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
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
Bishop hath or ought to have any Iurisdiction in the forum internum wanted no relief in their Case from the Dispensative Power of interpretation Nor did those of the Church of England who convers'd with the Statute-Book want the Crown 's interpretation of this Clause in the Oath for the scope of the Statute of the 35th of H. the 8th that enjoyn'd the old Oath of Supremacy and from whence this Clause in the New one had its rise was not to break the Measures of St. Cyprian about the Unity of Episcopal Power but in effect to repress the Usurp'd independent Coactive Power of the Bishop of Rome and which several of the following words in that Oath sufficiently evince and which did bind the Swearer to defend and maintain all other Acts and Statutes made or to be made within this Realm for the Extirpation and Extinguishment of the ururped and pretended Authority Power and Iurisdiction of the See and Bishop of Rome c. And Queen Elizabeth finding the Oath thus at her coming to the Throne she like a wise Reformer would not make any breach in the World wider then necessity required and probably supposing that mens Allegiance having been used to the yoke of several words in that Oath that related to the renouncing and farsaking of foreign Iurisdiction would draw more quietly in the same and that according to the Rule of quod necessario subintelligitur non deest there being no solutio continui imagin'd by any to be design'd in the Unity of the Episcopal Power when the Clause of utterly testifying and declaring that neither the See nor Bishop of Rome hath nor ought to have any Iurisdiction Power or Authority within this Realm c. was inserted in the old Oath it ought to be judged that nothing derogatory to the order of Bishops could be intended in the Clause of the new Oath by her introduced And according to the Rule of Analogum perse positum c. Jurisdiction being to be taken for Coactive Jurisdiction the Clause relating to any foreign Prelates having here no Iurisdiction hath been still meant of none Coactive Mr. Rogers therefore writing on the 39 Articles hath thus fairly commented on that Clause in the 37th The Pope hath no Iurisdiction c. His Iurisdiction hath been and is justly renounced and banish'd out of England by many Kings and Parliaments as by King Edward 1st 3d and 6th by King Richard the 2d Harry the 4th 6th 8th and by Queen Elizabeth and by our most noble King James But that the Church of England intended no War against the Unity of Episcopacy by the Canons of 1640. which yet have the words of Popery's being a gross kind of Superstition and of the Mass being Idolatry and do ininflict a temporary disability namely that of Excommunication on Popish Recusants may appear by the tenderness there used to the Church of Rome in sparing to impute the Superstition of Popery to that whole Church by name And the 6th Canon having mention'd the Convocation's being desirous to declare their sincerity and constancy in the profession of the Doctrine and Discipline Establish'd in the Church of England i. e. the Doctrine of the 39 Articles and to secure all men against any suspicion of revolt to Popery or any other Superstition and enjoyn'd a new Oath against all innovation of Doctrine or Discipline to be taken by the Clergy the assertory part whereof hath in it an Approbation of the Doctrine and Discipline or Government established in the Church of England as containing all things necessary for Salvation and the Promissory part a Promise not to endeavour to bring in any Popish Doctrine contrary to that which is so establish'd c. and not to give consent ever to subject it to the Usurpations and Superstitions of the See of Rome Mr. Bagshaw in his Argument in Parliament concerning those Canons took occasion to criticise on the not subjecting out Church to the Usurpation and Superstitions of the See of Rome and to call it a Negative Pregnant that is to say as his words are you may not subject the Church of England to the See of Rome but to the Church of Rome you may Now there is as much difference between the See of Rome and the Church of Rome as betwixt Treason and Trespass and this appears plainly by the Statute of 23. Eliz. c. 1. where it is said that to be reconciled to the See of Rome is Treason but to be reconciled to the Church of Rome is not Treason for then every Papist would be a Traytor being a Member of the Church and therefore reconciled to it Now the See of Rome is nothing else but the Papacy or Supremacy of the Pope whereby by virtue of the Canon unam Sanctam made by Pope Boniface the 8th he challengeth a Superiority of Iurisdiction and Correction over all Kings and Princes upon Earth and those Persons which take the juramentum fidei contain'd in the end of the Council of Trent which acknowledgeth this Supremacy are said to be reconciled to this See. The Church of Rome is nothing else but a number of Men within the Pope's Dominions and elsewhere professing the Religion of Poperty and that the Clergy had an ill meaning in leaving this Clause in the Oath thus loose I have some reason to imagine when I find it in their late Books that they say the Church of Rome is a true Church and Salvation is to be had in it And if it were tanti after having said so much to say yet any thing more to prop up the safety of your taking the Oath of Supremacy with the Clause whose sense hath been propp'd up by so many Acts of the Dispensative Power of interpreting I could tell you that in Sir Iohn Winter's Observations on the Oath of Supremacy Printed A. 1679. he having there consider'd Queen Elizabeths interpretation in the Admonition and the Confirmation of that Admonition by her Majesty in Parliament by the Proviso in the Statute of 5 o Eliz. c. 1. and the whole drift of the Statute 1 o Eliz. by which the Oath was enacted and what Bishop Carleton and the Primate Bramhal writ of the ancient Jurisdiction restored to the Crown by that Statute and that on the whole Matter the design of the Oath was not to invest her with the exercise of the spiritual Jurisdiction left by Christ to his Apostles and their Successors but to leave that entire to them saith at the end of his Book that it is not the true meaning of the Oath explain'd in manner as abovesaid which makes many of the Roman-Catholicks refuse to take it c. and then makes the Explanations not being known to all and their intricacy and the constant tendring of the Oath for so many years without the aforesaid Explanation likely to give just Cause of Scandal and thereupon he wishes that that Oath and the other of Allegiance which are required of them under so great Penalties may be
THE OBLIGATION Resulting from the OATH of SUPREMACY To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power BELONGING To the KING his Heirs and Successors In the asserting of that Power various Historical Passages occurring in the Usurpation after the Year 1641. are occasionally mentioned And an Account is given at large of the Progress of the Power of Dispensing as to Acts of Parliament about Religion since the Reformation and of divers Judgments of Parliaments declaring their Approbation of the Exercise of such Power and particularly in what concerns the Punishment of Disability or Incapacity Princes are Supreme over Persons not over Things This is the Supreme Power of Princes which we teach that they be Gods Ministers in their own Dominions bearing the Sword and freely to permit and publickly to Defend that which God commandeth in Faith and good Manners c. Princes may Command the Bodies of all their Subjects in time both of War and Peace c. Out of all Question where Princes may by God's Law Command all Men must obey them c. The Prince may discharge the Servant but no Man can discharge the Subject The Word of God teacheth you to obey Princes the words of men cannot loose you BISHOP BILSON of the SUPREMACY LONDON Printed for Thomas Dring at the Harrow at Chancery-Lane End in Fleetstreet William Crook at the Green Dragon without Temple-Bar and William Rogers at the Sun over against St. Dunstan's Church in Fleet-street 1687. To the Right Honorable JOHN Earl of MELFORT Viscount of Forth Lord Drummond of Rickartone c. His Majesty's Principal Secretary of State for the Kingdom of Scotland and one of His Majesty's most Honorable Privy Council in both Kingdoms of England and Scotland c. MY LORD AS the Historian hath told us of Ireland that long ago while the Arts and Sciences were generally banish'd from the Christian World they were enthroned in Ireland and that Men were sent thither from other Parts of Christendom to be improved in Learning so I have elsewhere observ'd that in some late Conjunctures and particularly during the turbid Interval of the Exclusion men might well be sent to Scotland to learn Loyalty And I having taken occasion in the first Part of this Discourse to shew my self a just honourer of that Country and as I may say somewhat like a Benefactor to it by sending thither the notices of some pass'd great Transactions that might possibly there give more light and life to the Moral Offices of Natural Allegiance or Obedience did hold my self obliged in Common Justice to address this Part of my Work to your Lordship For as your Station here qualifies you beyond other Subjects to receive what Tribute is offer'd to your Country so your handing it thither will necessarily make it there the more acceptable And when I consider with what an incomparable Tenderness for the Monarchy and its Rights so many of the Statutes of Scotland since the Year 1660. have been adorn'd I am apt to think that any matter of Presidents or Records by me recover'd out of the Sea of time where they lay so long useless and neglected and now happening to be serviceable to those Moral Offices before-mention'd would by the so many in that Kingdom devoted to consummate Obedience and Loyalty be more valued then if I could have imported into that Realm another such Treasure as that which lay so long buried in the Ocean near the Bahama Islands and that whoever Contributed to your Loyal Country any Substantial Notions that might enrich it in the discharge of the Duties of the born and sworn Allegiance would be esteem'd there as some way sharing in the honour of Arauna in giving like a King to a King. Long may your great Master live happy in the Enjoyment of the faithful Services of so vigilant a Minister as your Lordship who by the universality of your Knowledge accompany'd with universal Charity for all Mankind have appear'd to be born as I may say for the time of his most glorious Reign the time chosen by Heaven for Mercies Triumph on Earth Nothing vulgar was to be expected from a Person of your Lordship's extraordinary intellectual and moral Endowments and in whom the Loyalty and other Virtues of your many noble Ancestors have as it were lived extraduce And the World would be unjust to you if it acknowledged not its great Expectation answer'd by your greater Performances and particularly by your having been so eminently Ministerial in the Easing both the Cares of your Prince and of all his Subjects too by the Figure you have made in promoting the Ease of his People's Consciences and in further ennobling and endearing the Name of DRUMMOND by your Lordship's Prosecuting that by the Bravery of Action which the HISTORIAN of that your Name did by Words when he transmitted to Posterity the most Christian and Statesman-like Speech of Liberty of Conscience I know extant and as spoke by a Roman-Catholick Councellor in Scotland to King Iames the Fifth I most humbly kiss your Lordship's Hands and am My Lord Your Lordships most Obedient Servant P. P. THE OBLIGATION Resulting from the Oath of Supremacy To Assist and Defend the Pre-eminence or Prerogative OF THE Dispensative Power Belonging to the KING his Heirs and Successors c. PART I A. IN this Kingdom of England so naturally of old addicted to Religion and vehemence in it as to give a Bishop of Rome cause to complain he had more trouble given him by Applications from England about it then from all the World beside and afterward to make Geneva wonder at the Sabbatarians here exceeding the Iewish strictness and to cause Barclay in his Euphoâ—…mio to say of the English Nec quicqúam in numinis cultu modicum possunt and that our several Sects thought unos se Coelestium rerum participes exortes coeteros omnes esse did you ever observe hear or read of the style of Tenderness of Conscience so much used as in the year 41. and sometime afterward B. I have not From the Date of King Charles the First 's Declaration to all His loving Subjects about that time wherein he speaks of his Care for Exemption of Tender Consciences till the Date of King Charles the Second's Declaration from Breda wherein the Liberty of Tender Consciences is Provided for the clause of easing Tender Consciences ran through the Messages Addresses and Answers that passed between King and Parliament almost as much as the Clause of proponentibus legatis did run through the Councel of Trent A. But were not their Consciences extremely erroneous who thought themselves bound then to advance Religion by War B. Aâ—… and by a Civil War as you might have added against a Prince of the tenderest Conscience imaginable for that Character he had from an Arch-bishop in his Speech in the Parliament of 40 who said Our Sovereign is I will not say above other Princes but above all Christian men that ever I knew
