Dispensative Power in the Reign of King Charles the First being extended to particular Persons but the hated Sibthorpe who in his Sermon of Apostolick Obedience as he call'd it doth speak of Mens being bound to observe the Lawes of the Land where they live except they will suffer as busie bodies or except they will have that inconvenience granted that the general Lawes or Government of a Nation must be dispens's withal according to the particular Conceit and Apprehension of every private Person whereout what Coleration of Heresy what Connivence at Errors what danger of Schisms in the Church and Factions in the State must necessarily follow c. and having mentioned the Liberty of a few erroneous Consciences bringing the Bondage of many regulated Commands he saith We must prefer the general before the particular and not let every one be loose to their List and Affection but all must be kept within the Lists of their Duty and Subjection And I but just now told you of that Prince's avowing that the Bishops advised him to the tenderness he shewed in dispensing with his Lawes to gratifie the pretended tenderness of the Consciences of some of his Scotish Subjects in that Conjunctâ—… â—…eand by which Dispensing one would have thought they might have been sufficiently antidoted against the strong Delusions of entring into War for Religion Oh that such thoughts had been then impress'd on their Minds as are contain'd in the General Demands of the Ministers and Professors of Aberdene p. 29. as I find them cited in the Book of Mr. Ley before-mention'd viz. There be other means more effectual for holding out of Popery and so of any unlawful innovation in which we ought to Confide more then in all the Vowes and Promises of Men yea also more then in all the United Forces of all the Subjects of this Land to wit diligent Preaching and Teaching of the Word frequent Prayer to God humbling of our selves before him and Amendment of our Lives and Conversations and Arming our selves against our Adversaries by diligent searching of the Scriptures whereby we may encrease in the knowledge of the Truth and in ability to defend it against the Enemies of it Oh that the Demagogues of those times had caus'd such words then to have been writ in our Churches or I might rather wish that those Heads of Parties had had themselves then hearts of flesh and that such tender words had been like a Law written there But the Urgentia imperii fata were upon us and that delicate use of Conscience that is in 2. Cor. 13. 5. call'd examen vel probatio nostrum ipsorum and whereby it resembled the best property of a beam in Scales namely its tenderness and turning with the least part of a grain was among the great Actors in that Rebellion quite laid aside and all the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the weightier Matters of the Law did not stir their Consciences and the great Obligation of their Oaths of Allegiance and Supremacy signify'd no more then the dust of the balance Tho they pretended to so nice a Tenderness about any thing that look'd like an Oath in familiar discourse and was not one as at the Saying in faith or in troth and so would seem to come under Solomon's Character of him that feareth an Oath but as to which words of in faith or by my faith our Judicious Sanderson de Iuramento makes them amount to no more then a meer Asseveration or at the most an Obtestation and saith that the genuine interpretation of the words by my faith whether in an assertory or promissory matter is this I speak from my heart I pawn my faith to you that the thing is so yet they at the same time would ridicule or seize on any one who had told them of what they were Sworn to in the Oath of Allegiance and of the recognition they made there as the words of that Oath are heartily willingly and truly upon the true faith of a Christian. A. There was a Solemn League and Covenant afterward took by those who had so apparently outraged the Oath of Allegiance and it was taken generally by all the Layety and Clergy of the Parliaments Party and was there not a general Tenderness of Conscience express'd then in the observance of that Covenant B. In the course of my Observation of Men and Things some things have more particularly occurred to me to shew you that the great Takers and imposers of that Covenant did as plainly and without any seeming remorfe outrage their Oath in that Covenant as they did their Oaths of Allegiance and Supremacy For after they had first sworn to endeavour to preserve the Reformed Religion in the Church of Scotland in Doctrine Worship Discipline and Government and then sworn to endeavour to reform Religion in these Kingdoms of England and Ireland in all Points according to the Examples of the best Reformed Churches and so were bound to reform us according to the Pattern of Scotland for that Church must necessarily pass for the best Reform'd Church that stands in need of no Resormation being to be preserv'd by them in the State it was the Parliament instead of setling in England the Presbyterian Government which then in Scotland had within its Verge four Judicatories and all pretended to be founded on Divine Right 1. A Parochial Session 2. A Presbyterian Consistory 3. A Provincial Synod 4. A General Assembly as they were bound to did in effect settle ERASTIANISM a Tenet or hypothesis of Church-Government that the Scotch and English Presbyterian Divines avowed as great an hatred of as of Popery it self Erastianism giving the Supreme Power in Ecclesiasticals to the Civil Magistrate and in their Printed Votes and Orders reproved the Presbyterian Divines for challenging an Arbitrary Power and which they would not grant nor set up ten Thousand Iudicatories within the Kingdom as the Parliaments words were referring to the Scots Parechial Session where a competent number of Lay-Elders whom they call Presbyteri non docentes and Deacons proportionable to the Precinct and Extent of the Parish are conjoyn'd and which associate Body thus compacted is the Spiritual Parochial Sanhedrim But this very first Point of that Church-Government the Parliament hinder'd Presbytery from gaining here and opposed its moving in that lowest Sphere of the Parochial Session of setling so many Thousand Ecclesiastical Courts of Pye-Powder in England and whereby it could never hope to climb up to the Primum mobile of a General Assembly which in reality was the Sphere the Parliament it self moved in Mr. Prynne who was one of the greatest Champions for that Covenant was yet an Eminent profess'd Erastian and Mr. Coleman a Member of the Assembly of Divines another of those Champions for the Covenant was likewise a declared Erastian and a great Favourite of the Parliaments and whose frequent Sermons before them for Erastianism were Printed by their Order and which Sermons of his and likewise his Books
