or heard of a man of most upright dainty and scrupulous Conscience and afraid to look upon some Actions which other Princes abroad do usually swallow and he might have added a Prince the real Tenderness of whoâ—…e Conscience had so often favour'd the nominal tenderness of others who instead of being Tender-hearted Christians were Stiff-necked Iews and who might justly apprehend that it was only duritia cordis instead of Tenderness of Conscience he dispens'd with and as when God dispens'd with the Iews in Polygamy For since Tenderness of Conscience doth necessarily render a man abstemious from things lawful and to be of a gentle submissive temper not only to his Equals but Inferiors and to be merciful even to brute Creatures and not only averse from suing any one about Penal Lawes but ready to remit somewhat of his Right rather then to go to Law with a Stranger and much less with ones Father the Pater Patrioe seeing any men outraging the Lawes and the quiet of the whole Realm by that wilde brutish thing call'd War for ferinum quiddam bellum est might well judge them utterly devoid of all Tenderness of Conscience I shall therefore frankly tell you that no doubt but their Consciences were extremely erroneous or rather seaâ—…ed Our great Writer of Conscience Bishop Sanderson in his Sermon on Rom. 14. 13. discussing the Causes from which mens doubtfulness of mind may spring and saying that sometimes it proceeds from Tenderness of Conscience which yet is indeed a very blessed and a gracious thing doth very well add but yet as tender things may sooner miscarry very obnoxious through Satan's diligence and subtlety to be wrought upon to dangerous inconveniences And if we Consider that a Civil War cannot be lawful on both Sides however a foreign one may we may well account that any deluded melancholy People who were tempted to raise a Civil War out of a blind Zeal for Religion and to assault the Thirteenth of the Romans out of the Apocalypse had hard Spleens instead of tender Consciences and that they have soft Heads instead of tender Hearts who try to make Religion a gainer by War. But indeed the Project of planting Religion and Propagating the Church by War that is described to be Status humanoe Societatis dissolutoe and that so presently opens to all mens view the horrid Scene of Contempta Religio Rapta profana Sacra profanata is so vain that the old Proverbial Impiety of such who did castra sequi how victorious soever hath naturally help'd to make Conquering Nations embrace the very Religion of the Conquered a thing exemplify'd in the Conquests of the Danes and Saâ—…ns in England of the Gothes in Italy and France and Spain and of the Moors in Spain and in the Turks having overcome the Saracens embracing the Saracens Religion And the Vanity of Reforming the World by War that Profound and Conscientious Statesman Cardinal D'Ossat in his Third Book 86th Letter and to Villeroy A. 1597. hath well taught us and where he mentions how he urged to the Pope the reasonableness of Harry the 4th's so religiously observing the great Edict of Pacification and that the many Wars made again and again by Hereticks serv'd for nothing but in many places to abolish the Catholick Religion and in a manner all Ecclesiastical Discipline Iustice and Order and to introduce Atheism with the Sequel of all sorts of Sacrileges Parricides Rapes Treasons and Cruelties and other sorts of wickedness c. and afterward that on the making War all the Malecontents all People indebted and neâ—…ssitous all Debauchees and Vagabonds all Thieves and other Criminals whose Lives were become forfeited to the Law of what Religion or Opinion soever they were were wont to joyn with the Hugonots and did more harm to the Church and Religion and good manners in one day of War then they could in a hundred days of Peace Thus â—…e who â—…its in the Heavens had them here in derision while they in effect thus presumed to transprose Scripture and to say Glory to God in the highest and on Earth War and ill will towards men and while according to that Saying in Arch-bishop Lâ—…d's famous Star-Chamber-Speech viz. No Nation hath ever appear'd more jealous of Religion then the People of England have ever been they were under such Transports of misguided Zeal as to adore that their jealousie and to offer Sacrifices to it with as much Contempt of Heaven and Cruelty to Mankind as ever were offer'd to the image of Iealousie referr'd to by Ezekiel and to which the tenderest of their Relations were not thought too costly Victims and to which their truly Tender-Conscienced King who like Moses with Tenderness carried them in his Bosome as a nursing-Nursing-Father beareth the sucking Child and who sometimes out of Tenderness to several of his Complaining Children Sacrificed the rigour of his Penal Lawes and to whom they should have been subject for that Tender thing Conscience sake was himself at last Sacrificed How did that Pious Prince sometimes in relation to his Heterodox Protestant Subjects imitate the Father of the Prodigal who when his Son was yet afar off ran to meet him fell on his neck and kiss'd him a thing acknowledg'd by an Eminent learned Divine Mr. Iohn Ley in his Book call'd Defensive Doubts Hopes and Reasons Printed in the year 1641. and where in p. 123. urging the Bishops to procure the Revocation of a late Canon of the Church and having said wherein if they appear and prevail they need not fear any disparagement to their Prudence by withdrawing that they have decreed since the wisest Statesmen and greatest Governors have used many times to comply so far with popular Dispositions as to vary their own Acts with relation to their liking as the Pilot doth his Soils to comply with the wind he addeth And you cannot have a more authentic Example both to induce you to this and to defend you in it from