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
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
insignificant as did the old Politicks I shall refer you to in the Sacred Story and when the whole Earth was of one Language and of one Speech and the Vogue was Let us build a City and Tower whose top may reach to Heaven and let us make us a Name least we be scatter'd abroad on the face of the whole Earth But Heaven confounded their Language and their City was call'd Babel and their feared Dissipation was their Punishment They were so diffident of the Divine Promise whose garranty they had that they were resolv'd by their own hands to provide against all Dangers of a future Deluge and having built their Tower with Brick they thought 't would defend them from the Power of Fire concerning which they had heard the Tradition that a general Destruction of the World should proceed from the fury of that Element and they vainly endeavour'd to secure themselves against the anger of Heaven rather by a lofty Pile then by lowly Minds A. That wretched vulgar Error you referr'd to did shew that the line of Confusion was stretch'd forth on Men's understandings as well as on the Realm in that Conjuncture and I have observ'd that that vulgar Error did last to the very time of the ferment about the Exclusion and long before which time as well as then some have talk'd and writ at this rate viz. That the Oath of Supremacy was expresly made as the title of it shews to shut out the Usurpation of foreign Powers and Potentates and was not meant to provide against any popular Usurpations or Diminutions of the King 's Supreme Authority B. O God! But to speak or write at that rate to Conscience is Chicanerie And I have elsewhere mention'd what one whom I cannot too often mention to be as fair a dealer with Conscience as any the Age hath had told us in his sixth Lecture of Oaths about the Oath of Supremacy binding in this Case You know I mean Bishop Sanderson who there shews that tho Popes Usurpations or arrogating to themselves the Supreme Iurisdiction in spiritualibus throughout this Kingdom was the Cause of the Oath of Supremacy yet the Oath is obligatory according to the express words in the Utmost Latitude the reason is that the intention of a Law is general to provide against all future inconveniences of the like kind or nature Moreover the words in Queen Elizabeth's Admonition referring to the Persons call'd to Ecclesiastical Ministry in the Church as the doubters and the tenour of all the subsequent Interpretations as speaking them principally occasion'd by the doubters in the Church of England do further shew the Vanity of that Objection And if you will more particularly think of the Queen 's Authentick Interpretation of that Oath and approved in Parliament you will find the Oath of Supremacy to be an Oath of Allegiance and that it may be so-likewise properly termed For in the beginning of the Admonition you will thus find it viz. The Queen's Majesty being inform'd that in certain places of this Realm sundry of her native Subjects being call'd to Ministry in the Church be by sinister Perswasion and perverse Construction induced to find some scruple in the form of an Oath which by an Act of the last Parliament is prescribed to be required of divers Persons for the recognition of their ALLEGIANCE to her Majesty c. A. As one may perceive by what the Queen's Interpretation in the Admonition refers to that there was a great ferment in the Kingdom about the sense of the Oath so suitably to what you mention'd of the Prudence of our Ancestors that caus'd various ferments to go off so insensibly the next Parliament in approving her Interpretation without troubling themselves to question the Authentickness of it doth corroborate your observation of the Excellence of the English understandings B. It doth so The fermentation in the minds of the People you speak of had been Epidemical And tho one might fancy by the Proem of the Admonition that the Interpretation as well as the Dispensing with Disability had an eye but on an inconsiderable number of People there referr'd to in the foremention'd words of sundry of her Majesty's Native Subjects in certain places of this Realm c. yet any one who knoweth the History of those times will find the Interpretation and Dispensation as I may say Calculated for the Meridian of all England and the Interpretation having an eye on all Christendom There was then in the Morning of that Queen's Reign and of the restoration of the Reform'd Religion such a thick mist of causeless Fears and Iealousies that had generally o'erspread the minds of Protestants and Papists shortly after the Birth of the Statute of 1 o Eliz. c. 1 o. that nothing but the Supremacy both of Power and Reason that shone in her authentick Interpretation of that Statute could disperse and that too not suddenly For as Mr. Nye in his Book of Two Acts of Parliament or Observations on that Oath tells us It is mention'd in the Admonition that the Queen 's Ecclesiastical Power is the same that was challenged and used by Henry the 8th c. which is supposed by some to be the same that was in the Pope the Person only and not the Power changed so that our Princes are but secular Popes This Objection was strengthen'd by the subtlety of Gardiner abroad and at home by a Sermon Preach'd at Paul's Cross in the year 1588. by Dr. Bancroft who calls Q. Eliz. a Petty Pope and tells us her Ecclesiastical Authority is the same which the Pope's was formerly and in the Margin opposite to what he had said of the subtlety of Gardiner strengthening the Objection abroad hath these words viz. Whom Calvin terms Imposterille And Mr. Nye afterward goes on to shew how the 37th Article did remove the Objection sufficiently The Author of The true Grounds of Ecclesiastical Regiment Printed in London A. 1641. doth in p. 53. mention some mens objecting it against the Ecclesiastical Supremacy of our Monarchs that it may descend to Infants under Age as it did to King Edward the 6th or to Women as to Queen Mary and Queen Elizabeth and that whatsoever we may allow to men such as Henry the 8th yet it seems unreasonable to allow it Women and Children The Papists think this Objection of great moment and therefore Bellarmine in great disdain casts it out that in England they had a certain Woman for their Bishop meaning Queen Elizabeth and she knowing what an odium that word would draw on her both among Papists and many Protestants also Consults her Bishops about it and by their advice sets forth a Declaration certifying the World thereby that she claim'd no other Headship in the Church but such as might exclude all dependency on foreign Headships and secure her from all danger of being deposed c. The Bishops in this did as warily provide for their own Claim as the Queen 's And the Roman-Catholick Author
of 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
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
publickly or privately 〈◊〉 he should be lawfully restored and releas'd of his said Suspension But shortly after the beginning of the Reign of the Royal Martyr he was again restored and was afterward again silenced and so continued till August 2. A. 1631. and then he was again restored And Mr. Dod's Life represents his Case as parallel with this before-mention'd He was in King Iames his time suspended and restored and again by the King 's particular Command disabled from Preaching and was by King Charles the First re-ennabled or restored Thus as fortis fortem amat one tender Conscienced man too loves another such and the Executive Power of the Law in re-ennabling after temporary Disability was tenderly administred by these our Princes to these Conscientious Men with respect to their real Capacity of Favour to be shew'd them A. You have here given me a taste en passant of part of the Dispensative Power as exercised in the three Realms during some Conjunctures in the Reign of King Charles the First and for which I thank you and particularly for what you told me of the Act of Parliament dispens'd with in Scotland of which I never heard before and am apt to suppose a thing of that Nature was never done before in that Realm B. I can assure you to those who know the Publick Transactions of that Kingdom the thing will not in the least seem new I can tell you that on the 26th of November A. 1593. King Iames the 6th of Scotland made an Act of State in favour of three Roman-Catholick Earls Huntly Arroll and Angus by which Act he allow'd them several Priviledges contrary to Acts of Parliament made against Roman-Catholicks And His Majesty in his Act of State expresly dispenseth with those Acts of Parliament and which Dispensation tho Queen Elizabeth importuned him to revoke and for that purpose sent the Lord Zouch as her Embassador to him he still adhered to the Act of State he had made and continued his Dispensation A. Have you this Matter of Fact out of any of the Records in England or Scotland B. I have it out of the Original Papers under the hand of Queen Elizabeth and her great Minister Burghly and the Original Instructions of the Lord Zouch when sent by her to expostulate with the King about it that were lately in my Custody and by me sent to our gracious Sovereign and I shall some other time give you a more particular account of that Dispensation A. But I beseech you did not the Protestant Divines of the Church of Scotland then cry out of the unlawfulness or inexpedience of that Dispensation B. I have read it in a learned Book of Dr. Maxwell a Scotch-man Printed A. 1644. and who was then Bishop of Killally in Ireland and had formerly been Bishop of Rosse that Mr. Robert Bruce one of the Ministers of Edenburgh and who had a great sway in the Church of Scotland was pleas'd with the King 's extending his Favour to Angus and Arroll but out of a factious Complyance with the Earl of Arguile was displeas'd at its being shewn to Huntly But that Loyal Bishop there acquiesceth in the reason of State that inclined the King to Pardon the three Earls and his thereby hindering the growth of Faction in Scotland and providing for his more easie and secure access to the Throne of England on the Death of Queen Elizabeth And so you may easily guess what sort of men in Scotland look'd with an evil eye on that Act of the Royal goodness and who did not The Bishop there had applauded the great depth of the King's Wisdom and his transcendent Goodness in the Pardoning the three Earls and mention'd that there was nothing of Religion in the Case of Bruce's Aversion against the Pardon of Huntly for that Angus and Arroll were as bigot Papists if not more then Huntly I can likewise direct you to my Lord Primate Bramhal's celebrated Book call'd A Fair warning to take heed of the Scotish Discipline where in Chap. 6. thus entituled viz. That it robs the Magistrate of his Dispensative Power he saith by way of instance When the Popish Earls of Angus Huntly and Arroll were excommunicated by the Church and forfeited for Treasonable Practices against the King it is admirable to read with what Wisdom Charity and Sweetness his Majesty did seek from time to time to reclaim them from their Errors c. and on the other side to see with what bitterness and radicated Malice they were prosecuted by the Presbyteries and their Commissioners c. sometimes threatning that they were resolv'd to pursue them to the uttermost tho it should be with the loss of all their Lives in one day c. sometimes pressing to have their Estates confiscated c. He refers there in his Margin to Ass. Edinb 1594. But any one who shall consult D'Ossat's Letters and there in the Second Book carefully read over the 37th Letter that was writ to Villeroy in the year 1596 and three years after the Date of King Iames his Act of State and observe what that great Sagacious Cardinal there refers to concerning the Circumstances of those three Earls and how all the Prudence that could be shewn by man was but little enough for the Conduct of that King in that Conjuncture in order to his removing what Impediments either from Rome or Spain or his Native Country might obstruct his Succession to the Crown of England will not wonder at his having dispens'd and continued his Dispensation as aforesaid A. I have not yet ask'd you whether the Divines of the Church of England did not lift up their voices like a Trumpet against the Dispensative Power thus exercised by their Prince as you have mention'd B. They discharged their Duties in Preaching occasionally against all growing Errors but they wanted none to mind them of the Saying Impium esse qui Regi dixerit Inique agis The Pious and Learned Author of Certain Considerations tending to Peace c. mentions how the Bishop of St. Davids in King Iames's Reign A. 1604. did in a set Speech in Convocation shew that Ministers were not in the late Archbishop's time disabled from their Ministry on the Account of Non-conformity to the Ceremonies by Law enjoyn'd and concluded his Speech with the motion of Petitioning the King That if the removal of some of the Ceremonies enjoyn'd could not be obtain'd nor yet a Coleration for them of more stay'd and temperate Carriage yet at least there might be procured a mitigation of the Penalty c. And as the Suspension or Disabling of Hildersham and Dod from their Ministerial Functions so the Restoring of them to the same without all such things done by them as the strictness of the Lawes required was in both those Princes Reigns executed by the Bishops Nor do I remember to have read of any Divine of the Church of England to have in the least look'd with an evil eye on the goodness of the