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
Vice-gerent for ecclesiastical Causes and however incapacitated by some positive humane Laws to make that figure he did but uti Iure suo And I shall tell you as to the subject of the weight of one Man or the consequences of disabling one Man that we were upon if you consider how much the excesses of the Papal Usurpations and the over-ballance of the Monastic Revenue in the Nation were removed by the parts and endowments of Cromwel the Vice-gerent in Matters Ecclesiastical you may easily imagine that if the measures of the Canon-Law and Canonists and the long receiv'd customs or any humane Law had then prevail'd for the disabling of Cromwel cum effectu from bearing Office or intermedling in Ecclesiastical Jurisdiction as the Kings Vice-gerent what a Church of England we should have at this time enjoy'd You may well imagine how much the Disabling of Lay-men from intermedling in ecclesiastical Iurisdiction had passed for a general Custom here when Bishop Downham in the Defence of his Consecration Sermon p. 185. saith that as for lay-Chancellors or Commissaries the Bishops in the times of S. Austin and S. Ambrose had none and that not so much as the Steward of a Church might be a Lay-man and when the Puritan Writers did still upbraid our Discipline on the account of the incapacity of Lay-men to be Bishops Chancellors as adjudged by the ancient Canons and with the Canon of indecorum est laicum esse vicarium episcopi c. and by which Canon the Bishop who made a Lay-man his Vicar was declared to be contemptor Canonum But it was the Regal Power of Dispensing with the Canons and Customs that disabled Lay-men from intermedling in ecclesiastical Jurisdiction that laid the foundation of the Reformation in Harry the 8th's time as it was the same Power of dispensing with the Canons and Customs that disabled Clergy-men from intermedling in saecular Employments that perfected the superstructure of it in the reign of Edward the 6th that young Iosias as was before mention'd Fuller tells us in his Church-history that Harry the 8th's making a Lay-man his Vicar-general was the greatest instance of his ecclesiastical Power that ever was given And my Lord Herbert in his Harry the 8th doth seem to reflect on Cromwel's not being thought capable of that Office for his words on his being made the King's Vicegerent are It was thought strange by the People because there was no Example of any Kings of Israel the lawfully in their own Persons enjoying the mixt Power of the Temporal and Spiritual or of the Pope's having deputed Ecclesiastical Power to a Lay-man But as to his saying that there was no Example of the Pope's deputing Ecclesiastical Power to Lay-men I shall observe that his Lordship had not consider'd that according to the Glosse in C. bene quidem Distin. 96. Laicus potest excommunicare ex Papae delegatione and that tho a Bishop cannot by the Canon-Law delegate his Power to a Lay-man for that a Bishop is not above the Ius Commune Positivum of the Pope yet the Canonists hold that the Pope by the Plenitude of his Power may dispense with his own Laws and by so doing delegate the Power of Excommunicating to Abbesses altho jure Communi as not having the Power of the Keys they are disabled from so doing and that Pope Urban the Second constituted a Lay-man Roger Earl of Sicily and his Heirs his Legates a latere in that Kingdom by way of Inheritance for ever and that our Henry the Second writing to the Pope to recall Beâ—…ket's Legatine Power and to confer it on the Archbishop of York the Pope refused so to do but offer'd the Legatine Power to the King himself and sent Letters to the King for that purpose but which the King in scorn threw away The Legatine Powers are de jure Communi as the Canonists tell us very great and allow the Legates to visit or cause to be visited by such as they shall think fit all Churches Monasteries Colleges Universities Hospitals and do authorize them to make new Statutes and Orders and not only to receive Appeals from ordinary Judges and Delegates but to judge and decide all Ecclesiastical Civil and Criminal Causes and that summarily and sine formâ figurâ Iudicii to make Prisoners of Bishops and send them in Custody to the Pope to bestow Benefices that were vacant to unite Churches to interpret the Mandates of the Pope and if the Pope hath entrusted any thing to be done by them yet to entrust the doing thereof to others to execute all their Jurisdiction in Places exempt as well as not exempt and to dispense in all Cases wherein they are not Prohibited and to exercise the Iurisdiction of granting Indulgences and to dispense with pluralists and with the incapacity of Sons immediately succeeding their Fathers in Church-Livings and to give Absolution to the Excommunicate in many Cases reserv'd to the Apostolick See and likewise in many Causes inflictive of Excommunication ipso jure and in many Cases to restore such as are deposed and degraded and to rehabilitate them even by restoring them to Fame All these Branches of Authority with many others not named here were it seems offer'd by the Pope to our King but which he holding as Vicegerent to the King of Kings and by his Word might well refuse their tenure from the servus servorum and by his Bulls All our Roman-Catholick Princes having made an inroad on the Papal incapacitating Canons by way of Dispensation when they made their Lay-Judges Super-Intendents over their Bishops and who were by Lay-men required to Absolve such who were disabled by Excommunication and to receive their bounds and measures in Ecclesiastical Proceedings by Writs of Prohibition and Consultation and Attachment issued out by Lay-men the exercise of the Regal Power in Ecclesiasticks distributed and dispers'd among so many Lay hands did not seem so powerful nor invidious as when the united Beams of Ecclesiastical Vice-gerence met in the Ministry of one Lay Person and dazled the Eyes of the whole Kingdom and when according to the Power that was 37 o. H. 8. declared by the Parliament to be given to the King by Holy Scripture he made Cromwel his Vice-gerent for the Ecclesiastical Jurisdiction But as that Statute intimating that the Councils and Constitutions Provincial that ordain'd that no Lay-man should exercise or occupy any Iurisdiction Ecclesiastical did stand and remain in their effect not abolish'd by his Grace's Laws and did sound to appear to make greatly for the usurped Power of the Bishop of Rome and to he directly repugnant to his Majesty as Supreme Head of the Church and Pretogative Royal his Grace being a Lay-man altho such Decrees Ordinances and Constitutions were by the Statute made in the 25th year of his Reign intended to be utterly abolish'd frustrate c. but yet that the contrary thereunto being not used by Archbishops Bishops c. i. e. that they had not all that
