Office. And I have observ'd in his Injunctions to the Clergy that he styles himself Lord Privy Seal Uice-gerent to King Henry the 8th for all his Iurisdiction Ecclesiastical within this Realm c. But the word Vicar being perhaps by the envy of the Monks put on him and his Office in common Discourse the word Vicar in the Proper signification of it signifying a Servant to a Servant according to that in Martial Esse sat est servum jam nolo Vicarius esse the Archbishop speaking Cum vulgo might then call him the King 's Vicar-general and so others since I should before have mention'd what he saith p. 323. speaking of Cromwel Inter hunc Cranmerum summam necessitudinem Evangelium conciliavit ut dum ille Experientiâ hic Doctrinâ câ—…nctos anteâ—…elleret tum utrique Regi intimi chari essent Ex horum Consilio impiis atque odiosis Papoe Wolsoei Cardinalis Actis summum supplicium exitium Romanoe Curioe divinitùs paratum est A. You have enough minded me of the King 's dispensing with the disabiity incurr'd by the Canons both in the C se of Cromwel a Lay-man intermedling in Ecclesiastical Matters and of Câ—…anmer a Clergyman intermedling in secular proving so necessary to the Reformation and accordingly as Queen Elizabeth's dispensing with disability proved so to the Establishment of the present Hierarchy of the Church of England And I shall most seriously consider what the Act of the 37th of H. the 8th hath in such plain and liquid terms declared of the Power given to the King by Scripture and to all such Persons as he shall appoint to exercise Ecclesiastical Iurisdiction however incapacitated so to do by lawful Canons and Constitutions and which were by that Eminent Iustitiary you mention'd held Equivalent to Acts of Parliament and shall grant that iâ—… never so many Acts of Parliament had attempted to deprive the King of a Power inherent in him by Scripture such attempt would be nugatory and the fremuerunt gentes against it would be but the Peoples imagining a vain thing And I shall consider it how far by clear and necessary Consequences and no wire-drawn ones it follows from what is declared by this Act of Parliament as to the King 's being authorized by Scripture to choose some sorts of Officers to serve the Crown in Church and State that he is so authorized to choose others in like manner as you mention'd it to me declared by the Scotch Act of Parliament that the King by virtue of the Royal Power he holds from God All-mighty is to have the SOLE choice and appointment of the Officers of the State c. But I Pray do not many other Acts of Parliament in Harry the 8ths time whereby the Royal Prerogative is so much advanced and particularly that of the 25th of Harry the 8th that sets up the Dispensative Power seem to make it depend on Statute-Law And may it not seem to be more than a flaw in the Diamond of Prerogative and a great depretiating of it in cutting it out as it were into four by making its Establishment depend on the King and three Estates B. I shall therefore here once for all tell you that the occasion of so many mens mistake in thinking so many of those Acts of Parliament in Harry the 8th's time prejudicial to Prerogative as seeming to found it on Statute-Law is their not considering that such Statutes were but declaratory of old Laws and not introductive of new ones My Lord Primate Bramhal in his Schism guarded p. 155. saith I profess clearly I do not see what advantage Henry the 8th could make of his own Laws which he might not have made of the ancient Laws except only a gawdy Title of Head of the English Church which survived him not long and the Tenths and first-fruits of the Clergy c. But you may as fully take notice how Harry the 8th throughout his great Declarative Laws so often declares in effect his Regal Power to be given him by God. My Lord Coke in his Caudry's Case instanceth in the famous Statute of 24 o H. 8. c. 12. and calls it declaratory of the ancient Law and you see how it is declared there That the King is by the goodness of God furnish'd with Prerogative c. And the Statute of 37 o H. 8. begins as I shew'd you with the three Estates DECLARING That the King's Majesty is and hath always justly been Supreme Head in the Earth of the Church of England by the Word of God. You know too how the style runs in another of his Acts of Parliament viz. The Bishop of Rome and See Apostolick contrary to the great and inviolable Grants of Iurisdictions by God immediately to Emperors Kings and Princes c. And thus tho there are various Statutes in his Reign and particularly that of the 25th year of his Reign c. 19. by which it was Enacted That the King's Highness shall have Power and Authority to nominate and assign at his pleasure Two and thirty persons whereof Sixteen to be of the Clergy and Sixteen of the Temporalty of the Upper and Nether House of the Parliament to view search and examine the Canous Constitutions and Ordinances Provincial and that such of them as the King's Highness and the said Two and thirty or the Major part of them shall deém and adjudge worthy to be continued kept and obey'd shall beÌ„ from henceforth kept obey'd and executed within this Realm so that the Kings most Royal assent under his Great Seal be first had to the same c. and tho according to the ancient usage of the Realm as well as to those Canons Lay-men were not only incapacitated to make Ecclesiastical Constitutions and Canons but Kings Bishops or Noblemen who believed that the Decrees of the Bishops of Rome may be violated or shall suffer them so to be are in the Canon Law anathematized yet as this enacting Clause was made on the Clergy's Petition to the King as the Preamble of the Act mentions that those Constitutions and Canons may be committed to the Examination and Iudgment of his Highness and of Two and Thirty persons of the King's Subjects whereof sixteen were to be of the Upper and Nether House of the Parliament of the Temporalty and all the said Two and thirty persons to be chosen and appointed by the King's Majesty c. and be empower'd to do what I mention'd out of the enacting Clause and whereby the King alone was in effect both according to the Clergy's Petition and the enacting Clause vested with the jus vitoe necis of the Canons so in a Memorable Epistle of Harry the 8th Printed before the Reformatio legum Ecclesiasticarum and intended as a draught for a Publication or Promulgation of the King 's new Ecclesiastical Laws after the draught of
1624. p. 25 26 27. and on which Author he in p. 47. bestows the Character of one of the truest Historians of this latter Age and whom Mr. Prynne had before in p. 40. cited for the truth of the general Articles referring to Tom 9. p. 11. and 28. And I shall here observe to you that what Mr. Prynne hath set down as aforesaid to be the Form of the Oath took by the Lords of the Councel to the former Articles doth appear to be referr'd by him to both sorts of Articles viz. both the general and the private ones For tho toward the end of the general Articles it appear'd only that the King and Prince were to be Sworn that all the Privy Councellors should sign those Articles under their hands and that the King Subscribed those Articles and was sworn to them in the presence of those Bishops and other Privy Councellors before named yet the first of the private Articles agreeing that the Councel should take the Oath as far as pertain'd to them and belong'd to the Execution which by the hands of them and their Ministers is to be exercised that the Penal Laws should not be executed against Roman-Catholicks I account it appears according to Mr. Prynne that the Privy Councellors were Sworn to both Articles together and that by the words of IURO ETIAM c. the private Articles were referr'd to and the which will appear the more manifest if you consider that the general Articles had not one word therein for the tolerating of more Papists then those of the Infanta's Family and such who particularly belong'd to her Nor was there any thing more as to the Privy Councellors agreed to in the general Articles then their signing them And both the general and private Articles bearing the same Date it may be the rather supposed that pursuant to the first private Article