that can or may in any wise be objected against the same c. it follows That all Acts and things heretofore had made or done by any Person about any Consecration Confirmation or Investing of any Person elected to the Office or Dignity of any Archbishop or Bishop c. by Uirtue of the Queens Majesty's Letters Patents or Commission c. be and shall be by Authority of this present Parliament declared judged and deemed at and from every of the several times of the doing thereof good and perfect to all respects and purposes any matter or thing that can or may be objected to the contrary thereof in any wise notwithstanding Sir E. Cook in the 4th part of his Iustitutes c. 74. viz. Of Ecclesiastical Courts takes notice how our adversaries had made objections against our Archbishops and Bishops consecrated about the beginning of the reign of Queen Eliz. and consequently against the Bishops ever since That they were never consecrated according to law because they had not three Bishops at least at their Consecration and never a Bishop at all as was pretended because they being Bishops in the reign of Edward the 6th were deprived in the reign of Queen Mary and were not as was pretended restored before their presence at the Consecration These pretences being but Cavils are answer'd by the Statute of 8 o Eliz. c. 1. and provision made by authority of that Parliament for the establishing of Archbishops and Bishops both in proesenti and in futuro in their Bishopricks But Mason in his 3d Book c. 7th De ministerio Anglicano in his answering the objection hath recourse to the Queens Patents referr'd to by the Statute of 8 o Eliz. and having mention'd the Queen's dispensing by her supreme authority cum quavis causâ aut suspicione câ—…jusvis DEFECTUS aut INABILITATIS quoe quovis modo contra eorum consecrationem obtendi poterat he saith verba in diplomate Regio sic se habent supplentes nihilominus suprema authoritate nostra Regia ex mero motu certa scientia nostris si quid in hiis quae juxta mandatum nostrum per vos fient aut in vobis aut vestrum aliquo conditione statu aut facultate vestris ad praemissa perficienda desit aut deerit eorum quae per statuta hujus Regni aut per leges ecclesiasticas in hac parte requiruntur aut necessaria sunt temporis ratione aut rerum necessitate sic postulante and then adds unde serenissima Regina ut omnem calumniandi ansam proecidere ipsique invidioeos obstruere posset c. DISPENSARE dignata est siquid forte Lynceis oculis invidia alicujus statuti vel canonis violati proetextu possit obtendere And then having brought in his Popish opponents objection Hem quid audio Vos Pâ—…ntificis maximi Dispensationes dente canino soletis arrodere jam nihil pudet in Actis Parliamentariis laicali magistratui Reginoe foeminoe dispensandi facultatem transcribere Dispensandi inquam cum quavis causâ aut suspicione ullius defectus aut INABILITATIS quoe incidere poterant idque in sacris ordinibus he makes this reply viz. Papa aliquando dispensat nimium papaliter sed non perinde Elizabetha Suas tantum leges RELAXAVIT Cum transgressionibus contra leges suas DISPENSAVIT Quod Deus fixit nunquam refigere aut rescindere est molita And there afterward to the objection si dicatur Reginam sufficientem dispensandi cum illis potestatem habuisse proferatur aliquod illius potestatis fundamentum â—…i non ex scripturâ sacrâ saltem ex Conciliis aut patribus aut uno aliquo approbato exemplo in toto mille quingentorum annorum curricuâ—…o the reply is Nonne Principis est legum suarum râ—…gorem res ubi postulat emollire Non magno opinor opus est mâ—…limine ad hoc probandum and as to what was objected against a Prince's dispensing with an ecclesiastical Canon he saith Canonum quatenus sunt leges Principis ecclesiasticoe summum jus rigorem duritiem moderari spectat ad officium principis And then he judiciously confutes Sanders his reproaching our Bishops in his book of Schism with the term of Parliamentarii episcopi and he referrs to the words in the Statute of 8 o Eliz. that I have mention'd to you and saith of them Omnino liquido ostendunt Comitia Parliamentaria non consecrasse ordinasse vel constituisse episcopos aut ministros sed jam secundum leges ecclesioe LEGITIME Consecraâ—…os ritè ordinatos ac Constitutos pro talibus habendos esse DECLARASSE c. And so I doubt not but you mind the words in that Act relating to the Queen's Letters Patents viz. shall be by authority of the Parliament not made good for they were so before but declared judged and deem'd good A. I apprehend you B. But to return to the Consideration of what you are on the whole matter obliged to by virtue of the Oath of Supremacy in the Case now before you and herein I find that by Virtue of the Queens interpretation of that Oath and the Parliaments Approbation thereof that when in the Assertory part of the Oath you do utterly testify and declare in your Conscience that the King's Highness is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal you have as in the Presence of God solemnly given your cordial Assent to and made your most Religious acknowledgment that the SOLE Supreme Government or Soveraignty and Rule under God over all manner of Persons born within these Realms is in the King and you are obliged to judge that tho the Oath speaks of all Spiritual or Ecclesiastical THINGS or Causes and the interpretation of all manner of Persons of what Estate either Ecclesiastical or Temporal soever they be yet there is no inconsistence between the Oath and the Interpretation for that as a Learned man in his Comment on that Oath hath well observ'd there is no Opposition between these two Persons and Causes the Principal object of a Law is a Person and a Person with respect to his Actions a Person morally Consider'd and he there quotes Suarez de Legibus l. 1. c. 8. saying Ad leges per se requiritur potestas in personam secundario in Res alias and for that the Assertory clause in the Oath declaring the King the only Supreme Governor of this Realm doth necessarily imply his being the only Supreme Governor of all Persons in it A. But perhaps you did not take notice that probably one reason why Queen Elizabeth was willing that her Interpretation that related to the Assertory part of the Oath I mean as to her Power over all the Persons of her Subjects and which was Publish'd in the Admonition after her Injunctions should in the aforesaid Act in the 5th year of her Reign be approved in Parliament might be to satisfie the scrupulousness of some mens Tender
doth appertain and is not nor ought to be subject to any foreign Iurisdiction Where we attribute to her Majesty the Chief Government by which Title we understand the minds of some slanderous Folks to be offended we give not to our Princes the ministring either of Gods Word or of the Sacraments the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify but that only Prerogative which we see to have been given always to all Godly Princes in holy Scriptures by God himself that is that they should rule all Estates and Degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers The Bishop of Rome hath no jurisdiction in the Realm of England The Laws of the Realm may punish Christian Men with death for hâ—…inous and grievous Offences It is lawful for Christian Men at the Commandment of the Magistrate to wear Weapons and serve in the Wars Now after the Oath of Supremacy had been enjoyn'd in the first year of her Reign and the Admonition annexed to her Injunctions was then likewise publish'd viz. A. D. 1559. and after the Parliament had by proviso 〈◊〉 the interpretation of the Oath which Parliament began the 12th of Ianuary in the 5th year of her reign and from which day all things dâ—…ne in that Session are to bear date the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation holden at London in the 5th year of her reign and A. D. 1562. were by the Archbishops and Bishops of both Provinces subscribed the 29th of Ianuary in that year and by the Clergy of the lower House of Convocation on the 5th of February following and to all which the Queen gave her Royal Assent And in the Articles there was by the Queens Royal Prerogative an additional Interpretation probably at the instance of the Clergy given to the interpretation in the Admonition and in the Parliaments Proviso and the which additional interpretation had in it no respect to nor mention of what being in several places of the former one might amuse the Clergy with some Fears and Iealousies namely the Duty Allegiance and Bond that were acknowledged due to Harry the 8th and Edward the 6th and the Authority that was challenged and lately used by those Princes however yet that latter Clause is qualify'd in the Admonition But for the 37th Article before-mentioned allowing the measures of the Royal Supremacy from the Prerogatives given by God in Scripture to holy Princes whereby our Clergy might seem to have brought the Prerogative into its own proper Element and theirs too the knowledge of the Scriptures being their profession our Clergy no doubt were always thankful to the Crowns Dispensative power and so exercised out of Parliament and whereby they were secured from penal disabilities either by suspension or deprivation for not taking the Oath in the sense of the Admonition Thus as things in their proper place are at rest the Queens Dispensative power and the Consciences of the Clergy by this interpretation of the Oath were so much at rest that about eight or nine years afterward the same 39 Articles that had been by the Archbishops and Bishops and Clergy of both Provinces agreed on in the year 1562. were by the said Archbishops Bishops and Clergy again agreed upon and again ratify'd by the Queen in the year 1571. the 13th year of her reign and when care was taken by the Government that that interpretation being incorporated in the body of the 39 Articles should be deem'd good in Parliament by the Statute of 13 o Eliz. c. 12. as the other interpretation in the Admonition had been by the proviso in the Act of the 5th of that Queen and probably for the same reason and as her dispensing with disability expresly in the 8th year of her reign was In the Act of the 13th of Eliz. reference was made to those Articles as agreed on by the Archbishops and Clergy and set forth by the Queens authority Anno 1562. and the Act is entituled Reformation of Disorders in the Ministers of the Church and in which it was enacted That all such as were to be ordained or permitted to preach or to be instituted into any Benefice with cure of Souls should publickly subscribe to the said Articles which shews if you mind it that tho the Parliament did well allow and approve of the said Articles yet the said Book oweth neither Confâ—…rmation nor Authority to the Act of Parliament And that Act concerning only Clergy-men tho the interpretation in the 37th Article is left to oblige the Clergy yet that in the Admonition might concern you to stick to if nothing had since happen'd whereby the dispensative power inherent in the Crown may have given your Conscience the benefit of the interpretation thus afforded to the Clergy But therefore I shall here tell you that the Canons of King Iames