all Imputations then that of our Sacred Sovereign who rather then he would give any Colour of Complaint for aggrievances to his People was pleas'd to DISPENSE with the five Articles of PERTH's Assembly and to discharge all Persons from urging the Practice thereof upon any either Laick or Ecclesiastical Person whatsoever and to free all his Subjects from all Censures and Pains whether Ecclesiastical or Secular for not urging practising and obeying any of them tho they were esâ—…ablish'd both by a General Assembly and by Act of Parliament King Charles his large Declaration of the â—…umults in Scotland p 370. p. 389. And for his OWN Acts for these Articles of Perth were propounded and ratify'd in the Reign of his Royal Father he imposed the Service Book the Book of Canons and high Commission upon his Subjects in Scotland and upon their humble Supplication was content graciously to grant a Discharge from them passing his Princely Promise that he would neither then nor afterwards press the Practice of them nor any
thing of that nature but in such a fair and legal way as should satisfie all his loving Subjects The Duplys of the Divines of Aberdene p. 54. and p. 130 131. Whereupon Mr. Ley thus goes on viz. Wherein Wise men who judge of Consultations and Acts by their probable Effects and not unexpected Events cannot but highly commend His Majesty's Mildness and Clemency which we doubt not would condescend to your Requests for a removal of this great aggrievance if you would please to interpose your Mediations to so acceptable a purpose and upon our humble sute which in all submissive manner we tender to your Lordship and by you to the rest of your Reverend Order we hope you will do so since we have it upon his word His Royal Majesty's word which neither in Duty nor Discretion we may distrust that the Prelates were their greatest Friends i. e. of his Scottish Subjects their Councels were always Councels of Peace and their Solicitations vehement and earnest for granting those unexpected Favours which we were pleas'd to bestow upon our People The King 's large Declaration p. 420 Thus then the Royal Dispensation with the five Articles of Perth was at the Intercession of the Bishops tho' they knew the same Establish'd by Act of Parliament graciously afforded to his Scotish Subjects Those Articles of Perth related to various Religionary Matters viz The introducing of Private Baptism Communicating of the Sick Episcopal Confirmation Kneeling at the Communion and the observing such ancient Festivals as belong'd immediately to Christ and of which Doctor Heylin in his History of the Presbyterians having spoken saith That the King 's indulging the Scots in Dispensing with the Penal Laws about them was an Invitation to the Irish Papists to endeavour by armed force to Compass the King's Dispensation But how tenderly the Consciences of the Roman Catholics in Ireland were in the Reign of the Royal Martyr THEN Protected under the Wing of the Dispensative Power contrary to what the Dr. observ'd any one may see who will Consult my Lord Primate Bramhal's Replication to the Bishop of Chalcedon where he saith That the Earl of Strafford Lord Lieutenant of Ireland did commit much to my hands the Political Regiment of that Church for the space of Eight years In all that time let him name but one Roman Catholic that suffer'd either Death or Imprisonment or so much as a pecuniary Mulct of Twelve Pence for his Religion upon any Penal Statute if he can as I am sure he cannot c. And such was the acquiescence of the Populace and of the three Estates in the Penal Lawes there against the Roman Catholics being thus dead or asleep that in the Printed Articles of Impeachment against the then Lord Chancellor of Ireland and that Lord Primate thâ—…n Bishop of Derry and others of His Majesty's Publick Ministers of State exhibited by the Commons to the Lords in the year 1640. there is not a syllable of Complaint against those Lawes being so dispens'd with by Connivence Nor yet in the Printed Schedule of Grievances of that Kingdom voted in the House of Lords there to be transmitted to the Committee of the same House then attending in England to pursue Redresses for the same is there any representation of such Indulgence being any Gravamen nor yet of the great Figure the Irish Papists then made in the Government the Majority of the Parliament and of the Iudges and Lawyers then being such And pursuant to that Prince's Indulgence offer'd to the tender Consciences of his Subjects in the year 41. he was graciously pleas'd in the Treaty at Uxbridgâ—… to order his Commissioners who were such renown'd Confessors of the Church of England to make the first Royal offer there that freedom be left to all Persons of what Opinion soever in Matters of Ceremony and that all the Penalties of LAWS and Customs be SUSPENDED And the truth is since the Christian Religion did in its first settlement so rationally provide for its Propagation in the World and its bespeaking the favour of Princes by its enjoyning Subjection and Obedience to their Lawes not only for Wrath but Conscience sake and since that Principle of humane Lawes binding the Conscience which was so often and so publickly avow'd by that Prince and Arch-bishop Laud and Bishop Sanderson and the Divines of the Church of England in General is the surest guard to Princes Thrones and their Tribunals and that therefore 't is the Interest of the Prince and People to be more watchful in preserving that Principle then all the Iewels of the Crown or Walls of the Kingdom that Prince did therefore necessarily take Care to preserve and to perpetuate in some of his tender-Conscienced Subjects a continued Tenderness for his Lawes by his lawful Dispensative Power as particularly in the Case of his Scottish Subjects in taking off the Obligation of Obedience and