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
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
they judged that the Character of that Earl's great Wisdom and Courage and Activity and of universality in his Correspondencies had gain'd such an Ascendant over the Genius of the Irish that if he had continued Lord Lieutenant of that Kingdom in his former Power they would not have ventured to rebel A. You have instanced in Uncontroverted Privileges of the Crown that that Parliament did offend and resist by their putting such incessant hardships on their King as your words are and it was folly as well as breach of their Oath for them thus to strike at the Pardoning Power of the Crown that is the Privilege both of King and People Yet let me ask you whether you account that he who in any case shall endeavour that by the Legislative Power any uncontroverted Iurisdiction Privilege Preheminence or Authority granted or belonging to the Crown may be alter'd or restrain'd in its exercise breaks his Oath Did that Parliament do so who made the famous Act for barring the known Privilege of Nullum tempus Occurrit Regi I mean that glorious Act of 21 o of King Iames the First C. 2. of which the Title is Conceald Lands shall not be Recover'd unless it may be proved that the King had title to them within 60 years i. e. 60 years before the 19th of February in the 21st year of King Iames the First which was the day of the beginning of that Parliament and on which Statute my Lord Coke hath an excellent Comment in Instit. 3. C. 87. against Concealors turbidum genus hominum and all pretences of Concealments whatsoever and on occasion of which Act it is yet acknowledg'd in the Book call'd The Court and Character of King James written by Sir A. W. and Printed A. 1650. that that King loved good Laws and had many made in his time and in his lâ—…st Parliament for the good of his Subjects and suppress'd Promoters and Progging Fellows gave way to the Nullum tempus c. to be confined to Sixty years which was more beneficial to the Subjects in respect of their quiets then all that Parliaments had given him during his whole Reign Or did the late Kings Loyal long Parliament do so in their obtaining the Act for the Habeas Corpus and others that might be named B. Having premised it to you that those words in the Oath of assisting and defending ALL Iurisdictions ALL Privileges c. are operative words and of strict Interpretation and whereby we stake our Eternities to assist the King 's Temporal Rights and invoke God so to help or assist us as we shall assist all those Privileges and that the Prince and the Church being look'd on as Minors the breach of an Oath to defend the Privileges of the King must appear to common sense as odious as if any Guardian of a Minor did break an Oath to defend his Person and Interest or did take part with any to destroy the Minor's Rights I shall yet be so fair as to tell you that I do not so account it provided that he who shall do so shall have a moral certainty that the Prince being sensible that the alteration or restraint of such Privilege will be very beneficial to the Subjects both in the present and future times and necessary to the enabling them the better to support the Crown hath signified his desire of the same and doth so desire it or if he knoweth not his Princes so desiring it believes that the Cogency of the Reasons he hath humbly to offer for such alteration being made is such as may Incline others to supplicate the Prince to consent to it and the Prince so to do Yet in this latter case if afterward the Sovereign notifies his desire of the continuance of such known Privilege I am then by my Oath to assist and defend the same and am not to the Cogency of my Reasons to add that of Importunity For there is a par or proportion between importunity and force whence we see that according to the King 's Ecclesiastical Laws in case of a former will a latter gain'd by importunoe preces in the time of the Testator's Sickness is often adjudged void And as I am not by importunity when my Princes Affairs are in a Sickly state or that the Die of War hath ran against him abroad to press and tire him then into a parting with his known Privileges so neither with a Salvo to my Oath which binds me to assist and defend them can I if I find his Judgment or Mind sickly lay Temptations before him to buy him as it were out of a Privilege that is just and adviseable for him to keep I am neither to starve nor pamper my Prince out of such a Privilege Nay more if my Prince did by any Error part with any such Privilege as not knowing the same to be inherent in the Crown as in the Case of an Answer of the Royal Martyr drawn by one of his Ministers not deeply vers'd in the Law to some of the Parliaments Propositions by which Answer he is acknowledg'd to be one of the three Estates I who know that the Privilege and Preheminence inherent in his Crown is to be above them all and have in the Oath of Supremacy Sworn that the King is the only Supream Governour and so none Co-ordinate or equal to him I am to take no advantage of that error but am still to assist and defend such his Preheminence And if ever a Prince did by fear part with such Privilege or Preheminence there being a par between fear and force according to that Law of the Proetor in the Digests Quod vi aut metu factum est ratum non habebo and in which Law as Baldus saith the Proetor was inspired by the Spirit of God I am not only not to take any advantage of such act of the Prince done by fear or force or to upbraid him therewith but am still to assist and defend such Privilege so derelinquish'd by him and am to account the same belonging to him as the word is in my Promissory Oath and to account him still in Law possess'd of the same according to the rule of Possessio etiam animo retinetur and which is justly apply'd in the Case of any one who in a Storm at Sea throws his Goods over-board to lighten the Ship. His late Majesty therefore did but right to himself when in his Declaration of the 25th of October 1660. Concerning Ecclesiastical Affairs he took notice how some had caused to be Printed and Publish'd in England a Declaration before Printed in his Name when he was in Scotland i. e. referring to the Declaration Printed at Edenburgh 1650. and saith thus of it vizâ—… Of which we shall say no more then that the Circumstances by which we were enforced to sign that Declaration are enough known to the World And that the worthiest and greatest part of that Nation did even then detest and abhor the ill usage of us
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
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
of the Oath of Supremacy which I never knew before that may seem to perplex the Conscience of any one who would take it and to expose it to such a kind of Ordeale-Purgation per ferrum candens that may make the passage through it dangerous to Ones Conscience B. Look you to that who have taken the Oath and do you consider how far you are by the Interpretations that I have referr'd you to obliged to take your measures in the Matter that lies now before you as to your assisting and defending the Prerogative of the Dispensative Power and I likewise recommend it to you to observe how much to the satisfaction and ease of the minds of the generality His Majesty's Lay-Subjects he by Connivence hath dispens'd with their not troubling themselves to study the Duty Bond or Allegianâ—…e that was acknowledged to be due to Henry the 8th or Edward the 6th or the Prerogative given by God to Godly Princes in the Scripture or the Christian Emperors in the Primitive times for however our Divines are by the 39 Articles and the Canons of King Iames and King Charles the First particularly obliged to study these Points and that the knowledge of the same may oblige Men of learning and leisure among the Layety to Conduct their Consciences thereby in their observance of this Oath yet His Majesty 's not reviving among all his Subjects by any Proclamation or Ecclesiastical Injunction or otherwise the notices of these forgotten things cannot but be acceptable to the generality of them as a Dispensation by Connivence And therefore in Complaisance with and gratitude to him they are by the Law of Nature bound to give him what is plainly his Due according to the plain Oath tender'd to and taken by them and to take care that they do not exercise an Illegal Power of dispensing by way of Interpretation of that Oath to the Subversion of the sense of the Assertory and Promissory parts of it both which are the Supporters of the Royal Dispensative Power But reserving for some other time my thoughts relating to the Dispensative Power exercised by the Godly Princes in Holy Scripture and by the Christian Emperors I shall desire you now to look on your Oath in the plain natural sense of it and as much as if no authoritative one had ever been given of it Consider that when you declare the King is the only Supreme Governor of this Realm or Governor of all Persons in it no Humane Laws can bind our Consciences by any disability Penal incurr'd from serving him When Kings say there is a Necessity for our Service St. Paul hath said we must needs be subject to them and which as Grotius hath well observ'd implies Obedience to their Commands as well as Submission to their Coercion As Dr. Donne in his Pseudo-Martyr observ'd well concerning the Oath of Allegiance All the Substance of the Oath is virtually contain'd in the first Proposition That King James IS lawful King of all these Dominions the rest are but Declarations and Branches naturally and necessarily proceeding from that root the same as to the Point we are upon may be verify'd of the Oath of Supremacy The King's Highness IS the only Supream Governor of this Realm not shall be by virtue of this Act IS SO notwithstanding any thing that hath been done or is a doing and whereby any former Princes supposed de facto consenting to tye up his hands from Governing all his Subjects and ranging them in their Stations in his Service is out of the Case of your Oath who have sworn thus that King Iames the Second IS the only Supreme Governor c. Since therefore you have in your Oath acknowledged that the King is the only Supream Governor and that according to the 37th Article of the Church of England He HATH the rule of all Estates and Degrees committed to his charge BY GOD whether they be Ecclesiastical or Civil I will ask you if any Humane Law can disable any Persons from being govern'd by him more then it can Children from honouring their Parents According to those words in Malachi If then I be a Father where is my honour and if I be a Master where is my fear c. may it not be said to every Subject while the King IS your King while he is your only Supreme Governor and while he is your Political Father will you not be Govern'd by him Or in effect will you Govern him by thinking to oblige him not to employ this or the other Subject and in effect endeavour both to dishonour and disable him who is the Head of the Community as it were by loss of Member Will you dishonour him who bears the Sword by imposing on him your belief that such a Member of the Body Politick is a gangrened one and necessary to be cut off from serving the State when he tells you he knoweth the contrary Or will you dishonour his Religion by saying that Papists are disabled by their Religion from being sound Members of the State when he knoweth they are not so disabled by it and accordingly as Sir William Temple hath in his Excellent Observations on the Low Countries made it appear that the Papists there are a sound part of the State Remember that the words only Supreme as apply'd to your King in the Assertory part of your Oath are not Otiosa Epitheta You will find that our great Casuist Bishop Sanderson in his Seventh Lecture of the Obligation of Conscience lays so much stress on those words in your Oath Only Supreme Governour as to judge him PERIUR'D who having taken the Oath shall assert the Figment as he calls it of Co-ordinate Power Quid enim PERIURIUM dici mereatur si hoc non sit manifestissimum PERIURIUM quem solum esse Supremum in suo regno Moderatorem Conceptis verbis juraveris ei parem etiam in suo regno potestatem constituere agnoscere If you did but often enough consider your Prince as asserted in your Oath to be Governor of the Realm you would find in your thoughts no difficulty of allowing him the Power of Commanding all Persons in it without exception to serve him Bishop Bilson in his Book of Supremacy p. 238. saith Though Bishops may be call'd Governors in respect of the Soul yet only Princes are Governors of Realms Pastors have Flocks and Bishops have Diocesses Realms and Dominions none have but Princes c. and so the style of Governor of this Realm belongs only to the Prince and not to the Priest and imports a Publick and Princely regiment And here I shall take occasion to tell you that as the Common Law subjecting the Inhabitants of this Realm to the Government of Bishops hath not kept our Princes from exempting particular Persons and Bodies Corporate from their Iurisdiction but could not exempt them from being subject to their Prince and from obeying him that much less could any Statute Law do it It is upon the weight of