Case or to the quite contrary in More 542. Armiger's Case I shall most consult the ease of your thoughts by directing them to what interpretation my Lord Coke in Cawdrys Case gives as to the words of the Statute of 1 o Eliz. and where he saith that that Act doth not annex any Iurisdiction to the Crown but what was of right or ought to be by the Ancient Laws of this Realm parcel of the King's Iurisdiction c. and which lawfully had been or might be exercised within the Realm The end of which Iurisdiction and of all the Proceedings thereupon that all things might be done in Causes Ecclesiastical to the Pleasure of Almighty God encrease of Vertue and the Conservation of the Peace and Unity of the Realm as by divers places of the Act appears And therefore by this Act no pretended Iurisdiction exercised within this Realm being ungodly or repugnant to the ancient Law of the Crown was or could be restored to the Crown according to the ancient Right and Law of the same And here I may tell you that as the Pope did often dispense with incapacity incurr'd by his Positive Laws and that even in the use of the Power of the Keys as by his delegating the Power of Excommunication to Lay-men and to Abbesses as aforesaid so our Kings d d anciently by their Letters Patents and Charters grant Power to those who were no Bishops Ordinaries or Ecclesiastical Iudges or Officers to inflict Ecclesiastical Censures of the greater Excommunication on Offenders and that for Causes not merely Spiritual or Ecclesiastical with Power to Certify them into Chancery and thereupon to obtain Writs de Excommunicato Capiendo as Mr. Prynne tells us in his Animadversions on the Fourth part of the Institutes and there cites the President of Edward the Third thus empow'ring the Chancellor of the University of Oxford tho a Lay-man so to do and so to Punish Breakers of the Peace Offenders against the Statutes Privileges and Customs of the University and all Forestallers and Regraters and Sellers of corrupt Meat and Wine and to Excommunicate such who refused to cleanse the Streets from filth and to Pave them before their Doors and this he saith was confirm'd by sundry succeeding Statutes of our Princes In what particulars it is by this Statute of the 25. of H. the 8th warranted that the King his Heirs and Successors may dispense with Persons and in Causes that the Papacy was never accustomed to dispense in I shall not trouble you or my self to enquire but shall tell you that Mr. Nye in his Book call'd Two Acts of Parliament and wherein are contain'd his Observations on the Oath of Supremacy doth in p. 164. cite this Statute of 25. H. 8. c. 21. and thereupon say the King's Majesty may dispense with any of those Canons or Ecclesiastical Laws meaning the King 's Ecclesiastical Laws indulge the Omission of what is enjoyn'd by them make void the Crime and remove the Penalty incurred by breach of them yea and give faculty to do and practice otherwise any Synodal Establishment or long usage to the Contrary notwithstanding in what offends not the Holy Scripture and Laws of GOD. And therefore when our Soveraign in the course of his Ecclesiastical Supremacy doth only dispense with incapacity we are sure he goes not to the height of the Dispensative Power justify'd in him by that Statute nothing having been more customary to the Papacy then rehabilitation It was upon the Revival of this Statute of Harry the 8th by that first of Queen Eliz. c. 1. that she according to the Papal custom of dispensing with the Commutation of Penance did in her Articles in the Synod began at London A. D. 1548. establish one De moderandâ solennis Poenitentioe Commutatione whereby she orders that such Commutation shall be but seldom and for weighty Causes and when it shall appear to the Bishop that that way is the safer to reform the guilty Person and that the Commutation-Money be employ'd to Pious uses And then follows the Title De Moderandis quibusdam Indulgentus pro Celebratione Matrimonii absque trinundinâ denunciatione quam bannos vocant Matrimoniales where you will find she makes Faculties and Indulgences all one And as I have shew'd you how she thought it necessary for the safety of her Subjects Consciences to exercise her Dispensative Power of interpreting and of relaxing disabilities occasion'd by the very first Statute of her Reign and how soon she put the Dispensative Power of those kinds in practice which by that Statute were restored and united to her Imperial Crown so I may observe to you that shortly after the making of the Second Statute in her Reign viz. That for Uniformity of Prayer and Administration of Sacraments which punisheth with Premunire Sequestration and Deprivation and Excommunication which while it is depending is so variously inclusive of disability the not using the Book of Common-Prayer as Publish'd in English she by her Letters Patents dated the 6th of April in the Second year of her Reign and A. 1560. alloweth the use of Latine Prayers to the Colleges of both Universities and to Eaton and Winchester Colleges with a particular Non-obstante to that Statute a Copy of which Letters Patents may be seen in Bishop Sparrow's Collection of Articles c. And I have before acquainted you in general how in her Letters Patents for the Consecrating new Bishops she expresly dispens'd with incapacity But what may perhaps seem to you as a new Indication of her being the better able to dispense with it is an Instance I shall give you of her making incapacity by her Supreme Ecclesiastical Power The instance of her thus making incapacity is a thing that Mr. Nye in his Beams of former Light reflects on as strange for he there in p. 201. referring to Queen Elizabeth's Injunctions A. 1559. Injunct 29. viz. It is thought very necessary that no manner of Priest or Deacon shall hereafter take to his Wife any manner of Woman without the Advice and Allowance first had by the Bishop of the Diocese and two Iustices of the Peace next to the place of her abode c. and if any shall do otherwise they shall not be permitted to Preach the Word or give Sacraments nor be Capable of any Ecclesiastical Benefice saith then Doth this seem strange now It seem'd very necessary in the judgment of our Governors then A. I must acknowledge that you have spoke that which is very much for my Satisfaction concerning the Dispensative Power and the Oath thus supporting one another But I wonder that I have not in any of our celebrated Writers of the Church of England read that the Contents of the Assertory and Promissory parts of this Oath and our abjuring foreign Iurisdictions Powers Superiorities and Authorities in the Oath i. e. those of the Papacy were intended in order to the statuminating our Prince's Dispensative Power pursuant to the Statutes of 25. H. 8th and 1