of Conforming themselves to the Establish'd Lawes for such Dispensation intrinsecally notes the taking off such Obligation from the Persons dispens'd with And it is indeed a Solecism for any one to ask Indulgence from a Prince who owns the Law of the Land binding him in Conscience if he doth not think such Prince perswaded that his Power of granting it is a part of that LAW He was not ignorant of his Father's Aversion against the Penal Lawes in general and on which Account my Lord Bacon celebrating him saith As for Penal Lawes which lie as snares upon the Subjects and which were as a Nemo scit to King Henry 7. it yields a Revenue which will scarce pay for the Parchment of the King's Records at Westminster And religionary Penal Lawes requiring the greatest tenderness as he found when he came to the Government that the two most famous Puritan Divines Mr. Hildersham and Mr. Dod Men of great Probity and Learning had often been in his Father's time Pursuant to the Act for Uniformity disabled from Preaching and been re-inabled to it by particular Indulgence and as likewise Fuller tells us in his Church History that Bishop Williams when he was Lord Keeper of the Great Seal of England procured a Licence from King Iames under the Great Seal for Mr. Cotton the famous Independent to Preach notwithstanding his Non-Conformity so he in the same manner that his Royal Father did held the Reins of the Law loose in his hands as to those two other Non-Conformists beforemention'd The History of Mr. Hildersham's Life mentions that he was silenced in Iune A 1590 and restored again in Ianuary A. 1591. Again he was deprived and silenced April 24 A. 1605. for refusal of Subscription and Conformity and after some time again restored and was again Silenced in November A. 1611. by the King 's particular Command and on April 23. A. 1613. he was judicially admonished by the High Commission that saving the Catechizing of his own Family only he should not afterward Preach Catechize or use any of the Offices or Function of a Minister
lâ—…vis and that the King and his Realm cannot suffer much by the disabling a small party of men from publick employments But it is otherwise And let any one who hath observ'd but two or three of the late great transactions of the age here as for instance the late King's Restoration the throwing out of the Exclusion-Bill the turning of the current of Faction in our Metropolis and consider how much in each depended on the Talents of ONE man he will not wonder at him who shall affirm that the incapacitating of but one Man may be very fatal to the Common-weal I suppose you cannot have forgot the Verse you repeated to me out of the famed Poem of Absolon and Achitophel viz. So much the weight of one brave Man can do And Providence made use of his weight for the Publick good by the figure he made in his Prince's Councils notwithstanding the Address of the Commons to have him thence removed as likewise of the weight of another of those noble Persons heroical loyalty in the administration of the Government notwithstanding an Address from the Commons to his Prince to remove him from it I doubt not but you have read it in Cromerus his History of Poland l. 7th that the King of Poland being dead the Kingdom was offer'd to Lescus a Nephew of Casimire's on condition he would banish Govoritius and that Lescus refused the Crown rather then he would banish so faithful a Councellor And you cannot be ignorant of the weight of one man in the Nicene Councel I mean Pophnutiuâ—… who by citing those words of the Author of the Epistle to the Hebrews Marriage is honourable in all c. turn'd the stream of the whole Councel when they were going to give a Decree against the marriage of Priests You know of how much weight one Man would have proved in that place in Scripture Ezek. 22. 30. And I sought for a Man among them that should make up the Hedg and stand in the Gap c. And that the wise man hath told us that it was by the wisdom of ONE poor Man that a City was deliver'd You cannot but have observ'd that almost all the great and noble inventions in nature owe their births to a single Person and that particularly one poor Man by his Wisdom discover'd the American World. I need not mind you of the introduction of Laws by one Man in several of the old Graecian Polities and of the great Ocean of the Civil-Law yet encompassing the World having so narrow a Spring-head as the head of a single Person 's introducing the Laws at Athens You have read of the unus homo nobis cunctaâ—…do c. and of the tantum potuit unius Viri fortuna virtus You know how Queen Elizabeth express'd her value of the weight of one Man I mean our great Navigator Sir Francis Drake by her refusing to commissionate competent Judges to try him for putting to death Dourishius in America and after an Appeal brought about it by the next of Kinn to him and how afterward King Iames the first shew'd his value of the Talents and usefulness of Sir Walter Raleigh by employing him in his Service with Power of the Life and Death of others whilst he lay under the highest disability by being attainted of High-Treason It would be somewhat like pedantry to digress too far into such a Common Place and wherein almost infinite instances will be tumultuarily crowding into any Mans thoughts But I shall here further tell you that from the notion of ludit in humanis c. and of him who sitteth in the Heavens having some Disablers in derisien who imagined a vain thing and from Heavens often choosing to make that Stone that the Builders rejected and disabled the Head of the Corner and from the severe threatning in St. Matthew against him who shall offend ONE of these little ones who believe in Christ and from the caution there of despising not ONE of these little ones you may occasionally call to mind your moral Offices of honouring