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
Disability of a whole third estate as to bearing secular Offices did not stand in the way of Prerogative I have read it in Fuller's Church-History that in the year 1350. the Lords and Commons in Parliament did find themselves aggrieved that the Clergy-men engrossed all secular Offices and thereupon presented the ensuing Petition to the King according to this effect insisting only in the substance thereof viz. And because that in this present Parliament it was declared to our Lord the King by all the Earls Barons and Commons of England that the Government of the Kingdâ—…m hath been performed a long time by the Men of Holy Church which are not justifyable in all Cases whereby great mischiefs and damages have happen'd in times past and more may happen in time to come in disheriting of the Crown and great prejudice of the Kingdom c. that it will please our said Lord the King that the Lay-men of the said Kingdom which are sufficient and able of Estates may be chosen for these and that no other Person be hereafter made Chancellor Treasurer Clark of the Privy-Seal Barons of the Exchequer Chamberlain of the Exchequer Comptroller and all other great Officers and Governors of the said Kingdom and that these things be now in such manner establish'd in form aforesaid that by no way it may be defeated or any thing done to the contrary in any time to come saving to our Lord the King the Election and removing of such Officers but that always they be Lay-men such as is abovesaid To this Petition the King return'd that he would ordain upon this point as it should best seem to him by the advice of his good Council In fine you see that tho the Clergy-men were thus disabled by the general Customs and Usage of the Realm and by lawful Canons and provincial Constitutions accounted by that Iudge beforemention'd to be tanta-mount to Acts of Parliament yet you â—…ee our Kings did frequently dispense with these Customs lawful Canons and Constitutions And tho the Office of Bishops renders them guardians of the Canons yet you see how tender they have been of the Regal power of Dispensing therein And as that saying of Wicliffe however censured in the Council of Constance may perhaps with a little help be reduced to Orthodoxy viz. That â—…ne should be Excommunicated by any Prelate unless he know him Excommunicated by God so with parity of reason it may be said that none should be totally disabled by any Prince from serving him unless he knew him really disabled by God and especially when he knew the contrary and that the Services of the great men of the Clergy had so often been successfully employ'd at the Helm of State and when for the honour of Clergy-mens Councel some of the most profound pieces of State-Policy our English Story hath in it are to be attributed to Clergy-mens officiating in their Princes Councels and as for Example when by the figure that Bishop Morton made at the Helm he did make up the dismal breach and united the two Houses of York and Lancaster in the Happy Marriage between Henry the 7th and the Lady Elizabeth aâ—… when Bishop Fox who was Lord Privy Seal did by his Advice lay the Foundation of a more happy Union between the Kingdoms of England and Scotland by the eldest Daughter of Henâ—…y marrying Iames of Scotland and the younger matching into France that so on their ever coming to inherit Scotland might be annex'd to the Imperial Crown of England and England not be annex'd as a Province to France and for the Consequences of which Advice both Englishmen and English and French Protestants have so much cause to say We Praise thee O God c. And I am here minded of what Fuller tells us on A. 14. H. 4. viz. It was moved in Parliament that no Weishman Bishop or other shall be Iustice Chamberlain Chancellor Treasurer Sheriff Constable of a a Castle or Keeper of Records or Lieutenant in the said Office in any part of Wales or of Councel to any English Lord notwithstanding any Patent made to the contrary Cum clausulâ non obstante licet Wallicus natus and that it was answered that the King willeth it except the Bishops and for them and others which he hath found good loyal Lieges toward him out said Lord the King will be advised by the Advice of his Councel Ex Rot. Parliamentariis in turri Lond. in hoc Anno which Citation Fuller professeth to be taken out of the Authentick Records in the Tower. There passed an Act of Parliament in the 4th year of Henry the 4th by which it is Enacted That no Welshman shall be Iustice Chamberlain Sheriff Coroner nor other Officer in any part of Wales notwithstanding any Patent to the contrary with the Clause of Non-obstante and yet without Question saith my Lord Coke 12th Rep. the King might dispense with this Statute but you see how on the Parliaments resenting the Dispensations the Act had met with and particularly in Bishops having contrary to the tenor of the Act served the Crown in Secular Employments the King particularly adhered to the exercise of his Dispensative Power in their Case It was upon the ground of this Assertion viz. Of the Crown 's being entitled to Command the Services of all Subjects that some Papists were employ'd by Queen Elizabeth in Affairs of the State notwithstanding any disability incurr'd by not taking the Oath of Supremacy And Viscount Montacute tho a Roman Catholick was as Cambden tells you sent by her as her Embassadour to the King of Spain and employ'd too about the Business of the Scots and to do right to the Protestant Religion Sir Edward Carne likewise a Roman Catholick was sent by her as her Embassador to the Pope And as to the sense of many of that Queen's most renowned Ministers of State about the Deprivation of the Nonconformist Divines disabled eo Nomine from their Ministry being Penal to the People the Author of certain Considerations tending to promote peace and good will among Protestants hath mention'd it that Eight of that Queens Privy Councellors writ a Letter in their favour to the Bishops of Canterbury and London in the close whereof 't is said viz. Now therefore we for the Discharge of our Duties being by our Vocation under her Majesty bound to be careful that the Universal Realm may be well govern'd according to the Honor and Glory of God and to the discharge of her Majesty being the Principal GOVERNOR of ALL her SUBIECTS under Almighty God do most earnestly desire your Lordships to take some charitable Considerations of these Causes that the PEOPLE of THIS Realm may not be DEPRIVED of their Pastors being Diligent Learned and Zealous tho in some Points Ceremonial they may seem doubtful only of Conscience and not of wilfulness c. Tour Lordships loving Friends William Burghly George Shrewsbury A. â—…rwick R. Leicâ—…ster C. Howard J. Crofts Chr. Hatton
the Statute of 37 o. H. 8. beforemention'd that speaks of Bishops Vicars-General useth only the Style of Vicegerent for Cromwel's Office. And I have observ'd in his Injunctions to the Clergy that he styles himself Lord Privy Seal Uice-gerent to King Henry the 8th for all his Iurisdiction Ecclesiastical within this Realm c. But the word Vicar being perhaps by the envy of the Monks put on him and his Office in common Discourse the word Vicar in the Proper signification of it signifying a Servant to a Servant according to that in Martial Esse sat est servum jam nolo Vicarius esse the Archbishop speaking Cum vulgo might then call him the King 's Vicar-general and so others since I should before have mention'd what he saith p. 323. speaking of Cromwel Inter hunc Cranmerum summam necessitudinem Evangelium conciliavit ut dum ille Experientiâ hic Doctrinâ câ—…nctos anteâ—…elleret tum utrique Regi intimi chari essent Ex horum Consilio impiis atque odiosis Papoe Wolsoei Cardinalis Actis summum supplicium exitium Romanoe Curioe divinitùs paratum est A. You have enough minded me of the King 's dispensing with the disabiity incurr'd by the Canons both in the C se of Cromwel a Lay-man intermedling in Ecclesiastical Matters and of Câ—…anmer a Clergyman intermedling in secular proving so necessary to the Reformation and accordingly as Queen Elizabeth's dispensing with disability proved so to the Establishment of the present Hierarchy of the Church of England And I shall most seriously consider what the Act of the 37th of H. the 8th hath in such plain and liquid terms declared of the Power given to the King by Scripture and to all such Persons as he shall appoint to exercise Ecclesiastical Iurisdiction however incapacitated so to do by lawful Canons and Constitutions and which were by that Eminent Iustitiary you mention'd held Equivalent to Acts of Parliament and shall grant that iâ—… never so many Acts of Parliament had attempted to deprive the King of a Power inherent in him by Scripture such attempt would be nugatory and the fremuerunt gentes against it would be but the Peoples imagining a vain thing And I shall consider it how far by clear and necessary Consequences and no wire-drawn ones it follows from what is declared by this Act of Parliament as to the King 's being authorized by Scripture to choose some sorts of Officers to serve the Crown in Church and State that he is so authorized to choose others in like manner as you mention'd it to me declared by the Scotch Act of Parliament that the King by virtue of the Royal Power he holds from God All-mighty is to have the SOLE choice and appointment of the Officers of the State c. But I Pray do not many other Acts of Parliament in Harry the 8ths time whereby the Royal Prerogative is so much advanced and particularly that of the 25th of Harry the 8th that sets up the Dispensative Power seem to make it depend on Statute-Law And may it not seem to be more than a flaw in the Diamond of Prerogative and a great depretiating of it in cutting it out as it were into four by making its Establishment depend on the King and three Estates B. I shall therefore here once for all tell you that the occasion of so many mens mistake in thinking so many of those Acts of Parliament in Harry the 8th's time prejudicial to Prerogative as seeming to found it on Statute-Law is their not considering that such Statutes were but declaratory of old Laws and not introductive of new ones My Lord Primate Bramhal in his Schism guarded p. 155. saith I profess clearly I do not see what advantage Henry the 8th could make of his own Laws which he might not have made of the ancient Laws except only a gawdy Title of Head of the English Church which survived him not long and the Tenths and first-fruits of the Clergy c. But you may as fully take notice how Harry the 8th throughout his great Declarative Laws so often declares in effect his Regal Power to be given him by God. My Lord Coke in his Caudry's Case instanceth in the famous Statute of 24 o H. 8. c. 12. and calls it declaratory of the ancient Law and you see how it is declared there That the King is by the goodness of God furnish'd with Prerogative c. And the Statute of 37 o H. 8. begins as I shew'd you with the three Estates DECLARING That the King's Majesty is and hath always justly been Supreme Head in the Earth of the Church of England by the Word of God. You know too how the style runs in another of his Acts of Parliament viz. The Bishop of Rome and See Apostolick contrary to the great and inviolable Grants of Iurisdictions by God immediately to Emperors Kings and Princes c. And thus tho there are various Statutes in his Reign and particularly that of the 25th year of his Reign c. 19. by which it was Enacted That the King's Highness shall have Power and Authority to nominate and assign at his pleasure Two and thirty persons whereof Sixteen to be of the Clergy and Sixteen of the Temporalty of the Upper and Nether House of the Parliament to view search and examine the Canous Constitutions and Ordinances Provincial and that such of them as the King's Highness and the said Two and thirty or the Major part of them shall deém and adjudge worthy to be continued kept and obey'd shall beÌ„ from henceforth kept obey'd and executed within this Realm so that the Kings most Royal assent under his Great Seal be first had to the same c. and tho according to the ancient usage of the Realm as well as to those Canons Lay-men were not only incapacitated to make Ecclesiastical Constitutions and Canons but Kings Bishops or Noblemen who believed that the Decrees of the Bishops of Rome may be violated or shall suffer them so to be are in the Canon Law anathematized yet as this enacting Clause was made on the Clergy's Petition to the King as the Preamble of the Act mentions that those Constitutions and Canons may be committed to the Examination and Iudgment of his Highness and of Two and Thirty persons of the King's Subjects whereof sixteen were to be of the Upper and Nether House of the Parliament of the Temporalty and all the said Two and thirty persons to be chosen and appointed by the King's Majesty c. and be empower'd to do what I mention'd out of the enacting Clause and whereby the King alone was in effect both according to the Clergy's Petition and the enacting Clause vested with the jus vitoe necis of the Canons so in a Memorable Epistle of Harry the 8th Printed before the Reformatio legum Ecclesiasticarum and intended as a draught for a Publication or Promulgation of the King 's new Ecclesiastical Laws after the draught of