containing the King's Covenant for the Privy Councel's being sworn to them that the Bishops and the other Privy Councellors might then be sworn to them as well as their having then particularly signed or subscribed the general Articles appears for so Mr. Prynne's words are p. 44. The King and the Embassadors went to the Councel-Chamber where all the Lords of the Councel seal'd and subscribed the general Articles of the Marriage c. A. But I account you are not ignorant how much it hath been observ'd that Mr. Prynne who was so voluminous a Writer did too much take his Quotations on trust and that therefore what he had as out of the Mercure Francois might not be rightly cited B. Admitting that Mr. Prynne being so infinite in his Quotations might often erre that way I shall tell you that I engaging a Learned Man of the University of Oxford to consult Mr. Prynne's Quotations out of the Mercure of which the Tomes are in the Bodleian Library he return'd me word that they exactly agreed with the Author in the places cited by Mr. Prynne A. But one would scarce think that Archbishop Abbot should swear to these private Articles for there went about a Letter of his in that Conjuncture by the warm name of his Remonstrance to His Majesty against the Match and the toleration of the Roman-Catholicks B. I grant that there did and Mr. Prynne in p. 39. and 40. sets down the Letter and he calls it A Remonstrance and the Archbishop is there brought in saying thus viz. This Toleration which you endeavour to sâ—…t up by your Proclamation cannot be done without an Act of Parliament c. But Heylin in his History of the Presbyterians represents this as a Sham-Letter and put upon the Archbishop and saith that the Archbishop could not be so ill a Statesman having been long a Privy Councellor as not to know that he who sits at Helm must steer his Course according to Wind and Weather and that there was a great difference between such Personal Indulgences as the King had granted in the Case to his Popish Subjects and any such Publick exercise of their Superstitions as the word Toleration doth import And so he giveth Judgment that Abbot was only the reputed Author of this Bastard Letter and not the natural Parent of it In the various Editions of this Letter I have observ'd no date to it and it is in that Book of Mr. Prynne before his mention of the general or private Articles and before the Match was resolv'd on by the King. And if notwithstanding that Letter the Archbishop was afterward Sworn to the Articles his altering his judgment on grounds of Reason was both commendable and exemplary and worthy of that mutual Confidence between the King and him and the other Bishops in the Councel and his Privy Councel in general and which was such that in a lawful Matter the King could stipulate for their Obedience in the first private Article as was before mention'd A. Your having shew'd me out of the Copy of the Publick Instruments found by Mr. Prynne among my Lord Cottington's Papers what concerns the Toleration hath given me much satisfaction in the truth of that Fact. For otherwise what a late Book writ for The King 's Right in dispensing with the Penal Laws directed me to in Rushworth of The Declaration touching the Pardons Suspensions and Dispensations of the Roman-Catholicks sign'd by the Lord Conway and others Aug. the 7th A. 1623. would have left the Matter to me full of doubt and mystery But I see by those Copies of Articles found among the Papers of my Lord Cottington the Toleration of Papists had been reverâ about a Fortnight before the date of that Paper sworn to by all the Privy Councellors of King Iames. And tho King Charles the First did fall as a Martyr for the Protestant Religion and was a Confessor of it in Spain as Archbishop Laud sets forth in his Star-Chamber Speech and as likewise the Earl of Bristol shews in his Learned and Loyal Apology Printed A. 1657. which if you have not read is highly worth your most serious perusal and where having spoke of the Papal Dispensation for the Marriage on the Articles formerly agreed on in point of Religion and of the Civil Letters that passed between that King then Prince and the Pope he said that those Letters were Publish'd and Translated into several Languages referring there I suppose to the Mercure Francois which tho he could not say corruptly yet strained as much as might be to his disadvantage and that it is probable that the like Letters of Compliance mâ—… have been procured in the Treaty of the Match with France wherein the Pope's Dispensation was likewise held necessary yet I shall tell you that Mr. Prynne in p. 46 47. after he had mention'd the Oath taken by the Privy Councellors saith His Majesty call'd an Assembly of Divines to Consult with what he ought to do for the discharge of his Conscâ—…ence in this regard and their Resolution was first that the Prince of Wales should promise on â—…is Oath
materialiter Si quis verum dicit putans esse falsum mentitur formaliter And he having before in l. 4 c. 4 viz Of Heresy made pertinacy a requisite to a man's being formally an Heretick and said that Pertinax est qui non est paratus Captivare intellectum rationem suam omnem Sacrae Scripturae adds Haereticus igitur potest esse quis materialiter dum assensum praebet erroâ—…i pernicioso vel ex simplici facilitate out temeritate haereticis or dendi qui sub honestâ aliquâ specie fallunt vel ex ignorantiâ qui â—…ormaliter non est haereticus cum pertinacia obstinatio animi deest atque adeo pro simpliciter haereticâ—… non est babendus Concordant with these measures of Ames have I observ'd those of some ingenuous Roman-Catholick Writers who have declared that they will not pronounce all Protestants to be Hereticks formaliter And it is therefore no wonder that such their Judgment of Charity hath been retaliated by some of the most Renowned Divines of the Church of England viz. the Lord Primate Bramhal Bishop Taylor Dr. Hammond and others who have deny'd to pronounce the worshipping the Host to be formal Idolatry that is to say to be not so at all in reality since we know that according to the trite Rule forma dat esse And thus that Primate in his Schism Guarded saith very well for that purpose p. 57. Every one who is involved materially in a Schism is not a formal Schismatick more then she that Marries after long expectation believing and having reason to believe that hâ—…r former Husband was dead is a formal Adulteress or then he who is drawn to give Divine Worship to a Creature by some misapprehension yet addressing his Devotions to the true God is a formal Idolater And having there cited S. Austin of Heresy He who did not run into his error out of his own over-weening Presumption nor defends it pertinaciously but receiv'd it from his seduced Parents and is careful to search out the truth and ready to be Corrected if he find it cut he is not to be reputed among Hereticks he saith it is much more true of Schism that he who is involv'd in Schism through the error of his Parents or Predecessors who carefully seeketh after truth and is prepared in his mind to embrace it whensoever he finds it he is not to be reputed a Schismatick I know Azorius de Iuramento gives his Judgment well in thesi That when a Law is changed to which a man is bound by Oath tho he is thereby materially discharged yet formally he is bound in respect of his will for if ever he actually assents to the alteration he is really perjured And so leaving it to such who were Men of great Knowledge and Consideration and had took the Oaths and were ready to promo'e a new Law for altering the hereditary Monarchy to think of the danger they incurred of the formal guilt of that Crime I have more Charity then to conclude all the rash and the incogitant and the weak and the seduced by the fantastick Interpretation of the Oath to have been perjured But as about the year 1164. Thomas Archbishop of Canterbury was at a Council held at Northampton accused by the King of Perjury and Condemned as guilty of it because he had not observ'd those English Customs that he was sworn to as I find Francisc. Long. de Concil p. 806. Col. 1. cited for it so if you have taken the Oath of Supremacy and Sworn to defend all the