the â—…st Anno 1603 being confirmed for him and his Heirs and Successors are binding now however it hath been objected as the unhappiness of Queen Elizabeths Canonâ—… viz. A. 1571. A. 1584. A. 1597. wanting those formal words of Heirs and Successors to expire with her And as those words are in King Iames's Canons so are the words of enjoyning their being observ'd fuâ—…fill'd and kept not only by the Clergy but by all other Persons within this Realm as far as lawfully being Members of the Church it may concern them and tho in the first Canon there entituled The King's Supremacy over the Church of England in Causes Ecclesiastical to be maintain'd 't is order'd That all Ecclesiastical Persons shall keep and observe and as much as in them lyeth all and singular Laws and Statutes made for the restoring to the Crown of this Kingdom its ancient Iurisdiction over the state Ecclâ—…siastical yet in the next Canon entitled Impugners of the King's Supremacy censurâ—…d the measures of the King 's ecclesiastical Authority being taken from the Godly Kings among the Iews according to the 37th of the 39 Articles was an extending to the Layety the ben fit of the Interpretation obtain'd by the Clergy the which was in effect a judgment of the Convocations that the pursuance of that Interpretation of the King 's Ecclesiastical Power and the avoiding of the punishment of Disability by the use of that Power was not agaâ—…st the Law of the Land but the 5th Canon viz. Impugners of the Artiâ—…les of Religion establish'd in the Church of England censured and in which the establishment of the 39 Articles is solely referr'd to them as agreed on in Convocation in the year 1562. without any notice of the Parliament of the 13th of Eliz. having done any thing about them doth more clearly secure to you the benefit of the Interpretation the Clergy had A. You have mention'd so many things to me relating to the interpretation
some mens Minds are involv'd in they can no more alter their beliefs about Transubstantiation then they can transubstantiate themselves into other Creatures and are under a Moral incapacity of preventing another incurred by Law. And therefore as it would be Injustice in a Judge to Punish a man for the Errors of the mind that he knoweth not to be voluntary and for a man 's not putting himself into a Capacity to serve the King by the Professing of the truth in Problematical Points when the King of Kings hath by the not sufficient promulgating of such truth to his understanding render'd him innocent in his disbelief thereof and so long morally uncapable to profess it so by one man's after another appearing thus unable to qualifie himself to serve the King he may be totally unserved I have often heard you complain of the narrow Idea's of the King's Supremacy in some of the Non-Conformists but if you will read the Protestation of the King's Supremacy made by the Nâ—…n-conforming Ministers and Printed A D. 1605. you will find that they have there given in sufficient caution for tâ—…eir Principles not allowing any of the King's Subjects being disabled from serving him For they having said in § 1. We hold and maintain the same Authority and Supremâ—…cy in all Causes and over all Persons Civil and Ecclesiastical granted by Statute to Queen Elizabeth and expressed and declared in the Book of Advertisements and Injunctions and in Mr. Bilson against the Iesuites to be due in full and ample manner without any limitation or qualification to the King and his Heirs and Successors for ever they add in § 2. We are so far from judging the said Supâ—…emacy to be unlawful that we are persâ—… aded that the King should sin highly against God if he should not assume the same to himself and that the Churches within his Dominions should sin damnably if they should deny to yield the same to him yea tho the STATUTES of the Kingdom should deâ—…y it to him And they tell you in Sect. 6. that the height of the King 's Royal Dignity consists in his Supremacy It is thus likewise a kind of familiar or Vulgar Error among Protestants to think that in the â—…ncient times this Fundamental Assertory part of your Oath tâ—…at the King is the only Supreme Governor of this Râ—…alm was not allow'd Long before the Rescript of the University of Oxford to Henry the 8th A. 1534. mention'd that he was next under God their happy and Supreme Moderator and Governor and on which being brought into the Parliament House an Act passed whereby the King was declared Supreme Head and Governor of the Church and long before it was declared by the Parliament 16. R. 2. c. 5. that the Crown â—…t England hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regality of the same Crown and to none other and long before Bracton's writing in the Reign of H. 3. Omnis quidem sub Rege ipse sub nullo sed tantum sub Deo and ipse autem Rex non debet esse sub homine sed sub Deo. c. you will find if you look into Coke's 4th Instit. c. 74. that in the Law before the Conquest the style runs Rex autem quia Uicarius summâ—… Regis est ad hoc est constitutus ut Regnum terâ—…enum populum Domini super omnia sanctam veneretuâ—… Ecclesiam ejus regat c. and where he tells you of the style of King Edwin in his Charters viz. of Angâ—…orum Rex totius Britannicae telâ—…uris Gubeâ—…nator Rector And he there refers likewise to several Grants made by Abâ—…ots and Priors to King E. 4. wherein they style him by these very words Supremus Dominus noster But that he might perimere litem as to the point of the ancientness of the King's Supremacy he there referreth to the judgment of Parliament declared in the Statute of 24 o. H. 8. c. 12. viz. That by divers authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governâ—…d by one Supreme Head and King c. unto whom a Body-Politick compact of all sorts and degrees of People divided in terms and by names of Spiritualty and Temporalty been bounden and owen to beat next unto God a natural and humble Obedience c. And here I am led to tell you that as it is on this Foundation of the King 's being the Supreme Governor and Ruler of all sorts and degrees of men thus anciently acknowledged by our Roman Catholick forefathers that the Regal Power of Dispensing with the Laws that were Penal by Incapacity and particularly in order to the Crown 's being enabled to command the Obedience and Service of all Estates and Degrees of men was built so it is on the same that the Usurpations of the Papal Dispensative Power of that kind were opposed I shall before we part give you instances hereof A. I thank you but shall here tell you that the Expression you used just now about the King being disabled by his Subjects being so hath overcast my thoughts with some kind of horror B. I cannot help it but if you will have me speak with the frankness of a Philosopher concerning the Nature of things the disabling of the Subjects must have that effect in Nature and of the disabling of their Country too And I think too you gave me a hint for some such thought at our last meeting If you do but consider the Services done to Monarchs by that abject Nation of the Iews and who by Tacitus were call'd the Vilissima pars servientium and how in our Saviour's time they were serviceable to the Roman Empire in the Collection of the Customs and how much they have been since and still are useful to the Grand Signior and to many Christian Princes by gathering in their Imposts you will easily imagine the loss that would redound to Princes by Religionary Heterodoxy disabling any to serve them It is but natural to men of the most inquisitive and penetrating thoughts to differ from many Points of Theology receiv'd by Princes and their People and since such heterodoxy doth difficult their access to Preferment it is but Natural to them by their working Thoughts and Industry to arrive at the excelling the duller Orthodox in whatever course of life they take and by that means to try to push on their way into their Prince's favour and consequently to have very sharp regrets against any Methods that would incapacitate them for it And as if this Civil Death were to Men of great Thoughts the terrible of terribles and what as hindring them from serving their Prince and Country were like Burying them alive I shall shew you how a Man of great Abilities and who had made a great Figure in the Church
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
Fra. Walsingham And what sense the House of Commons had in the beginning of the Reign of King Iames the First of the Disabling of several of the Nonconformist Divines being a Gravamen to the Realm appears by the Petition of that House to the King Anno 1610. as I find it in Mr. Nye's Beams of former Light p. 103. viz. Whereas divers painful and learned Pastors that have long time travell'd in the work of the Ministry with good Fruit and Blessing of their Labour have been removed from Ecclesiastical livings being their free-hold and from all means of maintenance to the great grief of sundry your Majesty's well-affected Subjects we therefore humbly beseech your Majesty would be graciously pleas'd that such deprived and silenced Ministers living quietly and peaceably may be restored c. But in short if you consider that the great Cause that excited the Loyal Zeal express'd in the Statute of the First of Queen Elizabeth and whereby so many Statutes of Harry the 8th against the Papal â—…pations were revived was that the King and Kingdom might not be disabled by Clergy-mens not being Subjects to the Crown through Papal Exemptions and that the Crown might Cum effectu be restored to its Government over them i. e. of the whole Realm and that our Monarchs should by means of such Exemption be no more disabled from being Governors only IN their Realm and not OF it and as when the Right of two Persons claiming to be Princes of Tuscany was before the Pope's Arbitrage he determin'd that one of them should be A Prince IN Tuscany and the other Oâ—… it you will find that this Supreme Power over all Persons as inherent in the King is the very Lapis Angularis on which your Abjuration of foreign Iurisdiction and on which the whole Promissory part of your Oath are built For when you have first declared in your Oath that the King is the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal and then what followeth upon that viz. That no foreign Prince Person Prelate State or Potentate hath or ought to have any Iurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm you say And THEREFORE I do â—…tterly renounce and forsake aâ—…l foreign Iurisdictions c. And do promise that from henceforth I shall bear Faith and true Allegiance to the King's Highness c. and to my Power shall assist and defend all Iurisdictions c. granted or belonging to the King's Highness c. or united and annex'd to the Imperial Crown of this Realm Thus then the Reason why you abjure foreign Jurisdiction for you ABIURE when you swear to quit and forsake as Mr. Nye in his Observations on that Oath tells us and why you promise to assist and defend all Iurisdictions granted or belonging to the King whose Subject you are is resolved into the Kings being the only Supreme Governor of this Realm as well in all Spiritual or Ecclesiastical things or Causes as Temporal I am here further to tell you that when by your Oath you have renounced the Pope's Dispensative Power you have asserted and have obliged your self to defend the Jurisdiction of the King 's Dispensative Power in the room of it and the defence of which was the great design and drift of the entire Statute of 1 o. Eliz. and of your Oath therein and no collateral thing A. I have been and am pleas'd with that Prospect you have given me into the Region of the Dispensative Power used by the Crown in the Interpretation of my Oath a Region that was before to me like the terra Australis Borealis incognita but to deal frankly with you I am yet to seek out the meaning of this notion last â—…rted by you that the drift and design of the Statute of 1 o. Elizabethae and the Oath was to prop up the King 's Dispensative Power I doubt not but you are perfectly sensible that he who speaks to that tender thing call'd Conscience and about an Oath ought to be tender of any point he urgeth to it and not to wyre-draw any thing by forced Consequences that is to be offered to it as Obligatory B. I assure you I go by those very measures in giving you my Judgment of the design and drift of that