all Men and of adoring the Divine Providence when it makes such Persons its instruments in the preserving of Nations who by any systemes of Politics or Laws were disabled from being such A. I thank you for the occasion you have given me to meditate about this and do think that Man having the style of vain apply'd to him in Iob. c. 11. v. 12. Vain Man WOULD be WISE tho Man be born like a wild Asses colt and there made a politic-would-be and not only resembled to a Brute but made to be born like one and of Brutes like to the Ass and of Asses to the wild one and even of such to the wild Asses Colt and being thus under an incurable complication of natural Incapacities ought to be very careful how he goes about by any artificial incapacities to afflict or reproach any of his Race that are born to too many and much more to limit the Wisdom of Providence in the choice of its instruments and to take the work of the cicuration of the untamed World out of God's hand And here I shall afford you some amends for the pleasant historical hints I just now had from you by observing to you in short what partly makes for your purpose that tho as Palaeotus in his learned Tâ—…actate de Nothis spuriisque filiis hath mention'd such were tam Mosaicâ quam Pontificiâ ac Civili lege omnino detestabiles and as infamous disabled particularly by the Canon Law from ecclesiastical Dignities yet to shew how these out-casts of the Law were by Heaven rendered instrumental in the Government of the World he there saith Notantque hi qui historias ab origine Mundi sunt exorsi artes ownes scientias ab hujvsmodi sobole à filiis scilicet Lamech fuisse inventas ab eis subtiliora omnia utiliora excogitata and he concludes his Book by instancing in the Names of many Europaean Kings and Princes and Roman Emperors and particularly of Constantine the great and likewise of Popes of Rome who were of the base-born Class of Mankind Both God Almighty and our Princes can make Vessels of Honour of what Clay they please and place them where they will. B. You find it DECLARED in the Statute of the 31th of H. 8. c. 10. that It appertaineth to the King's Prerogative Royal to give such Honour Reputation and Placing to his Councellors AND OTHER his Subjects as shall be seeming to his most excellent Wisdom and so when King Iames gave Sir Walter Raleigh tho dead in Law and labouring under the highest disability beforemention'd the Power and Honour of commanding the lives of others he did but what appertain'd to his Prerogative And thus when King Harry the 8th by his Prerogative like the Sun both raising and gilding a poor Vapour made Cromwel who was the Son of a Black-smith Lord Privy-Seal and likewise enabled him tho a Lay-man to to be his
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
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
Superstition in the World then the Quakers so much restraining to their epitomes of speech in Commerce the interpretation of those words in S. Matthew But let your Communication be Yea yea Nay nay c. which were pursuant to the Proverbial Saying among the Jews Iustorum etiam est etiam non est non And as King Athelstan's Charter to his Tenants the Inhabitants of Rippon I have elsewhere mention'd viz. Quod homines sui Riponienses sint credendi per suum Ya per suâ—…m Nay in omnibus quâ—…lis curiis c. hath been by none that I have heard of look'd on with an evil eye so neither by me should the like Dispensation granted by our Prince to any others he repined at A. Your having as it were diverted me by the thought of that Superstition of the Quakers brings to my mind the pleasant Entertainment you once gave me by lending me a Book writ long ago call'd A brief Treatise of Oaths exacted by Ordinaries and Ecclesiastical Iudges to answer generally to all such Articles or Interrogarories as pleaseth them to propound and of their forced and Constrained Oaths ex officio wherein is proved that the same are unlawful And I remember much of the matter in that Author being dull I came to somewhat at last recited by him that had in it some Sales or what I may call some drops of Spirit of Vitriol and which were but necessary to give a grateful acidity to his Apozeme when he toward the end of that Book of Oaths in p. 56. and 57. thus brings in a RATIONALE of the Ceremonious manner of giving an Oath and of the Manufacture of it as some men do fidem facere by it viz. For in this matter of an Oath they have devised according to their toying fantasie a certain foolish figurative Ceremony in the ministring thereof For the Deponent for sooth must lay his three middle Fingers stretch'd outright upon the Book in signification of the Holy Trinity and Catholick Faith and his Thumb and little Finger he must put downward under the Book in token of Damnation both of Body and Soul if he say not the truth The Thumb belike as the greater representing the heavy mass of the Body and the little Finger the light and incorpoâ—…eal substance of the Soul. How superstitious also they were concerning this Ceremony of the Book little regarding the true use and end of an Oath as appears by the Allegorical Exposition curiously set forth by one of their Personate and Counterfeit Prelates who saith that the Circumstances in the Act of an Oath are very great and weighty inasmuch as he that Sweareth by a Book doth three things First as tho he should say Let that which is written in the Book never do me good neither the new nor the old Law if I lye in this mine Oath Secondly he puts his Hand on the Book as tho he should say Nor the good work which I have done profit me ought before the face of Christ except I say the truth which is founded in Christ. Thirdly he kisseth the Book as tho he should say Let never the Prayers and Petitions which by my mouth I have utter'd avail me any thing to my Soul's health