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
commanding Obedience to be given to the Word of God by reforming Religion according to his prescribed Will by assisting the Spiritual Power with the Temporal Sword by reforming Corruptions by procuring due Obedience to the Church by judging and cutting off all frivolous Questions and Schisms as Constantine did and finally by making decorum to be observ'd in every thing and establishing Orders to be observ'd in all indifferent things for that purpose is the ONLY intent of the Oath of Supremacy and whereby as he effectually confuted the Cardinal whose Letter charged the Oath of Supremacy as tending to this end That the Authority of the Head of the Church in England may be transferr'd from the Successor of St. Peter to the Successor of King Henry the 8th and to oppose the Primacy of the Apostolick See so at the end of his Book he shews that his design of Publishing the same was to satisfie all his good and natural Subjects and likewise Strangers about the things therein contain'd and whereby the King's Mind was publickly notify'd that in the right done to the Crown by the Oath of Supremaâ—…y as well as of Allegiance there was no wrong intended to St. Peter or his Successors A. I hope you have now put a Period to the History of the Dispensative Power of the Crown that was exercised in-the interpreting of any parts of the Oath of Supremacy or the 37th Article thereto relating You have named to me so many interpretations of the Oath that according to the wisdom of our State and the Lex Consuetudo Parliamenti making a Bill to be thrice read in each House of Parliament and then receiving the Royal Assent to be thought like Gold seven times purify'd may shew the interpretation of the Law to be so too But tho I will account any good Law to be more precious then Gold yet if like Gold it be too far extended by ductile interpretation it may be drawn to such a thinness as to lose all its weight and estimation and retain only a poor tincture and colour that will signifie little or nothing And as Pliny in his Panegyrick on Trajan said that by reason of the multitudes of sutes upon Penal Laws in Rome there was danger till Trajan's time ne Civitas fundata legibus legibus everteretur so a Law whose Obligatoriness is founded on interpretations may be endanger'd by the multitudes of them to be destroy'd and may like the Papal Laws of New Rome by the infinite interpretations of Casuists in the forum internum which is their Tribunal be brought to signifie nothing in either forum and to be only an Engine to make Perplexities You have given me here such a Genealogy of interpretations that according to the common Story of Arise Daughter c. one may say Arise Interpretation and go to thy Interpretation c. I shall therefore be glad now you have been so largely communicative of your thoughts to me about the assertory part of the Oath you will deal as frankly with me in acquainting me with what may in the Promissory part of the Oath be of importance for me to know in order to the better discharge of my Duty in the Case before me B. I shall therein be most ready to serve you when we meet next for the entire Consideration of what according to the Assertory part of the Oath you are obliged to do will I see be as great a load as both our patiences will at this time bear and therefore according to the Saying of Must is for the King I am to tell you that let our Kings make never so many interpretations one after another of this your Oath you must finding them all Consistent with one another consider them all with all due regarâ—… 〈◊〉 thank God and them when their Consciences being inclined to a tenderness for the doubting of yours they interpose their Dispensative Power of that kind And hereupon I shall tell you that in the year 1628. King Charles the First did cause the 39 Articles to be reprinted and with a Declaration before the same made by him as Supreme Governor of the Church within his Dominions that those Articles contain the true Doctrine of the Church of England and that if any Difference should arise about the external Policy concerning Injunctions Canons or other Constitutions whatsoever belonging to the Church of England the Clergy in their Convocation is to order and settle them c. he approving their said Ordinances c. that the Bishops and Clergy shall have licence under the Broad Seal to deliberate of and do all such things as being made plain by them and assented to him shall concern the setled Continuance of the Doctrine and Discipline of the Church of England c. and then having respect to the Article wherein the Arminians and Antiarminians were concern'd 't is order'd that no man hereafter shall either Print or Preach to draw the Article aside any way c. But the first Canon that was afterward viz. A. 1640. made was that concerning the Regal Power which begins with taking notice that sundry Laws Ordinances and Constitutions had been formerly made for the acknowledgment and profession of the most lawful and independent Authority of our Dread Sovereign Lord the King over the state Ecclesiastical and Civil and then enjoyns them to be ALL carefully observ'd by all persons whom they Concern upon the Penalties in the said Laws and Constitutions express'd and then decrees that the Clergy shall read the following Explanation of the Regal Power and where the words A Supreme Power is given to this most excellent Order i. e. 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 whether Ecclesiastical or Civil and that they should restrain and punish with the Temporal Sword all stubborn and wicked doers shew they had then the 37th of the 39 Articles in their eye and some other words viz. for any person or persons to set up maintain or avow respectively under any pretence whatsoever any independent Coactive Power either papal or popular c. is to undermine their great Royal Office shew they had an Eye on that 37th Article and on your Oath and where they did speak out that sense of the Clause The Bishop of Rome hath no Iurisdiction c. and of the words in the Oath that no foreign Prelate hath or ought to have any Iurisdiction c. that is that the Bishop of Rome had here no independent Coactive Iurisdiction the sense in which all considerate Persons who were Members of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's time took the old Oath of Supremacy and the Members of the Church of England in Queen Elizabeth's time and ever since took the new one As for Non-conformists who think the Government of Bishops unlawful this Clause that no foreign