them had been by those Clergymen and Laymen prepared for his Royal Consideration and been by him establish'd he there declares his Power of so doing to be pursuant to his Supreme Headship of the Church of England recogniz'd quemadmodum divini atque humani juris tatio postulat and mentions the Power granted to him and his Ancestors ipso jure divino as recognized and applies to himself the words Sapientioe cap. 7. Audite Reges intelligite quoniam data est a Domino potestas vobis c. and founding his Power of making Ecclesiastical Laws on that jus Divinum he saith En vobis authoritate nostra editas leges damus c. And here I shall tell you that as my Lord Coke in Cawdry's Case calls the Act of the 24th of H. 8. beforemention'd An Act declaratory of the Ancient Law so he likewise doth the Act of the 25th of his Reign c. 21. that so much props up the Dispensative Power And I assure you that they look but at a few things in general and in that Statute in particular who think that the Dispensative Power inherent in the King lost any ground thereby and he who takes the Statute altogether will find that that Power if it seem'd in any words to go back from it self was but by such retreat to leap the further forward For if you will take a glancing view of the intent of that Statute to that end you will see that instead of that Law making it self to be the Fountain of the Dispensative Power it makes the Dispensative Power to be the very Fountain of a great part of the Common Law it self for its style gives you the figure of our Laws as either devised made and obtain'd within this Realm for the wealth of the same or such as by SUFFERANCE of your Grace and your Progenitors which is a Dispensation by way of Permission or Connivence the People of this your Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long use and Custom to the observance of the same c. And the King in his Legislative Capacity having with the consent of the three Estates superseded the Pope's Dispensative Power that had so long Usurp'd on the King's Laws and having provided that the Money that should be paid as Fees for Dispensations should be rais'd and moderated by their Consent obtain'd from them a Clause in the Act containing so great a deference to the Dispensative Power of the Crown as that after the Act had authorized the Archbishop of Canterbury and his Successors to grant such Dispensations Licences and Faculties as were accustomed to be had from the See of Rome and not grant any others till the King his Heirs and Successors or their Councel were first advertised thereof and determined whether they should pass It Provided that if it were thought and determin'd by the King his Heirs and Successors or their Councel that Dispensations Faculties Licences or other Writings in any such Case UNWONT shall pass that then the said Archbishop or his Commissary having Licence of His Majesty his Heirs and Successors for the same shall dispense with them accordingly and in Case of his refusing to dispense that any other two Bishops the King his Heirs and Successors should nominate should be appointed to dispense in such Cases And this Act with all the Clauses in it you find reviv'd by the 1st of Elizabeth c. 1. The Pope's rehabilitations did customarily extend to Lay-men as well as Clergy-men and that particularly in case of Heterodoxy in Religion then call'd Heresy which both by ancient usage and Acts of Parliament loaded men with various incapacities And his relaxing the incapacities that relate to Clergy-men any one may see by the Taxa Cameroe and the Fees thereby payable viz. in the Age of those who were to take Orders and were defective in some of their Members and in the Case of Clergy-mens incapacity incurr'd by irregularity But after this Act of the 25. of H. the 8th had shew'd the World the Authority the King had to rehabilitate and dispense here in his own Country both as to matters customarily dispens'd with at Rome and such as were not so and how small the Fees were for the same the bringing rehabilitations and Perinde valere's from Rome to England was like carrying Coals to New-Castle A. I was not satisfy'd with your extending the King's Power of Dispensing here as far as the Pope's reach'd and it seems you extend it further I hope you intend not to bring in here the Tax of the Apostolical Chancery and which Mr. Crashaw translating into English in the year 1625. call'd it The Rates of the Pope's Custom-house and wherein are contain'd Indulgences for Sins past present and to come and such a kind of Pardoning Power as in The historical Narration of the first Fourteen years of King James appear'd to that King so scandalous in the Case of the Draught of the Earl of Somerset's Pardon and in which Sir Robert Cotton having been desired by the Earl to find out the largest Pardon that former Presidents could shew brought him one that was made by the Pope to Cardinal Wolsey and by a fac simile after which the Draught of the Earls ran for Pardoning all manner of Felonies and Treasons committed and to be committed B. Premising to you that the Christian offices do more call on you to mind what Sins you dispense with in your self then what the Pope dispenseth with in others and that this present Pope hath spoil'd the Trade of raillery about Indulgences by spoiling the Trade of them and damning so great a number of them and that in his vast Supplies of Money toward the taking of Buda the Souls in Purgatory contributed nothing and that Sir Paul Ricaut in the Life of this Pope having done right to his Vertue in mentioning his having suppress'd an Office of the Virgin Mary and a multitude of Indulgences hath further judiciously observ'd That Wisemen at the Councel of Trent finding that the Doctrine of Indulgences was not solid did but slightly touch it and tho yet it was the CHIEF matter for which that Councel was assembled nothing was determin'd therein but only that Indulgences be used with such Moderation as was approved by the Ancient Custom of the Church that is not at all I say premising all this I shall mind you that I have said enough already to let you see that it is only the ancient Dispensative Iurisdiction of the Crown that I direct you to prop up and more particularly with respect to the Case before you While we are considering the Obligation of an Oath it were pity that the thoughts of either of us should be embarras'd with Moot-points and so without troubling you with a reference to More f. 463. where all the Power of the Pope is not given to the King by the 25th of H. the 8th but is extinct Hallywel ' s
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
containing all things necessary to such Consecration and Ordering c. It is Enacted c. that all Subscriptions hereafter to be had or made to the said Articles by any Deacon Priest c. or other person whatsoever who by this Act or any OTHER LAW now in force is required to subscribe unto the said Articles shall be construed and taken to extend and shall be applyed for and touching the said 36th Article to the Book containing the form and manner of making ordaining and consecrating of Bishops Priests c. in this Act mentioned in such sort and manner as the same did heretofore extend to the Book set forth in the time of King Edward the 6th mention'd in the said 36th Article any thing in the said Article or in any Statute Act or Canon heretofore had or made to the Contrary hereof in any wise notwithstanding It is clear that the Parliament had then their Eye on the Act of 13. Eliz. and on that Canon of King Iames and which you may take as referr'd to by the words or any other Law now in force for so they then knew it to be and as it still is tho with the interpretation extended by the Act to it and afterward by the word Canon But one may guess that by the Authority of some of the Lords the Bishops there was before the making of this Canon of King Iames and after the Act of 13. Eliz. in her Reign some Subscription under disabling Penalties required of Ministers beyond what that Statute required by what the Author of Certain Considerations tending to promote Peace mentions in p. 4. viz. That in the 30th year of the Reign of Queen Elizabeth the House of Commons presented to the Lords Spiritual and Temporal a Petition containing divers particulars for the redress whereof they desire that no Oath or Subscription might be tender'd to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of the Realm except the Oath against Corrupt entring that they may not be troubled for the omission of some Rites or Portions prescribed in the Book of Common Prayer that such as had been suspended for no other Offence but only for not subscribing might be restored A. It seems those Bishops then did as your Expression was Dispensare in lege and were as I may say Non-conformists to it by going beyond it For they were obliged sapere ad Regulam and all Conformity is respectu regulae and he who doth over-shoot or who over-does what is enjoyn'd is a Non-conformist B. You here put me in mind how some of our Bishops and Clergy have been thus Non-conformists in over-shooting their mark at the same time that they have with undistinguishing severity executed the rigour of the Laws against all who did shoot short The Royal Martyr in his Declaration to all his Loving Subjects Publish'd with the Advice of his Privy Councel A. 1641. refers to some Ceremonies in our Church which have been used without any legal Warrant or Injunction and which already are or speedily may be abolish'd A. But I a little wonder that a House of Commons should Petition for the Dispensing with some legal Rites and required both by Injunctions and Canons and by Acts of Parliament B. I do not wonder at it at all For Conjunctures having happen'd when some Non-conformists having been tender of the Peace of the Government you need not wonder at any tenderness in it for them For as in the Conjuncture of the Resteration of King Charles the Second very many of the Presbyterians and of other Sects then shewing their Loyalty the Author I lately cited taking notice thus of the Declaration A. 1660. viz. in which his Majesty saith Our present Consideration and work is to gratifie the private Cosciences of those who are grieved with some Ceremonies by indulging to and dispensing with the omitting of those Ceremonies A Member of the House of Commons in an Epistle to His Majesty useth these words viz. which Indulgent Declaration so ravished the hearts of all your Loving Subjects that your whole House of Commons their Representatives then assembled in Parliament immediately after the Publication October 8th 1660 repair'd in a Body to White-hall and there by their Speaker's Oration in the Banquetting-House express'd their extraordinary great Ioy and presented their general Thanks to your Majesty for this your Majesty's most gracious Declaration and Dispensation with their Consciences in Matters not being of the substance or essence of Religion which gave abundant satisfaction to all peaceable sob rminded Men and such as are truly Religious in which return of their Thanks they were all unanimous Nemine Contradicente then Ordering a Bill in Pursuance of your Majesty's Declaration Note that this was that House of Commons which together with the House of Lords brought His Majesty to the Throne so long before namely in the first year of King Charles the First and A. 1625. both Houses presented a Petition to the King wherein they desire that His Majesty would please to advise the Bishops by fatherly entreaty and tender usâ—…ge to reduce to the peaceable and orderly Service of the Church such able Ministers as have been formerly SILENCED c. and which is in effect all one such able Ministers as have been formerly disabled A. I am highly pleas'd with your further bringing any thing to me like Iudgment of Parliament that may strengthen the Regal Power of interpreting or of dispensing with disability We have discours'd of the Subject a pretty while together at this Meeting and I must acknowledge you have entertain'd me with an account of many Statutes that have propp'd up the Regal Power of dispensing with disability and that too tho you observ'd it not to me not only in their Preambles but in their enacting parts the which I account more momentous Nor can I forbear observing it to you that in the late Printed Books of some who asserted this dispensative Power nothing like Iudgment of Parliament hath been cited in the case for it but that out of Rot. Parl. 1. H. 5. 11. 22. out of Rolle Tit. Prerogative le Roy fol. 180. viz. The Commons prayed that the Statutes for voiding of Aliens out of the Kingdom might be executed to which the Kiâ—…g agreed saving his Prerogative that he might dispense with such as he pleas'd And upon this the Commons answer'd that their intention was no other nor ever should be by the help of God. But this was only the judgment of a House of Commons and that is short of the Authority of a House of Lords concurring with them tho but in a Petitionary manner that the Regal Dispensative Power might be exerted and which latter is far short of the Authority of an Act of Parliament And among the many Parliamentary Recognitions of the Dispensative Power you have mentionâ—…d to me that which you told me at our first meeting of the Act of Uniformity 16 o Car. 2.