Statute as I have done and that he must put the Statute on the wrack that will make it speak any other meaning Consider what the Prefatory part as the key of it mentions viz. That divers good Laws and Statutes that were made in Henry the Eighth's time as well for the utter extinguishment and putting away of all Usurped and Foreign Power c. as also for the restoring and uniting to the Imperial Crown of this Realm the ancient Iurisdictions c. to the same of Right belonging by reason whereof we your most humble and obedient Subjects from the 25th year of the Reign of your said dear Father were continually kept in good order and were disburden'd of divers great and intolerable Charges and Exactions before that time unlawfully taken and exacted by such Foreign Power and Authority as before that was usurped until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second years of the Reigns of the late King Philip and Queen Mary c. were repeai'â—… by reason whereof they then further mention how they were then brought under an Usurped Foreign Authority to their intolerable Charges and they thereupon desire the Repealing of that Act. Here we are given to see by their dating the aera of their being well govern'd and disburthen'd of divers great intolerable Charges and Exactions taken and exacted by Foreign Power from the 25th of Henry the 8th and had their eye on the Statute of the 25th of Henry the 8th c. 21. entituled No Imposition shall be paid to the Bishop of Rome which sets forth how the Subjects of this Realm were impoverish'd by intolerable Exactions of great Sums of Money taken out of this Realm by the Bishop of Rome as well in Pensions Censes Suits for Provisions and Expeditions of Bulls c. and also for Dispensations Licences Faculties Grants Relaxations Writs call'd Perinde valere Rehabilitations Abolitions and other infinite sorts of Bulls Breves and Instruments of sundry Natures c. wherein the Bishop of Rome hath been not only to be blamed for his Usurpation in the Premisses but also for his abusing and beguiling your Subjects pretending and persuading them that he hath Power to Dispense with all Humane Laws Uses and Customs of all Realms in all Causes which be call'd Spiritual which matter hath been usurped and practised by him and his Predecessors by many years in great deâ—…gation of your Imperial Crown and Authority Royal contrary to Right and Conscience For where this your Graces Realm recognizing no Superior under God but only your Grace hath been and
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
submit willingly And in the clearing of which Point he refers to the Proviso aforesaid in the Statute of the 25th of Harry the 8th and the 37th Canon of the Church of England as rendring the Power by both given to the King to be purely Political But in p. 159. he refers by way of Objection to two Statutes of Harry the 8th the one an Act for extinguishing the Authority of the Bishop of Rome the other an Act for Establishing the Succession wherein there is an Oath that the Bishop of Rome OUGHT not to have any Iurisdiction or Authority in this Realm then faith it is declared in the 37th Article of our Church that the Bishop of Rome hath no Iurisdiction in the Kingdom of England and in the Oath ordain'd by Queen Elizabeth that no Foreign Preiate hath or ought to have any Iurisdiction or Authority Ecclesiastical or Spiritual within this Realm and he then by way of answer to which says That those two Statutes were long ago repeal'd by Queen Mary and never afterward restored c. and that altho it were supposed that our Ancestors â—…ad over-reach'd themselves and the truth in some Expressions yet that concerns not us at all so long as we keep our selves exactly to the line and level of Apostolical Tradition and saith that our Ancestors meant the very same thing that we do Our only difference is in the use of the words Spiritual Authority or Iurisdiction which we understand of Iurisdiction purely Spiritual which extends â—…o further then the Court of Conscience But by Spiritual Authority or Iurisdiction they did understand Ecclesiostical Iurisdiction in the exterior Court which in truth is partly Spiritual partly Political And he in p. 161. takes notice of the Apostles Dispensative Power 2 Cor. 2. 10. to whom I forgave any thing for your sakes forgave I in the person of Christ But all this is only in the interior Court of Conscience But the Primate having in p. 73. discours'd of the Act of 1 o Eliz. c. 1. saith here is no new Power created in the Crown but only an ancient Iurisdiction restored here is no foreign Power abolish'd but only that which is repugnant to the ancient Laws of England and the Prerogative Royal. In a word here is no Power ascribed to our Kings but merely Political and Coactive to see that all their Subjects do their Duties in their several Places Coactive Power is one of the Keys of the Kingdom of this World it is none of the Keys of the Kingdom of Heaven This might have been express'd in words less subject to Excâ—…ption A. The Primate hath shewn an eminent Candour of mind in these Passages of his you have cited and if our Ancestors had but over-reach'd themselves and the truth in some Expressions and in any part of a Statute but that which forms an Oath it had not much concern'd us and as long as they had kept exactly to the line and level of plain Truth in all the words of the Oath but Oaths being stricti juris and being to be taken in truth and in righteousness and in the common sense of the words may I not here to the Assertory Clause of No foreign Prelate or Person hath or ought to have any Iurisdiction c. apply those other words of the Primate This might have been express'd in words less subject to Exception But according to what he cited out of St. Cyprian it may be said instead of no foreign Prelate hath or ought to have any Iurisdiction c. that Every foreign Prelate hath it and not only the Bishop of Rome as claiming a Succession under St. Peter but Thousands of other Bishops in Christendom who as the Primate saith there p. 162. do not at all derive their Holy Orders from S. Peter or any other Roman Bishop either mediately or immediately especially in Asia and Africa but from the other Apostles And suitably to what the Primate observ'd out of S. Cyprian by which we see that as there is but one Universal Church so there is but Episcopatus Unus in that Church and that undivided I find it observ'd in Sir Geffery Palmer's Reports in the Case of Evans Kiffin vers Ascuith Trin. 3. Car. B. R. Whitelock Evesque ad 3 Powers Le Primer est Ordinations and that comes to him by his Consecration and not before By that he can take the resignation of a Church He can give Orders and Consecrate Churches and it belongs not to him as he is a Bishop of one place or other mais il est universel sur tout le monde And therefore the Archbishop of Spalato when he was here could give Orders The Chief Iustice agreed with him herein The second is Potestas Jurisdictionis which is not Universal but tied to certain places as to take an Oath to Excommunicate and Punish offences and this Power he hath by Confirmation The third is Administratio rei Familiaris the Government of his Revenue and this is gain'd by Confirmation By this you see that the Bishop of Rome as every other foreign Bishop may have some Spiritual Power here viz. what the Reporter mention'd as the first And therefore I could wish that the 37th of our 39 Articles to which the Primate refers for the Interpretations of this Clause in the Oath had in those words there the Bishop of Rome hath no Iurisdiction in this Realm express'd such a distinction of his Iurisdiction as the Bishop hath done and otherwise that common and trite Rule of Non est distinguendum ubi lex non distinguit being here applicable you know what is to be thought of an ambiguous Oath and that as the sagacious Author of the History of the Council of Trent hath told us p. 187 as one Particular makes false the contradictory Universal so one ambiguous Particular makes the Universal to be ambiguous Moreover tho you will suppose that he might lawfully take the Oath in his sense of the Pope's Jurisdiction yet all his great Learning and Reason could not qualifie him to be an Authentical Interpreter of the Oath to me In some parts of the Oath that were obvious to doubt you have already given me satisfaction and particularly in making me by vertue of the Canons of King Iames a participant with the Clergy in his authentical Interpretation of the 37th Article And since as Suarez in his learned Book De Legibus 4. c. de Interpretatione humanarum Legum saith that there may be an interpretation of Law which hath the Authority of Law and that qui in eadem potestate succedit semper potest Praedecessotum leges interpretari I shall account King Iames his Interpretation as good as Queen Elizabeth's and that if he had there declared his mind about the Pope's spiritual Power in foro interno being not renounced by this Clause in the Oath I should then be content with it But 't is otherwise for he there Confirms it in effect as 't is in the Article
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
likewise all the Roman Emperors from Augustus to Gratian to assume that title and that the Christian Emperors tho as one saith à fucris Romanorum hoc Pontificis nomine abhorrebant in suis tamen Elogiis nummis passim se Pontifices maximos dici passi sunt quod ad hodiernum diem râ—…dera Romana inspicientibus satis constaâ—… Nor yet will any one find Cause to reflect on the memory of that our Prince for want of consulting his Iudges in the interpretation of his Laws in general nor even of this his Ecclesiastical Law in particular about the Explanation of the Regal Power For Heylin in his History of Archbishop Laud saith that so tender was His Majesty that before he gave his Consent that the Canons of 1640. should be tender'd to the Clergy to be subscribed â—…e caus'd them to be publickly read in Councel and before the Iudges there and by all whom they were approved c. And if Mr. Bagshaw had consider'd what himself had said of the Iudges having no Right to Expound texts of Scripture and how the Convocation in that Canon did introduce the Supreme Power given to Kings by God himself in the Scripture and explain'd by Regal Power Kings ruling and commanding in their several Dominions all Persons of what rank or estate soever and that they should restrain and punish with the Temporal Sword all stubborn and evil doers and likewise what was before mention'd in the Second Paragraph of the Explanation viz. of the Care of God's Church committed to Kings in the Scripture he would have found the Interpretation of the Regal Supremacy as built on the Scriptures by that Caâ—… and approved too by the Judges of the Land to have not been exorbitant The words in the 13th of the Romans of the Higher Powers being the Ordinance of God and of bearing not the Sword in vain and of being the Minister of God and a revenger to execute wrath on him that doth Evil and of rendring therefore to all their dues fear to whom fear honour to whom honour and the words in S. Peter of submitting our selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or unto Governors as unto them that are sent by him for the Punishment of evil doers and for the Praise of them that do well and other passages in Scripture and particularly in the Old Testament were in the eye of the Convocation in their so explaining the Regal Power and you may if you please have them now in your eye while you are considering the Case before you and see how far you are bound to submit to all Governors who shall be employ'd by the King in the executive Power of his Laws against evil doers and for the praise of them that do well and how you are not to disparage such Governors who are so sent for such praise But it is not to be wonder'd at that the Iudges approved of the Contents of that Explanation of the Regal Supremacy and particularly of the Power of punishing evil doers as inherent in the Crown since the same hath been declared so by so many Acts of Parliament and of which I shall name one to you that I have not yet referr'd to viz. that of 1 o Mariae c. 1. Sess. 2. of the Second Parliament of which the title is The Regal Power is in the Queens Majesty as fully as it hath been in any her Progenitors and where 't is said that For as much as the Imperial