Privileges and Preheminences granted or belonging to the King his Heirs and Successors and united to the Imperial Crown of this Realm and are of opinion that one of the Privileges of those Heirs and Successors is to succéed to that Crown as it comes to their turn according to Proximity of Blood and by their inherent Birth-right and as the Hereditary Succession juâ—…e Coronae is setled by the Common Law of England I shall tell you that the Pious and profoundâ—…ly Learned Divine Dr. Hicks who hath study'd this Point as much as any man hath in his Writings told you that having taken this Oath you could not honestly consent to a Bill of Exclusion which would have deprived the next Heir and in him virtually the whole royal Family of the chief Privilege and Preheminence that belong'd to him by the Common Law of this Realm c. Your Curiosity I believe hath led you to read over his learned Iovian and to observe what he there saith in his Preface that some Men did pervert the meaning of the word Heirs in the Oaths of Allegiance and Supremacy from its common and usual acceptation to another more special on purpose to elude the force and Obligation which otherwise they must have had on the Consciences of the Excluders themselves But it is not only the Authority of this single great Divine that I can lay before your thoughts for the rendring the Attempt of the Exclusion contrary to our Oath but I can direct you to the censure of the three Estates of a Loyal Nation and of His late Majâ—…sty in the case For the Oaths in Scotland binding the takers both to the King and his Heirs and Successors as ours do here I can tell you that in the Third Parliament of King Charles the Second Aug. 13. 1681. you will find the Act in these words viz. The Estates of Parliament considering that the Kings of this Realm deriving their Royal Power from God Almighty alone do succeed lineally thereto according to the known degrees of Proximity in Blood which cannot be interrupted suspended or diverted by any Act or Statute whatsoever and that none can attempt to alter or divert the said Succession without involving the Subjects of this Kingdom in Perjury and Rebellion c. I know that during the late turbid interval of the Nation some Loyal men of the Church of England were so much misguided as to think that because de facto Parliaments have heretofore directed and limited the succession of the Crown in other manner then in course it would otherwise have gone as the words in the Printed Exclusion-Bill were they might therefore of right do so again notwithstanding they knew that after the Parliament of King Iames to prevent the Right of Succession from fluctuating any more had justly recognized and declared That the Imperial Crown of this Realm and Rights belonging to the same did by inherent Birth-right and lawful and undoubted Succession descend and come to him as being lineally justly and lawfully next and sole Heir of the Blood Royal of this Realm it did afterward by a New Oath of Obedience or Allegiance oblige mens Consciences both to the Crown and the hereditary lineal Succession and notwithstanding they knew that that Parliament had took care of continuing the Obligation of the Oath of Supremacy for the bearing Faith and true Allegiance to the King his Heirs and lawful Successors and to assist
Consciences and who might thereby think that according to the Rule of ejus est interpretari cujus est condere that the Oath of Supremacy enjoyn'd by Parliament 1 o Elizabethoe could not receive an Interpretation but from the Queen in Parliament and that that Consideration might therefore be supposed to be the cause of the Queens interpreting being approved or declared good by the Parliament in the Fifth year of her Reign B. I shall tell you that as to the sufficiency of the Queen's Power to interpret the Oath by her sole Authority it appears not that the Proviso in the Statute of 5 Eliz. did in the least arise from any such scruple and so De non apparentibus c. And here without troubling you with the Notions of the Royal assent creating the Soul of the Law and by the words of le Roy le veult after the Body of it hath been prepared by the three Estates and that the three Estates have nothing to do to interpret a Law that is once made and accordingly as Sir C. Hatton formerly Lord Chancellor of England in his Treatise of Acts of Parliament and their Exposition tells us That the Assembly of Parliament being ended functi sunt officio and speaking particularly of those of the Lower House saith their Authority is return'd to the Electors so clearly that if they were all together assembled again for interpretation by a voluntary meeting eorum non esset interpretari c. I shall once for all observe to you that our Monarchs when in the exercise of the Prerogative inherent in them and inseparable from them relating to Matters of Peace and War the Coining of Money or the Dispensing in Matters Civil or Ecclesiastical they condescend to have the same in particular â—…ases approved or strengthâ—…n'd by Parliament are no more deprived of their Sole Supremacy therein then the Body of the Sun is devested of its Heat and Light by diffusing the same through the Air. But I have before observ'd to you that the apparent Cause in the Proviso of 5 o Elizabethoe whereby the Queens Interpretation is Enacted is the better to transmit the obligatoriness of the Interpretation in point of Conscience beyond her Life and to the Reigns of her Heirs and Successors and to bind us who live now to acknowledge such Power due to our present King over the Persons of all his Subjects as was in her interpretation challenged to be due to Harry the Eighth and Edward the Sixth I shall not trouble you with my Judgment about Moot-points of Law relating to the Regal Power of interpreting Acts of Parliament and particularly such wherein Oaths are founded My Lord Coke Inst. 3. c. 74. tells us 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 and saith in the Margin So resolv'd An. 26. El. in the Case of the Under-Sheriff And then saith the Oath of the King 's Privy Councel the Iustices the Sheriffs c. was thought fit to be alter'd and enlarged but that was done by Authority of Parliament For further proof whereof see the Statutes here quoted i. e. those referr'd to in his Margin and it shall evidently appear that no old Oath can be alter'd or new Oath rais'd without an Act of Parliament I have only here referr'd you to Matters of Fact in the Reign of Queen Elizabeth a Reign that the Royal Martyr in p. 3. of his Declaration to all his Loving Subjects of Aug. 12. 1642. refers to with so much honour by saying We declared our Resolution c. and desired that whatsoever mistaking had grown in the Government either of Church or State might be removed and all things reduced to the order of the time the memory whereof is justly precious to this Nation of Queen Elizabeth c. and do leave it to you to consider how Great the Power of Interpretation of Laws is in it self a Power almost infinitely greater then the discharging either the Obligations of some Penal Laws or their Penalties Pro hic nu c and as to some particular Persons as any one will grant who hath seen the extent of the Power of interpreting in the Canon Law where the Glossa ad Cap. Statuimus 4. Distinct. 