kind B. Why then I can tell you if you will at any time turn to your Collection of Proclamations in the time of King Iames the First you will find that in his Proclamation of March the 5th the first year of his Reign he intimates that with the Consent of the Bishops present in the Hampton-Court Conference he thought meet that some small things might rather be explain'd then changed in the Book of Common Prayer and for that end gave forth his Commission under the Great Seal of England according to the Form which the Laws of this Realm in like Case prescribed to be used to make the said Explanation and to cause the whole Book of Common Prayer with the same Explanation to be newly Printed which being done and establish'd anew after so serious a Deliberation c. we have thought it necessary to make known by Proclamation our authorizing of the same and to require and enjoyn all men as well Ecclesiastical as Temporal to Conform themselves to it as the only publick Form of serving God establish'd and allow'd to be in this Realm And the rather for that all the Learned Men who were there present as well of the Bishops as others promised their Conformity in the practice of it only making sute to us that some few might be born with for a time Wherefore we require all Archbishops Bishops and all other publick Ministers as well Ecclesiastical as Civil to do their Duties in causing the same to be obey'd and in punishing the Offenders according to the Laws of the Realm heretofore establish'd for the Authorizing the said Book of Common Prayer You see there that all the Bishops and the great Parade of the literati present at that famous Conference did implore the King for the exercise of his Dispensative Power for a while to some few But what is more considerable is that the King here doth make a general relaxation of the Bond of Queen Elizabeth's Act of Uniformity in some things and instead of inserting an express Clause of discharging from the Penalties of that Act all that use the Common Prayer Book with the King's Alterations or Explanations as Queen Elizabeth's Admonition did in relation to those who took the Oath of Supremacy in the sense of her Interpretation a thing indeed not necessary for either of them to have done when they had loosen'd the bond of the Observance of the Law he enjoyns the uniform usage of the Book of Common Prayer as by him interpreted or explain'd the title of the Proclamation being A Proclamation for the authorizing an Uniformity of the Book of Common Prayer to be used throughout the Realm under the disabling Punishments of Queen Elizabeth's Act of Uniformity the Bishops all this while being ministerial to the King in his Power of thus interpreting and explaining an Act of Parliament and the loosening of its Obligation both as to themselves and others I am to tell you that in that Proclamation of March the fifth the King refers to a Proclamation he had before Publish'd on the 24th of October then last past wherein he gave the Puritan Divines an intimation of the Conference he intended to have and in which he reflects on the heat of their Spirits as tending rather to Combustion then Reformation which saith he if there be Cause to make is more in our hearts then theirs c. and afterwards saith we are not ignorant that time may have brought in some Corruptions which may deserve a review and amendment which if by the Assembly intended by us we shall find to be so indeed we will therein procéed according to the Laws and Customs of this Realm by Advice of our Councel or in our High Court of Parliament or by Convocation of our Clergy as we shall find reason to lead us not doubting but that in such an orderly proceeding we shall have the Prelates others of our Clergy no less willing and far more able to afford us their Duty and Service then any other whose zeal doth go so fast before their discretion And the Proclamation in March following shew'd you how the King's reason lead him in his Proceeding in the Affair according to the Laws and Customs of this Realm and how loyally his Bishops and Clergy acquiesced therein A. I remember I have read both these Proclamations and I doubt not but that Hampton-Court Conference made a great ferment in the Body of the People tho none in the Orthodox Clergy But I should be glad to know whether it made any fermentation in the Body of the People Representative and what was the Result of it Did the Parliament acquiesce in what the King had done as aforesaid For if so they had done as Queen Elizabeth's Parliament in publickly approving what she by her own Ecclesiastical Supremacy did in discharging the disabling Penalties in her first Act of Parliament and in relaxing by her interpretation the vinculum for its observance in that sense that many had before put on it B. King Iames his Parliament did in effect the very self-same thing And I shall give you the account of it out of his Proclamation of the 16th of Iuly A. 1604. in the Second year of his Reign for there having spoke of that Conference and of his having Publish'd by Proclamation what was the issue of it and his hoping that when the same should be made known all reasonable Men would have rested satisfy'd with that which had been done and not have moved further trouble of Speech of Matters whereof so solemn and advised deliberation had been made His Majesty's following words are Notwithstanding at the late Assembly of our Parliament there wanted not many who renew'd with no little earnestness the Questions before determin'd and many more as well about the Book of Common Prayer as other Matters of Church Government and importuned us for our assent to many Alterations therein but yet with such Success as when they heard both our own Speeches made to them at sundry times shewing the Reasons of our former Proceedings in those Matters and likewise had had Conference with some Bishops and other Lords of the Upper House about the same they desisted from further Prosecution thereof finding that of all things that might any way tend to the furtherance of Religion and of Establishment of a Ministry fit for the same we had before with the Advice of our Councel had such Consideration as the present state of things would bear and taken order how the same should be prosecuted by such means as might be used without any publick disturbance or innovation And in how vigorous a State the Dispensative Power as to the Nonconformists afterward continued in the Reign of that Prince appears by what I have before cited of an Application made to him by the House of Commons for the exercise of the same to the Non-conformists in the 10th year of his Reign Moreover how by Tacit Dispensation he dispens'd with the Disabilities that
to perform the Conditions and that the King his Father should do the like Secondly That the Promises of Marriage should be presently made c. but that the Consummation of the Marriage should not at all be executed till the Month of May in the following year 1624. to the end that they might experimentâ—…lly see if the aforesaid Conditions required by his Holiness should be faithfully accomplish'd c. As to the first the Prince of Wales took an Oath to His Majesty to observe the foresaid Conditions and sign'd them with his Hand and he likewise swore and sign'd this by way of Over-plus to permit at all times that Any should freely propose to him the Arguments of the Catholick-Religion without giving any impediment and that he would never directly nor indirectly permit any to speak to the Infanta against the same But I shall here en passant observe to you out of the general Articles namely that in the 16th Article notwithstanding my Lord Coke's Opinion before-mention'd that a new Oath cannot be introduced nor an old one alter'd but by Act of Parliament there is a new Oath of fealty agreed to by the King to be tender'd both to Foreigners and Subjects of England who were to serve the Infanta and care taken that no Clause or word therein shall contradict the Roman Religion or Consciences of the Roman-Catholicks and that by the 24th Article for the Security that every thing that was agreed to should be fulfill'd the King and Prince were to be bound by Oath that all the Privy Councellors should sign the Agreement And I need not tell you that their being sworn to the private Articles was a new Oath A. Was nothing of the King's mind about the Suspending ALL the Penal Laws both the disabling ones and others against the Papists notify'd to his Privy Councel before the year 1623 B. Mr. Prynne there in p. 30. saith that for the hastening the Pope's Dispensation for the Match King James as the French Mercure Tom. 9. records it and as he had CREDIBLY been inform'd of from others assembling his Privy Councel together Febr. 25. 1622. made a long Oration to them which he recites at large the sum whereof was this That the Roman-Catholicks in England had sustain'd great and intolerable surcharges imposed on their Goods Bodies Consciences during Queen Elizabeth's Reign of which they hoped to be relieved in his c. That now he had maturely consider'd the Penury and Calamities of the Roman-Catholicks who were in the number of his faithful Subjects and was resolv'd to relieve them and therefore did from thenceforth take all his Roman-Catholick Subjects into his Protection permitting them the Liberty and entire Exercise of their Religion c. without any Inquisition Process or Molestation from that day forward and likewise will and ordain that they shall be restored to all their Estates Lands Fees and Seignories and re-establish'd in them Commanding all his Magistrates Iustices and other Officers whatsoever in this behalf to hold their hands and for what Cause soever it be not to attempt hereafter to grieve or molest the said Catholicks neither in publick nor private in the liberty of the exercise of their Religion upon pain of being reputed Guilty of High Treason and Disturbers of the Kingdoms peace and repose this being his will and definitive Sentence A. But still I cannot forbear wondring about what Considerations made our Divines and our Great Champions of the Church of England-Protestancy in the State as well as Church afterward thus inclinable to act their Parts about Toleration as Mr. Prynne hath mention'd B. They had cause enough to apprehend that the Hierarchy of England could not be supported without the Monarchy and that by reason of the various growth of the Potency of foreign Princes and States and of intestine Factions the Monarchy could not be then sufficiently secure without a foreign Alliance by inter-marriage and that where such Alliance was to be with the Familiâ—…s of Roman-Catholick Princes there could be no expectation of the Pope's relaxing his Laws by dispensing without our Princes doing something of that kind as to theirs I might here observe to you that we are told in The Regal Apology that the Oxford Antiquities mention'd to have been writ by Dr. Bate that A particular Toleration had a former President even in Queen Elizabeth in those Articles of Marriage which were consented to with the Duke of Anjou and if it were true that an Universal Toleration was agreed on by King James it was intuitu majoris boni The Palatinate was to be restored again and the Protestants of Germany to be re-enstated in their Possessions on that Condition But to punish being a kind of Punishment and it being irreligious to punish Men for Religion and the highest tide of Anger being naturally succeeded by the lowest ebbe of it and the thoughts of rigorous Severity in Princes toward their Subjects being like such in the Head toward the Members of the same Body and King Iames having found that the general abhorrence of the Gun-Powder-Treason had blown up the credit of those fiery Doctrines that produced it and he being then within Prospect of his end and being unwilling that the Sun of his Life should go down in his wrath and finding as appears by his long Proclamation of four sheets of Paper declaring his Pleasure concerning the Dissolving of the Parliament A. 16â—…1 that they were not the Papists who made his later breath so uneasie to him and he being of opinion that the reason of the severe Laws was much abated it may abate of our wonder that in that Conjuncture he put a Period to their Execution Mr. Prynne for this purpose in p. 14. of that Book Prints a Letter of the Lord Keeper Williams to the Iâ—…dges in the year following to acquaint them that His Majesty having resolv'd out of deep Reasons of State and in expectation of like Correspondence from foreign Princes to the Professors of our Religion to grant some Grace and Conveniency to the imprison'd Papists of this Kingdom had Commanded him to pass some Writs under the Broad Seal for that purpose and that he had accordingly done so and tells them that 't is His Majesty's Pleasure that they shall make no niceness or difficulty to extend that his Princely favour to all Papists imprison'd for any Church Recusancy whatsoever or refusing the Oath of Supremacy or hearing of Mass or any other point of Recusancy which doth touch or concern Religion only and not matters of State which shall appear to you to be totally Civil and Political A. You lately mentâ—…on'd to me that the Earl of Bristol hinted it that there was afterward somewhat of Compliance with the Pope in the Match with France of that nature as was in the Spanish Wâ—…at account doth Mr. Prynne give of that B. He tells you there p. 69. that the French Maâ—…ch was soon Concluded in the life of King James the Articles concerning