if I say not truly in this mine Oath Yet you must take this as meant only by this Reverend Father where Lay men or the baser sort of the Clergy take an Oath For that blessed Bonner not long since hath taught us this trick of his Law that a Bishop may Swear such is his Privilege inspectis Evangeliis non tactis bare sight of the Book without touch or kiss will well enough serve his Lordship's turn B. Well Sir throwing out of our thoughts the minutioe of all formal trifling let us not at the same time try to make men laugh and weep by imposing Oaths on them And let the Consideration of this namely that the Noble Morals enjoyn'd by the Christian Doctrine have not prevailed all this while to secure Christians against one another without the Garranty of Oaths or by the Christianus sum not being still judged oequi-ponderous with an Oath impress a solemn grief on our Minds And considering that both the Verbum Regium and the verbum Sacerdotis have been so much allow'd equal to Oaths and that all Christians ought to value themselves on being A Royal Priesthood and on their great Chief having made them Kings and Priests to God and his Father let us bemoan the present State of Christianity and Christians having as it were Decreed it that they cannot take one anothers words And let the thought likewise of the insufficiency of the Security of Oaths themselves to keep up Governments work in us such a serious Mortification and Profound sense of the degeneracy of Mankind and such an inclination to place our chief Confidence in somewhat above the words or Oaths of men as becomes us But I shall give you an instance of this at home too pregnant with horror Our thoughts have had a long melancholy walk in the Peristyllium of the many Interpretations that supported our Great Oath of Supremacy and as to which Oath it being probable that a vulgar Error having prevailed among many of the Faction for some time before the year 1640. namely that the Oath of Supremacy was intended to bind only in opposition to Popery occasion was thereby given to the Fathers of our Church to procure the last Authentick Interpretation of the Assertory part of the Oath in the Canons of 1640. and cautioning us there in the first Canon against any Independent Coactive Power whether Papal or Popular But after our view of the orderly and necessary placing of all these polish'd and strong Pillars of Interpretation erected between the time of Primo Elizabethoe and the year 1640 and after Providence so ordering it at last that the Consciences of the Loyal who were then reserv'd as Lyons to guard the Throne had then a clear Oath to guard their Loyalty and after their having then cause to say Tantoe molis erat to render the Oath both acceptable to Conscience and adequate to its first reasonable intention the Land was punish'd with a dreadful Rebellion and the sacred Obligations of the Oath and all its Interpretations could no more quench the raging Flames of the Civil War then the sprinkling of a little Holy Water could save a Town on fire You may therefore here again more particularly take it into your thoughts that there is somewhat beside or beyond Oaths necessary to incline Heaven to Preserve States and Kingdoms and Ecclesiastical Polities therein namely the trusting in God and offering to him what the 51. Psalm calls the Sacrifices of God and without which the thought of the tantoe molis and the endeavour'd piling Interpretation upon Interpretation or Oath upon Oath as high as Heaven and thereby designing to keep men together embody'd and united in the external Profession of any State-Religion will prove as
the Commissioners be COMPETENT that is if they be spiritual men they may proceed to Sentence of Excommunication which may right well be Certify'd as well as Excommunication before Commissioners Delegates both of these Authorities being under the Great Seal c. And Excommunication certify'd ly Commissioners Del gates hath been allowed as it appeareth in 23. Eliz. Dyer 371. And in many Cases Acts of Parliament have adjudged men Excommunicate ipso facto But if they be meer Lay-men the fault is not in the Statute or in the Law but in the Nomination and upon Certificate made of the Excommunication according to Law a Significavit or Cap. Excom shall be awarded out of the Chancery for the taking and imprisoning the Bodies of such Excommunicate Persons But had his Lordship as I said in the Case of the other Author consider'd how by the Statute of 37. H. 8. it was declared that by Holy Scripture all Authority and Power is given to His Majesty and to all such Persons as he shall appoint to hear and determine all manner of Causes Ecclesiastical and to correct Uice and Sin whatsoever he would not I believe have thought Lay-men incompetent or incapable Persons so to have acted in the high Commission or Delegacy or have said there was any fault in the Nomination of Lay-men And yet you see my Lord Coke shews you how the Government then acquiesced in such Nomination and assisted the execution of the Sentences given by such as he thought incompetent Nor are we therefore to wonder at what Mr. Bagshaw mentions of the Civilians in the House of Commons not objecting that the King had done contrary to an Act of Parliament in taking from Bishops Chancellors and Officials the Power of exercising Church Censures given them by the Act and which by the Power declared in that Act to be given him by Holy Scriptures he might have either continued to them or abridged or taken away the exercise thereof from them if he had pleas'd And considering that the Lex Scandali doth equally oblige Kings as well as Subjects in Point of Conscience it is not to be wonder'd that that Tender-conscienced King did in that Conjuncture think himself obliged so equitably to make his Interpretation of that Statute as in complaisance with