4. gives us this Interpretation of Statuimus STATUIMUS i. e. ABROGAMUS And I can for this purpose tâ—…ll you that Bartolâ—…s in his Tractatus testimoniorum speaking of the Imperial Power concedendi veniam oetatis saith Carolus quarâ—…us sanctissimus nebilissimus Imperator inter 〈◊〉 multâ—… concessit ut ego meique descendentes quos legibús dâ—…los esse contigerit per un versum imperium oetatis venâ—…am concedere valeâ—…mus servataÌ„ formaÌ„ quoe legibus reperitur insâ—…rta and whereby you see that a Power of dispensing with incapaciâ—…y was by the Prince given as an inheritance But none can imagine that the Power of interpreting Laws can be so conferr'd So that therefore according to the Rule of Law Non debet cui plus licet quoÌ„d minus est non licere you neâ—…d not wâ—…nder at the Prince's dispensing with incapacity in particular cases whom you have seen interpreting Laws And you may consider that if the Queen did contrary to the measures of Law referr'd to in my Lord Coke by her sole Supream Ecclesiastical Authority seem to alter the interpretation of a Stature Oath for the better what she did found afterward its approbation in Parliament and in fine I leave it to you to consider how much the Power of dispensing with any Law may be thought Coincident with interpreting since as I shall some other time shew you 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 And now I must take the occasion offer'd me to give you a prospect of the Queens Dispensative Power both of the Interpretation of this Oath and of the acquittal from Disabilities that is not bounded by the Statutes of 5 o or 8 o Elizabethoe beforemention'd and wherein she again stood on the single basis of her own Supreme Authority Ecclesiastical without having recourse then to a Parliaments approbation Mr. Ney in his learned Observations on the Oath of Sâ—…premacy having spoke of the Queens Interpretation of the Oath in her Admonition and of the Parliamentary Proviso 5 o Eliz. doth thus go on There is something of Explication further meaning of the Oath in the Artiâ—…les of Religion concluded in the year 1562 and then recites the 37th Article as followeth viz. The Queens Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of 〈◊〉 Estates of this Realm whether they be Ecclesiastical or Civil in all Causes
Fra. Walsingham And what sense the House of Commons had in the beginning of the Reign of King Iames the First of the Disabling of several of the Nonconformist Divines being a Gravamen to the Realm appears by the Petition of that House to the King Anno 1610. as I find it in Mr. Nye's Beams of former Light p. 103. viz. Whereas divers painful and learned Pastors that have long time travell'd in the work of the Ministry with good Fruit and Blessing of their Labour have been removed from Ecclesiastical livings being their free-hold and from all means of maintenance to the great grief of sundry your Majesty's well-affected Subjects we therefore humbly beseech your Majesty would be graciously pleas'd that such deprived and silenced Ministers living quietly and peaceably may be restored c. But in short if you consider that the great Cause that excited the Loyal Zeal express'd in the Statute of the First of Queen Elizabeth and whereby so many Statutes of Harry the 8th against the Papal â—…pations were revived was that the King and Kingdom might not be disabled by Clergy-mens not being Subjects to the Crown through Papal Exemptions and that the Crown might Cum effectu be restored to its Government over them i. e. of the whole Realm and that our Monarchs should by means of such Exemption be no more disabled from being Governors only IN their Realm and not OF it and as when the Right of two Persons claiming to be Princes of Tuscany was before the Pope's Arbitrage he determin'd that one of them should be A Prince IN Tuscany and the other Oâ—… it you will find that this Supreme Power over all Persons as inherent in the King is the very Lapis Angularis on which your Abjuration of foreign Iurisdiction and on which the whole Promissory part of your Oath are built For when you have first declared in your Oath that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal and then what followeth upon that viz. That no foreign Prince Person Prelate State or Potentate hath or ought to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm you say And THEREFORE I do â—…tterly renounce and forsake aâ—…l foreign Iurisdictions c. And do promise that from henceforth I shall bear Faith and true Allegiance to the King's Highness c. and to my Power shall assist and defend all Iurisdictions c. granted or belonging to the King's Highness c. or united and annex'd to the Imperial Crown of this Realm Thus then the Reason why you abjure foreign Jurisdiction for you ABIURE when you swear to quit and forsake as Mr. Nye in his Observations on that Oath tells us and why you promise to assist and defend all Iurisdictions granted or belonging to the King whose Subject you are is resolved into the Kings being the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal I am here further to tell you that when by your Oath you have renounced the Pope's Dispensative Power you have asserted and have obliged your self to defend the Jurisdiction of the King 's Dispensative Power in the room of it and the defence of which was the great design and drift of the entire Statute of 1 o. Eliz. and of your Oath therein and no collateral thing A. I have been and am pleas'd with that Prospect you have given me into the Region of the Dispensative Power used by the Crown in the Interpretation of my Oath a Region that was before to me like the terra Australis Borealis incognita but to deal frankly with you I am yet to seek out the meaning of this notion last â—…rted by you that the drift and design of the Statute of 1 o. Elizabethae and the Oath was to prop up the King 's Dispensative Power I doubt not but you are perfectly sensible that he who speaks to that tender thing call'd Conscience and about an Oath ought to be tender of any point he urgeth to it and not to wyre-draw any thing by forced Consequences that is to be offered to it as Obligatory B. I assure you I go by those very measures in giving you my Judgment of the design and drift of that Statute as I have done and that he must put the Statute on the wrack that will make it speak any other meaning Consider what the Prefatory part as the key of it mentions viz. That divers good Laws and Statutes that were made in Henry the Eighth's time as well for the utter extinguishment and putting away of all Usurped and Foreign Power c. as also for the restoring and uniting to the Imperial Crown of this Realm the ancient Iurisdictions c. to the same of Right belonging by reason whereof we your most humble and obedient Subjects from the 25th year of the Reign of your said dear Father were continually kept in good order and were disburden'd of divers great and intolerable Charges and Exactions before that time unlawfully taken and exacted by such Foreign Power and Authority as before that was usurped until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second years of the Reigns of the late King Philip and Queen Mary c. were repeai'â—… by reason whereof they then further mention how they were then brought under an Usurped Foreign Authority to their intolerable Charges and they thereupon desire the Repealing of that Act. Here we are given to see by their dating the aera of their being well govern'd and disburthen'd of divers great intolerable Charges and Exactions taken and exacted by Foreign Power from the 25th of Henry the 8th and had their eye on the Statute of the 25th of Henry the 8th c. 21. entituled No Imposition shall be paid to the Bishop of Rome which sets forth how the Subjects of this Realm were impoverish'd by intolerable Exactions of great Sums of Money taken out of this Realm by the Bishop of Rome as well in Pensions Censes Suits for Provisions and Expeditions of Bulls c. and also for Dispensations Licences Faculties Grants Relaxations Writs call'd Perinde valere Rehabilitations Abolitions and other infinite sorts of Bulls Breves and Instruments of sundry Natures c. wherein the Bishop of Rome hath been not only to be blamed for his Usurpation in the Premisses but also for his abusing and beguiling your Subjects pretending and persuading them that he hath Power to Dispense with all Humane Laws Uses and Customs of all Realms in all Causes which be call'd Spiritual which matter hath been usurped and practised by him and his Predecessors by many years in great deâ—…gation of your Imperial Crown and Authority Royal contrary to Right and Conscience For where this your Graces Realm recognizing no Superior under God but only your Grace hath been and