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
Consciences and who might thereby think that according to the Rule of ejus est interpretari cujus est condere that the Oath of Supremacy enjoyn'd by Parliament 1 o Elizabethoe could not receive an Interpretation but from the Queen in Parliament and that that Consideration might therefore be supposed to be the cause of the Queens interpreting being approved or declared good by the Parliament in the Fifth year of her Reign B. I shall tell you that as to the sufficiency of the Queen's Power to interpret the Oath by her sole Authority it appears not that the Proviso in the Statute of 5 Eliz. did in the least arise from any such scruple and so De non apparentibus c. And here without troubling you with the Notions of the Royal assent creating the Soul of the Law and by the words of le Roy le veult after the Body of it hath been prepared by the three Estates and that the three Estates have nothing to do to interpret a Law that is once made and accordingly as Sir C. Hatton formerly Lord Chancellor of England in his Treatise of Acts of Parliament and their Exposition tells us That the Assembly of Parliament being ended functi sunt officio and speaking particularly of those of the Lower House saith their Authority is return'd to the Electors so clearly that if they were all together assembled again for interpretation by a voluntary meeting eorum non esset interpretari c. I shall once for all observe to you that our Monarchs when in the exercise of the Prerogative inherent in them and inseparable from them relating to Matters of Peace and War the Coining of Money or the Dispensing in Matters Civil or Ecclesiastical they condescend to have the same in particular â—…ases approved or strengthâ—…n'd by Parliament are no more deprived of their Sole Supremacy therein then the Body of the Sun is devested of its Heat and Light by diffusing the same through the Air. But I have before observ'd to you that the apparent Cause in the Proviso of 5 o Elizabethoe whereby the Queens Interpretation is Enacted is the better to transmit the obligatoriness of the Interpretation in point of Conscience beyond her Life and to the Reigns of her Heirs and Successors and to bind us who live now to acknowledge such Power due to our present King over the Persons of all his Subjects as was in her interpretation challenged to be due to Harry the Eighth and Edward the Sixth I shall not trouble you with my Judgment about Moot-points of Law relating to the Regal Power of interpreting Acts of Parliament and particularly such wherein Oaths are founded My Lord Coke Inst. 3. c. 74. tells us That an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common-Law or by Act of Parliament be alter'd but by Act of Parliament and saith in the Margin So resolv'd An. 26. El. in the Case of the Under-Sheriff And then saith the Oath of the King 's Privy Councel the Iustices the Sheriffs c. was thought fit to be alter'd and enlarged but that was done by Authority of Parliament For further proof whereof see the Statutes here quoted i. e. those referr'd to in his Margin and it shall evidently appear that no old Oath can be alter'd or new Oath rais'd without an Act of Parliament I have only here referr'd you to Matters of Fact in the Reign of Queen Elizabeth a Reign that the Royal Martyr in p. 3. of his Declaration to all his Loving Subjects of Aug. 12. 1642. refers to with so much honour by saying We declared our Resolution c. and desired that whatsoever mistaking had grown in the Government either of Church or State might be removed and all things reduced to the order of the time the memory whereof is justly precious to this Nation of Queen Elizabeth c. and do leave it to you to consider how Great the Power of Interpretation of Laws is in it self a Power almost infinitely greater then the discharging either the Obligations of some Penal Laws or their Penalties Pro hic nu c and as to some particular Persons as any one will grant who hath seen the extent of the Power of interpreting in the Canon Law where the Glossa ad Cap. Statuimus 4. Distinct. 4. gives us this Interpretation of Statuimus STATUIMUS i. e. ABROGAMUS And I can for this purpose tâ—…ll you that Bartolâ—…s in his Tractatus testimoniorum speaking of the Imperial Power concedendi veniam oetatis saith Carolus quarâ—…us sanctissimus nebilissimus Imperator inter 〈◊〉 multâ—… concessit ut ego meique descendentes quos legibús dâ—…los esse contigerit per un versum imperium oetatis venâ—…am concedere valeâ—…mus servataÌ„ formaÌ„ quoe legibus reperitur insâ—…rta and whereby you see that a Power of dispensing with incapaciâ—…y was by the Prince given as an inheritance But none can imagine that the Power of interpreting Laws can be so conferr'd So that therefore according to the Rule of Law Non debet cui plus licet quoÌ„d minus est non licere you neâ—…d not wâ—…nder at the Prince's dispensing with incapacity in particular cases whom you have seen interpreting Laws And you may consider that if the Queen did contrary to the measures of Law referr'd to in my Lord Coke by her sole Supream Ecclesiastical Authority seem to alter the interpretation of a Stature Oath for the better what she did found afterward its approbation in Parliament and in fine I leave it to you to consider how much the Power of dispensing with any Law may be thought Coincident with interpreting since as I shall some other time shew you at large that the dispensing with Laws is in effect the equitable interpreting that in such and such cases and circumstances they were not intended and ought not to bind but ought to be relax'd And now I must take the occasion offer'd me to give you a prospect of the Queens Dispensative Power both of the Interpretation of this Oath and of the acquittal from Disabilities that is not bounded by the Statutes of 5 o or 8 o Elizabethoe beforemention'd and wherein she again stood on the single basis of her own Supreme Authority Ecclesiastical without having recourse then to a Parliaments approbation Mr. Ney in his learned Observations on the Oath of Sâ—…premacy having spoke of the Queens Interpretation of the Oath in her Admonition and of the Parliamentary Proviso 5 o Eliz. doth thus go on There is something of Explication further meaning of the Oath in the Artiâ—…les of Religion concluded in the year 1562 and then recites the 37th Article as followeth viz. The Queens Majesty hath the Chief Power in this Realm of England and other her Dominions unto whom the Chief Government of 〈◊〉 Estates of this Realm whether they be Ecclesiastical or Civil in all Causes