some of his Subjects who had took offence at Lay-Chancellors Power of Excommunicating to disable them to it I told you before how that Pious Prince did in complaisance with the Fathers of our Church think himself obliged to exercise his Regal Power of interpreting or declaring and when in A. 1637. he issued out his Proclamation Declaring that the Bishops holding their Courts and issuing Process in their own Names were not against the Laws of the Realm and that the Iudges resolutions were notify'd therein to that purpose and that the ferment about that Point was setled and the Bishops issuing out their Processes was setled too the which Proclamation too you will find Mr. Bagshaw mentions in his second Argument where p. 40. he tells you of the Bishop's having procured a Proclamation A. 1637. declaring the Opinions of the Iudges that the Statute of 1 o Edw. 6. c. 2. is repeal'd and of no force at this day and that Bishops may keep Courts in their own Names And I shall now tell you that as in the year 1637. the Bishops were in so full and peaceable possession of their Privilege of issuing out of their Processes in their own names by means of what His Majesty had declared pursuant to the Resolutions unanimously given by all the Iudges and the Barons of the Exchequer and of which Sir E. Coke saith Inst. 2. that they are for Matters of Law of highest Authority next to the Court of Parliament so by Iudgment of Parliament the settlement of that Controversie by virtue of His Majesty's Declarative Power so exercised was afterward approved A. That is a thing I would gladly hear of for one would think that the exercise of the Regal Power of Declaring or Interpreting what relates to an Act of Parliament might occasionally heighten a ferment in stead of abating it B. You will find little or no cause if you consult our ancient English Story and there see how the mutual Confidence between King and People hath in several Ages supported the Government to fancy that Declaratory Proclamations relating to Acts of Parliament did make any ferment The Interpretation of the Statutes hath in all Causes between Party and Party and wherein meum and tuum and Property are concern'd been by ancient usage under our Kings still left to the Iudges and the Proclamations of our Princes on great emergent occasions in the State declaring or interpreting their Laws pursuant to the Supreme Power committed to them by God for the good of their People hath still been observ'd to tend both to the good of the People and the Laws too If you will look on all the Declaratory Proclamations in the Reigns of Queen Elizabeth and King Iames of which you have a Collection you will I believe find none but what were acceptable among all their Loyal Subjects But as to this Declaratory Proclamation of King Charles the First before-mention'd you will find it as I told you approved in Parliament And if you will please to consult in your Statute-Book the Act of 13 o Car. 2. c. 12. of which the title is Explanation of a Clause contain'd in an Act of Parliament made in the 17th year of the late King Charles Entituled an Act for repeal of a branch of a Statute 1 o Elizabethae Concerning Commissioners for Causes Ecclesiastical you will there find that this Act of the late King 's loyal long Parliament viz. 13 o Car. 2. hath in it three Proviso's The first is concerning the High Commission-Court the second Proviso is concerning the taking away the Oath ex officio And the third Proviso is to limit and confine the Power of Ecclesiastical Judges in all their Proceedings to what WAS and by Law might be used before the year 1639 which plainly includes allows and approves King Charles the First 's Proclamation in the year 1637. In the time of a former disloyal long Parliament the Regal Power of Interpreting or declaring was by them represented as a Gravamen and while yet they usurp'd that Power themselves If you will look on the Declaration of the Lords and Commons in Husband's Collections p. 686. you will there find they say It is high time for the whole Kingdom now to understand that His Majesty's Authority is more in his Courts without his Person then in his Person without his Courts when the Power of DECLARING Law shall be deny'd to the whole Court of Parliament in particular Causes before them for we have claim'd it we have exercised it no otherwise to be obligatory as a judicial Declaration of the Law and shall be attributed to His Majesty to do it in general by his Proclamation without relation to a particular Case and
of a Law and dispensing to be different things B. He had an excellent Metaphysical head and his Method of writing in that Chapter Of the Several ways of the changing of Humane Laws was partly after the Example of Suarez in his Book De Legibus and who was a voluminous Writer of Metaphysicks and writing of any Subject could not recedere ab arte suâ in that Learning that is so infinitely prolifick of Artificial distinctions without Natural differences I mention'd the Bishop's but PARTLY writing after the way of Suarez for he was far from crumbling the weightier Points of the Law into the Minutiae of Metaphysicks as the other did and he in his excellent Preface doth very passionately complain of Moral Theology having been made an Art of the Schools and that what God had made plain Men have intricated and for that purpose saith There is a Rule among the Lawyers which very much relates to the Conscience of those Men who are engaged in Suits and Sentences of Law in all Countrys which are ruled by the Civil Law in quolibet Actu requiritur Citatio of this Rule Porcius brings an hundred and sixteen Ampliations and an hundred and twenty four Limitations c. And thus Suarez in his 6th Book De Legibus and the Title of which Book is The Interpretation Cessation and change of Humane Laws hath there