clear'd of those doubtful Expressions in them which cause their scruples c. whereby they may to the entire Satisfaction of His Majesty and the Nation fully testifie the Allegiance and Fidelity of faithful Subjects and true Patriots and no longer remain as they generally now do distrusted c. But there was another Book that year Publish'd by a Roman Catholick of which the title was A seasonable Discourse shewing how that the Oaths of Allegiance and Supremacy as our Laws interpret them contain nothing which any good Christian ought to boggle at and where the Saying of Tertullian is quoted Bonae res neminem scandalizant niâ—… malam mentem c. and where having taken notice of the Queen's Admonition and the Proviso of the Statute of 5 o Eliz. and the 37th Article and the Iudgments of the Bishops Bramhal and Carleton as Sir Iohn Winter had done and for the same purpose giveth his Judgment that the taking of those Oaths gives no Scandal and he in p. 38. averrs that Sir John Winter told him many years ago that he had the Iudgment of Sorbouists Secular Priests and Iesuites that he might take the Oath of Supremacy declaring the sense which the Law allows And I shall here by the way take notice that as to the Oath of Allegiance F. Cressy saith in his Epistle Apologetical p. 111. that few Roman Catholicks if any at all would refuse that Oath if that unlucky word heretical were blotted out c. or if they might change heretical into contrary to the Word of God which he saith he verily believes was the sense intended by King James But now after all this said I shall tell you that according to what is observ'd by the generality of Writers oâ—… Princes easing their Subjects by their Dispensative Power of interpreting their Laws viz. That they take occasion then to intermix with such interpretation somewhat else that may advance their Power there were Fears and Iealousies that some of these foremention'd interpretations tho lessening the spiritual Power of the Crown might enlarge its temporal and particularly such as in the Queen's Admonition mention'd the Duty Allegiance and Bond acknowledg'd to be due to Harry the Eighth and Edward the Sixth and as I partly before hinted such as in the Proviso in the Act of the 5th of the Queen that ratifying the Admonition hath in it the additional words of acknowledging in her Majesty her Heirs and Successors the Authority that was challenged and lately used by Harry the Eighth and Edward the Sixth and such as in the 37th Article explain'd the Queen's Power by that given by God himself to all GODLY Princes in Scripture and where notwithstanding the Word Godly being put in there to gild the Pill of the Absolute Power of the Iewish Kings and to make it be the more easily swallow'd the real meaning was the Power given to all the Iewish Kings for the right of their Power depended not on their Godliness and such as in the Canons of King Iames ipso facto Excommunicate all that do not give the King the same Authority in Causes Ecclesiastical not only that the Godly Kings had among the Iews but what the Christian Emperors had in the Primitive Church And there too notwithstanding the word Christian might be for the like reason put in as that of Godly was and to cause the owning of that absolute Imperial Power which pursuant to the Lex Regia was used by the Christian Emperors as well as their Heathen Predecessors in punishing Heterodoxy ad libitum the meaning of the Canon was not to devest Heathen Emperors of their right of judging about Matters of Religion and as to which Grotius in his Letter to the States Embassador having said neither would Paul have appeal'd to Nero had he judged that no right of Iudging in a Case of Religion belong'd to him addeth Wherefore as Trajan Civilly honest Nero wicked are equal in the Right of Government so Pious Constantine and Impious Nero are equal in the right of judging in aptitude and skill unequal The Canons therefore of Forty enjoyning the Explanation or Interpretation of the Regal Power there inserted to be one Sunday in every Quarter of the Year read by the Clergy to their Flocks did well provide for the cautioning them as against the setting up any independent Coactive Power either Papal or Popular so against Fears and Iealousies relating to their Properties in their Goods and Estates and by that Explanation they shew that Christ came not to Undermine or Disturb but to Confirm the Civil Government of Pagan Princes and that in the first times of Christ's Church Christians were ready to submit their very Lives to the very Laws and Commands of those Princes A. But doth that Explanation of the Regal Power assert any thing in Defence of the Dispensative part of it B. You see how without wyre-drawing any Consequences the very first Paragraph of the Explanation doth both strengthen the foundation of the assertory part of your Oath we have been so long discussing and strike out new lights in the Fabrick of the Oath You see it tells you downright that A Supreme Power is given to the Order of Kings by God himself in the Scriptures which is that Kings should rule and Command in their several Dominions all Persons of what rank or estate soever c. And the Explanation doth effectually enough provide by the second Paragraph that Kings should take care that none in their Dominions but the stubborn and evil doers may be restrain'd with the Temporal Sword for it saith The Care of God's Church is so committed to Kings in the Scripture that they are commended when the Church keeps the right way and taxed when it runs amiss and therefore her Government belongs in chief to Kings For otherwise one man would be Commended for another's Care and taxed but for another's Negligence which is not God's way And this is an Argument taken ab absurdo and the strongest that can be used in Law and not to be set aside but by the alledging something as more absurd against it and amounts to this that it is absurd that Kings who are commended when those who are not stubborn nor evil doers are not under any restraint by the Temporal Sword for the Church runs not the right way when that Sword is a terror to any but evil doers and tax'd on the contrary being done should not be judged to be authorized to exempt those from all restraint thereby And when the People are not liable to blame for Kings erring in their Judgment about the Persons to be so exempted from restraint nor to be commended or rewarded for their not erring therein can any thing be more absurd then for the independent Coactive Power of Kings it self to be restrain'd to the Punishing such as they shall judge Innocent But the two tenderest things in the World are Sovereign Power and Conscience and both of them were made with a
Godly Iealousie and tenderness to support one another and that Tender-Conscienced Prince who confirm'd this Canon did in it variously dispensare in lege as I may properly say with Allusion to Suarez de Legibus where in stead of using the Common Expression of dispensing WITH Laws he so frequently mentions that of dispensing IN them and thereby doth seem to take off somewhat of the harshness of Questions about Popes or Princes dispensing WITH Laws For when Sovereigns do dispensare in lege they really distribute their Sovereign Power throughout the Body of their respective Laws for their Preservation and as the heart doth dispense or distribute Blood in and throughout the Body-natural and the Brain Animal Spirits throughout the genus nervosum all the Body over And here the King having a tender regard to the firm and infirm Consciences of his People respectively and to their various Capacities of understanding and he being as Zealous for all their keeping their Oaths of Supremacy and Allegiance as any Prince could be for their taking them doth in the beginning of the Canon let such as you know who have been brought up to Study and who have a tenacious Memory and could remember more interpretations of the Oath then I have recounted to you if they had been given by our Princes that whereas sundry Laws Ordinances and Constitutions have been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King 's most Excellent Majesty over the State Ecclesiastical and Civil c he doth enjoyn them all to be carefully observ'd by all such Persons whom they concern upon the Penalties in the said Laws express Here then the Acts of Parliament before-mention'd and the Oaths and Articles and Canons and Authentick interpretations appear to look you in the face and the Articles particularly do so to the Clergy as having subscribed them But that Pious Prince as their Sovereign Pastor being desirous that his