Crown of this Realm with all Dignities Honours Prerogatives Iurisdictions and Preheminences thereunto annex'd united and belonging by the Divine Providence of Almighty God is most lawfully and rightfully descended and come to the Queen's Highness that now is c. and invested in her Royal Person according to the Laws of this Realm and by force and virtue of the same all Regal Power Dignity Honour Authority Preheminence doth appertain and of right ought to appertain and belong unto her Highness as to the Sovereign Supreme Governor and Queen of this Realm and the Dominions thereof in as full large and ample manner as it hath done heretofore to any other her most noble Progenitors Kings of this Realm the ample manner of Harry the 8th's Power is not therein excepted Nevertheless the most ancient Statutes of this Realm being made by Kings then reigning do not only attribute and refer all Prerogative Preheminence Power and Iurisdiction Royal unto the name of King but also do give assign and appoint the Correction and Punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King c. And considering that a Popish Parliament of Queen Mary's did give this their august Declarative sense of the executive Power of punishing all Offenders against the Regality and Dignity of the Crown which is the great Offence taken at Popery and the Laws of the Realm as belonging to or inherent in our Kings by virtue of their being Supreme Governors of the Realm and that this Supreme Power was Committed to her and her Progenitors by the Divine Providence of Almighty God shall your acknowledgments of such Supreme Power of your Prince be narrower then any of Papists You know how wary and careful our English Princes have always been that their Subjects might see them hold the reins of the Executive Power of the Law in their hands and that none but the stubborn and evil doers need fear the being over-run by it And while I happen to think of the memorable Expression of a Loyal Lord in a Speech in a late Parliament of the unreasonableness of any ones suffering merely by the word Proditoriè being put into the charge of a thing that was not in its self Evil and as if it were said that such an one did traiterously pass over the Thames in a Boat I likewise think of the reasonableness of our Laws in providing for the common Safety by the Prince being allow'd to hold the Sail of the Executive Power in his own hands and which otherwise if ty'd fast about the Boat might cause it upon any sudden gust of wind to be overset You know therefore how King Iames the First in his Apology for the Oath of Allegiance in Answer to the Pope's first Breve thought himself obliged in justice for the maintenance of that Executive Power of the Crown to say as to the Pope's expressing his sorrow for that Persecution which the Catholicks sustain for the Faiths sake wherein beside the main untruth whereby I am so injuriously used as if he had thought it a personal injury to himself that any one in his Realm should be persecuted for Religion I must ever avow and maintain as the truth is according to mine own knowledge that the late QUEEN of famous Memory never PUNISH'D any Papist for Religion He doth not say her Laws and Ministers but SHE never punish'd c. He well
confirm being firmum facere i. e. what was not so before you are not to think that the Parliament in 13 o Eliz. did so They Enacted what was by the Queen before authorized and as the words there are about the Articles viz. Put forth by the Queen's Authority And you may too for this purpose Consult the style of the Act 23 o Eliz. c. 1. Entituled An Act for retaining the Queen's Subjects in their due Obedience and where 't is made Treason for any to withdraw any Subjects from their Natural Obedience to her Majesty or to withdraw them for that intent from the Religion now by her Highness Authority establishâ—…d within her Dominions Thus too as to the Queen's disabling several of the Roman-Catholick Bishops and Deans by her Ecclesiastical Commissioners in the beginning of her Reign pursuant to the Act of 1 o Eliz. c. 1. for restoring to the Crown the Ancient Iurisdiction the Act of Parliament 35 o Eliz. c. 8. entituled Every Deprivation of any Bishop or Dean made in the beginning of the Queen's Reign shall be good and Archbishops Bishops and Deans made by the Queen shall be adjudged lawful begins with acknowledging that the former were justly deprived and it is therefore Declared and Enacted by Authority of this Parliament that all and every Deprivation c. and all and every Sentence of Deprivation c. had pronounced and given c. shall be adjudged deem'd and taken good and sufficient in Law c. and as to the latter viz. That all such Archbishops Bishops and Deans as were ordain'd or made by the Authority or Licence of the Queen's Majesty c. shall be taken and adjudged to be lawful c. Thâ—…y confirmed not what the Queen did in disabling the former and enabling the latter but only declared and enacted the validity of what the Queen had done And here you have again the Judgment of Parliament for approving the Queen's Power of Enabling and Disabling And here too by the way I am to tell you that you have another judgment of Parliament suitable to that in 8 o Eliz. and for the adjudging and taking to be Lawful the making and ordaining of the Archbishops and Bishops by the Authority or Licence of the Queen's Majesty c. any ambiguity or question in that behalf heretofore made to the contrary notwithstanding and which QUESTION before made in the Case I have before shew'd to be disability A. But I suppose you have read of that TWO-FOLD Subscription my Lord Coke speaks of represented as a Gravamen by some B. I have so and the last Book I read that so represents it is the Answer to Dr. Stillingfleet ' s Sermon by some Non-Conformists c. Printed A. 1680. and where in p. 29. they thus express their desires viz. That all New devised Oaths Subscriptions and Declarations together with the Canonical Oath and the Subscription in the Canons be suspended for the time to come If that be too much we shall consent our selves with a modester motion that whatsoever these Declarations be that are required to be made subscribed or sworn they may be imposed only as to the matter and end leaving the takers but free to the use of their own Expressions And this expedient we gather from the Lord Coke who hath providently as it were against such a Season laid in this Observation The form of the Subscription set down in the Canons ratify'd by King Iames was not express'd in the Act of the 13th of Eliz. 4. Inst. c. 74. And consequently if the Clergy enjoy'd this freedom till then in reference to the particulars therein contain'd what binders why they might not have the same restored in reference also to others It was the second Article enjoyn'd by that Canon to be subscribed viz. That the Book of Common-Prayer c. containeth in it nothing contrary to the Word of God and that it may lawfully be used c. at which they took so much offence and to which the Act of Parliament required not their Subscription A. I perceive then my Lord Coke doth not reflect on the form of Subscription as enjoyn'd by the 36th Canon of King Iames and by his Regal Authority out of Parliament as illegal notwithstanding what had been enacted in the 13th of Queen Elizabeth B. He doth not And he there further faith By the Statute of 13. Eliz. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be proceeded withall by the Censures of the Church And I heard Wray Chief Iustice in the King's Bench Pasch. 23. El. report That where one Smith subscribed to the said 39 Articles of Religion with this addition so far forth as the same were agreeable to the Word oâ—… God that it was resolv'd by him and aâ—…l the Iudges of England that this Subscription was not according to the Statute of 13. Eliz. because this Statute required an absolute Subscription c. Besides this Subscription when any Clerk is admitted and instituted to any Benefice he is sworn to Canonical Obedience to his Diâ—…cesan But as to his saying that the Delinquent against this Canon is to be proceeded withall by the Censures of the Church I shall observe that the beginning of the Canon doth incapacitate any to be receiv'd into the Ministry who doth not subscribe the three Articles in it and that the Canon doth afterward put some temporary Disabilities on Bishops who shall Ordain Admit or License any one except he first have subscribed in manner and form there appointed and it is the Universities if offending that the Canon leaves to the Danger of the Law and His Majesty's Censure Here then you see King Iames the First did out of Parliament add a new Subscription to what was required by the Act of Parliament and did likewise out of Parliament make incapacity to be the Punishment of refusing such new Subscription And I need not tell you that that Power so exercised by that Prince out of Parliament hath been approved not only by all the Bishops of the Church of England as putting the Form of Subscription required by that Canon in execution ever since and to this day in lieu of the form required by the 13th of Eliz. but as I may say virtually and tacitly by all our Kings and Parliaments ever since who have acquiesced in the same But what if I should tell you that the Authority of the King in thus making that Canon about Subscription hath been since expresly approved in Parliament A. I should be most ready to hear it B. You may therefore please to consult the Act for Uniformity 16 o Car. 2. and in the latter end of it you will see that in a Proviso referring to the 39 Articles as agreed on by the Archbishops c. A. 1562. and particularly to the 36th therein about the Book of Consecration of Archbishops c. set forth in the time of Edward the 6th as
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
other Penalties incurr'd by Popish Recusants pursuant to any Statutes as for example those of Queen Elizabeth or King Iames and even that of 3 o Iac. c. 5. whereby Convicted Recusants are disabled from Military Offices and Offices in the Navy and in the Law and fâ—…m the Practice of Physick and any publick Office and Charge in the Commonwealth or the Test-Act 25 o Car. 2. No question is to be made of the King 's absolute and undoubted Power of dispensing with particular persons in such a Case And during the ferment about the Laws and Statutes whereon the Petition of Right was founded and which were of another Nature as Mr. Glanvile's words are you will not forget that there was a tenderness for Prerogative avow'd by both Houses while you remember those words of the Royal Martyr in his Speech at the Prorogation of the Parliament the 20th of October A. 1628. viz. That the Profession of both Houses at the time of hammering the Pâ—…tition of Right was no way to entrench upon his Prerâ—…gative and their saying that they had neither intention noâ—… power to hurt it c. You may too call to mind that as during the fâ—…rment that the suspending the Penal Laws by His late Majesty's Declaration of Indulgence his Power of Dispensing in them came not in question so the heat about his Preregative to SUSPEND them was soon over The Opinion of that loyal Patriot and learned and upright Iustitiary Sir William Ellis deliver'd in his Argument about Thomas and Sorrells Case I told you of namely that the King may SUSPEND an Act of Parliament till next Session which was a flâ—…ght beyond what was moved for or adjudged in the late Case of Gâ—…dden and Hales did never meet with any angry reflection that I have heard of from any Person either of the People diffusive or representative tho yet that Argument of his containing such Opinion was both after the Votes of the House of Commons about the illegality of the suspending of Penal Laws in Matters Eccleâ—…iastical otherwise then by Act of Parliament and after the Act for the Test. And how near the Prerogative of Dispensing as allow'd by my Lord Chief Justice Vaughan in his Argument in Thomas and Sorrell's Case and who argued after Sir W. Ellis came up to SUSPENDING you may see there by what he saith p. 347 Where the King can dispense with particular Persons he is not confined to number or place but may Liceâ—…s as many and in such Places as he thinks fit But further to shew you to how quiet and temperate a State that ferment of the Prince's suspending all the Religionary Penal Laws without an Act of