Twenty seven Chapters concerning the same and where his first Chapter is Of the way of rightly Interpreting an Humane Law his 2d Of the Extension in them by Interpretation of them and his 3d Of the Extension to a Case not Comprehended his 4th Doubts of the Extension of Laws his 5th Of the Restriction by Interpretation his 6th Of the Ceasing of the Obligation of a Law in particular Contrary to its words his 7th Of the Excusing of a Law by Equity his 8th Of the Use of Equity without recourse to the Prince his 9th Of the Ceasing of a Law upon its Cause ceasing his 10th Of Dispensation in an Humane Law his 11th Of the Effects of Dispensation his 12th Of the Material Cause of Dispensation his 13th Of the form of Dispensation and so on in the others with much Metaphysical subtlety But the Bishop in his before-mention'd Third Book and 6th Chapter viz. Of the Interpretation Diminution and Abrogation of Humane Laws brings in but seven ways of the changing of humane Laws so that the Obligation of Conscience is also changed whereof his first is by Equity His second is by Interpretation His third by a Contrary or a ceasing reason And his fourth by Dispensation c. and of which latter he saith If we use the word improperly Dispensation can signifie a Declaration made by the Superior that the Subject in certain Cases is not obliged that the Law-giver did not intend it c. but when Dispensation signifies Properly it means an Act of mere Grace and Favour proceeding from an extrinsick Cause that is not the Nature of the thing or the merit of the Cause but either the merit of the Person or some degrees of reasonableness in the thing which not being of it self enough to procure the favour of the Law is of it self enough to make a man capable of the Favour of the Prince c. But as here in this nice distinction he is enforced to make him who doth dispensare to do that which the Canonists make the ratio nominis of it namely diversa pensare and in the Scales of Equity to weigh and interpret the degrees of the reasonableness of the thing so in his handling of the Prince's Power of interpreting he makes Equity Co-incident with it and refers to the Law in the Code viz. Inter aequitatem jusque interpositam interpretationem nobis solis oportet licet inspicere and his instances of that Power of Interpretation are referr'd to the favours shew'd by it to Persons and particularly to Solomon's absolving Abiathar from the Sentence of Death because he had formerly done worthily to the Interests of his Father David And then saith Now this Power tho it may be done by Interpretation yet when it is administred by the Prince it is most commonly by way of Pardon absolute Power and Prerogative When a Law determines that under such an Age a Person shall be UNCAPABLE of being the General of an Army the Supreme Power can declare the meaning of the Law to be unless a great excellency of Courage and maturity of Iudgment supply the want of years in which very Case Scipio Africanus said wisely when he desir'd to be employ'd in the Punick War Se sat annorum habiturum si populus Romanus voluerit Thus Tiberius put Nero into the Senate at Fifteen years of Age and so did Augustus the like to Tiberius and his Brother and the People declar'd or dispens'd with the Law in Pompey ' s Case and allow'd him a triumph before he had been Consul or Praetor And he had before said When the Law-giver interprets his Law he doth not take off the Obligation of his Law i. e. meaning the Obligation of his Law in general but declares that in such a Case it was not intended to oblige Tacitus tells of a Roman Knight who having sworn to his Wife that he would never be divorced from her was by Tiberius dispens'd with when he had taken her in the unchaste Embraces of his Son-in-Law The Emperor then declared that the Knight had only obliged himself not to be divorced unless a great Cause should intervene And thus Suarez himself in his said 10th Chapter De Dispensatione in lege humanâ makes Dispensation apply'd to signifie an act quo quis ab obligatione legis eximitur and saith quia unus modus esse potest per Interpretationem ideo potuit etiam in eâ significatione usurpari tamen in hac etiam significatione sumpta non quamcunque interpretationem legis sed illam solam quae in casu dubio per potestatem superioris datur ad liberandum subditum ab obligatione legis significat quia haec tantum est Actus administrationis potestatis ADEO Commissae Et illa tantum tollit aliquo modo onus legis quod sine tali potestate auferri non posset and so saith he 't is agreed on by all that Dispensation is an Act of Iurisdiction but 't is drawn into the Law to signifie the taking away the vinculum of the Law in particular Cases and so we generally use it A. But Metaphysicks apart I shall not trouble my self about what is what but what is my Duty by virtue of my Oath And I observe that what you cited out of the Bishop viz. That when the Power that made the Law doth interpret the Interpretation is authentical c. may render him no favourer of an Interpretation not made in Parliament by the Legislative Power B. I shall sometime at our meeting again observe to you what the Bishop hath there asserted l. 3. c. 3. that Kings