Clergy should gently allure the Layety with Line upon Line and Precept upon Precept to keep their Faith to God and Loyalty to himself rather then by Interpretation upon Interpretation of their Oaths would not in this Canon have them frighted with the sight of the Oaths themselves and which are there not named and all Archbishops Bishops and inferior Priests are moreover by the Canon required to Preach Teach and Exhort their people to obey honour and serve their King and that they presume not to speak of his Majesty's Power any other way then in this Canon is exoress'd but which Canon gives them a very fair licence to speak to their People of and for the King's Power of disabling and of rehabilitating his Subjects For it disables the publick Abâ—…ttors of any Position contrary to the Explications of the Regal Power therein by Excommunicating them till they repent and for the first Offence suspends them two years from the Profits of their Benefices and for the second deprives them of all their spiritual Promotions and it was in the Canon before said That if any Parson Uicar Curate or Preacher shall neglect his Duty in Publishing the said Explications c. he shall be suspended by his Ordinary till such time as upon his Penitence he shall give sufficient assurance or Evidence of his amendment and in case he be of any EXEMPT Iurisdiction he shall be censureable by His Majesty's Commissioners for Causes Ecclesiastical And the Canon makes any Offenders against it in the Universities as being exempt Jurisdictions there censureable or before His Majesty's Commissioners for Ecclesiastical Causes and so you have the Canon likewise by securing the Rights of exempt Jurisdictions asserting the Dispensative Power But if you will take Mr. Bagshaw's word in his first Argument in Parliament concerning the Canons he there tells you that that very Canon of the Convocation containing the Explanation of the Regal Power did necessarily imply their declared sense of the Laws being dispens'd with For saith he in making Determinations concerning Royal Power they have done against Law and have medled with things of which they have no Conusance for the Exposition of them belongs to the Iudges of the Land and they have no more right to expound them then the Iudges have to expound Texts of Scripture And we know that our Laws have been so careful of preserving the Judges right of interpreting them that they allow not the Bishops and their Officials Power to interpret any Acts of Parliament tho made about Matters of their Jurisdiction and Matters merely Spiritual as appears out of Hobart 84. Spenloe's Case and Coke 3. Inst. where he saith that an Act of Parliament made about things merely Spiritual shall be construed by the Common Law 〈◊〉 Judges But how far the disabling by the Power of His Majesty's Commissioners for Ecclesiastical Causes such who explain'd not the Regal Power according to that Canon might appear as an Instance of the Prerogative of Disabling and of occasional re-ennabling Mr. Bagshaw's second Argument in effect exposeth it to Consideration by mentioning that the last Letters Patents of the High Commission were Mich. 9. Car. in which are contain'd all things wherein the Commissioners were to meddle and that therefore the Punishing of any there on the account of this new Canon made not a year ago could not be pursuant to those Letters Patents His first Argument likewise wherein he gives his Iudgment that by Law that Convocation was dissolv'd by the Dissolution of the Parliament may let us see how far they in making any Canon depended on the Dispensative Power of Prerogative But any one who hates Faction will find that that Author did needlesly inflame the minds of that Parliament of Forty against those Canons and particularly with the foremention'd Exception against the first on the Account of the Explanation of the Regal Power having not been made by the Iudges and where the Exception doth through the sides of the Convocation strike at the honour of that King by whom those Canons were Confirm'd His Majesty in his memorable Speech at the Prorogation of the Parliament on the 20th of October 1628. occasionally said I Command and all you that are here to take notice of what I granted you in your Petition i. e. the Petition of Right but especially you my Lords the Iudges for to you only under me belongs the interpretation of the Laws for none of the Houses of Parliament joynt or separate have any Power either to make or declare a Law without my Consent Nor will any one wonder at the tenderness of any Crown'd heads in preserving their Right as to the interpretation of their Laws who hath consider'd that the usage of the ancient Romans in making their Civil Law to be among the things Sacred and Ceremonies of their Gods preserv'd in the Collegium Pontificum and appropriating the interpretation of it to their Pontifices did induce Augustus to be inaugurated Pontifex Maximus and
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
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
Numb 35. 33. A. But by the way do you think then that Sovereign Princes offend the Law of God in Pardoning Murther B. I do observe that many presume to censure Kings for so doing and are superstitiously misguided by thinking that those two places of Scripture referr'd to by my Lord Coke do necessarily make it a sin in Princes to Pardon Murther But I shall when we meet again shew you the mistake of such therein and shall shew you that David at that time when the Law of God and the lex terrae was the same thing and who had Sworn and would perform it that he would keep God's righteous Iudgments was not to be censured to have sinned either in the reprieve of Ioab who had murthered Amasa and Abner and in delaying the Execution of the Law and leaving it to Solomon his Son or in the Pardon of Absolon who had slain his Brother Ammon and that when the Law faith in Numb 35. The Murtherer shall surely be put to death our best Commentators and out of the Rabbins say that this is spoken to the Iudges before whom such Causes regularly came and under the Supreme Power and by authority thereof judged those Causes and that tho the Iudges who were subordinate to the Supreme Power were to take no Satisfaction for the life of a Murtherer but were by that Law to Condemn him yet that it followeth not that the Supreme Power who made them Iudges might not in some Cases Reprieve and Pardon some whom they had Condemned A. I shall be glad to hear you discourse of this and the rather for that 't is so Customary to many when they find the Prince exercising this Prerogative of Pardoning to be apt too much to busy their heads with those two places in the Old Testament to their neglect of others there viz. Exod. 22. 28. Prov. 24. 21. Eccles. 10. 20. and of Acts 23. 5. in the New and likewise there of Rom. 13. 2. 5. 1. St. Peter 2. 17. and from whence they might Collect their moral offices of not doing or speaking or thinking dishonourably of the Lord 's annointed and of paying honour and obedience to his Sovereign Power and that for Conscience sake But in the mean time give me leave à propos to ask you if ever you heard of any one of the Iudges of the Realm in the Reign of our former Princes that gave his judgment for the allowance of the King's Pardon of disability Shew me but that and I shall not be affrighted with my Lord Ch. Justice Vaughan's Simoniacal Dead man. B. I shall tell you of a Case that was well enough known to him and which you may find in Croke 3d p. 55. Sir Iohn Bennet v. Dr. Easedale where you may see that Sir Iohn Bennet being fined 20000 l. for Bribery by the Star-Chamber and Censured to be Imprison'd and made uncapable of any Office of Iudicature and that he having a Pardon from the King reciting the Bribery and Offences mention'd in the Decree and all Penalties and Punishments by reason thereof and all Disabilities and Incapacities and all things concerning the said Sentence except the Fine of 20000 l. and the Court of Star-Chamber having the advice of all the Iudges relating to the Decree and Pardon it was resolv'd by them all that this Pardon hath taken away all force of the Sentence in the Star-Chamber except for the Fine of 20000 l. and all Disabilities are discharged thereby That Lord Chief Iustice knew that as it was set down in that Chapter of Pardons Inst. 3. the King's Pardon extends to all Suits in the Star-Chamber and he knew of what was mention'd Inst. 4. Chap. 1. Of the High Court of Parliament viz. Of a Pardon to the Lord Latimer of a Iudgment in Parliament and he knew that by his own and other Iustices of Assize going into their own Countrys in the Execution of their Offices by vertue of the King 's Non-obstante to the Statutes of 8. R. 2. c. 2. 