Parliament was grown I shall let you see that several years after the late King's Declaration of Indulgence and the Act for the Test the late Earl of Sâ—…aftsbury appear'd in Print as owning the legality of the King's Prerâ—…gative in that kind and without his Lordship's being in the least censured for it by any of that numâ—…rous Party he was then the Head of And here I am to tell you that in a Book call'd A Letter from a Person of Quality to his Friend in the Country Printed in the year 1675. the Earl of Shaftsbury is by Mr. Marvell the supposed Author of the Book introduced as owning that the Power of the King's Supremacy meaning in Matters Ecclesiastical was of another Nature then that he had in Civils and had been exercised without exception in this very Case i. e. as in the Declaration of Indulgence by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England c. A. Did the Earl of Shaftsbury then in the year 1675. own the Prerogative of suspending Penal Laws in Matters Ecclesiastical when the King had long before quitted it and when his Lordship was Embarqued with those Men to whom nothing could once seem more unpopular then the owning of any such Prerogative B. I refer you to the Book it self and where you will see that that Great Statesman did then assert the extent of Prerogative in that Point with as much strength of Wit and Reason as if he had been then fitting at the Helm of State and where he further shews the Necessity of a standing Supreme executive Power to mitigate or wholy to SUSPEND the execution of any Penal Laws c. But I shall best entertain you with his Lordship 's own words as so great a Narrator as Mr. Marvell relates them and who as he saith telling his Lordship that the Declaration of Indulgence assumed a Power to repeal and SUSPEND all our Laws his Lordship â—…eplyed that he wonder'd at his Objection there being not one of these in the Case For the King assumed no Power of repealing Laws or suspending them contrary to the will of his Parliament or People and not to argue with me at that time the Power of the King's Supremacy which was of another Nature then that he had in Civils and had been exercised without exception in this very Case by his Father Grandfather and Queen Elizabeth under the Great Seal to foreign Protestants become Subjects of England nor to instance in the SUSPENDING the execution of the two Acts of Navigation and Trade during both this and the last Dutch War in the same words and upon the same necessity and as yet without clamour that ever we heard But to pass by all that this is certain a Government could not be supposed whether Monarchical or other of any sort without a standing Supreme executive Power fully enabled to mitigate or WHOLT to SUSPEND the execution of any Penal Law in the intervals of the Legislative Power which when assembled there was no doubt but wherever there lies a Negative in passing of a Law there the Address or sense known of either of them to the Contrary as for instance of either of our two Houses of Parliament in England ought to determine that Indulgence and restore the Law to its full execution For without this the Laws were to no purpose made if the Prince could annul them at pleasure and so on the other hand without a Power always in being of dispensing on occasion was to suppose a Constitution extremely imperfect and impracticable and to Cure those with a Legislative Power always in being is when consider'd no other then a perfect Tyranny A. I find that his Lordship doth not in the least distinguish between the Right of Prerogative in suspending the Disabling or incapacitating Penal Laws and others And he by giving the Power of suspending all the Penal Laws to the Prince during the Intervals of Parliament and till an Address should be thence made to the Prince to revoke such suspension hath given his Prince this Power in effect during life For 't is obvious to consider by how many accidents a suspension of Penal Laws revocable on an Address from the Parliament may happen to be not so revoked B. You
of the Advocate for Conscience Liberty discoursing of the Oath of Supremacy in p. 181. seq saith That Luther Calvin Knox Gilby disliked it and mentions that a Iurisdiction purely spiritual was communicated to H. the 8th by his Supremacy and assumed by him and that he wanted his Spiritual By-title of Supremacy to justifie his Divorce aâ—…d his taking the Church Revenue into his hands and that the Protectorship in E the 6th's time by virtue of the Oath of Supremacy continued to make new Church-Laws Institutions c. and that Queen Elizabeth reassumed this Iurisdiction having a greater necessity for it then her Brother because her Marriage was declared null by the Pope So then the state of Protestancy abroad and at home call'd on the Queen to distribute or dispense her Supreme Power in her Law by her Interpretation making a change not of it but in the body of it and which had it been changed by a repeal in Parliament for another would have seem'd to blemish her figure of semper Eadem and have reflected on the Understandings and Consciences of those who had before took the Oath There was then in that Conjuncture an universal outcry of Conscience that Sin lies at the door a thing worse then Hannibal ad Portas a burthen that hath caus'd all the Groans of the Creation that ever happen'd And where there is Periculum animae there is always Periculum in morâ and which the Queen 's authentick Interpretation did remove and which was approved by the next Parliament and no noise made or complaining heard in our streets about any seeming Alteration made in the Law or Oath it self by the Prerogative of interpretation or acquittal from the disabling Punishments then exercised And it is but congruous to humane Nature and common Policy in men when they see any thing not ill in it self done that hath eminently conduced to make the World easie not to embarass such thing with litigious scruples about the fieri non debuit nor to adventure to trouble the World again when it is inclined to and resolv'd upon its rest Some thoughts of this Nature probably inclined my Lord Coke to shew the Complaisance he did not only to King Iames his incapacitating Canon about the double Subscription but as to the Oath against Simony that of Canonical obedience and which inclined Judge Croke to be pleas'd with the Canons of 1640. tho containing the Oath with an Et caetera and which made the Iudges so apt to over-rule some of Sir E. Coke's Exceptions to the Sheriffs Oath as I have mention'd You may indeed find that some among the Puritans in some Conjunctures in Queen Elizabeth's time did presume to reproach the Government of the Church with her having dispens'd with the disability of some Persons incurr'd by Act of Parliament The Author of the famous Book publish'd in her Reign call'd An Abstract of certain Acts of Parliament hath in the Conclusion these two factious Queries viz. Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Chancellor and so may Excommunicate Whether a mere Lay-man no Doctor of the Civil Law may be a Bishop's Register contrary to an Act of Parliament The Author intendeth there to referr to the Statute of 37 o. H. 8. c. 17. and as he had before expresly done in p. 196. Seq and of which Statute we have so much discours'd and he in p. 201. instanceth in many Lay-men who were not Doctors of the Civil Law and yet then exercised Ecclesiastical Iurisdiction He had too in p. 196. took notice that as that Statute establish'd and confirm'd to the King and his Successors and so unto our most Gracious Soveraign the Queen's Majesty that now is lawful Preheminence Power Superiority and Lordship over all Persons within her Dominions of what state or Condition soever touching Punishments for any Heresies Errors Vices Schisms Abuses Idolatries Hypocrisies and Superstitions springing or growing by means of any her disobedient and disloyal Subjects so hath her Majesty by her Injunctions publish'd that her Highness did never pretend any Title or challenge any Authority to punish any of her Subjects for any of the said Offences by Censure Ecclesiastical in right belonging to her Royal Person but that her Highness meaning and intent is and always hath been to commit the execution thereof always to the Ecclesiastical State of her time and he then sets down her Interpretation in the Admonition But had that Author consider'd how it was declared by that Statute that by Holy Scripture all Authority and Power is given to His Majesty and all such Persons as His Majesty shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever and that this Statute was revived by the 1st of Eliz. he would not have wonder'd at the Queen's allowing that Statute to be dispens'd with as it was Nor would any one therefore wonder at the Royal Martyr in the 12th and 13th Canons of A. 1640. Condescending to humour the Complaints of the Puritans by an equal Interpretation of that Statute of 37 o H. 8. and by dispensing with it as he did and that so far as to the disabling Lay-Chancellors to proceed in such Censures as they were enabled by that Statute to do Mr. Bagshaw in his first Argument in Parliament concerning the Canons thus reflects on the Clergy for those two Canons viz. Concerning the 12th and 13th Canons touching the freeing and discharging of Chancellors and Officials from executing any Excommunication in their own Person or any Censure against the Clergy because they are Lay-men I say that in doing and enacting this they have done quite contrary to an Act of Parliament still in force in taking from them this Power of exercising the Censures of the Church which that Statute gives them which I did look when some Civilians now in the House should have maintain'd And altho it were to be wish'd that only Clergymen should have this Power of Excommunication and other Censures of the Church yet seeing an Act of Parliament hath given this Power to Lay-men it is high Presumption to make Canons against it But he well knew that after the stamp of the Royal Authority put on these Canons as well as before Lay-men in the Court of Delegates did Excommunicate and as they did in the high Commission And you may observe it that in the Commission granted Primo Elizabethae to her Commissioners pursuant to the Statute of that year there were but two Clergy-men and those Bishops and 17 Lay-men My Lord Coke Inst. 4. c. 74. writing of the High Commission in Causes Ecclesiastical saith There is no question but the Commissioners for such Causes as are committed to them by force of this Act may if the Commissioners be Competent proceed to deprivation of the Popish Clergy which was the main object of the Act or to punish them by Ecclesiastical Censures c. And without question if