Religion being the same almost Verbatim with those formerly agreed on in the Spanish Treaty And he there refers to Rot. Tractationis Ratificationis Matrimonâ—… inter Dom. Carolum Regem Dom. Henret Mariam Sororem Regis Franc. 1 o Cat. in the Rolls and then in p. 71. saith Besides these general Articles of the Match these particular ones were concluded and agreed on in favour of the Roman-Catholicks the same in Substance with those of Spain and where he saith the Second is to this effect that the English Catholicks should be no more searched after or molested for their Religion But Mr. Prynne there particularly sets down only three short Articles and those comprised in about six lines and the words or molâ—…ted in the second Article are Printed in a different Character from the others as if he thereby intended them as his own Explication of the word searched A. You just now mention'd King Iames his having in the year 1622. order'd all the Popish Recusants who were in Prison on the account of their Religion to be set at liberty and you told me how he tacitly dispens'd with the Disability that Popish Physicians and Lawyers had incurr'd by Act of Parliament Was that all the favour he shew'd Roman-Catholicks B. No He allow'd them to make a very Considerable figure in the Government as you may find if you consult the Iournals of Parliament as referr'd to by Mr. Prynne p. 66. Seq of that Book For he there mentions that in the year 1624. The Commons sent a Petition to the Lords desiring their Concurrence with them in presenting it to His Majesty for removing Popish Recusants and those whose Wives were Papists from Offices of Trust which by Law they were DISABLED to execute which the Lords took into their Consideration and which Mr. Prynne saith was enter'd in their Iournal in this manner Die Jovis viz. Vicessimo die Maii 1624. The Lord Archbishop of Canterbury reported that at the meeting this Day with the Commons they Presented an humble Petition to the King desiring this House to joyn therein with them The which Petition was read in haec verba c. In short the Commons in their Petition take notice of the Growth of the Number of Popish Recusants in this Kingdom and of their insolency in all the Parts thereof and that many of them contrary to the Laws were gâ—…t into Offices and Places of Government and Authority under the King And the Prayer of the Petition is That the Lords and Gentlemen there undernamed may be removed from all His Majesty's Commissions of great Charge and Trust Commissions of Lieutenancy Oyer and Terminer and of the Peace and from all other Offices and Places of Trust. And they in their first Schedâ—…le there name 11 Lords and 18 Knights And in their second they name many Persons of Quality who were in Places of Charge and Trust in their several Counties and had marry'd Popish Wives and whose Children and Servants were bred up to Popery A. Doth any Act of Parliament disable a man from bearing Office because his Wife is a Papist or because his Children or Servants are bred up to be Papists B. Yes the Act of the Third of King Iames the First cap. 5. doth it as you will see if you consult it for 't is there Enacted That no Popish Recusant Convict nor any having a Wife being a Popish Recusant Convict shall at any time after this Session of Parliament or any Popish Recusant hereafter to be Convict or having a Wife which hereafter shall be a Recusant Convict at any time after his or her Conviction shall exercise any publick Office or Charge in the Common-wealth but shall be utterly DISABLED to exercise the same by himself or his Deputy except such Husband himself and his Children which shall be above the age of Nine years abiding with him and his Servants in Houshold shall once every Month in the least repair to some Church usual for Divine Service and there hear Divine Service and the said Husband and such his Children and Servants as are of meet Age receive the Sacrament of the Lord's Supper and do bring up his said Children in true Religion A. Now have you set me a longing to know what the House of Lords did in the Case of that Petition about removing those disabled Persons from serving the King in those great Stations And since the Judgment of Parliament was always had in such great veneration I think if the result of the desire of the House of Commons was that the Lords had joyn'd with them in the Petition and had urged that the King could not dispense with that Act of Parliament and Pardon Disability it may make a notable President in the Case we have been discussing B. You will find that the Commons urged nothing to the prejudice of Prerogative in the Prayer of their Petition Their style there was We humbly beseech your Majesty graciously to vouchsafe that the said Lords and Gentlemen here under-named for this important Reason and for the greater Safety of your Majesty and of your Realm may be removed from all your Majesty's Commissions of great Charge and Trust Commissions of Lieutenancy c. And the important reason did refer to the great Countenance hereby given to Popery the great grief and offence to all his best affected and true loving Subjects by putting the Power of Arms into such mens hands as by former Acts of His Majesty's Councel are adjudged Persons justly to be suspected c. But to let you see what the House of Lords did hereupon Mr. Prynne tells you p. 69. That this Petition being read the House did defer the Debate thereof at this time for that the day was far spent And answer was given to the Commons who attended for the same in the Painted Chamber that the Lords will send them an Answer of this Petition hereafter when they are resolv'd thereof Whereupon Mr. Prynne concludes his account of this Transaction thus Whether any of these were displaced upon this Petition I find not in any Memorials it being certain some of them were not but continued still in these Offices of Trust. A. How have you here disappointed my Curiosity in making that ferment then in the Government about the Disability of the Papists being dispens'd with thus silently to go off through the House of Lords forbearing to joyn with the House of Commons in their Petition B. I shall here afford your Curiosity a recompence by observing it to you with allusion to some of the words of the Royal Martyr in his Answer to the 19 Propositions That the ancient equal happy well poysed and never enough commended Constitution of the Government of this Kingdom having made this Nation so famous and happy to a great degree of Envy c. and the Lords being trusted with a Iudicatory Power are an excellent Screen and Bank between the Prince and the People to assist each against any Encroachment of
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
the Commissioners be COMPETENT that is if they be spiritual men they may proceed to Sentence of Excommunication which may right well be Certify'd as well as Excommunication before Commissioners Delegates both of these Authorities being under the Great Seal c. And Excommunication certify'd ly Commissioners Del gates hath been allowed as it appeareth in 23. Eliz. Dyer 371. And in many Cases Acts of Parliament have adjudged men Excommunicate ipso facto But if they be meer Lay-men the fault is not in the Statute or in the Law but in the Nomination and upon Certificate made of the Excommunication according to Law a Significavit or Cap. Excom shall be awarded out of the Chancery for the taking and imprisoning the Bodies of such Excommunicate Persons But had his Lordship as I said in the Case of the other Author consider'd how by the Statute of 37. H. 8. it was declared that by Holy Scripture all Authority and Power is given to His Majesty and to all such Persons as he shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever he would not I believe have thought Lay-men incompetent or incapable Persons so to have acted in the high Commission or Delegacy or have said there was any fault in the Nomination of Lay-men And yet you see my Lord Coke shews you how the Government then acquiesced in such Nomination and assisted the execution of the Sentences given by such as he thought incompetent Nor are we therefore to wonder at what Mr. Bagshaw mentions of the Civilians in the House of Commons not objecting that the King had done contrary to an Act of Parliament in taking from Bishops Chancellors and Officials the Power of exercising Church Censures given them by the Act and which by the Power declared in that Act to be given him by Holy Scriptures he might have either continued to them or abridged or taken away the exercise thereof from them if he had pleas'd And considering that the Lex Scandali doth equally oblige Kings as well as Subjects in Point of Conscience it is not to be wonder'd that that Tender-conscienced King did in that Conjuncture think himself obliged so equitably to make his Interpretation of that Statute as in complaisance with some of his Subjects who had took offence at Lay-Chancellors Power of Excommunicating to disable them to it I told you before how that Pious Prince did in complaisance with the Fathers of our Church think himself obliged to exercise his Regal Power of interpreting or declaring and when in A. 1637. he issued out his Proclamation Declaring that the Bishops holding their Courts and issuing Process in their own Names were not against the Laws of the Realm and that the Iudges resolutions were notify'd therein to that purpose and that the ferment about that Point was setled and the Bishops issuing out their Processes was setled too the which Proclamation too you will find Mr. Bagshaw mentions in his second Argument where p. 40. he tells you of the Bishop's having procured a Proclamation A. 1637. declaring the Opinions of the Iudges that the Statute of 1 o Edw. 6. c. 2. is repeal'd and of no force at this day and that Bishops may keep Courts in their own Names And I shall now tell you that as in the year 1637. the Bishops were in so full and peaceable possession of their Privilege of issuing out of their Processes in their own names by means of what His Majesty had declared pursuant to the Resolutions unanimously given by all the Iudges and the Barons of the Exchequer and of which Sir E. Coke saith Inst. 2. that they are for Matters of Law of highest Authority next to the Court of Parliament so by Iudgment of Parliament the settlement of that Controversie by virtue of His Majesty's Declarative Power so exercised was afterward approved A. That is a thing I would gladly hear of for one would think that the exercise of the Regal Power of Declaring or Interpreting what relates to an Act of Parliament might occasionally heighten a ferment in stead of abating it B. You will find little or no cause if you consult our ancient English Story and there see how the mutual Confidence between King and People hath in several Ages supported the Government to fancy that Declaratory Proclamations relating to Acts of Parliament did make any ferment The Interpretation of the Statutes hath in all Causes between Party and Party and wherein meum and tuum and Property are concern'd been by ancient usage under our Kings still left to the Iudges and the Proclamations of our Princes on great emergent occasions in the State declaring or interpreting their Laws pursuant to the Supreme Power committed to them by God for the good of their People hath still