3. H. 8. c. 24. himself and as many as went Iudges of Assize so into their own Countrys gave Judgment by so doing for the Prerogative of dispensing with such Acts of Parliament and he likewise knew that as it is well express'd in Theâ—… Answer of King Charles the First to the Declaration of both Houses of Parliament concerning the Commission of array A. 1642. An Act of Parliament in any Matter tho mistaken being assented to by the King and his two Houses is equally binding as having equal Authority with an Act introductive of a new Law and that therefore Acts of Parliament having so particularly declared the justness of the Prerogative's dispensing with disability no magna nomina of any particular Sages of the Law in otherwise opining can expect any deference And if you will consider what my Lord Coke in that Chapter of Pardons hath mention'd of the operation of Prerogative over the dead in Law and consider the President he refers to viz. Pasch. 22. E. 3. tit Cor. 239. Coram Rege Quidam indictatus de Felonia inde Culp dicit quod Rex eum Conduxit inde producit Chartam quod Rex eum Conduxit in Vasc. in exercitu dicta Charta allocata fuit per Curiam and there see his opinion grounded on it that if a man be Indicted of Felony and found Guilty and being in Prison the King may under the Great Seal reciting the Offence c. retain him to serve in his Wars on this side or beyond the Seas this Charter he may Plead and the Court ought to allow it I believe you will be of Opinion that any one who will desire any more Presidents for the Commanding the services of dead men ought to be sent for one to the REHEARSAL viz. that of Arise you dead Men and get ye about your business A. Well Sir As for this objected Dead-man requiescat in Pace I have done with him and since from some things you have said I gather that the dispensing with disability by Roman Emperors and Popes of Rome did never by any ferment disturb their Governments and moreover since no men of sense here have ever troubled themselves or the Government with any vexatious Question about the King's Power in discharging a man from a Praemunire but not from a Penal disability incurr'd whereas by a Praemunire as my Lord Coke shews us Inst. 3. c. 54. men are put out of the Protection of the King and DISABLED to have any Action or Remedy by the King's Law or the Kings Writs and exposed to many other dreadful Punishments I do now begin to wonder whence it is that the mistake in some mens Minds hath come about a Penal disability being so unremoveable And thus I think too one might wonder how such as will allow the King's Pardon to discharge one from an Excommunicatio minor or major do look on disability as such an anathematizing thing as is not to be touch'd or that cannot be
Interpretation as good as Queen Elizabeth's so you may account that in the Canons of King Charles the First as good as that in those of King Iames for that tho it is said by some that the Canons of King Charles the First were damned by the Act of 13 o Car. 2. c. 12. yet the truth is that that Act leaves them in statu quo and the last Proviso in it doth only express those Canons not being confirm'd by it Nor in my judgment did they need any Confirmation from it for that according to my Lord Chief Justice Vaughan's Opinion that I have cited to you a lawful Canon is the Law of the Kingdom as well as an Act of Parliament and the Consideration of this may shew you that as Queen Elizabeth's Interpretation in The Admonition was perpetuated by the Ensuing Parliamentary Approbation thereof so the interpretations of those Princes in those their Canons confirm'd for them their Heirs and Successors are now binding to you and I pray God to incline you to keep this your Solemn Oath according to these interpretations of it A. I thank you for this your serious and Christian wish and do give you my hearty thanks for what you have discours'd to me of the many Interpretations relating to the Oath and the rendring them so consistent with it and by means whereof I am sensible that the Oath hath become more then res unius oetatis and that without them it would not have been so much and by which both the credit of the Oath and the quiet of the Consciences of the Takers of it have been preserv'd And I am glad that the task of enumerating them all hath happen'd thus to fall into your hands and that therein you have not as they say of young Conjurers raising Spirits that they cannot lay occasion'd any doubts in me about the Oath but what you have fairly â—… and fully satisfy'd And indeed you have laid some doubts that the Two Roman-Catholick Writers raising them happen'd not to lay Throwing therefore by any Thoughts and Expressions of mine of that nature which you censured as airy and as to which I submit to your reproof I shall prepare my mind with a decent temper both of delight and Pious dread to contemplate my Oath as now set before me and as containing in it that clearness and that Majesty that may excite both those Passions in me and the real view of which I may some way compare to that in vision Ezekiel's terrible crystal B. Long may you live in this temper I remember I have somewhere read it that the Oath by which the Cardinals are bound to the maintenance of the Church-Privileges is drawn in such clear and powerful words that Baronius calls it terribile Iuramentum and saith that the only remembring of it inflicts a horror upon his Mind and a trembling upon 〈◊〉 Body And I doubt not but when I shall at our next meeting discourse with you about our obligation from the Promissory part of the Oath that relates to the assistance and defence of the Regal Rights and Privileges you will think that every Taker of it ought to have some such sense of his remembring it as Baronius had about his terrible Oath A. But to go on according to the freedom you gave me I remember you told me that you would not trouble me with any Notions or Moot Points about the Power of Interpreting Acts of Parliament and about which you cited Sir Christopher Hatton's Book Of Acts of Parliament and their Exposition but I remember you have Sparsim variously spoke of it and you mention'd to me what King Charles the First told both Houses shortly after the granting the Petition of Right that to the Iudges only under him the Interpretation of the Laws belong'd and that none of the Houses of Parliament joint or separate either could make or declare a Law without his Consent I suppose you intend here to lodge no Snake in the grass of this Regal Power of interpretation whereby we may be interpreted out of our Magna Charta and the Petition of Right and out of our Religion or Property B. Your Supposal doth but right to my intentions I have referr'd you only to Facts and leave you to make a due use of them and shall when we meet again shew you further why I have thus referr'd you to these Facts of the Regal interpretation And in the mean time you may take notice that as to what I have mentioned as a Notion out of the Lord Chancellor Hatton of which the intent and substance was That if all the Parliament were voluntarily assembled again and not by Writ Eorum non esset interpretari dubium Statutum as the words are in the Table of his Book Chap. 4 and with which the Chapter agrees I told you I would not trouble you with it and you may give it its transeat as a kind of curious impossible Case Nor need you amuse your self about any Consequences by me meant in what I told you of King Charles the First telling the three Estates as they were feasting themselves with the noble Concessions of the Petition of Right I know nothing asserted by my Lord Coke in Inst. 4 Chap. 1. Of the High and Honourable Court