be TENDER as he is likewise of our Liberty let us enter into a true and indifferent Consideration how far forth the Case in question may touch his Authority and how far forth our Liberty And to speak clearly in my opinion it concerns his Authority much and our Liberty nothing at all That Expression concerning tenderness for the Regal Rights was very acceptable to the House of Commons when his late Majesty in his Letter to them from Bredagh April 14. 1660 thus made use of it viz. We have not the least doubt but you will be as TENDER in and jealous of any thing that may infringe our Honour and Authority as of your own Liberty and Property which is best preserv'd by preserving the other Remember therefore that your tenderness for Property is best preserv'd by your tenderness for the Regal Authority and if you would have your thoughts adorn'd by a constant Idea of true English Loyalty like a noble Picture retain'd there let me direct you to a Saying which like an Original drawn by a great Master may be fit for you to Copy after viz. that Saying of the Lord Keeper Coventry in a Speech in the House of Lords viz. Some would have the King's Prerogative rather tall then great others è contra But none can be truly loyal but he that is a good Patriot and none can be a good Patriot but he that is truly loyal Nor need it be further insinuated to you that without your keeping up a tenderness for the Regal Rights you cannot maintain your tenderness for Oaths And here I must take occasion to tell you that one of my aims in entertaining you with the Queries relating to Oaths out of that Book was to lay before your thoughts a tenderness as to Oaths in general both in keeping the lawful ones you have taken and in not imposing unlawful doubtful unnecessary or inexpedient ones on others and on such as our Prince considering the several Constitutions of their minds both as to firmness and infirmness hath thought fit to exempt from taking such strong Physick Moreover if you will think that another of my aims was to mind you that the same Queries might have been as ingeniously and ingenuously put in the year 1673. before the passing of the Test-Act as they were in debating the Test-Bill in the year 1675 I shall allow you so to do You may too if you will here occasionally consider how soon God in the course of his Providence doth sometimes turn the Tables and make such who were lately so active in imposing on others Oaths that seem'd doubtful and oppressive to them to be in danger of suffering by the like Impositions Mr. Burrough's a Pious Independent Divine who lived in the late times referring in his Irenicum to the Impositions and Persecution design'd by the Presbyterians against those of his Perswasion saith there but the Tables may turn one day wherein the Sufferers shall have the greatest Ease and the Inflicters the sorest Burthen But God forbid that their Brethren should lay it upon them tho it were put into their Power to do it And you may take notice that the Book we before spoke of owns the Activity of the Roman-Catholick Lords then in hindering that Test's being brought on Protestants the Consideration whereof may I think justly incline all who account it their Happiness to have been freed from that design'd Oath not to grudge at the favour that hath been extended by the Diâ—…pensative Power to particular Roman-Catholicks excused from taking other Oaths or at any just favour if ever happening to be afforded them by the Authentick Interpretation of what in the Statute-Oaths seems doubtful to them So tender was the Government in the time of Edward the 6th about the not making the Consciences of the People uneasie by Oaths that you will find it in the Reformation of the Ecclesiastical Laws begun in Harry the 8th's Reign and carry'd on in his that the Magna nomina who were employ'd to make a New Body of Laws did in Compassion to the Consciences of those who took the usual Promissory Oaths for the observance of the Statutes of Universities Collegiate Churches and such like Societies and Corporations order this Clause to be added to the Oaths viz. Haec omnibus partibus servabo â—…uibus cum sacrâ Scripturâ cum legibus civilibus Ecclesiasticis hujus Regni consentient quantum vires meae patientur The School-men saith one would be thought most tender and most curious in the point of Oaths They mince them out so fine that a wholâ—… Million of Oaths may stand as some speak of Angels on the point of a sharp needâ—…e I have therefore not wonder'd at it when I have seen men standing on this sharp point of Oaths so often inconsistent with themselves Notwithstanding what I told you out of my Lord Coke that an Oath cannot be ministred to any unless the same be allow'd by the Common Law or by some Act of Parliament neither can any Oath allow'd by the Common Law or by Act of Parliament be alter'd but by Act of Parliament yet as you know that the House of Commons in the 30th year of Queen Elizabeth desiring that no Oath or Subscription might be tendred to any at their entrance into the Ministry but such as is expresly prescribed by the Statutes of this Realm except the Oath against Corrupt entring did thereby however approve of the tendring of that Oath so my Lord Coke likewise Inst. 3. c. 71. viz. Of Simony seems to approve of that Oath in saying that Simony is the more odious because it is accompany'd with Perjury for the Presentee c. is Sworn to commit no Simony referring there to Lynwood and had before in that Chapter referr'd to Canon 40. 1 Iacobi 1603. The Oath against Simony You may too remember what I so lately told you of my Lord Coke's having with some approbation or fair respect mention'd the Clergy's Oath of Canonical obedience And I can tell you that I lately looking on the Charter of the Corporation of Shipwrights granted by King Iames the First in the Tenth year of his Reign observed therein that Thomas Lord Ellesmere Lord Chancellor of England Sir Thomas Flemming Lord Chief Justice of England Sir Edward Coke Lord Chief Justice of the Common Pleas did pursuant to the Statute in the 19th year of Henry the 7th allow and approve under their Ha ds and Seals divers Articles Acts and Ordinances for the better Order Rule and Government of the Art or Mystery of Shipwrights exhibited to them by the Corporation and did moreover oâ—…in the form of three new Oaths to be taken by the Officers and Freemen of that Corporation and did DISABLE the Refusers of such Oath to be Members of the Corporation But I may here occasionally by the way tell you what you will find in Croke 3d. Sir Edward Coke Sheriff of Buckingham's Case viz. That upon several Exceptions there mention'd as by him