own Municipal ones who hath ex Professo and argumentatively writ of the Prince's Prerogative of dispensing with a Penal disability in particular Cases and deny'd it A. I did not as to our Lex terrae account it tanti to set up the Judgment of any one particular man when you have entertain'd me with Iudgment of Parliament in the Case But I am sure you cannot but know how that great Man in that great Case we have referr'd to I mean my Lord Chief Justice Vaughan in Thomas and Sorrel's Case seems to be of opinion that the King cannot dispense in the Case of Incapacity He saith the reason why the King cannot dispense in the Cases of buying Offices and Simoniacal Presentations is because the Persons were made incapable to hold them And a Person incapable is as a dead Person and no Person at all as to that wherein he is incapable c. B. Tho that great Man hath not therein as in other Passages in his Argument discuss'd the Point argumentatively I shall yet pay so much respect to his opinion as to give decent Burial to his dead Man. But you see that after he had said The Reason why the King cannot dispense c. is because the Persons were made incapable to hold them he only gives it as a reason of their being uncapable and of the King 's not being able to dispense in their Case viz. that they are dead Men that a Person uncapable is as a dead Person and whereby he giveth us a Magisterial gratis dictum or a Petitio Principii instead of what might deserve the name of a Reason or what might prove that the King could not dispense in the Case of one Politically dead or one dead in Law. I have formerly told you of the Saying used by Magerus and other Civil Law-writers that Mors civilis naturali non aequiparatur nisi in casibus in jure expressis And there are Cases enow express'd there that shew how the Prince who is according to the style of Seneca viz. Animus Reipublicae illa Corpus suum and ille spiritus vitalis quem haec tot millia trahunt and who in the Scripture Phrase is the breath of our Nostrils can according to the Law of the Land as I told you in the Case of Sir Walter Raleigh animate a Person dead in Law. And none need question why King Iames the Second cannot thus raise the dead as Queen Elizabeth did and King Iames the First or our following Princes and I may say as well as any who went before him Infames dicuntur civiliter mortui is a common Saying but you see that Fas est cuivis Principi maculosas notas vitiatae opinionis abstergere is as common Thus too Magerus tells us that Banniti pro mortuis reputantur and we know that the Excommunicate may in some respect by reason of their temporary disability be termed so too And if you will look on the Book call'd Reformatio legum Ecclesiasticarum under the title De excommunicatione you will there in the Chapter of the Denunciation of the Excommunicate find the Minister enjoin'd to tell the People that they must all abstain from the Excommunicate Person tanquam à Putri Projecto membro c. that an Excommunicate Person is to be thrown out of the Church as a dead Carcass but you will there find in the Formula reconciliationis excommunicatorum with what tenderness it is said reum hunc charissimum fratrem membrum assumamus agnoscamus Communis in Christo nostri corporis intimus ut noster affectus in hoc corporis nostri recuperato membro testatior sit c. and that the Pastor in the Absolution of that returning Prodigal who was dead and is alive again must in the administration of the King 's Ecclesiastical Laws say tibi rursus pristinum in Ecclesiâ tuâ locum plenum jus restitue Thus too at the end of the Canons A. 1571. you will find the same style of tenderness in Vogue in Queen Elizabeth's time that was in Edward the 6th's as likewise of the powerfulness in raising the dead You see there a Form of the Sentence of Excommunication viz. Fratres quoniam quicunque profitemur nomen Christi sumus omnes membrum ejusdem corporis par est ut unum membrum alterius membri sensu dolore afficiatur c. And it being afterward mention'd that the Person having been accused of such a Crime and having been contumaciously absent it followeth the Bishop in God's Name and by his Authority hath Excommunicated such a one from the Society of Christ's Church tanquam membrum emortuum amputasse à Christi corpore c. that you may shun his Company tamen ut Christiana charitas nos monet let us pray for him to God who is a merciful God and who can lapsos etiam à morte revocare And you may take notice of what is said in Croke 2d and Coke 8th Report Trollop's Case about the King's Pardon raising the Excommunicate from this civil death and that a man need not be Absolved by the Church if the King Pardons And thus Hobart Serle's Case p. 294. shews you that after the discharge of a Clerk Convict he shall never be question'd in the Ecclesiastical Court for deprivation You may likewise see it in Coke Inst. 3. Chapter Of Pardons The King may Pardon one Convict of Heresie or of any other offence Punishable by the Ecclesiastical Law. You may too in that Chapter observe his tenderness for Prerogative where having mention'd that by the 13th of R. 2. it is provided that no Charter of Pardon for Murther c. shall be allow'd c. if they be not specify'd in the same Charter and that before that Statute by the Pardon of all Felonies Treason was Pardon'd and so was Murder and at this day by the pardon of all Felonies the death of a Man is not pardon'd he thus goeth on these are excellent Laws for direction and for the Peace of the Realm But it hath been conceiv'd which we will not question that the King may DISPENSE with these Laws by a Non-obstante be it general or special albeit we find not any such Clauses of Non-obstante but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow but he doth not make them obligatory to him My Lord Coke then saith This is to be added that the intention of the said Act 13. R. 2. was not that the King should grant a Pardon of Murther by express Name in the Charter but because the whole Parliament conceiv'd that he would never Pardon Murther by special Name for the Causes aforesaid therefore was that Provision made which was grounded on the Law of God Quicunque effuderit humanum Sanguinem fundetur Sanguis illius c. Nec aliter expiari potest nisi per ejus Sanguinem qui alterius Sanguinem effuderit His Margin there cites Genes 9. 6.
Harry the 8th's Oath or Queen Elizabeth's in the words of no foreign Prelates having here any Iurisdiction c. any Power the Pope could justly claim as a Successor to the Apostles was impeachâ—…d And no doubt but Harry the 8th being by that Statute declared to be but a Lay-man no men of sense construed that Statute to give him the exercise of any Iurisdiction or Power of the Keys in foro interno as a Successor of the Apostles The old Distinction of Bracton l. 1. c. 8. that King's cannot Excommunicate ministerialiter because they are Lay-men but may do it authoritativè by appointing others to do it gave Satisfaction in Harry the 8th's time and might had it been thought of in Queen Elizabeth's Reign have sav'd the labour of the Interpretation in the Admonition in removing the ferment that the Oath occasion'd among Protestant Scruplers But tho the Preamble of the Admonition referrs to some Protestant Clergy-men as the Scruplers yet the following words viz. That her Majesty would that all her loving Subjects should understand that nothing was is or shall be meant or intended by the same Oath c. shew her Pious design of Complaisance as to the Consciences of her Catholick as well as Protestant Subjects and whose freedom from Imposition of ambiguous or otherwise unlawful Oaths she knew was purchased for both of them alike by the Blood of Christ. And you know I referr'd you to Sir Iohn Winter's Observations on the Oath of Supremacy as representing the Oath by the help of Queen Elizabeth's Interpretation in the Admonition and of the Enacting of that Interpretation in Parliament and of the Interpretation in the 37th Article as lawful to be taken tho possibly inexpedient on the account of Scandal and likewise to another Roman-Catholick Writer who on the account of those Interpretations thought it might both lawfully and without Scandal be taken And you and others who think that Oath of importance for the securing the Peace of the Government may thank the Prerogative of Regal Interpretation for supplying the Lamp of it with the Oil that hath made it last so long and which otherwise would soon have gone out in a snuff as I shew'd you by the offence that was taken at it at home and abroad when it was first set up and which now may perhaps help to illuminate the English World in the measures of Loyalty so long as the Sun and Moon endure that is if you suppose that the use of Oaths would endure so long But Dii meliora And it here coming into my mind that you in your somewhat airy way of discoursing of the Oath resembled it to a tender-sided Ship girdled with so many interpretations I shall take occasion further to impress it on your thoughts that it is still THE SAME OATH tho partaking of all those Interpretations and as we say of eadem navis toties refecta and the several interpretations are not by you to be resembled to girdlings but to its main inward beams and timbers that are become parts oâ—… it Moreover you know that a girdled Ship by reason of the incompactness of its adventitious parts with the other cannot last the fourth part of the time that another will. But you see how long this Oath hath continued and riding triumphantly in the Sea of time hath too carried out all its Guns in Stormy weather and made the Usurp'd Power of the Court of Rome strike Sail to our Princes Yet I shall here take occasion from my having just now minded you of the Interpretations of the Oath inclining Sir Iohn Winter and the other Roman-Catholick to judge of it as they did to tell you that I have often wish'd that in the times of the three last Reigns the Power of Interpretation had further exerted it self in the further clearing of any thing in that Oath and in the Oath of Allegiance at which offence was by so many taken however by the Oaths not given and that such Interpretations had been approved in Parliament and particularly that the Interpretation of the word HERETICAL in the Oath of Allegiance as being meant of Contrary to the Word of God had brought all our Roman-Catholick Brethren to the taking of that Oath as I told you that F. Cressy thought it would have done and who said that he believed that that was the sense intended by King Iames in the word heretical And I shall be glad if those Interpretations relating to the Oath of Supremacy which succeeded those that Sir Iohn Winter and the other Roman-Catholick took notice of may in the event Conduce to render it more acceptable to others of them and the rather for that it is apparent that all the Interpretations are Consistent with the Oath and with one another as from what I have spoken you may Collect. But by so many other Pious and Learned Roman-Catholicks appearing not to be of the opinion that the Interpretations of the Oath mention'd by those two Writers may legitimate the taking of it I have long wish'd to the Oath all the additional clearness that Law could give it and that they would wish given who were required to take it And as one Doctor 's opinion for the justness of a Litigants Cause hath on his being cast in it been allow'd to save him from being as a Calumnious and rash litigator condemned in Expences thus so great a Master in our Israel and Vindicator of our Church from Schism as Archbishop Bramhal having given his Opinion about the Oath as I told you namely as to what related to the King's Power in Spirituals and to no foreign Prelate having any Spiritual Iurisdiction here viz. This might have been express'd in words less liable to Exception I shall censure no man as a Caâ—…umniator of the Oath who shall wish that any lawful Interpretation may make those words less liable to Exception Sir Iohn Winter as I told you having mention'd the Explanations not being known to all and their intricacy and the constant tendring of the Oath for â—…o many years without the aforesaid Explanation as likely to give just cause of Scandal c. I must tell you I like not his words of the GIVING just cause of Scandal but what I have shew'd you of many passages about the Explanations which were not observ'd by him and particularly of the 37th Article affording only to the Clergy a more favourable interpretation and which was enacted as to them in 13 o Eliz and of the Canons of King Iames first extending the benefit of that Interpretation to the Layety and of the Canons of King Charles the First further explaining the 37th Article may justly incline you to wish that the sense of the Oath did Primâ facie appear as liquid to all as it now doth to us two And I shall here take occasion for the propping up the interpretation relating to the Oath made by those two Princes in their Canons to tell you that as you accounted King Iames his
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
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
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