been observ'd to tend both to the good of the People and the Laws too If you will look on all the Declaratory Proclamations in the Reigns of Queen Elizabeth and King Iames of which you have a Collection you will I believe find none but what were acceptable among all their Loyal Subjects But as to this Declaratory Proclamation of King Charles the First before-mention'd you will find it as I told you approved in Parliament And if you will please to consult in your Statute-Book the Act of 13 o Car. 2. c. 12. of which the title is Explanation of a Clause contain'd in an Act of Parliament made in the 17th year of the late King Charles Entituled an Act for repeal of a branch of a Statute 1 o Elizabethae Concerning Commissioners for Causes Ecclesiastical you will there find that this Act of the late King 's loyal long Parliament viz. 13 o Car. 2. hath in it three Proviso's The first is concerning the High Commission-Court the second Proviso is concerning the taking away the Oath ex officio And the third Proviso is to limit and confine the Power of Ecclesiastical Judges in all their Proceedings to what WAS and by Law might be used before the year 1639 which plainly includes allows and approves King Charles the First 's Proclamation in the year 1637. In the time of a former disloyal long Parliament the Regal Power of Interpreting or declaring was by them represented as a Gravamen and while yet they usurp'd that Power themselves If you will look on the Declaration of the Lords and Commons in Husband's Collections p. 686. you will there find they say It is high time for the whole Kingdom now to understand that His Majesty's Authority is more in his Courts without his Person then in his Person without his Courts when the Power of DECLARING Law shall be deny'd to the whole Court of Parliament in particular Causes before them for we have claim'd it we have exercised it no otherwise to be obligatory as a judicial Declaration of the Law and shall be attributed to His Majesty to do it in general by his Proclamation without relation to a particular Case and
I shall refer you to King Iames his Proclamation of Iune the 10th in the year 1606. and where having mentioned the Religion of the Roman-Catholicks he saith We deâ—…ïre still to make it appear in the whole Course of of our Government that we are far from accounting all those Subjects Disâ—…oyal that are that way affected and that we do DISTINGUISH of such as be carry'd only with blind zeal and such as sin out of Presumption c. and therefore as after times must give us tryal of ALL mens behaviour so must all men expect that their own deserts must be the only measure of their Fortunes at our hands either one way or other and having before spoke of the Gun-Powder Treason and the Doctrines of some Priests that might encourage it and said that thereby there is sufficient Cause to justifie the Proceedings of us and our said Parliament in the making and execution of these last and all other former Statutes tending to the same end it followeth nevertheless seeing the Soveraign Care appertains to us who have the Soveraign Power of Iustice in our hand and the Supreme Dispensation of Clemency and Moderation of the Severity of our Laws is likewise as proper to us to use whensoever we shall find it reasonable the same deserving to be no less allow'd in us being in our Dominions God's Lieutenant then it is prais'd in him among whose highest titles it is that his Mercy is above all his Works c. The King in the beginning of his Proclamation having profess'd his Zeal for the Religion of the Church of England by Law Establish'd and his constant Resolution for the maintenance and defence thereof said Of which our purpose and determination beside all other our former proceedings since our Entry into this Kingdom we have given a new and certain Demonstration by such two Acts as have been passed in this Session of our Parliament both tending to prevent the Dangers and diminish the number of those who adhering to the Profession of the Church of Rome are blindly led together with the Superstition of their Religion both into some points of Doctrine which cannot consist with the Loyalty of Subjects toward their Prince and oft-times into direct actions of Conspiracies and Conjurations against the State wherein they live as hath most notoriously appear'd by the late most horrible and almost incredible Conjuration c. The two Acts there referr'd to are those that you will find in your Statute-Book Anno tertio Jacobi Regis cap. 4. An Act for the Discovering and repressing Popish Recusants and in which the Oath of Allegiance is contain'd and Cap. 5. An Act to prevent and avoid dangers by Popish Recusants and whereby Popish Recusants Convict are disabled from bearing Office. But here you see how that wise Prince so soon after so horrid a real Plot did by distinguishing in his Proclamation between the Principles of some Roman-Catholicks and others as to Loyalty and alluring the Loyal by the avow'd Dispensative Power of his Mercy and hiding them under the wings of his Mercy from the terror of his Laws and affording to all his Subjects who should afterward behave themselves well a Tabula post naufragium as to the expectance of making up their fortunes think himself obliged then to cause his Moderation to be known to all men And you may hence take occasion when you think of the many Acts in terrorem in the Statute-Book and where there is no Proportion between the Crime and the Punishment and in some that seem inflictive of Punishments in the Case where men cannot be to any but the Searcher of hearts known to be Criminal at all as for example in their owning some Problematick Points of the Christian Religion to consider that most probably the Wisdom of the Government would not have pass'd them but on the Suppoâ—…ition of the Regal Power of dispensing therein expresly or tacitly You see how the Laws commonly call'd Sangâ—…inary have been tacitly suspended and I may tell you that tho I desire to live no longer then I shall be a maintainet of the internal Communion due from all Christians to all Christians as a part of that Holiness without which no man shall see God yet I should soon withdraw from the external Communion of the Church of England if it own'd the justness of such Laws otherwise then as in terroremâ—… and if it owned the lawfulness of putting men to Death for the Profession of any Religionary Principles their liberty to prosess which was purchased for them by the Blood of their Redeemer But I need not say more now about cautioning you or any one against the taking offence at any of our Laws Laws through want of considering which of them were designedly made for terror I might here likewise as to many Acts about Trade that swell the Statute-Book apply the Consideration of the Regal Power of dispensing therein having encouraged our Ancestors to perpetuate them as Laws A. The truth is you now put me in mind how I having long ago spent much time in considering the Trade and Traffick of our Country and of other Parts of Christendom and finding that shortly after His late Majesty's Restoration one of his Ministers had in a Publick Speech intimated it to the Parliament that His Majesty had setled a Councel of Trade consisting of some of the Lords of his Privy Councel and of some Gentlemen of Quality and Experience and of some Principal Merchants of the Principal Companies I had the curiosity to look over their Iournals and their Advices and Reports to the King and there I found somewhat of the same notion with yours in one of their Reports to His Majesty For there in one of their Papers of Advice addressed to the King taking notice that what they conceived fit to be done for the advancement of the Trade of the Realm was Prohibited by divers ancient Statutes they make them imply that the thing might be done by the King's licence or dispensing and whereupon they thus go on And therefore finding this Dispensation to be your Majesty's Prerogative preserv'd entire to the Crown through so many of your Royal Progenitors we have not thought fit to touch further upon this Matter as being humbly confident that your Majesty's Subjects shall upon all occasions be indulged the like if not more ready relief and accommodation for their Trade from your Majesty's Royal Grace and Bounty only because the Observation was obvious that perhaps all former Parliaments purposely left this door open to the People by the Grace of the King to be reliev'd with those dispensations as foreseeing how difficult if not impossible or how inconvenient at least it might be altogether to restrain what those Statutes prohibited we could not omit the same in this place c. B. And you have put me in mind how a very Loyal and judicious Gentleman of that Councel of Trade and whom I look on to be as deeply study'd in the
all his Subjects it might have sufficiently satisfy'd you therein and if at our next meeting you will have me dilate more on what our Lawyers have said about the Point of the debt of our Natural allegiance I shall do it A. Our great Lawyers Judgments in that Point being known may be variously useful and directive to the many illiterate and presumptuous Reflecters on the exercise of Prerogative and especially if so learned and so popular a Lawyer as Sir Edward Coke shall be by you further cited in such a Case And so what you shall acquaint me with as from any such one of them shall be kindly welcome B. What you have now said brings it into my mind how that Great popular Man Sir Edward Coke was cited for this purpose by that great popular Man Sir William Iones in his learned Argument in Thomas Dorcel's Case and where he did so much right to the DISPENSATIVE Power A. What Did Sir William Iones maintain the King's Power of Dispensing with Acts of Parliament B. Yes and I believe was never censured for so doing by any one A. I pray tell me what was said by him in his Argument B. Then according to the very Learned and Judicious and Candid Manuscript Report I have of the Case thus it was Among the three Points made the first being if the Non-obstante in the Patent of King James was good against the Statute of Edw. 6. Jones agreed that the King may by Non-obstante dispense with a thing Prohibited by Statute if the thing were lawful before the Statute were made And he afterward said that a Dispensation to one and his Heirs was never good but only in that of a Sheriff 2. H. 7. 6. Grant of a Shrievalty in fee Non-obstante the Statute But Coke 7. R. 14. Calvin's Case the Reason of that is because the King hath interest to have the Service of all his Subjects by the Law of Nature And the truth is that on this noble and great Consideration it is that our Divines who have treated of the OATH of SUPREMACY have fix'd the reasonableness and intent of that Oath and of the King 's having a right to Command the Obedience of all his Subjects upon the basis of the Law of Nature as well as on the Divine Law Positive And thus too the style of the Acts of Parliament about the Oath of Allegiance runs and which Acts you may Consult if you want any more Iudgments of Parliament about the indissolubility of the King 's right to Command the Obedience of the Subject and of the Subjects duty to obey before we meet again The reasonableness of the words in that Oath contain'd in the Statute of 3 tio Iacobi viz. Of declaring that the Pope hath no Power to discharge any of his Majesty's Subjects of their Obedience appears from its being call'd in that Statute their Natural Obedience And the putting in Practice the perswading or withdrawing any of the King's Subjects from their Natural Obedience to his Majesty or to reconcile them to the Pope or See of Rome is there made Treason We will speak more of other Statutes of this nature at our next meeting And in the mean time let me observe to you how as in the Conjuncture of the Exclusion so many were infatuated as for fear of Popery to come to run upon the very Court of Rome-Popery at present namely that of Dominium fundatur in Gratiâ so likewise many mens fear of the belief of perhaps some Religionary Tenets of Popery gaining ground for the future hath hunted them upon the Popery of thinking that Subjects CAN in part or in whole be discharged from their Natural Obedience to their Prince A. I thank you Sir for suggesting that to me for the truth is the tenet of thinking it lawful so to discharge Subjects from such their Natural Obedience is the very