of Parliament but wherein I own my agreeing with him and particularly as to what he speaks of Iudicature And I doubt not but every one accounts that what he said Inst. 3. c. 73. was very Orthodox viz. NOTE Proclamations are of great force which are grounded upon the Laws of the Realm Nor considering the exuberance of that great thing call'd bona fides that is to be expected from Princes need any man fear that there will be an Exposition of abrogamus for statuimus in any of the Declaratory Proclamations that ours shall make But because you have named Magna Charta and the Petition of Right I shall take occasion to cite to you a very popular Authority to shew you that any Proclamations our English Monarchs shall make for the Dispensing with Penal Religionary Laws will be but Declaratory of Magna Charta and of the Petition of Right You know we have often spoke of the Arguments in the Parliament of 40. made by Mr. Bagshaw who was Pars magna of the Faction then regnant and by which those Arguments of his were much celebrated You may find some account of his Character in Heylin's History of Archbishop Laud who mentions his being chosen Reader for the Lent Vacation by the Middle-Temple in the year 1639. And he in his First Argument viz. Concerning the Canons p. 11. saith Liberty of Religion and Conscience are as I take it within the words of MAGNA CHARTA granted to me as mine Inheritance Cap. 29. Nullus liber homo imprisonetur â—…ut disseisetur de libertatibus vel liberis Consuetudinibus suis. And Liberty of Conscience is the gâ—…test Liberty It is by a necessary Consequence and deduction within the words imprisonetur
For put the Case that the Clergy make Canons to which I never assented and I break these Canons whereupon I am Excommunicated and upon a Significavit by the Bishop my Body is taken and imprison'd by a Writ de excommunicato Capiendo now shall I lie in Prison all the days of my life and shall never be deliver'd by a Cautione admittenda unless I will come in and parere mandatis Ecclesiae which are point blank against my Conscience And he had before said A Comparatis by an Argument à minori ad majus if Property of Goods cannot be taken from me without my assent in Parliament which is the fundamental Law of the Land and so declared in the Petition of Right why then Property and Liberty of Conscience which is much greater as much as bona animi are above bona fortunae cannot be taken from me without my assent This it seems pass'd as Currant Coin for Iudgment of Parliament in behalf of Liberty of Conscience in the Conjuncture of 41 the year in which his Book was Printed and if it were so then allowable you may well think that a Prince's owning the Religion that flourish'd here in the time of Magna charta and which inspired the Virtue that produced Magna Charta and indulging some others of the same Religion to profess it without Punishment is not likely to occasion any durable ferment And what I have here referr'd to concerning the Petition of Right minds me of the great effort of Pious zeal in our famous Bishop Hall and his laudably making use of the Popularity he had among the Protestants in sending a Letter to the House of Commons April the 28th 1628. during the great ferment about that Petition and in which he gives so much fatherly and Prudent advice to the great Agonists for Property that they should consider when they were at the end of their race and then to sit down and rest He hath in it these tender Expressions Gentlemen For God's sake be wise in your well-meant zeal and our Liberties and Proprieties are sufficiently declared to be sure and legal c. let us not in suspicion of Evils that may be cast our selves into present confusion If you love your selves and your Country remit something of your own terms And since the Substance is yielded by your noble Patriots stand not too rigorously upon Points of Circumstance Pear not to trust a good King who after the strict Laws made must be trusted with the Execution c. relent or farewel welfare You may hence easily imagine how passionately that good Bishop would have been concerned if he had then seen among the Patriots any unquenchable heats about the not trusting the King with the Executive Power of Penal Laws and Laws in terrorem and such Laws as Mr. Glanvil in the ' Month after the Date of the Bishop's Letter said in a full Committee of both Houses That the Commons must and ever will acknowledge that it is in His Majesty's ABSOLUTE and undoubted Power to grant Dispensations in as I told you In God's Name often think of that great Patriotly saying of Tully so often with just Applause cited by Sir E. Coke Major haereditas venit unicuique nostrum à jure legibus quam à parentibus and you may account him a Prophane Person who despiseth his Birth-right given him by the Law. And pity any one who speaking of his Property doth not know this to be the meaning of it namely that it is the highest Right he hath or can have to any thing and which is no way depending upon another man's Courtâ—…e And consider that as you have a Property in your Chattels and Hereditaments so you have in your Religion Think often with honour of our Ancestors who by so many Acts of Parliament and lawful Canons and Constitutions since the Refoâ—…mation provided for the securing your Property in your Religion and remember how binding the very declarative Laws about it are Cast your Eye with Pleasure about the Realm and see if you can find any one who fears that any one will ever move in Parliament for leave to bring in any Bill to take away the least part of your Property in your Religion But then consider how Savage a thing it is in any to take excessive delight in the Execution of Penal Laws Ferus est qui fruitur paenâ and remember too that your Prince hath a Property in the Executive part of the Law and in distributive Justice and in shewing Mercy And when you hear any one telling you of a Snake in the grass of the Prince's dispensing with Penal Laws and that therefore there may be danger of your Prince's dispensing in Laws that are leneficial you may tell him of the notorious Non-sequitur and that you have a Property in not being punish'd and in having the benefit of the Rule as to favourable Statutes being made more so by interpretation Favores sunt â—…mpliandi and on the contrary as to Penal ones that odiosa restringi convenit And so to any such impertinent Objecter you may say that the voice or sound of his Snake and the Goose are all one But consider that since you have so much cause to depend on the glorious and consummate justice inherent in the nature of our great Monarch for his defending you in the security of all the Declaratory Acts of Parliament that maintain your very Property in your Religion both Iustice and Common Ingenuity call upon you to own his Power of Dispensing and even with disability for which I have shewn you so many clear and incontestable declarative Iudgments of Parliament and shall direct you to more when we meet again And let me tell you that you ought to have the greater tenderness for this Prerogative of our Prince for that in his Administration of it he hath in some Points shewn a greater tenderness to his Laws and People then our Princes since the Reformation have done You may remember I shew'd you how Queen Elizabeth and King Iames did by their Authority out of Parliament MAKE things Penal by Disability that were not so by any Law in being and therefore you may the less wonder when you see your Prince dispensing with it and thereby preventing the Punishment of it and sometimes and in some Cases pardoning it A. I shall carefully take notice of all these Matters wherein you have caution'd me but am here occasionally on the account of some things you said about the Interpretation and the Acquittal from Penalties in the Queen's Admonition being perpetuated by their being declared good in Parliament to ask you if you do not account that Dispensations or such Interpretations of the Prince by his own single Authority may be made to continue good in following Reigns B. I do not in the least doubt but they may and I shall hereafter evince the thing to you but shall at present out of a Manuscript Report I have of the great Case of