Numb 35. 33. A. But by the way do you think then that Sovereign Princes offend the Law of God in Pardoning Murther B. I do observe that many presume to censure Kings for so doing and are superstitiously misguided by thinking that those two places of Scripture referr'd to by my Lord Coke do necessarily make it a sin in Princes to Pardon Murther But I shall when we meet again shew you the mistake of such therein and shall shew you that David at that time when the Law of God and the lex terrae was the same thing and who had Sworn and would perform it that he would keep God's righteous Iudgments was not to be censured to have sinned either in the reprieve of Ioab who had murthered Amasa and Abner and in delaying the Execution of the Law and leaving it to Solomon his Son or in the Pardon of Absolon who had slain his Brother Ammon and that when the Law faith in Numb 35. The Murtherer shall surely be put to death our best Commentators and out of the Rabbins say that this is spoken to the Iudges before whom such Causes regularly came and under the Supreme Power and by authority thereof judged those Causes and that tho the Iudges who were subordinate to the Supreme Power were to take no Satisfaction for the life of a Murtherer but were by that Law to Condemn him yet that it followeth not that the Supreme Power who made them Iudges might not in some Cases Reprieve and Pardon some whom they had Condemned A. I shall be glad to hear you discourse of this and the rather for that 't is so Customary to many when they find the Prince exercising this Prerogative of Pardoning to be apt too much to busy their heads with those two places in the Old Testament to their neglect of others there viz. Exod. 22. 28. Prov. 24. 21. Eccles. 10. 20. and of Acts 23. 5. in the New and likewise there of Rom. 13. 2. 5. 1. St. Peter 2. 17. and from whence they might Collect their moral offices of not doing or speaking or thinking dishonourably of the Lord 's annointed and of paying honour and obedience to his Sovereign Power and that for Conscience sake But in the mean time give me leave à propos to ask you if ever you heard of any one of the Iudges of the Realm in the Reign of our former Princes that gave his judgment for the allowance of the King's Pardon of disability Shew me but that and I shall not be affrighted with my Lord Ch. Justice Vaughan's Simoniacal Dead man. B. I shall tell you of a Case that was well enough known to him and which you may find in Croke 3d p. 55. Sir Iohn Bennet v. Dr. Easedale where you may see that Sir Iohn Bennet being fined 20000 l. for Bribery by the Star-Chamber and Censured to be Imprison'd and made uncapable of any Office of Iudicature and that he having a Pardon from the King reciting the Bribery and Offences mention'd in the Decree and all Penalties and Punishments by reason thereof and all Disabilities and Incapacities and all things concerning the said Sentence except the Fine of 20000 l. and the Court of Star-Chamber having the advice of all the Iudges relating to the Decree and Pardon it was resolv'd by them all that this Pardon hath taken away all force of the Sentence in the Star-Chamber except for the Fine of 20000 l. and all Disabilities are discharged thereby That Lord Chief Iustice knew that as it was set down in that Chapter of Pardons Inst. 3. the King's Pardon extends to all Suits in the Star-Chamber and he knew of what was mention'd Inst. 4. Chap. 1. Of the High Court of Parliament viz. Of a Pardon to the Lord Latimer of a Iudgment in Parliament and he knew that by his own and other Iustices of Assize going into their own Countrys in the Execution of their Offices by vertue of the King 's Non-obstante to the Statutes of 8. R. 2. c. 2. 3. H. 8. c. 24. himself and as many as went Iudges of Assize so into their own Countrys gave Judgment by so doing for the Prerogative of dispensing with such Acts of Parliament and he likewise knew that as it is well express'd in Theâ—… Answer of King Charles the First to the Declaration of both Houses of Parliament concerning the Commission of array A. 1642. An Act of Parliament in any Matter tho mistaken being assented to by the King and his two Houses is equally binding as having equal Authority with an Act introductive of a new Law and that therefore Acts of Parliament having so particularly declared the justness of the Prerogative's dispensing with disability no magna nomina of any particular Sages of the Law in otherwise opining can expect any deference And if you will consider what my Lord Coke in that Chapter of Pardons hath mention'd of the operation of Prerogative over the dead in Law and consider the President he refers to viz. Pasch. 22. E. 3. tit Cor. 239. Coram Rege Quidam indictatus de Felonia inde Culp dicit quod Rex eum Conduxit inde producit Chartam quod Rex eum Conduxit in Vasc. in exercitu dicta Charta allocata fuit per Curiam and there see his opinion grounded on it that if a man be Indicted of Felony and found Guilty and being in Prison the King may under the Great Seal reciting the Offence c. retain him to serve in his Wars on this side or beyond the Seas this Charter he may Plead and the Court ought to allow it I believe you will be of Opinion that any one who will desire any more Presidents for the Commanding the services of dead men ought to be sent for one to the REHEARSAL viz. that of Arise you dead Men and get ye about your business A. Well Sir As for this objected Dead-man requiescat in Pace I have done with him and since from some things you have said I gather that the dispensing with disability by Roman Emperors and Popes of Rome did never by any ferment disturb their Governments and moreover since no men of sense here have ever troubled themselves or the Government with any vexatious Question about the King's Power in discharging a man from a Praemunire but not from a Penal disability incurr'd whereas by a Praemunire as my Lord Coke shews us Inst. 3. c. 54. men are put out of the Protection of the King and DISABLED to have any Action or Remedy by the King's Law or the Kings Writs and exposed to many other dreadful Punishments I do now begin to wonder whence it is that the mistake in some mens Minds hath come about a Penal disability being so unremoveable And thus I think too one might wonder how such as will allow the King's Pardon to discharge one from an Excommunicatio minor or major do look on disability as such an anathematizing thing as is not to be touch'd or that cannot be