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
and State resented it in the Conjuncture of A. 1640. I mean Archbishop Williams who in his famous Speech in Parliament that year against the Bill that afterward passed into a Law to Disable Persons in Holy Orders from exercising any Temporal Jurisdiction doth thereupon represent it that under a CAIN ' s mark an eternal kind of disability or incapacity is laid on them from enjoying hereafter any of those Rights Favours or Charters of former Princes and which is the heaviest Point of all without killing of Abel or any Crime laid to their charge more then that in the beginning of the Bill 't is said roundly and in the style of Lacedaemon that they ought not to intermeddle c. And what his thoughts were of the Injustice of such incapacity put on the Clergy and of the odiousness of that Punishment of incapacity appears by what he afterward saith viz. I come to the 4th part of this Bill which is the manner of the inhibition every way heavy in the Penalty heavier a great deal in the incapacity In the weighing the Penalty will you consider the small wyers that is poor Causes that are to induce the same and then the heavy load that hangs upon these wyers It is thus If a Natural Subject of England interessed in the Magna Charta and Petition of Right as well as any other yet being a Person in Holy Orders shall happen unfortunately to Vote in Parliament to obey his Prince by way of Councel or by way of a Commissioner be required thereunto then is he presently to lose and forfeit for his first offence all his Means and Livelyhood c. This Peradventure may move others most but it doth not me It is not the Penalty but the Incapacity aâ—…d as the Philosophers would call it the Natural impotency imposed by this Bill on men in holy Orders to SERVE the KING or the STATE in this kind be they otherwise never so able or never so willing or never so vertuous which makes me draw a kind of Timanthe ' s veil over this Point and leave it without any amplification at all to your Lordships wise and inward Thoughts and Considerations But if with so much thunder of Passion as well as lightning of reason that learned Speech from the Bishops Bench did so much resent the punishing the Clergy with disability to execute secular Offices and to have the honour of serving their Prince and Country therein and for the imposing of which disability that known place of Scripture 2 Tim. 2. 4. No man that wars entangles himself with the Affairs of this life was alledged in the House as thus disabling them by the Law Divine and as to which the Bishop in his Speech gives a learned Answer we may well imagine how Lay-men of good Births and Educations and whose Diligence employ'd in Courts and Cities and Camps abroad may have qualify'd them here to stand before Kings must necessarily aggravate in their thoughts the dishonour of incapacity to serve their Prince in secular Employments A. Was that Speech of the Archbishop ever printed B. You will find it in the Apology for the Bishops to sit and Vote in Parliament printed in London A. 1661. And he hath in that Speech some other Expressions which corroborate that obvious natural notion of the King and Kingdom being disabled by disabling of Clergy-men from secular Employments For having reflected on the Bill for disabling them from sitting in the Star-chamber and at the Council-table sitting in Commissions of the Peace and other Commâ—…ssions of secular Affairs he afterward saith But my noble Lords this is the Case Our King hath by the Statute restored to him the Headship of the Church of England And by the word of God he is custos utriusque tabulae And will your Lordships allow this ecclesiastical Head no ecclesiastical Senses No Ecclesiastical Persons to be censulted with at all No not in any Circumstances of time and place If Cramner had been thus dealt with in the Minority of our young Jâ—…sias King Edward the 6th what had become of that great work of our Reformation in this flourishing Church of England A. The truth is it being a kind of a Rule that all Men of Parts who have been liberally educated and even those excelling in mechanical professions do naturally desire to serve the King and standing before Kings having been annext in Scripture as a reward to diligence in ones calling a Mark of disability put on Lay-men to serve their Prince cannot but tempt them to passion on that account more then it ought to have troubled the Bishop when he call'd it a Caiâ—…'s Mark in regard you have mention'd it that Clergy-men to some did seem by the Law-Divine disabled from secular Employments B. According to the Opinion of Iudge Vaughan in his Reports who in Hill and Good 's Case there makes a lawful Canon to be the Law of the Kingdom as well as an Act of Parliament and whatever is the Law is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus they were by the Canon Law disabled from intermedling in secular Affairs And according to his description of malum prohibitum in Thomas Sorreâ—…'s case p. 358. you may say they were by the Statute so disabled from intermedling For he there saith malum prohibitum is that which is prohibited per le statute Per le statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case for it is said the King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with Cure which were mala prohibita by the Canon-Law and by the Council of Lateran not by Act of Parliament The Lateran Council his Lordship there means is that held under Alexander the 3d A. 1180 and which Council hath it in these words viz. neque servi neque spurii sunt ordinandi And uni plura ecclesiastica beneficia non sunt committenda And therefore the Bishop in that Speech saith That this Doctrine of debarring Persons in Holy Orders from secular Employments is the Doctrine of the Popish Church and first brought into this Kingdom by the Popâ—…s of Rome and Lanfrank Anselm Stephen Langthon and Othobone and with an intent to withdraw the Clergy from tâ—…eir receiving Obligations from either King or Lords and make them wholly dependants on the Popacy But Bishop Iewel tells us in his Apology p. 122. that Veteres Canones Apostolorum illum Episcopum qui simul Civilem magistratum ecclesiasticam functionem obire velit jubent ab officio summoveri A. Yet notwithstanding their being disabled by the antient Canons and the Nemo militans c. 2 Tim. 2. as often alledged against them by the Canons and Canonists I think they were frequently employ'd by our Princes in the greatest Offices of the State. B. They were so and the