odiosa materia charged by so many on the Councel of Lateran B. You say right But however let me occasionally advise you not to charge the odious matter in that Councel on the Communion of the Church of Rome For I shall tell you that the great Writers of our Church did after the real Plot of the Gun-Powder-Treason pursue such noble Methods of Christian Charity as with an intent of improving the Principles of Loyalty and Allegiance among all our Roman-Catholick Countrymen to endeavour to prove with all their Learning that the Decrees of that Councel obliged no Papist in point of Conscience King Iames in his Works calls it but a Pretended Councel and Dr. Donne in his Pseudo-Martyr endeavours to prove it no Councel Moreover Bishop Bilson in his learned Works for maintaining the Oath of Supremacy saith that Nothing was Concluded in the Councel of Lateran I have here on the Table his Book call'd The Difference between Christian Subjection and Un-christian Rebellion Printed A. 1586 in which his Learned and Iudicious Assertions and Explications of the Regal Supremacy and of our Moral Offices to defend the same are comprised and there in Part 3. p. 6. you will find what he saith of the Lateran Councel A. I have not the Book and shall be glad I may borrow it from you that thereby I may have the better prospect of the Measures of our Divines in their Sense of the Assertory part of the Oath of Supremacy as making the Rights of our Kings to Command the Services of all their Subjects to be indissoluble B. I pray take it along with you And I am the rather desirous you should do it because in this Crooked and Perverse Generation many who strain their Consciences by the inobservance of the Oath may be so vain as to fancy that others strain the Oath who endeavour as I have done to build the Right of our Kings to Command the Services of their Subjects on its so firm Foundation He was trusted by the Government to write on the Subject of the Oath and so his Authority is of the more weight and I shall here at parting read to you what he saith in Part 2. p. 183. where he so well insinuates it that the Prince can freely permit safely defend generally restrain and externally punish within the Realm but in p. 328. having spoke of the true Supremacy of Princes he saith This is the Supremacy which we attribute to Princes that all Men within their Territories should obey their Laws or abide their Pleasures and that no man on Earth hath Authority to take their Swords from them by Iudicial Sentence or Martial Violence And he there had before said in his Margin the Sword of Princes is Supreme in that it is not Subject to the Pope and must be obey'd of all in things that are good What he saith likewise in p. 346. there is worth your reading where he makes the word Supreme to be a plain and manifest deduction out of the 13th of the Romans Let every Soul be subject to the Superior Powers If all Men must be subject to them ergo they are Superior to all and Superior to all is Supreme He then thus goeth on in his Dialogue-way Phil S. Paul maketh them Superiors over all Persons but not over all things Theop. That Distinction is ours meaning Protestants not yours we did ever interpret Supreme for Superior to all men within their Dominions Phil. And so we grant them to be but not in all things For in Temporal things they are Superior to all men in Spiritual they are not Theop. That restraint comes too late the Holy Ghost charging you to be subject to them simply without addition It passeth your reach to limit in what things you will and in what things you will not be subject And he there saith Out of all Question where Princes may by God's Law Command all men must obey them not only for fear of wrath but for Conscience sake To this purpose too he asserts the Supremacy in the following Page All men are bound to be subject to the Sword in all things be they Temporal or Spiritual not only by Suffering but also by Obeying but with this Caution that in things that are good and agreeable to the Law of God the Sword must be obey'd in things that are otherwise it must be endured At the same rate you will find him writing in his Third Part p. 7. The Word of God bindeth you to obey Princes the words of men cannot loose you But if you will there take notice of the fire of his Zeal breaking into a flame at the thoughts of the displacing of Princes from their Thrones and of the discharging of the People from the Oath and Obedience toward Princes he saith that they who will go to that turn Religion into Rebellion Patience into Violence Words into Weapons Preaching into Fighting Fidelity into Perjury Subjection into Sedition and instead of the Servants of God which they might be by enduring they become the Soldiers of Satan by resisting the Powers which God hath ordain'd A. I thank God I am a Member of the Church of England that may value it self not only on its Doctrine of NON-RESISTANCE but on its DOCTRINE of Positive ASSISTANCE and DEFENCE of all Iurisdictions Privileges Pre-eminences and Authorities granted or belonging to the King c. or united and annex'd to the Imperial Crown of this Realm B. And how from this great Promissory part of our Oath our Obligation to assist and defend the Iurisdiction Privilege Pre-eminence and Authority of the Dispensative Power in particular granted or belonging to the King and united and annex'd to the Imperial Crown of this Realm doth arise we will at our next meeting consider and when I will likewise shew you that the Prerogative royal is a part of the Lex terrae The End of the Second PART 1370. Ex Rot. Parl. in turr Lâ—…nd in 45. Ed. tertii Iustifiables in the French originals Quaere Whether not able todo justice or not to be juststify'd in their Employment as improper for it
Estate of Prelacy by the Kings and Peers thereof But now further to entertain your thoughts with the great Scene of the New Heaven and the New Earth in that Kingdom and of Men there walking at liberty as the words in the Psalms are or at large as 't is in the Maâ—…gin and as in the Latin indesinenterque ambulabo in ipsa LATITUDINE quia mandata tua quaero whose measures were before staked down to the Narrow tedder of Presbytery and whose Souls were once enslaved to a blind Zeal for that Church-Government as what they then fancy'd to be the putting the Scepter into Christ's hand and the only efficacious means to keep out Popery I shall tell you that they have now put the Scepter into their Prince's hand to rule the Church with what external Government he will who were formâ—…rly so ready to enslave both Kingdoms by designing to put the Royal Scepter of Scotland into the French King's hands and to bring a Popish French Army into Scotland to enforce the setlement of Presbytery A. One would hardly think it possible that they should then design any such thing B. As the Civil Law rangeth things that wound mens Piety Reputation or good Manners among Impossibles so one would think those of the Scots then designing a thing of that Nature to be an Impossibility And any one would thus think it impossible who consider'd that the Crown of England A. 1560. sent Forces into Scotland whereby the French were driven out of that Kingdom and that thereupon in the Publick printed Prayer prefixt to the Scots Psalm-Book it is said viz. And seeing that when we by our own Power were altogether unable to have freed our selves from the tyranny of Strangers thou of thine especial goodness didst move the hearts of our Neighbors of whom we had deserv'd no such favour to take upon them the common burden with us and for our deliverance not only to spend the lives of many but also to hazard the Estate and Tranquillity of their Realm grant unto us O Lord that with such reverence we may remember thy benefits receiv'd that after this in our default we never enter into hostility against the Realm and Nation of England Suffer us never O Lord to fall to that ingratitude and detestable unthankfulness that we shall seek the Destruction and Death of those whom thou hast made Instruments to deliver us from the tyranny of merciless Strangers c. But he who shall read Kâ—…ng Charles the First 's Declaration concerning his Proceedings with his Subjects of Scotland since the Pacification in the Camp near Berwick Printed A. 1640. will find this Fact too true and the Letter there likewise Printed which was under the hands of the Leading men of the Presbyterian Faction in Scotland writ to the French King and wherein his assistance is implored A. But by that Act about the Supremacy in Scotland A. 1669. that you read to me I see that the old Leaven of Presbytery is there sufficiently purged out and that the very mass of Blood in mens Principles relating to the Regal Power is universally sweeten'd B. You have great reason to judge so and if you had read the Scotch Statutes since the year 1660 you would find the Body of that Nation having the temperamentum ad pondus for Loyalty And your having mention'd the old Leaven there purged away minds me of minding you that that Nation having so nobly discharged its moral offices in that Case ought to be absolv'd in the thoughts of all the Loyal from the Fact of its former deflection from Loyalty and that the great measures of Christian Charity ought to extend beyond that Judgment of Seneca that poenitens est fere innocens and even as far as S. Paul's generous discharge of the Corinthians on their having purged out that ferment viz. For behold what carefulness it wrought in you what clearing of your selves yea what indignation yea what fear yea what vehement desire yea what zeal c. In all things ye have approved your selves to be clear in this Matter Look on their Acts of Parliament in the time of K. Charles the Second by one of which it is declared That his Majesty his Heirs and Successors by Uirtue of the Royal Power which they hold from God Almighty over this Kingdom shall have the sole Choice and Appointment of Officers of State and Councellors and Iudges and by another That the Estates of Parliament considering that the Kings of this Realm deriving their Power from God Almighty do succeed Lineally thereunto And I can direct you to another that contains in it so strange a Resignation to the King's measures as may make you again wonder at the possibility of such a temper and not to be equall'd by any thing I have read of but that pang of Zeal wherewith so many once at Cambridge were affected for Edward the Senior when they swore to will what he willed I mean that Act of Parliament in Scotland An. 1661. Concerning the League and Covenant and discharging the renewing thereof without his Majesties Warrant and Approbation The Act concludes with an Inhibition That none presume to renew that Covenant or any other League or Covenant without his Majesties special Warrant so to do Thus then that Covenant tho by them so much nauseated they shew'd themselves ready again to swallow if his Majesty for any such reasons of State as they could not foresee should enjoyn them so to do A. You do indeed make me wonder at this great example of the tenderness and extent of loyal Obedience in Scotland B. I can tell you of another Act of Parliament viz. the 5th Act of the second Session of the second Parliament of K. Charles the 2d Edenburgh 13. August The Act against Conventicles where their very Zeal against them is a Wall of Fire to guard the Dispensative Power The Act runns thus Forasmuch as the Assembling and Convocating his Majesties Subjects without his Majesties Warrant and Authority is a most dangerous and unlawful Practice prohibited and discharged by several Laws and Acts of Parliament under high and great Pains c. for the suppressing and preventing of which for the time to come his Majesty with Advice and Consent of his Estates of Parliament hath thought sit to Statute and Enact c. That no outed Ministers who are not LICENSED by the Councel Persons not Authorized or TOLERATED by the Bishop of the Diocess presume to Preach expound Scripture or pray in any Meeting c. and that none be present at any Meeting without the Family to which they belong where any not licensed authorized nor tolerated as said is shall Preach expound Scripture or Pray c. A. The Act for Uniformity here 16 Car. 2. doth justice to the Prerogative of the Crown in dispensing by taking care that the Penalties in it shall not extend to the Foreigners or Aliens of the forriegn Reform'd Churches allow'd or to be allow'd by the King's