of the Royal Martyr and I shall be glad to know if the dispensing with the Penal Laws and particularly such as are inclusive of disability made any part of the fermentation B. No doubt if the Dispensative Power of the Crown as to any Penal religionary â—…aws had then appear'd any considerable gravamen to any of the three Estates they would then have cry'd out of it But which they did not Yet I shall tell you that they had a fair occasâ—…on then given them to do it if they had thought it tanti For in the first year of his Reign there was a ferment in Parliament about the Penal Laws against the Papists and particularly the disabling ones but which soon went off as I may say by insensible Perspiration It sâ—…ems that Mr. Prynne in p. 74. and 77. saith both Houses that year having presented a Petition to that Prince wherein they took notice that his Majesty had in his Princely Wisdom taken order that none of his natural born Subjects not professing the true Religion and by Law establish'd shall be admitted into the Service of his Royal Coâ—…sort and having further desired that his Majesty would be pleas'd to remove from all Places of Authority all such Persons as are either Popish Recusants or according to direction of former Acts of State to be justly suspected and that his Majesty said he would give order for it yet that that Parliament being unhappily dissolv'd in discontent his Majesty thought not fit to shew such severity to Recusants as he intended And in p. 76. Mr. Prynne had mentioned that Sir Iohn Winter Mr. Walter Mountague Sir Maurice Drummond and other Papists were admitted in her Majesty's Service But by what appears from Mr. Prynne in p. 80. in the following Parliament in the Second year of that King the House of Commons took divers Examinations concerning Recusants that were in Office and at last agreed on a Petition against Recusants in Office and to present their Names therewith to the King to the end they might be removed and He then saith that Martis 6. Iunii 2. Car. Regis The Petition against Recusants in Authority was engrossed read and allow'd to be presented to his Majesty and this to be done by the Privy-Councel of the House and Sir John Fâ—…llerton which was done accordingly but with what real success I can give no exact account But that the disabling and other Laws against the Papists had been dispens'd with by the Royal Martyr as well as his Father any one will conclude who reads what there followeth viz. In this Parliament these ensuing Articles against Popish Recusants were Consulted of in the House of Commons with an Intent to draw them into an Act and of which the 9th is No Recusant to bear Office of Iustice of Peace or otherwise or any man whose Wife shall be a Recusant or practice Law Common or Civil or Physick nor have Command in War c. And I should first have told you that the Third was A New Oath with more Additions to be taken concerning the Supremacy A. Good God! A new Oath with more Additions about the Supremacy B. You may suppose it would have been seemingly a New Oath by that Parliament's approving all the Authentick Regal Interpretations of the old one as Queen Elizabeth's Interpretation was approved by her Parliament But you may here observe that tho the Disabling and other Penal Laws were by this Pious Prince tacitly and often dispens'd with and the time of the doing of it caus'd some temporary ferments to arise in the Minds of his Subjects in Parliament yet their animosities have soon tacitly evaporated and the Regal Power of Dispensing then came to no question The Puritan Dissenters and scruplers of Ceremonies knew they wanted the benefit of that Power as well as the Papists and the exercise of that Power was in the Petition of both Houses before mention'd implored as to the disabled or silenced Ministers And therefore you will not wonder at it when I tell you that during all the great Patriotly efforts that were made for the removing all Grievances by the Petition of Right there was no offence taken at the Right of the Dispensative Power A. I thank you for that observation B. The thought is too obvious to deserve thanks and I assure you it is a kind of Proverbial Saying in the Canon Law that Dispensationum modus nulli Sapientum displicuit But even in the Conjuncture of the Petition of Right to shew you that the Dispensative Power did not in the least contribute to the ferment I shall let you see out of Rushworth how Mr. Glanvile who made so great a figure of a Patriot then in Parliament did with the greatest popular applause appear as an Assertor of that Power and when in his Speech in a full Committee of both Houses May 23. A. 1628. he inter alia said There is a Trust inseparably reposed in the Persons of the Kings of England but that Trust is regulated by Law For example when Statutes are made to Prohibit things not mala in se but only mala quia Prohibita under certain Forfeitures and Penalties to accrue to the King and to the Informers that shall sue for the breach of them the Commons must and ever will acknowledge a Regal and Soveraign Prerogative in the King touching such Statutes that it is in his Majesty's absolute and undoubted Power to grant Dispensations to particular Persons with the Clauses of Non-obstante to do as they might have done before those Statutes wherein his Majesty conferring Grace and Favour upon some doth not do wrong to others But there is a difference between those Statutes and the Laws and Statutes whereon the Petition is grounded By those Statutes the Subject hath no interest in the Penalties which are all the fruit such Statutes can produce until by Sute or Information he become entituled to the particular Forfeitures whereas the Laws and Statutes mention'd in our Petition are of another Nature There shall your Lordships find us to rely upon the good old Statute called Magna Charta which declareth and confirmeth the ancient Common Laws of the Liberties of England and there he speaks afterward of other Statute Laws not inflicting Penalties upon Offenders in malis prohibitis but Laws declarative or positive conferring or confirming ipso facto an inherent Right and Interest of liberty and freedom in the Subjects of this Realm as their Birth-rights and Inheritances descendable to their Heirs and Posterities the Statutes incorporate into the Body of the Common Law over which with reverence be it spoken there is no Trust reposed in the King 's Soveraign Power or Prerogative Royal to enable him to dispense with them or to take from his Subjects the Birthright which they have in their Liberties by virtue of the Common Law. So then according to the sense of this loyal Patriot if the King shall by his Prerogative dispense with the Disabilities or Premunires or
Interpretation as good as Queen Elizabeth's so you may account that in the Canons of King Charles the First as good as that in those of King Iames for that tho it is said by some that the Canons of King Charles the First were damned by the Act of 13 o Car. 2. c. 12. yet the truth is that that Act leaves them in statu quo and the last Proviso in it doth only express those Canons not being confirm'd by it Nor in my judgment did they need any Confirmation from it for that according to my Lord Chief Justice Vaughan's Opinion that I have cited to you a lawful Canon is the Law of the Kingdom as well as an Act of Parliament and the Consideration of this may shew you that as Queen Elizabeth's Interpretation in The Admonition was perpetuated by the Ensuing Parliamentary Approbation thereof so the interpretations of those Princes in those their Canons confirm'd for them their Heirs and Successors are now binding to you and I pray God to incline you to keep this your Solemn Oath according to these interpretations of it A. I thank you for this your serious and Christian wish and do give you my hearty thanks for what you have discours'd to me of the many Interpretations relating to the Oath and the rendring them so consistent with it and by means whereof I am sensible that the Oath hath become more then res unius oetatis and that without them it would not have been so much and by which both the credit of the Oath and the quiet of the Consciences of the Takers of it have been preserv'd And I am glad that the task of enumerating them all hath happen'd thus to fall into your hands and that therein you have not as they say of young Conjurers raising Spirits that they cannot lay occasion'd any doubts in me about the Oath but what you have fairly â—… and fully satisfy'd And indeed you have laid some doubts that the Two Roman-Catholick Writers raising them happen'd not to lay Throwing therefore by any Thoughts and Expressions of mine of that nature which you censured as airy and as to which I submit to your reproof I shall prepare my mind with a decent temper both of delight and Pious dread to contemplate my Oath as now set before me and as containing in it that clearness and that Majesty that may excite both those Passions in me and the real view of which I may some way compare to that in vision Ezekiel's terrible crystal B. Long may you live in this temper I remember I have somewhere read it that the Oath by which the Cardinals are bound to the maintenance of the Church-Privileges is drawn in such clear and powerful words that Baronius calls it terribile Iuramentum and saith that the only remembring of it inflicts a horror upon his Mind and a trembling upon 〈◊〉 Body And I doubt not but when I shall at our next meeting discourse with you about our obligation from the Promissory part of the Oath that relates to the assistance and defence of the Regal Rights and Privileges you will think that every Taker of it ought to have some such sense of his remembring it as Baronius had about his terrible Oath A. But to go on according to the freedom you gave me I remember you told me that you would not trouble me with any Notions or Moot Points about the Power of Interpreting Acts of Parliament and about which you cited Sir Christopher Hatton's Book Of Acts of Parliament and their Exposition but I remember you have Sparsim variously spoke of it and you mention'd to me what King Charles the First told both Houses shortly after the granting the Petition of Right that to the Iudges only under him the Interpretation of the Laws belong'd and that none of the Houses of Parliament joint or separate either could make or declare a Law without his Consent I suppose you intend here to lodge no Snake in the grass of this Regal Power of interpretation whereby we may be interpreted out of our Magna Charta and the Petition of Right and out of our Religion or Property B. Your Supposal doth but right to my intentions I have referr'd you only to Facts and leave you to make a due use of them and shall when we meet again shew you further why I have thus referr'd you to these Facts of the Regal interpretation And in the mean time you may take notice that as to what I have mentioned as a Notion out of the Lord Chancellor Hatton of which the intent and substance was That if all the Parliament were voluntarily assembled again and not by Writ Eorum non esset interpretari dubium Statutum as the words are in the Table of his Book Chap. 4 and with which the Chapter agrees I told you I would not trouble you with it and you may give it its transeat as a kind of curious impossible Case Nor need you amuse your self about any Consequences by me meant in what I told you of King Charles the First telling the three Estates as they were feasting themselves with the noble Concessions of the Petition of Right I know nothing asserted by my Lord Coke in Inst. 4 Chap. 1. Of the High and Honourable Court of Parliament but wherein I own my agreeing with him and particularly as to what he speaks of Iudicature And I doubt not but every one accounts that what he said Inst. 3. c. 73. was very Orthodox viz. NOTE Proclamations are of great force which are grounded upon the Laws of the Realm Nor considering the exuberance of that great thing call'd bona fides that is to be expected from Princes need any man fear that there will be an Exposition of abrogamus for statuimus in any of the Declaratory Proclamations that ours shall make But because you have named Magna Charta and the Petition of Right I shall take occasion to cite to you a very popular Authority to shew you that any Proclamations our English Monarchs shall make for the Dispensing with Penal Religionary Laws will be but Declaratory of Magna Charta and of the Petition of Right You know we have often spoke of the Arguments in the Parliament of 40. made by Mr. Bagshaw who was Pars magna of the Faction then regnant and by which those Arguments of his were much celebrated You may find some account of his Character in Heylin's History of Archbishop Laud who mentions his being chosen Reader for the Lent Vacation by the Middle-Temple in the year 1639. And he in his First Argument viz. Concerning the Canons p. 11. saith Liberty of Religion and Conscience are as I take it within the words of MAGNA CHARTA granted to me as mine Inheritance Cap. 29. Nullus liber homo imprisonetur â—…ut disseisetur de libertatibus vel liberis Consuetudinibus suis. And Liberty of Conscience is the gâ—…test Liberty It is by a necessary Consequence and deduction within the words imprisonetur