quell'd by Prerogative Can you guess whence it is that men have imbibed this mistaken fancy B. I shall frankly tell you what I think hath occasion'd it It is most natural to all men in arguing to take the shortest course they can to bring their Adversaries to what is reputed by all to be an absurdity and there being some Disabilities that the Law-Books mention wherein Property is concern'd and wherein it appears as an absurd thing in any one who should say that they could be dispens'd with and as for Example what the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tells us of Disability where a man is not of whole Memory which disables him so that his Heir shall take advantage of his Disability after his death and where he passeth any Estate out of him it may be after his death disanull'd by his Heir and which cannot be disanull'd by himself during his life For it is a Maxim of Law That a man of full Age shall never be receiv'd to disable his own Person and for which he cites Sir E. Coke And he had before spoke of Disability by the Persons own Act which is if I bind my self that upon surrender of a Lease I will grant a new Estate to the Lessee and afterward I grant over my reversion in this Case tho I afterward repurchase the reversion yet I have forfeited my Obligation because I was once disabled to perform it Coke lib. 5. f. 21. Thus likewise it appearing to be against reason that men should be made Iudges who are under natural incapacities to exercise Jurisdiction and such as Vantius in his Book de Nullitatibus instancing in as Surdus mutus perpetuò furiosus impubes saith that quoniam defectus incapacitas istorum à naturâ ipsâ provenit ideo à quoquam etiam Supremo Principe suppleri non poterit quia etiam Imperatori tollere non licet quae juris naturalis sunt an asserting of the Power of Prerogative in dispensing with such incapacity would be absurd and it would shew somewhat of laesa Principia and of natural defects and incapacities in one who did rear Suppositions of a Prince's intending to employ such Uncapables and however nothing appearing to the first thought more ridiculous then a dispensing with incapacity of this kind many may be so apt to think that incapacities enacted by Penal positive Laws and by such Laws perhaps as were made in terrorem cannot be dispensed with But in fine when we meet hereafter I shall give occasion to both our thoughts for a higher flight then they had in that poor low Question Can the King dispense with Penal Disability and I shall shew you that where the King can as to any particular man relax the bond of his Law let the most penetrating Wisdom of Men or Angels be employ'd in the settlement and invention of the most terrible Penalties to guard the Law the Person so dispens'd with is ipso facto and ipso jure freed from them all He by being exempted from the Obligation of that Law is as innocent and free from any Sin by the transgression of it as the Child unborn The Dispensation hath intercepted all the Penalties hath absolv'd him à culpâ and therefore à paena and if you punish him you punish an innocent Person A. You will then make a happy riddance of the vexata quaestio of disability if you have not done it already B. But now Sir by WAT of RECOLLECTION as to what hath poss'd between us either at this Conference or the other if any thing occurs to your thoughts by me either obscurely spoken and which you would wish better illustrated or what may seem in the least to reflect on our Laws or on the Religion of the Church of England by Law establish'd I do most earnestly conjure you now to name it to me It is possible that for a Month or two's time we may not meet again and therefore I shall be glad that our parting now may be without any offence given or taken as to any of these Matters premised and in order to which that while what hath passed between us is fresh in both our Memories any misunderstanding therein may be prevented And I yet further give you the liberty in case any thing of the nature aforesaid or of what nature soever shall occur to your thoughts after we are parted which we have discoursed of and which you would wish better consider'd that you would when we meet again freely impart it to me and when if you can shew me that I in any thing have erred I shall shew you my readiness not to persevere therein and so we shall be both gainers you will gain the Victâ—…ry and I the Truth A. I am sure I cannot oblige you more then by making use of the freedom you have offered me as I should find occasion so to do and for which at present I find but little I was during our Discourse of the Interpretation of the Oath of Supremacy afraid that you would have leâ—…t some great words in it that relate to no Foreign Prince or â—… relate having any Iurisdiction here Ecclesiastical or Spiritual c. under some clouds of doubtfulness and thereby have seem'd to derogate from the honour of the Oath till I found that you both asserted the honour of the Oath and of the Government too by shewing it from the Sentiments of my Lord Primate Bramhal and otherwise that Coactive Iurisdiction was thereby only meant B. I must caution you with a Nota bene to keep in your mind what I have both positively and argumentatively told you in obviating your scruples about the Oath and of the Regal Power of interpreting making the Coast of the Oath so clear to you and how I have supported the honour of the English Consciences of all considerate Persons of the Church of Rome in Harry the 8th's time and of the Church of England in Edward the 6th's by shewing you that their sense of the Bishop of Rome's having here NO Iurisdiction was of no Independent Coactive Iurisdiction when they took the old Oath of Supremacy and likewise of those of the Church of England who in Queen Elizabeth's time and ever since took the new one And I need not tell you again that at the time of the making of the Statute of 37 o of H. 8. and of the Revival of it by Queen Eliz. and wherein it was declared that Archbishops Bishops c. have NO manner of Iurisdiction Ecclesiastical but by under and from His Royal Majesty both Harry the 8th and that Queen and the judicious in the Clergy of each knew that as to their Potestas Ordinis which by virtue of their Function they have to Preach and give the Sacrament and give Orders c. it was derived from Christ to the Apostles and their Successors and that so likewise was the Potestas Iurisdictionis in foro interno and that therefore none needed to suppose that either by
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